' In this regular second appeal arising out of a suit, instituted by the appellant, for possession through pre-emption of land measuring 47 Kanals 11 Marlas situated in village Dedhar, Tehsil and District Gujrat, sold by her real brother Allah Ditta in favour of Nur Din son of Fateh All and Barket Ali son of Amir Bakhsh (since deceased but represented by his legal heirs, respondents No. 2 to 7, the only legal question requiring determination is whether the appellant, being the sister of the vendor, possesses superior right of pre-emption under section 15, clause (b), thirdly, of the Punjab Pre- emption Act, 1913 as against the vendees-respondent, who happen to be the collaterals of the vendor.
2. Learned counsel for the appellant has contended that since the right of pre-emption vests in the heirs in order of succession the appellant being a sharer possesses superior right of pre-emption against the vendees who are residuaries. Learned counsel for the appellant has submitted that the judgments in cases Mst. Pari v. Fazle Rabbi AIR 1945 Pesh. 45 and Muhammad Hayat v. Ghulam Murtaza PLD 1949 Lah. 53 on which reliance has been placed by the learned District Judge, while rejecting the appellant's claim of superior right of pre-emption, had considered the provisions of section 15, clause (b), thirdly, prior to the amendment made by the Punjab Pre-emption (Amendment) Act, 1955 (XI of 1955) whereby in the case of sale of land or property by a Muslim the right of pre-emption was to vesi in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the property sold.
3. Learned counsel for the. respondents, on the other hand, has contended that the appellant cannot claim superior right of pre-emption on the ground that she is a sharer and the vendees are only residuaries because in the event of succession to the property of the vendor both the appellant and the vendees are entitled to succeed simultaneously. According to the learned counsel for the respondents the amendment made by the Punjab Pre-emption (Amendment) Act, 1955 referred to by the learned counsel for the appellant has not affected the legal position and the rule of law laid down in the cases relied upon by the learned District Judge still holds good. The learned counsel has also referred to an unreported judgment of this Court in Mst. Murad Bibi v.
Abdul Razzaq (R.S.A. No. 310 of 1969) where exactly the same legal question which has arisen in the present regular second appeal was considered and after discussing the case-law on the subject it was held that since the estate of a deceased Muslim vests immediately in all his heirs on his death the sharers and residuaries do not inherit in order one after the other but simultaneously and therefore in the case of sale of property by a Muslim to the residuary a sharer is not entitled to pre- empt the sale as he had an equal but not a preferential right to acquire the property as against the vendee. In the above case reliance was placed on the two judgments referred to by the learned District Judge in his judgment in the present case.
4. In order to fully appreciate the arguments of the learned counsel for the parties it is necessary to reproduce the relevant provisions of section 15 of the Punjab Pre-emption Act, 1913:- "Section 15-- Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property.--Subject to the provisions of section 14 the right of pre-emption in respect of agricultural and village immovable property shall vest:- (a)
(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly:- firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates in order of succession; thirdly, in the persons not included under firstly or secondly above, in order of succession, but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: (Provided that in case where the sale is by a Muslim the firstly and secondly shall be inapplicable and the thirdly shall read as follows:- thirdly, in the persons in order of succession, who but for such sale, would be entitled on the death of the vendor, to inherit the land or property sold;)"
' It may be noticed that the above proviso shown in the brackets was added by the Punjab Pre- emption (Amendment) Act, 1955 and after this amendment sub-clauses firstly, secondly and thirdly are not applicable in a case where the sale is made by a Muslim as it is now governed by the newly- substituted sub-clause thirdly. The contention of the learned counsel for the appellant is that even amongst the heirs of a Muslim the right of pre-emption is to be determined with reference to the order of succession i.e. the nearer heir would exclude the more remote. According to him under the Punjab Pre-emption Act the right of pre-emption vests in the whole line of heirs of the vendor but the right inter se is determined by the order of succession. Reference in this connection has been made to the decision in Jang Bahadur Khan v. Karam Khan 1908 P L R 144. The decision of the Privy Council in Sabaz Ali Khan v. Khair Muhammad AIR 1922 P C 139 has also been cited where the provisions of clause (a) of section 12 of the Punjab Pre-emption Act, 1905, which were identical to the provisions contained in sub-clause (thirdly) of clause (b) of section 15 of the Punjab Pre- emption Act of 1913 were examined and it was observed:- "Under section 12(a) of the Act the whole line of heirs of the vendor and not merely the nearest heirs at the time of sale has the right of pre-emption in respect of agricultural land. The priority of the right between the claimants must be determined according to the order of succession."
