SARDAR SAID MUHAMMAD KHAN, J.-The above entitled three appeals have arisen out of two pre- emption suits filed by one Ghulam Hussain (deceased). As identical questions of law are involved in all these appeals, these are disposed by this single order.
2. Out of land comprising Survey No, 998/681 measuring 39 Kanals 13 Marlas situate in village Dhanwan, Tehsil Kotli, land measuring 5 Kanals 17 Marlars was transferred to Muhammad Hussain and Muhammad Yusuf in equal ;shares on 4-7-1962, while another sale-deed of land measuring 64 Marlas was executed in favour of Muhammad Hussain respondent, alone. The separate suits were filed by Ghulam Hussain on the ground that he was agnate and co-sharer of the vendor, Jumma, and thus had preferential right of pre-emption against the vendees. During the pendency of the suit Muhammad Yusuf, vendee, transferred his half share to Muhammad Hussain, co-vendee.
Ghulam Hussain, pre-emptor, died during the trial of the suits and his legal representatives were brought on record. The learned Sub-Judge decreed the pre-emption suit against the first sale in favour of respondents while dismissed the suit against the land measuring 65 Marlas which was transferred by subsequent sale. On appeal to the District Judge, the learned District Judge maintained the judgment and decree passed regarding first sale to the extent of half share of Muhammad Yusuf, vendee, while dismissed the suit regarding other half share purchased by Muhammad Hussain, appellant, on the ground that pre-emptor had no preferential right against Muhammad Hussain, appellant. The dismissal order of the pre-emption suit passed by the .Sub- Judge regarding land measuring 65 Marlas was maintained by the learned District Judge. On appeal to the High Court, a Full Bench was constituted to resolve the legal points involved in the appeal. The Full Bench after hearing the arguments decreed the suit of pre-emption regarding both the aforesaid sales in toto.
3. The main point which was the subject of lengthy arguments at the bar is as to whether the right of pre-emption survives to the legal heirs after the death of original pre-emptor, within the meanings of Order XXII, rule 1 of the C. P. C., and as such the suit can be continued by his legal representative after his death. Another point which is subject of controversy between the parties is that in case it is held that right to sue survives in a pre-emption suit, whether the legal representatives of the deceased plaintiff have also to prove their preferential qualifications against the vendees. The learned counsel for the appellant, Mr. M. S. Farooqi, has relied on a case entitled Nawab and 2 others v. Mst. Irshad Begum (I), wherein it has been held that right of pre-emption is not inheritable and as such does not survive to the legal heirs. In reply the learned counsel for the respondents relied on Allah Dad and another's. Hukam Dad and others (2), Muhrnmad Iqbal v.
Ghulam All Shah (3) and Mehram Shah v. Muhammad Rashia and another (4), in support of his contention that the right of pre-emption is inheritable. The view taken in Nawab and 2 others v. Mst.
Irshad Begum was overruled in case Allah Dad and another v. Hukam Dad and others. The view taken in Allah Dad's case was subsequently followed in Muhammad lqbal's case referred above.
The view that right of pre-emption is inheritable was also approved by this Court in case entitled Mehram Shah v. Muhammad Rashid and another. ,
4. Mr. M. S. Farooqui, the learned counsel for the appellants, has argued that according to `Fiqah Hanfi', right of pre-emption is not inheritable. He has contended that authorities cited by the learned counsel for the respondents show that the question of inheriting the right of pre-emption in view of the 'Fiqah Hanfi' was not considered in the said authorities. The learned counsel has further argued that as the Punjab Pre-emption Act and the Prior Purchase Act do not contain any provision regarding the survival of the right of pre-emption after the death of the pre-emptor, the question with regard to the survival of such right or for that matter the question of inheritance 'of such right should be decided according to Muslim Law as enunciated by Hanfi School of Thought and not on the principles recognized by the English Jurisprudence.
5. We have given our deep thought to the matter and we are of the view that right of pre-emption in the instant case as well as in the cases cited by the learned counsel for the parties was derived from the statute and not from the personal law on the subject. Thus, in our view, the question as to whether the right of pre-emption is inheritable is to be judged in the {{FOOT NOTE}}
(1) PLD 1953 Lah. 317 (2) PLD 1960 Lab. 900
(3) PLD 1975 Lah. 1205 (4) 1983 CLC 1 {{FOOT NOTE}} light of principle laid down in English Jurisprudence and not according to the principles recognized by 'Fiqah Hanfi'. A distinction has also been made between inheritance of such right under the personal law and the right conferred by virtue of the statutory provisions, in case entitled Mehram Shah v. Muhammad Rashid, wherein it has been observed as under :- "The distinction under the pre-emption law and Personal Law is that in pre-emption case right is heritable on account of relationship with deceased plaintiff and vendor both, whereas under'
Personal Law heritance straightaway devolves by virtue or relationship with deceased."
6. The argument that as the Pre-emption Act does not contain any provision regarding heritance of right of pre-emption, the same should be decided in the light of the 'Fiqah Hanfi' is not tenable because most of other enactments also do not contain any provision as to whether and when a specific vested right survives to the legal representatives of the parties in a civil suit ; but all the same the matter is decided in view of the principles recognized by English Jurisprudence. There is no reason that the same principle should not be applied in case of right of pre-emption ; especially so when such right has been derived from the statute and not from the personal law. The general rule is that all rights of action and all demands whatsoever existing in favour and against a person at the time of his death survive to and against his legal representatives. However, there are exceptions to the aforesaid rule such as 'right of a personal office', 'right to sue in respect of torts' and a right to apply for succession certificate etc., where right to sue does not survive. We find no reason to depart from the afore said general principle and thus we hold that right of pre-emption given by the Statute would survive to the legal representatives of pre-emptor in case of his death and the matter of survival of such right should be decided in view of the principle recognised by the English Jurisprudence and not in the light of personal law as enunciated by 'Fiqah Hanfi' or any other School of Thought.
