SHAFIUR RAHMAN, ACTG. C.J.---The petitioners who are the vendees in a pre-emption claim, seek leave to appeal against the judgment of the Lahore High Court Bahawalpur Bench dated 18-11-1990 whereby their Regular Second Appeal was dismissed.
2. The petitioners who are three brothers purchased the disputed property on 26-7-1974. Of these, one of the brothers had equal right with the pre-emptor but the others had not. The pre-emption suit was instituted on 24-7-1975. The two brothers who had no right to compete with the pre- emptor transferred their interest in favour of the brother who had such a right on 24-1-1976. They wanted to avoid the pre-emptive claim on the ground that section 21-A of the Pre--emption Act had not been extended to Bahawalpur and was no bar to their claim and that doctrine of lis pendens did not apply to pre-emption claims. This plea did not succeed.
3. The doctrine of lis pendens applies to pre-emption claims except in one situation where the sale by the vendee is to one who has a superior right of pre-emption. This exception to the rule of lis pendens finds recognition in many cases including Bakhshan and others v. Haji and others (PLD 1954 Baghdad-ul-Jadid 48) and Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lah. 171). A person can be said to have a superior right of pre-emption in recognition of which a sale can be made to him only within the period of limitation when such right can be exercised. If the right is lost by lapse of time, then the sale to such a person could not be in recognition of his superior right of pre-emption but would be as bad as to a stranger. On that principle the resale by the two vendees would not stand in the way of the pre-emptive claim of the respondents.
4. As regards the divisibility of the sale in favour of the petitioners, an authoritative decision has already been given by this Court that where the share is specified but the money is not apportioned in respect of each share, the sale remains intact and cannot be held to be divisible.
5. No case is made out for our interference and leave to appeal is refused.