1. ' WAJIHUDDIN AHMED, J.---In these matters, one an appeal and the other a leave petition, if not common at least similar questions are involved. The cases, therefore, are decided through this common order/judgment.
2. ' As regards the civil appeal the disputed land, ad-measuring 10 Kanals, situated at Mauza Kuffri in Tehsil Khushab, was sold by its owner, Muhammad Yar, to his nephew/son-in-law Ghulam Muhammad on 29-8-1967. Mst. Zeenat Khatoon, daughter of the vendor and wife of the vendee, pre-empted the sale and so did Khuda Yar, a brother of the vender, the two suits coming to be consolidated and tried together. During the pendency Khuda Yar died and his legal representatives were brought on record. The trial Court dismissed the suit of Mst. Zeenat Khatoon but decreed that of the successors of Khuda Yar on 29-10-1969. The two decrees were challenged in appeal but both the appeals were dismissed on 4-3-1970. This led to filing of two separate regular second appeals before the High Court where the appeal of Mst. Zeenat Khatoon was dismissed but that of Ghulam Muhammad, .Her husband and vendee was allowed on the ground that upon the death of Khuda Yar, his heirs and Ghulam Muhammad, the vendee, had equal rights and, therefore, the former could not enforce the claim of pre-emption.
3. Against the judgment of the High Court, dated 14-3-1993, leave was granted in this Court to consider whether it signified anything that the successors of Khuda Yar were not asserting any right of their own but, as a result of succession, were pursuing that of Khuda Yar, as a superior Pre- emptor. Leave was also granted as there appeared to be no authoritative pronouncement of this Court on the point.
4. ' In civil petition for leave to Appeal No,1159 of 1998 the disputed land, viz. 18 Kanals and 19 Marlas, situated in village Dhullian, Tehsil Pindigheb, District Attock, was purchased by Mian Muhammad, petitioner, from Karam Hussain, per sale-deed dated 20-9-1978. To pre-empt this sale one Syed Noor Badshah filed a suit on 15-9-1979, the claim being based on the premise that the pre-emptor was collateral of the vendor. During the pendency of the suit Syed Noor Badshah died and his heirs were impleaded. An objection was raised that such heirs of the deceased pre-emptor had no preferential right against the vendee. The learned Civil Judge, however, decreed the suit on 5-5- 1983. An appeal was preferred by the vendee but the District Judge, Attock, dismissed the same on 11-11-1985. The matter was then taken up in revision before the Lahore High Court at its Rawalpindi seat. There, placing reliance on an order of this Court, dated 5-5-1991, in Civil Review Petition No,43 of 1991 in Civil Appeal No, 378 of 1988, whereby rights of per-emption were held to be heritable, the civil revision was dismissed on 26-6-1998, giving rise to the petition for leave, abovereferred.
5. ' Rights of pre-emption are governed by statutory law in the Provinces of the Punjab and N.-W.F.P.
6. Whereas in Balochistan such rights are to be decided in accordance with Muslim Law.
7. ' In Ghulam Nabi v. Member III. B.O.R., PLD 1990 Supreme Court 1043, a case emanating from the Balochistan jurisdiction, it has been held, following the tenets of the Hanafi Fiqh, that, upon the death of a pre-emptor, the right to sue is extinguished and the suit cannot be prosecuted or continued by the preemptor's heirs. However, we have found it mentioned in Azizur Rehman v.
8. Muhammad Nawaz, PLD 1988 Supreme Court 384, that in Azad Jammu and Kashmir, per Hassan Muhammad v. Muhammad Hussain, PLD 1977 Azad J&K 40, it having been conceded that under the Hanafi Law the right of pre-emption was not heritable, recourse was found permissible and had to the Shafei Law which opines such rights to be heritable, but, subject to other restrictions.
9. ' So far as the Province of N.-W.F.P. Is concerned, under the North-West Frontier Province Pre- emption Act, 1950, this Court in Azizur Rehman v. Muhammad Nawaz, PLD 1988 Supreme Court 384, found that such statute did not postulate pre-emption right to be heritable and that the same, under the statutory dispensation, was a mere personal right, co-extensive only with the life span of the pre-emptor, the only exception being furnished by a case, where the pre-emptor, having duly instituted his suit, lived to pursue it till the passage of a decree at the trial. The position, however, has altered pursuant to the promulgation of the North-West Frontier Province Pre-emption Act, 1987, which repealing the 1950 statute, per section 16 thereof, makes the right of preemption heritable in all circumstances where a pre-emptor had died after making any of the demands contemplated by section 13 of the same Act. The right, however, still remains otherwise non- transferable and indivisable.
