1. NASIM HASAN SHAH, J.--This appeal, with the leave of this Court, is directed against the judgment and order of the Lahore High Court, dated 4-11-1978 passed in R.S.A.No.880 of 1978.
2. The relevant facts are that Kemal Khan, father of the appellant, sold land measuring 28 Kanals 18 Marlas situated in village Karor, Tehsil Murree, District Rawalpindi to the respondents on 7th May, 1971, as per Mutation No. 457. He had no male issue. The appellant/ plaintiff, who was the daughter of Kemal Khan, pre-empted the said sale on the footing that she had a superior right than the respondents, who were claiming to be his reversioners.
3. On 12-3-1973 during the pendency of the suit Kamal Khan died and the mutation of inheritance was sanctioned on 29-9-1973 wherein the respondents were excluded from inheritance by the other reversioners who were the collaterals of the deceased. Notwithstanding, the suit of the appellant was dismissed by the Civil Judge, Murree, vide his order, dated 31-3-1976 as he negatived the crucial issue between the parties, namely, whether the plaintiff had a superior right of pre-emption.
4. The case of the respondents was that they being the collaterals of the vendor on the date of the sale they had a right to pre-empt irrespective of the fact whether they were ultimately found eligible to his inheritance.
5. The plaintiff /appellant filed an appeal against the judgment and decree of the learned Civil Judge before the Additional District Judge, Rawalpindi. During the appeal proceedings, she also submitted an application seeking permission to produce the copy of the mutation of the inheritance pertaining to Kamal Khan in order to show that the respondents did not get any share in the property left by the deceased. The production of the copy of the mutation was opposed by the respondents on the ground it would not advance the appellant's case and was, therefore, not relevant. The learned Additional District Judge agreed with this view and rejected the application on the ground that the superior right of the plaintiff was not to be adjudged by seeing whether the respondents were found eligible under the mutation of inheritance, because the controversy was to be decided on the premise of a legal fiction, namely, whether the respondents could have inherited anything if the deceased vendor had died on the date on which the sale was made and not by reference to the fact that the respondents had actually inherited any share in his property on his death. This view was upheld by the High Court. Hence this appeal.
6. The decision of this case rests on the true construction of section 15 (b) of the Punjab Pre-emption Act. This provision to the extent relevant is re-produced below:- S. 15.-- Subject to the provisions of section 14 the right of pre-emption in respect of agricultural land 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, who, 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;'
7. Fourthly, in the co-sharers.
8. The Courts below relying on certain judgments, namely, Muhammad Ali Khan v. Mst. Zewar-un-Nisa AIR 1942 Pesh. 22 and Mat. Shahzad Bibi and others v. Gulzar Khan PLD 1973 Lah. 878 held that the controversy had to be decided on the premise of a legal fiction enunciated in the above-cited cases and not by reference to the circumstance that whether the respondents had actually inherited on the death of the vendor.
9. It has been contended before us that the words "would be entitled on the death of the vendor to inherit the land or property sold" in clause thirdly of section 15(b) of the Punjab Pre-emption Act, 1913 cannot be construed to place a person who might be a residuary but had been actually excluded from inheritance at par with a sharer; hence the question could not have been decided on the basis of a mere legal fiction but on the basis of the true and exact situation.
10. On examination of this submission we find that it cannot succeed. We note that after this Court granted leave to appeal in this case on 11-2-1979, the question in issue came up for consideration in Jalal Din v. Saeed Ahmad and was decided on 17-6-1979 (the judgment is reported as PLD 1979 SC 879). The following extract thereof may here be quoted with advantage:- "Moreover, the point raised loses sight of the words "in order of succession" which, in the situation which is being examined., will mean that under Islamic Law if there is a contest between "sharers" or in a given case some "sharers" or some "residuaries", who, for example, succeed simultaneously and no one excludes the other and each succeeds up to the extent of his share, then, as the order of the succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre-emptor and the vendee are heirs of the above categories. However, if the vendee is an utter stranger, then the whole body of heirs, failing them to or more thereof, and failing them any individual or a class or a group can sue for the whole bargain. This position is made clear by section 13 of the Act itself which is headed as "Joint right of pre-emption how exercised" and states that-- "whenever according to the provisions of this Act. a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and, if not exercised by them all jointly, by any to or more of them jointly and, if not exercised by any to or more of them jointly, by them severally, i.e. Individually."
11. This is so, because, the right is to vest in the persons concerned "in order of succession" which simply means the order in which persons interset would be entitled to inherit. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship". The order of succession is to be determined with reference to the Personal Law of the parties and when that has been determined the person entitled to succeed in order of succession is the person first entitled to pre-empt. If the nearest in order of succession does not seek to pre-empt, then, the person next in succession may do so until all the heirs in succession are exhausted. A study of the history of Pre-emption Law in the Punjab will show that the present section 15, so far as relevant for the discussion of the point in hand is concerned, is based on Karim Bakhsh and others v., Jehandad Khan and others 74 P R 1906, where it was held that the expression " in the order of relationship!' which was the term then existing in section 12 (b) of the Punjab Laws Act IV of 1872 had no reference to degree of propinquity but was equivalent to "order of succession" in cases of landed property. In that case, under custom, the plaintiff was 4 degrees removed from the vendor, the vendee 6 degrees, but their rights of succession were identical and it was held that they had equal right to pre-emption. Then came Jhang Bahadur Khan v. Karam Khan and others (1908) 21 P R 132 on those very lines which was approved by the Privy Council in Sabz Ali Khan v. Khair Muhammad Khan ILR 3 Lah. 48."
12. In view of this clear enunciation of the law this appeal cannot succeed. It is, accordingly, dismissed hereby, leaving the parties to bear their own costs.