MUHAMMAD FAHEEM WALI, J.-Petitioners (Muhammad Iqbal etc.) have approached this Court through instant civil Revision under Section 115 of the Civil Procedure Code, 1908, against the judgment and decree dated 13.01.2010, passed by the learned Additional District Judg-III, Haripur, whereby the appeal filed by the respondents against judgment and decree of learned Senior Civil Judge, Haripur dated 13.05.2008, was allowed and the suit was remanded back to the learned trial Court to decide the same afresh, after recording necessary evidence, if any.
2. Facts leading to filing of the instant civil revision are that Mst. Ghulam Zaitoon widow of Muhammad Afzal Khan and Mst. Chan Bibi daughter of Muhammad Afzal Khan sold their 5/8th share of the Haveli, situated at MauzaDhenda, Haripur to Muhammad Ashraf Khan and others through registered sale deed dated 11.04.1969. Said sale was pre-empted by Mst. Najam-un-Nisa daughter of AbdurRehman. The suit was contested by the defendants therein and after framing of issues and recording pro and contra evidence, the learned trial Court decreed her suit vide judgment and decree dated 24.10.1974. The defendants in the main suit assailed judgment and decree of learned trial Court through appeal. During appeal, the plaintiff was placed and proceeded against ex-parte. Vide ex-parte judgment and decree dated 30.04.1976, the appeal was allowed by the learned appellate Court and suit of the plaintiff was dismissed. Upon getting knowledge of said ex-parte order, plaintiff moved an application under Section 12(2) CPC before the learned appellate Court which was ultimately allowed on 24.11.1997 and the appeal filed by the defendants was restored. The learned appellate Court, after hearing arguments of learned counsel for the parties, allowed the appeal vide judgment and decree dated 08.12.1997 and dismissed suit of the plaintiff. The plaintiff(Mst. Najam un Nisa) assailed the judgment and decree of learned appellate Court through Civil Revision before this Court. However, during pendency of civil Revision No. 43 of 2003, the plaintiff/pre-emptor Mst. Najam un Nisa left this transient world and when her legal heirs were being brought on record, an issue cropped up between the parties as two different sets including defendants in the suit, claimed themselves to be the legal heirs of Mst. Najam un Nisa. In order to resolve such issue, this Court while setting aside the judgments and decrees of the Courts below, remanded the suit back to the learned trial Court, by specifying the issues, to be decided, after recording evidence. The learned trial Court, after recording evidence, reached to the conclusion that defendants in the main suit were the legal heirs of deceased plaintiff, and thus dismissed the suit vide judgment dated 13.05.2008. The said judgment of learned trial Court was assailed through appeal before the learned Additional District Judge-III, Haripur. Learned Appellate Court, vide impugned judgment and decree dated 13.01.2010, accepted the appeal by holding that Mst. Chan Bibi (respondent herein) was the legal heir of Mst. Najam un Nisa, therefore, remanded the case back to the learned trial Court, for re-deciding its fate. The said judgment and order of learned appellate Court has been assailed by the petitioners through instant Civil Revision.
3. I have heard arguments of learned counsel for the parties and perused the record with their valuable assistance.
4. Perusal of record reveals that the plaintiff Mst. Najam un Nisa had pre-empted the sale by filing her suit on 08.04.1970. The suit was decreed by the learned trial Court but in appeal, which was heard ex-parte, the judgment and decree passed in favour of Mst. Najam un Nisa was set at naught and her suit was dismissed. Thereafter, plaintiff remained successful in getting the appeal restored by filing an application under Section 12(2) CPC, but upon revival, the appeal was again dismissed on merits. The said order was assailed by preemptor before this Court through Civil Revision which was pending before this Court when the death of plaintiff occurred. Then the controversy changed its course to determine the issue as to who was the legal heir of preemptor Mst. Najam un Nisa.
