This is revision petition by Ahmad Hussain unsuccessful pre-emptor. Necessary background giving rise to the present petition is that one Haider Ali Khan owned agricultural land measuring 63 Kanals and 10 Marlas in Jhoke Hassan Khan Tehsil and District Leiah. He sold the same for a total - consideration of Rs. 10,000 to the respondents through sale-deed dated 3-10-1978. The petitioner filed the suit to pre-empt the sale on 2-10-1978. He claimed that he had superior right of pre- emption being Khewatdar, collateral and co-sharer. The respondents resisted the suit mainly on the ground that plaintiff /petitioner was neither collateral nor Khewatdar ondate of sale. Therefore, he did not fulfil the basic qualifications to maintain the suit for pre-emption. The learned trial Court in view of the pleadings of the parties framed the following issues:- (1)Whether the plaintiff has superior right of pre-emption qua the vendee defendants? OPP.
(2)Whether the ostensible sale price of Rs.10,000 was fixed in good faith or actually paid? OPD.
(3)If not, what was the market value? O.P. Parties.
(4)Whether the vendees are entitled to get the incidental charges? If so how much? OPD.
(5)Whether the suit is for partial pre-emption? OPD.
(6)Whether the suit merits dismissal in view of preliminary objection No.l of the written statement?
OPD.
(7)Relief .
2. The parties led their respective evidence and the Trial Court after hearing the arguments decreed the suit vide judgment and decree, dated 2-6-1984. The respondents impugned this judgment and decree through an appeal in the Court of District Judge, Leiah. The finding of the Trial Court was mainly challenged on the ground that right of pre-emption is not heritable.
Therefore, the plaintiff could not maintain the suit. The objection was upheld. The appeal was accepted and as a result thereof suit of the petitioner was dismissed vide judgment and decree dated 11-10-1984.
3. The petitioner has impugned the judgment and decree of the lower appellate Court and prayed for restoration that of the trial Court. The petition was admitted to hearing and notices were issued to the respondents, who have entered appearance through their Advocate and contested the revision.
4. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondents. The learned counsel for the petitioner has argued that the right of pre-emption is clearly heritable and the lower appellate Court was wrong to upset the finding recorded by the lower Court in this behalf. The learned counsel for the petitioner in this behalf has referred to the case of Faqir Ali Shah v. Ram Kishan and others 1907 P R 636, Allah Dad and another v. Hukam Dad and others PLD 1960 Lah. 900 and Muhammad Nawaz v. Azizur Rehman and another PLD 1984 Pesh. 244.
5. On the other hand, learned counsel for respondents has argued that the controversy as to whether right of pre-emption is heritable or not stood resolved with the decision of Hon'ble Supreme Court in the case Aziz-ur-Rehman v. Muhammad Nawaz and others PLD 1988 SC 384.
The same principle was confirmed by the Hon'ble Supreme Court in the case of Muhammad Younis v. Khushal 1989 SCMR 69. One can further refer to the decision of this Court in the case of Abdul Khaliq v. Abdul Ghani PLD 1969 Lah. 249 and decision of Hon'ble Supreme Court in case of Akram v.
Mst. Sakina Begum and another PLD 1984 SC 334.
6.I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the precedent cases as well as the record of the revision petition. I would like to refer to some facts, which will help to understand the legal proposition clearly.. The sale was effected on 10-10-1978, as already noted, but at the relevant time, the petitioner was neither co- sharer nor Khewatdar because his father was still alive. Muhammad Bakhsh the father of the petitioner died on 3-8-1979 as is evident from Exh. D.4 and the mutation of inheritance was sanctioned on 30-12-1981 which is Exh. P.4. The defence of the respondents was that in order to succeed in a suit for pre-emption, the plaintiff should possess the qualifications on the following 3 stages:- (i)Date of sale; (ii)At the time of the institution of the suit; and (iii)At the time of the decree of the suit.
Since the plaintiff /petitioner became owner on 30-12-1981 when mutation in his name was sanctioned, therefore, he lacked prerequisite qualifications at two material stages namely, date of sale and date of suit. The defence plea of the respondents is partially correct. The legal position under the Mohammadan Law is that inheritance opens immediately on the death of ancestor.