10. ' In the Punjab, till lately, it was the Punjab Pre-emption Act, 1913, the successor of a 1905 legislation of the same name, which was operative. Under that enactment a number of decisions have come to occupy the field. Here, however, only Nawab v. Irshad Begum PLD 1953 Lahore 317, Allah Dad v Hukam Dad, PLD 1960 Lahore 900, Muhammad Iqbal v. Ghulam Ali PLD 1975 Lahore 1205, and the above cited order of this Court in review in the case of Mst. Zainab Khatoon and others v. Tahir Mehmood and others may be noticed. The leading decision on the question is that of the Lahore High Court in Re Allah Dad.
11. ' Intending to discuss Nawab v. Irshad Begum in course of time, we would straightaway proceed to exaimine the implications of Allah Dad v. Hukam Dad, a Full Bench decision of the Lahore High Court. It arose with a reference by C.M. Sharif, J., pursuant to which the matter was placed before a Division Bench, comprising Kaikaus and Qadeeruddin Ahmed, JJ. Since, however, there emerged a difference of opinion between the members of the Division Bench, so constituted, Kayani, CJ., in order to resolve the problem, had the case placed before a Full Bench, comprising of himself and the two differing Judges of the Division Bench. In the result, Kayani, CJ., and Kaikaus, J., held the right of pre-emption heritable in the Punjab whereas Qadeeruddin Ahmed, J., took a contrary view.
12. It is clear that the 1913 statute, while it recognised a right to pre-empt a vested one, did not expressly make the same heritable and that it was on examination of general principles that the right was so described in the majority view. Besides, while Qadeeruddin Ahmed, J., adverted to the Hanagi doctrine qua pre-emption, which denies heritability of the right, as the basis of the 1913 statute, Kayani, C.J.', found no such clear linkage and adverted to heritability under the precepts of Shafei and Shia Fiqhs. As it turns out and as seen, this Court in Azizur Rehman v. Muhammad Nawaz. PLD 1988 Supreme Court 384, in similar circumstances, qua theNorth-West Frontier Pre- emption Act, 1950, has taken a different view holding pre-emption rights as non heritable under that legislation. Be that as it may, it is for nearly four decades that the view in Re Allah Dad has held the field and, besides, the 1913 statute itself has now been overtaken by another, expressly making pre-emption heritable. No successful purpose, therefore, would be served by delving into the questions, as aforementioned, and it would be conducive to the principles of certainty and continuity in judicial dispensation to leave the enunciation in Re Allah Dad undisturbed. There is another reason for doing so. This Court in the review case of Mst. Zainab Khatoon and others v.
13. Tahir Mehmood and others, (Civil Review Petition No,43 of 1991 in Civil Appeal No, 378 of 1988) has approved the opinion in Re Allah Dad though only upon distinguishing the case of Azizur Rehman v.
14. Muhammad Nawaz.
15. ' Even so, the majority decision in Re Allah Dad (ibid). Does not make a pre-emption right heritable in absolute terms. Combating the difficulties, expressed by Shabbir Ahmed, J., in Nawab v. Irshad Begum above, where the right, if founded upon relationship with the vendor, was found by Shabbir Ahmed, J., (Munir, CJ., concurring) to be merely personal, Kayani, CJ., spelled out his answers as would, respectively, be reflected below in the words of Shabbir Ahmed, J., and Kayani, CT., themselves:- ' Shabbir Ahmed, J.:- "(1) When a person whose right of pre-emption was based on relationship with the vendor dies, his heirs will generally be those who had themselves the right to sue, but who did not sue. It will not be just and equitable to allow them to pre-empt, because on the date of the preemptor's death their own suit might have become time-barred.
(2) In cases where the heirs themselves had no right to pre-empt, it would be anomalous to allow them to pre-empt, as it would amounts to a disregard of the general rule that before a plaintiff can succeed, his right must be superior to the vendee, not only at the date of the decree, but also at the date of the suit.
(3) In a small number of cases, the vendor himself will be the only heir of the per-emptor, and if he succeeds to the right of suit, he will get back property with which he had parted by his own act.
16. Kayani, CJ.
17. "(18)Now as regards the first case envisaged by Shabir Ahmad, J., if the heirs of the pre-emptor who has died had an equal right with him, that is to say, if they could file a suit simultaneously, then they should be deemed to have waived their right because if the original pre-emptor had waived his right, there would have been no suit to which his heir could have succeeded. And they cannot be placed in a better position than the pre-emptor. But if their right was inferior to that of the preemptor, then since they could not exercise it in the presence of the preemtpor, they should be allowed to continue the suit.
(19) In the second case, where the heirs had no right of their own, the objection is that to give them a right of succession would be to give them a right which they did not possess or, the date, of suit.
18. That, however, is an incident of all succession: the heir always gets something which he did not possess before the death of his father. And in any case, the position will not be different from that of an heir to a person whose claim is based on ownership of property. After all, the heir is only succeeding to the right of pre-emption, and not exercising it in the first instance. All that the law requires is that there should be a right to acquire in preference. That right existed in the original preemptor at the date of sale. The heir merely succeeds, and naturally cannot draw himself back into the past.