5. Admitted position on record is that the plaintiff, through her initial suit, had sought possession of the suit Haveli by exercising her right of pre-emption. The suit was filed in the year 1970 when the Pre-emption Act of 1950 was in field in the province of Khyber Pakhtunkhwa (then N.W.F.P). The statutory law i.e. the Pre-emption Act of 1950 was not containing any specific provision, making the right of pre-emption a heritable right. Thus the moot question for determination before this Court is that "whether upon death of pre-emptor, the legal heirs can proceed with the suit filed under the ibid Act.
6. The pre-emption law is a part of Muhammadan jurisprudence and was introduced in this subcontinent by the Muhammadan Judges. It was essentially based on the sayings (Ahaadis) of {{URDU TEXT}} Two of the luminous saying (Ahaadis), out of Sahih of Al-Bukhari, are reproduced hereunder; "On the authority of Amr, son of Al-Sharid said he, I was standing by Sa'd, on of Abu Waqqaswhen there came Al-Misawar, son of Makhrama and placed his hand on one of my shoulders. Then there came Abu Rafi, the servant of the Prophet, and said O Sa'd! Purchase from me the two houses that are next to your house. Sa'd said by Allah I will not purchase them. Sa'd said, By Allah I will give you 4000 Dirhams and even that by instalments. Abu Rafi said I am already being paid 500 Dinars for them, and if I had not heard the Prophet saying that the neighbour has the greatest right on account of his being near in proximity, I would not have given you these houses for 4,000 Dirhams particularly when I am certain of getting 500 Dinars for them. Then Abu Rafi gave those houses to Sa'd.
On the authority of Abu Imran, said he, I heard Talha son of Abdullah quoting Ayisha I said O Prophet of God! I have two neighbours, to which of the two shall I sell the share first? The Prophet said to the one whose door is nearer to yours."
7. In Vol. I of Muhammad Law, compiled by Syed Ameer Ali, it is provided that "According to the Hanafi Law the right of pre-emption is a personal right and does not survive to the pre-emptor's heirs. Of course, if they are themselves entitled to claim the right, they stand on a different footing." Similarly, section 352 of the Muhammad Law by Tyabi 3rd Edition provides that "under the Hanafi law the right of pre-emption is extinguished where the pre-emptor dies before enforcing it by suit, even if he has made the two preliminary ceremonies."
8. Coming to the case in hand, a similar situation came up before the honourable Supreme Court of Pakistan in the case of "Aziz urRehman Vs. Muhammad Nawaz"(PLD 1988 SC 384) where leave to appeal was granted by the apex Court to consider whether the "decision of holding the right of pre-emption to be inheritable is neither in accordance with the Muslim law of pre-emption nor the N.W.F.P. Pre-emption Act, 1950 recognizes any such right, and that the right of a person to sue for pre-emption is a simple personal right." It was observed by the apex Court in the ibid case that "Sections 11 and 12 of the N.-W.F.P. Pre-emotion Act declare the right of pre-emotion to vest in certain persons at the time of sale. Therefore, a pre-emptor who had no right on the date of sale cannot improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by- inheritance could not vest him with superior status after the accrual of cause of action." On the basis of analysis of case law on the subject, the honourable apex Court, arrived at the conclusion that since at the time of sale, the pre-emptor was not having any right on the basis of which, he could file a preemption suit, therefore, upon death of his father, he could not have improved his right on the basis of inheritance. It was thus finally held that; "For the reasons given above, the pre-emption suit must fail as the respondent lacked the necessary qualification on the date of sale."
9. Thereafter, in the case of "KhudaYar through Legal heirs and 10 others Vs. Ghulam Muhammad and another" reported as 1999 SCMR 1808, the honourable apex Court though concurred the judgment rendered in the case reported as PLD 1988 SC 384, by observing that in the province of KPK, the right of preemption was not heritable, however, to the extent of province of Punjab, it was concluded that; "Our conclusion, therefore, is that under the Punjab Pre-emption Act, 1913, the right of pre-emption, after due suit for the same has been instituted, was found judicially to be heritable but not transferable. Such was a further development of the view expressed in the Full Bench case of Faqir Ali Shah v. Ram Kishin, 133 PR 1907, where the heirs and successors of a deceased landholder in a village succeeded in pre-empting successive sales even though neither their predecessor had made any Talab nor instituted the relevant suit in his lifetime."