Sanction of mutation is only an executive step to give effect to the law of inheritance. Therefore, there is .No merit in the defence plea that the petitioner became owner in the estate after sanction of mutation on 30-12-1981. The A legal position is that petitioner became owner in the estate immediately after the death of his father on 3-8-1979. This way whole controversy boils down to the point whether right of pre-emption, which accrued to Muhammad Bakhsh was inherited by the petitioner and he can maintain the suit on the same cause of action. The learned counsel for the petitioner referred to the case of Faqir Ali Shah which is basic case law on the point. Same was followed by this Court in case of Allah Dad. The same principle was followed in the case of Muhammad Nawaz by Peshawar High Court whereby appeal of the pre-emptor was accepted and his suit was decreed. The vendees impugned this judgment in the Supreme Court and leave to appeal was granted to them to consider the following point:- "Whether the "decision of holding, the right of pre-emption to be inheritable is neither in accord 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."
7.The appeal was ultimately accepted The relevant portion of the judgment reads as under:- "In Civil Revision No.115 of 1978, decided by a learned Single Judge of the Peshawar High Court, Peshawar, titled as Muhammad Younis v. Khushal, where the same question was involved, it was held that the pre-emptor must possess the right or the date of sale relying on the decisions Abdul Khaliq v. Abdul Ghani PLD 1969 Lah. 249, Faiz Muhammad v. Fajar Ali AIR 1944 Lah. 172 and Chhajju v. Jai Dayal AIR 1947 Allahabad 297. Abdul Khaliq's case was approved by this Court in. Akram v.
Sakina Begum and another PLD 1984 SC 334.
Sections 11 and 12 of the N.-W.F.P. Pre-emption Act declare the rights of pre-emption to vest in certain persons at the time of sale. Therefore, a pre-emptor who had no right on B 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.
Section 6 of the N.-W.F.P. Pre-emption Act specifically lays down that the right of pre-emption shall exist subject to the provisions and limitations contained in the Act. Therefore, it is not possible to examine the question in the light of Mohammedan Law beyond the text of the Act itself. There is, however, a reported case Muhammad Ismail v. Abdul Rashid (AIR 1956 Allahabad 1) in which the question was also examined in the context of Muhammadan Law (Hanafia School), and it was held that the right of pre-emption does not survive to the heirs if the pre-emptor dies before obtaining decree in his favour. In this connection, it will be interesting to note the following observations: 'Although the right of pre-emption runs with the land and is not initially personal, it assumes a personal aspect for the purpose of enforceability in a Court of law. From the moment of the sale in favour of the stranger till the date of the decree in favour of the pre-emptor, the right can be enforced only by the person who was the owner of the pre-emptive property on the date of the sale of the property sought to be pre-empted. During this interval, the right is attached to the person or the owner of the pre-emptive property and he alone can enforce it in a Court of law. The right continues to be personal to him so long as a decree is not passed in his favour. During this interval, the right is neither transferable nor heritable. But as soon as a decree is passed in his favour the right ceases to be personal and becomes a proprietary right fit to be transferred as well as to be inherited.' The learned counsel relied on Hassan Muhammad v. Muhammad Hussain PLD 1977 Azad J & K 40 but I find nothing in support of the proposition that the right of pre-emption is heritable. The Court has held that under the Hanafi Law it is not heritable while under the Shafei Law the right of pre-emption is heritable and that it is permissible to follow the Shafei Law on the point.
As I have already said that the right is subject to the text of the Act, the matter cannot be adjudged on this basis. "For the reasons given above, the pre-emption suit must fail as the respondent lacked the necessary qualification on the date of sale."
8. It will be seen that their Lordships of the Supreme Court approved the decision of this Court in Abdul Khaliq v. Abdul Ghani PLD 1969 Lah. 249 and decision of Peshawar High Court in the case of Muhammad Younis v. Khushal. In the Peshawar case, the pre-emptor filed an appeal in the Supreme Court, which was dismissed by their Lordships in view of the decision of the case of Azizur Rehman. The decision in the case of Muhammad Younis v. Khushal is reported as 1989 SCMR 69.
9. Therefore, respectfully following Hon'ble Supreme Court hold that right of pre-emption is not heritable and petitioner could not have sued on the basis of cause of action, which had accrued to his C father but the same was not utilized by him.
10. The result is that I do not find any merit in this revision petition and dismiss the same. However, there is no order as to costs.