SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court dated 26-10-1995_, whereby the revision petition filed by the appellant, herein, was dismissed and the findings of the trial Court were upheld.
2. The brief facts giving rise to the present appeal are that Pooned, pro forma respondent, transferred a piece of land measuring 28 Kanals 10 Marlas alongwith his rights in ' Shamlat Deh' to Amir Dad and Hukam Dad sons of Khan Bahadur Khan through a sale-deed for an ostensible consideration of Rs.1,70,000 out of which Rs.30,000 were admitted to have been paid by Amir Dad, vendee-appellant, at the time of registration of the sale-deed. A suit of pre--emption was brought by respondent No. 1. During the pendency of the suit in the trial Court, Hukam Dad, one of the vendees, died but his legal representatives were not brought on the record. Consequently, the trial Court held that the pre--emption suit to the extent of share of Hukam dad deceased, had abated.
A revision petition was preferred by the appellant, herein, before the High Court contending that the pre-emption suit should have been declared abated as a whole and not to the extent of share of the deceased, Hukam Dad. The High Court dismissed the revision petition observing that as sale- transaction was divisible, the order of the trial Court did not suffer from any legal infirmity. Amir Dad, one of the vendees, has preferred the present appeal against the order of the High Court.
3. We have heard the arguments and perused the record. It has been contended by Raja Muhammad Siddique Khan, Advocate, the learned counsel for the appellant, that the High Court has committed an error in holding that sale transaction was divisible and, thus, the pre-emption suit shall proceed to the extent of share of Amir Dad, appellant. The learned counsel has submitted that although it is mentioned in the sale-deed in question that the suit land was sold to the appellant and Hukam Dad, deceased, in equal shares yet it cannot be ascertained from the contents of the sale-deed as to how much price of the land purchased was paid by each of the vendees. According to the learned counsel for the appellant, a sale cannot be held as divisible if the price paid by each of the vendees is not determinable even though the shares purchased by each of the vendees are specified in the sale-deed. Besides, the price of the suit land paid before the registration of the sale-deed by each of the vendees is not ascertainable and similarly, the price of Rs.1,40,000 paid before the Registrar was paid by Amir Dad, vendee-appellant, alone. Thus, the learned counsel contended that the sale transaction being indivisible, the pre-emption suit should have been held abated in toto and not to the extent of share of Hukam Dad, vendee, alone.
The learned counsel has cited following authorities in support of his contentions:-- Sultan Muhammad v. Nawab Khan (PLD 1991 SC 130), Air Ahmad v. Attaullah (PLD 1991 SC 210); Ghulam Muhammad v. Bakhsh (PLD 1991 SC 563), Muhammad Riaz v. Fateh Muhammad (PLD 1991 SC 1099) and Wazir Mead v. Abdul Aziz (1981 CLC 814).
4. It may be observed that in the abovementioned authorities, it has been observed that in case of a pre-emption suit, the question as to whether the sale transaction which was subject of pre- emption was divisible or not, would depend upon the fact as to whether shares purchased by more than one vendee and price aid by each of them is ascertainable or not. The Court expressed the view that for holding a sale transaction as divisible, not only share purchased by each of the vendees should be ascertainable but the price paid by each of them should also be determinable.
Thus, if it cannot be determined as to how much price was paid by each of the vendees for his share, the transaction cannot be regarded as a divisible transaction and the principle of sinker would be attracted in such a case.
5. Ch. Muhammad Azam Khan, Advocate, the learned counsel for respondent No.1, has controverted the proposition propounded by the learned counsel for the appellant and has relied upon a case reported as Muhammad Beg v. Muhammad Ashraf Khan (PLD 1973 Azad J & K 71), wherein it was held that if a vendee dies during. The pendency of pre-emption suit and his legal representatives are not brought on the record, the suit will abate only to the extent of deceased- vendee and not in toto, provided the pre: emptor is prepared to pay whole price for which the land was sold.
6. We have given our due consideration to the matter. According to the authorities relied upon by the learned counsel for the appellant, if the price paid by each of the vendees is not ascertainable, the transaction cannot be regarded as 'indivisible' even if the share of each of the vendees can be determined. However, in the instant case, the High Court has recorded in the impugned judgment that the pre-emptor-respondent is prepared to pay whole of the price of the suit land to be determined by the Court, including the share of Hukam Dad, deceased. The authorities cited by the learned counsel for the appellant are distinguishable because no such offer was made in the said cases. The question which falls for determination in this case is as to whether a pre-emptor is entitled to the part of the land sold in case of partial abatement of the suit, if he is prepared to pay the price of whole of the suit land, determined by the Court. The principle enunciated in the authorities relied upon by the learned counsel would be applicable to a case where pre-emption decree of the part of the suit land in favour of the pre-emptor has to be passed on the payment of proportionate value of the land decreed and not to a case where pre-emptor is prepared to pay the price of whole of land sold, actually fixed or paid. Thus, we are of the view that the question of the transaction being indivisible or otherwise would be relevant only in a case where the pre- emptor intends to exercise his right of pre-emption only on the payment of proportionate value of the land decreed and not where the pre-emptor is prepared to pay whole of the price of the land sold. We approve the principle enunciated in case reported as Muhammad Beg v. Muhammad Ashraf Khan (PLD 1973 Azad J & K 71) relied upon by the High Court. It may be observed here that when the pre-emptor is prepared to pay whole of the price of the suit land, including the share which stands abated, there is no logic in dismissing the suit merely on the ground that the price paid by each of the vendees is not ascertainable. There is no legal justification for non-suiting a pre-emptor by the application of principle of partial pre-emption in such case. If a pre-emptor is not entitled to a decree for pre-emption of whole of the suit land due to the application of principle of partial pre-emption, there is no reason as to why he should not get the decree of part of the land sold when he is prepared to pay the price fixed or paid for whole of the land sold.