5. According to the learned counsel for the appellant the words "in order of succession" used in the newly-substituted sub-clause (thirdly) will have to be given the same meanings as were assigned to these words in the cases decided earlier and for determining the question as to who, amongst the heirs in whom the right of pre-emption vests, possesses a superior right, it would be necessary to find who is the nearer heir who would exclude the more remote. The learned counsel for the appellant has contended that out of three categories of heirs of a deceased Muslim the sharers are the nearer heirs than the residuaries and the distant kindered. The heirs falling in the category of sharers, therefore, possess superior right of pre- emption as against the heirs, who are covered by categories of residuaries and the distant kindered.
6. There can be hardly any doubt as to the proposition that the right of pre-emption in the case of a sale of property by a Muslim has been conferred by the Punjab Pre-emption Act, 1913 on the whole line of heirs of the vendor and the principle that the near heir would exclude the more remote heir would be equally applicable in such a case while determining the question as to who, amongst the heirs of the vendors, possesses the superior right of pre-emption. It may, however, be appreciated that there are three classes of heirs of a Muslim, who are known as sharers, residuaries and distant kindered. The heirs falling in the class of sharers are entitled to a prescribed share of the inheritance while the heirs falling in the class of residuaries succeed to the residue after the claims of sharers are satisfied. In the absence of any heir covered by the aforementioned two classes the estate of a deceased passes on to the relations by blood who fall in the third class known as distant kindered. It is evident that the sharers do not inherit the entire estate of the deceased as after getting their prescribed share whatever is left in the estate, passes on to the residuaries. In other words both the sharers and residuaries inherit the estate. The principle that the nearer heir excludes the more remote is not applicable while determining the claim for superior right of pre-emption made by a sharer against a residuary, because both fall in the category of heirs who would simultaneously inherit the estate of the vendor in case of his death. However, in the case of a contest between two residuaries the aforementioned principle would be applicable inasmuch as the nearer heir would exclude the more remote.
7. The amendment made in section 15 of the Punjab Pre-emption Act by Act XI of 1955 has made no difference in so far as the interpreta tion of the words "in order of succession" is concerned. The only change brought about by the amendment is that the persons entitled to inherit the estate of the vendor, where the sale has been made by a Muslim shall be determined according to Muslim law and the rule that the nearer heir would exclude the more remote would be made applicable to the Muslim heirs, entitled to inherit, on the death of vendor, as far as possible. In the case of Mst. Pari v.
Fazle Rabbi referred to above, while interpreting the provisions of section 15(b) of the Punjab Pre- emption Act, 1913, the Court observed that in the case of a sale of property by a Muslim to a residuary, a sharer is not entitled to pre-empt the sale because he had an equal but not a preferential right to acquire the property as against the vendee. In that case the sale made in favour of a residuary was sought to be pre-empted by the sharer. It was held that the pre-emptor had an equal but not a preferential right and the rule of law that the pre-emptor has to show that he had a preferential right to acquire the property as against the vendee was not effected in any way by the promulgation of Shariat Act. As noticed above decision in the case of Mst. Pari v. Fazle Rabbi has been followed by this Court in. RSA No. 310/69. In that case also the sister of the vendor had instituted a suit to pre-empt the sale effected by him in favour of a residuary and it was held that she had no preferential right of pre-emption as the vendee was also entitled to inherit the estate of the vendor simultaneously with the pre-emptor.
8. The upshot of the above discussion is that the pre-emptor appellant has no superior right of pre- emption as she and Nur Din and Barket Ali (deceased) vendees-respondents were entitled to inherit the property of the vendor Allah Ditta simultaneously as sharer and residuaries, respectively.
The Courts below have rightly rejected the appellant's claim of superior right of pre-emption.
Consequently this appeal fails and is dismissed with costs.