' This civil revision arises out of a suit for pre-emption filed by the petitioner and the only question for determination is whether the petitioner has been able to establish a right superior to that of the respondent to claim the land in dispute.
2. The following pedigree-table will help in resolving the controversy:- Shahab Din ___________________________ | ______________________ Muhammad DinNazar HussainBagga (vendor)(petitioner pre-emptor)
Muhammad Bashir (respondent-vendee)
' As indicated in the table the land was sold by Nazar Hussain in favour of Muhammad Bashir, respondent, while the suit was brought by Bagga, petitioner. The trial Court held that as brother of the vendor the claim of the petitioner was superior to that of the respondent. Accordingly, it decreed the suit. Oh the other hand, the learned Additional District Judge thought that under the Hanfi Law of Inheritance Bagga as brother was a sharer and Muhammad Bashir as nephew was a residuary with reference to Nazar Hussain. He then went on to say that as a sharer and a residuary stood on the same footing the petitioner could not claim a superior right of pre-emption for himself. Accordingly, he accepted the appeal, set aside the judgment and decree of the learned trial Court and dismissed the suit.
3. The view taken by the learned Additional District Judge with regard to the status of the petitioner and the respondent is clearly unsustainable and against the accepted rules of Hanfi Law of Inheritance. Under the said law, in the presence of the brother, a brother's son has no right to succeed for the remoter in blood is excluded by the nearer in blood. He was thus wrong in describing the brother as a sharer and the brother's son as a residuary. In fact in the table of residuary given by Mulla in his Principles of Ma homed an Law, A (1975-Edition), a brother is listed much higher than a brother's son in the order of succession. I am, therefore', unable to sustain his finding that in the matter of succession the petitioner and the respondent stood on the same footing. In fact as already pointed out in the presence of the petitioner, the respondent will not succeed at all to the property of Bagga. That being so the petitioner must be held to have a superior right of pre-emption. Consequently, I set aside the judgment and decree of the learned Additional District Judge and restore those of the learned trial Court. There will be no order as to costs.