10. The judgment delivered in the case of KhudaYar supra was revisited by the august Supreme Court of Pakistan in the case of "Nazir Hussain and others vs. Muhstaq Ahmad (deceased) through legal heirs and others (PLD 2010 SC 1048)" and it was held by the august Supreme Court of Pakistan that; "As has been noticed above, the learned counsel for the appellants had questioned the impugned judgment of the High Court submitting that the facts of Malik Ghulam Nabi's case ibid were distinguishable from the facts and circumstances of the present case on account of the relevant law in the Province of Balochistan being un-codified and further that the judgment of this Court in KhudaYar's case ibid supported his stance. We asked the learned counsel to point out any provision or principle of law which had prevailed with the three Hon'ble Member Bench of this Court deciding the said KhudaYar's case on the strength of which it had been declared that in the Province of Punjab the right to sue in a pre-emption matter, survived the death of the pre-emptor.
He could not offer any satisfactory answer to the said query and submitted only that the law of pre-emption in the Province of Punjab was a codified law. We then asked him to point out any provision in the law of pre-emption as existing in the Province of Punjab i.e. the Punjab Pre- emption Act of 1913, which was the relevant law at the time when the sale in question had been pre-empted by Ghulam Muhammad and which would have declared that the right to claim possession through pre-emption would survive the pre-emptor but he could not do the same and rightly so because no provision existed in the said Act of 1913 which had so provided. This being so, the matter in issue i.e. the right of preemption being heritable, the situation in the Province of Punjab was at par with the one obtaining in Balochistan because to the said extent even in the Province of Punjab no codified law existed. As has been noticed above, a five Member Bench of this Court in Ghulam Nabi's case; another five Member Bench of this Court in the case of Muhammad Younas v. Khushal (1989 SCMR 69) and the two Member Bench of this Court in the case of Muhammad Ishaq, had declared that the right of pre-emption was not a heritable right and got extinguished with the death of the pre-emptor. As has been observed above, to the said extent in issue, the case of pre-emption suits in the Province of Punjab was at par with the cases arising out of the Province of Balochistan. Consequently, we hold that no exception could be taken to the impugned judgment of the Lahore High Court."
11. As earlier said, in the case in hand, the applicable law is the Pre-emption Act of 1950 and the same does not contain any provision, providing that the right of pre-emption would be heritable.
Thus in absence of codified law, the principle of Islamic Law would apply as held by the august Supreme Court of Pakistan in the case of "Muhammad Younas vs. Khushal" (1989 SCMR 69) and "Malik Ghulam Nabi and others vs. Member III, Board of Revenue and 5 others"(PLD 1990 SC 1043). The question of heritability of right of pre-emption, as per provisions contained in the Punjab Pre-emption Act, 1913 and Khyber Pakhtunkhwa Pre-emption Act, 1950, has finally been determined by the august Supreme Court of Pakistan, in the case of "Muhammad Yousaf alias Yousaf Ali through LRs and others Vs. Talib Hussain and others" reported as 2012 SCMR 1185 and after discussing the relevant law on the subject, it was held by the apex Court that; "Having discussed the case-law referred to above, we find that on the very point as to whether the suit of pre-emption on the demise of the pre-emptor could not be continued by his legal heirs, such question has been adverted to by five Member Bench of this Court twice once in the case of Muhammad Younus and secondly in the case of Malik Ghulam Nabi, where it was categorically held that in the absence of codified law on the subject, the principle of Islamic Law will govern the case, which does not provide pre-emption right to be inheritable. This very aspect of the case was directly considered in the case of Nazir Hussain, where it was noted that there are two five Member Bench cases in the field directly dealing with the question of heritability of right of preemption by the legal heirs of the pre-emptor who dies during the pendency of the suit and it was noted that on principle of Islamic Law, there was no heritability of such right and that being a law in the field, the same was followed and the question was answered accordingly.