7. The next question which needs determination is as to whether the right of pre-emption which survives to the legal representatives of a preemptor is enforceable by all the legal representatives, irrespective of the fact whether they have preferential right of pre-emption against the vendee independently. The question came up for consideration in case Muhammad lqbal v. Ghulam Ali Shah wherein following the dictum given in case of Allah Dad v. Hukam Dad, it was observed as under :- "Keeping these principles in view, it can safely be laid down that a legal representative of a person bolding a right to acquire property in preference to others (section 4 of the Pre-emption Act) is only that person from the category of the heirs of the deceased who can keep the right to acquire property in existence upto the date of the decree. If the right to acquire property in preference to others or, as Plowden, J. Calls it in Dhani Nath v. Budhu (136 P R 1894) jus and rem alienam acquirendam, is not a personal right likely to be extinguished on the death of the pre-emptor, the estate of the deceased for the purpose of pre-emption can be only the right to acquire property in preference to others. As rightly observed by Kayani, C. J., in his judgment this right has been recognised by sections 15 and 16 of the Punjab Pre-emption Act to be a vested right. The devolution of the estate to acquire property in preference to others can, therefore, be only on persons who can keep that right alive and in existence till the date of decree. Those heirs who cannot advance this object of section 4 of the Punjab Pre-emption Act, cannot, although ,heirs, be legal representatives of the deceased. ... I will, therefore adopt, most respectfully, the principle that the right of pre-emption though heritable can be inherited by only those persons who have preferential right as against the vendee either on account of ownership of land which may devolve upon them or on account of their being a nearer heir of the vendor than the vendee."
8. Again the question came up for consideration by this Court in case Mehram Shah v. Muhammad Rashid and another. The Bench consisting of Mr. Justice Raja Muhammad Khrushid Khan, A. C. J.
And Mr. Justice Abdul Majeed Mallick, J., observed as under.
"As stated above in a pre-emption case legal representative of deceased plaintiff shall mean a person or heir who too has preferential right as against the vendee either on account of his ownership of property which may have devolved upon or on account of his being a nearer heir of the vendor than the vendee. On this test of the proposition, Muhammad Hussain not being an heir of Ismail, vendor, is not a legal represented of the deceased. Failure to implead him,' therefore, would not cause proportionate or otherwise abatement of the suit."
9. It is evident from the above authorities that although the right of pre-emption survives to the legal heirs of a p e-emptor yet it is enforceable C only by those heirs who also possess preferential right against the vendee in their own personal capacity. In the instant case it has been argued that Mst. Qasim Bi, the widow of Glialann Hussain, the original pre-emptor, had no preferential right against the vendees because she was not in any way related to Jumma, vendor, and as such her position being that of a stranger, the other legal representatives have also lost their preferential right by the application of rule of 'sinker'. The reliance was placed on Saleh Shah v. Syed Zafar Ali Shah and another (1) and Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others (2). A perusal of these authorities reveals that those were cases under the N.-W. F. P. Pie- emption Act. Under section 18 of the said Act when a person having a right of pre-emption sues jointly with a person having no such right he shall lose his right ; and where a pre-emption of higher class sue jointly with the pre-emptor of lower class he shall have no higher right that. The person who he so sues. It may be observed here that there is no such provision in the Prior Purchase Act ; as such the aforesaid authorities do not support the cause of the appellant.
Moreover, in the aforesaid cases the controversy regarding the principle of `sinker' did not arise due to the substitution of the legal representatives in place of the original pre-emptor. Even if it is assumed for the sake of the arguments that rule of `sinker' is applicable to the cases under the Prior Purchase Act, it cannot be said that other legal representatives have consciously sued with Mst. Qasim Bi in the circumstances of the case because, she was arrayed in the line of the plaintiffs subsequently as one of the legal representative of the original pre-emptor, Ghulam Hussain.
Therefore, we are of the view that the Doctrine of 'Sinker' would have no application in the instant case because it cannot be said that the other legal representatives who have preferential right against the vendees consciously sued with Mst. Qasim Bi. {{FOOT NOTE}}
(1) 1983 CLC 637 (2) PLD 1976 SC 572 {{FOOT NOTE}}
10. The learned counsel for the appellant has half-heartedly argued that although Ghulam Hussain, pre-emptor, had purchased the suit land out of the land comprising survey number, out of which the sales in dispute were made, yet he purchased a specific plot by virtue of and as such he cannot be regarded as a co-sharer in the suit land. The argument advanced by the learned counsel is devoid of any 'force because a transfer by a co-sharer to any other person of the joint property would make the vendee a co-sharer irrespective of the fact whether the land transferred is a specific plot or not. In such cases the vendee steps into the shoes of the vendor and as such he is co-sharer for all practical purposes, like the vendor.
' The upshot of the discussion is that the judgments and decrees of the High Court in the above entitled appeals are amended to the effect that Mst. Qasim Bi having no preferential right against the vendee in her personal capacity was not entitled to the joint decree alongwith the other legal representatives of Ghulam Hussain. The suit land in the above entitled appeals stands decreed to the legal representatives of Ghulam Hussain except Mst. Qasim Bi, whose name shall be deemed to have been deleted from the line of the plaintiffs-decree-holders. If the pre-emption money or any part of it has not been deposited before or any part of pre-emption money already deposited is withdrawn by Mst. Qasim Bi, the same shall be deposited till 15th June, 1984, or within thirty days from any such withdrawal, as the case may be. In view of the difficult points involved in the case we make no order as to costs,