Before us also only question of heritability of right of pre-emption by the legal heirs of the pre- emptor who died during the pendency of the pre-emption suit is under consideration and the same in terms of the law laid down in the case of Muhammad Younus, Malik Ghulam Nabi and Nazir Hussain stands settled that the legal heirs will have no right to continue with the pre- emption suit on the death of pre-emptor during the pendency of pre-emption suit."
12. In the light of aforementioned case law on the subject, the position has now become very much clear that the Pre-emption Act of 1950 was short of any provision, qua its devolution on the heirs of pre-emptor and in the absence of codified law on the subject, the principles of Islamic Law would deal the situation. As per Islamic Law, the right of pre-emption is not heritable. The reason for declaring the right of pre-emption to be not heritable, is that the death of the pre-emptor extinguishes ownership of his property which is necessary to give rise to the claim of pre-emption.
It cannot continue because due to his death, he no more remains owner in the property, on the basis whereof, he claims his right of pre-emption. So far as the heirs of preemptor are concerned, their right in the property devolves upon them after death of their predecessor and since they were not owners at the time of sale under pre-emption, they would not be able to inherit such right from their predecessor. Therefore, the question for determination before this Court i.e. "whether upon death of pre-emptor, the legal heirs can proceed with the suit filed under the Pre-emption Act of 1950" is answered in negative. It is held that under the Pre-emption Act of 1950, the right of pre- emption gets extinguished upon demise of the pre-emptor and the legal heirs would have no authority to continue with the pre-emption suit thereafter.
13. Learned counsel for the respondents, while relying on the judgments of honourable Lahore High Court in the case of "Noor and others vs. Mst. Sattan through Legal Representatives and others" reported as PLD 2013 Lahore 30 and "Barkat Hussain through LRs Ys. Muhammad Aslam and 4 others" reported as 2015 YLR 2029, tried to wriggle out of judgment of august Supreme Court of Pakistan in the case of Muhammad Yousaf Supra. In the judgments, relied upon by the learned counsel for the respondents, the observations of the honourable Lahore High Court are almost identical. The findings recorded in the case reported as 2015 YLR 2029, are reproduced for ready reference; "The right of pre-emption runs with the land and is not personal initially, however, turns out to be personal for the purpose of its enforceability in a court of law right from time of sale of property till the date of decree in favour of the plaintiff and during this period, i.e prior to the passing of the decree, the said right is neither transferable nor inheritable. If pre-emptor dies before obtaining a decree in his favour in the trial Court as the case may be, the appellate or revisional court, his right of pre-emption shall remain exclusively personal and shall not survive to his heir. However, when the decree is passed in his favour then the right becomes a proprietary one and is not only capable of being transferred but also inherited."
14. Learned counsel for the respondents submitted that since the suit of pre-emptor Mst. Najam- un-Nisa was initially decreed in her favour, therefore, her right became proprietary one and was thus capable of transfer as well as hereditary. Such submission of the learned counsel was found misconceived on two counts. Firstly, for the reason that at the time of death of pre-emptor Mst.
Najam-un-Nisa, no decree was existing in her favour and thus her right was not matured by then and secondly, it has been well settled by the august Supreme Court of Pakistan in the case of Muhammad Yousaf supra that Islamic Law does not provide pre-emption right to be inheritable.
15. It is also pertinent to mention here that the issue raised before this Court in the instant Civil Revision pertains to the determination of legal heirs of pre-emptor Mst. Najam un Nisa, but since the main suit was in respect of pre-emption and as per findings rendered in the preceding paras, it has been held that said right is not a heritable right, therefore, it would make no difference if any of the party is declared as legal heir of pre-emptor Mst. Najam un Nisa for the purpose of present proceedings, because none would be able to continue with the suit.
16. Accordingly, for the reasons stated above, the suit filed for enforcement of right of pre-emption would be incapable of further proceedings due to death of pre-emptor, therefore, the same stands dismissed. This revision petition stands disposed of accordingly.