(20) In the third case, the vendor himself is the only heir of the plaintiff. He must be deemed to have waived his right."
19. ' It may bear mention here that Kaikaus, J., in both his judgments, in the Division Bench as well as the Full Bench, had conditioned the devolution of the right of pre-emption only to such heirs of the pre-emptor or any of them, having a preferential right as against the vendee, either on account of the ownership of land, which may have devolved upon such heir's or on account of being nearer heirs's of the vendor than the vendee. As already seen Kayani, C.J., expressed no such reservation.
20. In fact Qadeeruddin Ahmed, J., who did not even subscribe to the incident of heritability, criticized such reservation in the opinion of Kaikaus, J., and held the view that if the right was heritable there was no scope for such a rider being added to the same. The majority view, therefore, emerges to be that the conclusion of Kayani, C.J., as notionally supported by Qadeeruddin Ahmed, J., should hold the field and the condition imposed by Kaikaus, J., should disappear. The following is the relevant passage from the judgment of Qadeeruddin Ahmed, J.
21. "Nobody has completely disregarded the above doctrine, but deviations have been made with heterogeneous results. Kaikaus, J. Has reasoned in paragraph 13 of his judgment that the right of pre-emption does not survive and devolves on successors-in-interest in testimentary succession.
22. Moreover, he has attached the condition that devolution should not be such as to permit the introduction of strangers into the original groups of heirs or proprietors. These restrictions are not reflected in his final answer. In the final answer, the condition necessary for exercising the devolved right has been held by him to be that 'the heir too has a preferential right as against the vendee'. If the heir has to depend on his own preferential right, what right has devolved on him ? With utmost respect, these restrictions or conditions are inconsistent with the generally accepted concepts of devolution as well as heritability. They tend to lead to a state of freedom from some of the settled doctrines and basic conceptions. They leave intact no guiding principle except that the object of the law of pre-emption is to exclude 'strangers' from the society of the pre-emptor. This object is neither a certain guide, nor can it assume importance as an overriding principle. If in the Muhammadan system of law the right of pre-emption is closely connected with the law of inheritance as was pointed out by Mahmud, J. In Gobind Dayal v. Inayatullah ILR 7 All. 775, and its object is to prevent alienation of family property resulting from minute division; and if according to the customary law, it is a compromise between complete freedom and complete prohibition to transfer property, with the object of preserving the nexus of joint ownership and kinship as pointed out by Shah. Din, J. In Sanwal Das v. Gur Parshad 90 PR 1909 the meaning of the word 'stranger' is by no means certain. More distance relations may be lesser strangers than the sons of the pre- emptor as was virtually found in Partab Singh and others v. Daulat and others ILR 36 All.
63. Moreover, utter strangers blessed with wealth, once they acquired a foothold in a village and become entitled to pre-empt, can disrupt the integrity of the village community with the help of law of pre-emption itself."
23. ' There is yet another aspect pertaining to the decision in the matter of Allah Dad which needs to be dealt with. This pertains to the question of waiver. Kaikaus, J., did not agree with the concept and incidence of waiver, as enunciated by Kayani, C.J. Qadeeruddin Ahmed, J., upon the view he took, did not need to address the question of waiver nor does he seem to have done so. In the result, the aspect pertaining to waiver does not appear to have been resolved in the case of Allah Dad.
24. ' The same question, however, arose in Muhammad Iqbal v. Ghulam Ali PLD 1975 Lahore 1205, and Aftab Hussain, J., relevant to the outcome in Re Allah Dad, coming to the same position on the question of waiver, as deduced above, has agreed with the opinion of Kaikaus, J., namely, that the element of waiver does not enter the equation where rights of inheritance in a pre-emption suit are invoked. This is correct for the simple reason that the heir (s) concerned may have waived their right (s) to pre-empt in their individual and personal capacities but not as heir (s) of the pre- emptor and that, in such cases, it is the rights of the pre-emptor, which would be projected to be pursued and not those, which the heir (s) enjoyed or did not enjoy before the succession opened.
25. ' However, Aftab Hussain, J., again seemingly following Kaikaus, J., has, erroneously, concluded that only such legal representatives of the deceased pre-emptor could join the suit as had a better right than the vendee. The effect of Allah Dad's case, Kayani, C.J., and Qadeeruddin Ahmed, J., agreeing on the point, was, as seen already, different and Aftab Hussaib, J., was bound by that opinion. Even otherwise, the majority opinion appears to have been correct because it is the right of the pre-emptor which, upon his demise, the heirs would be pursuing and, obviously, it is the pre- emptor alone, who should have had a better right than the vendee, previous rights of his heirs being inconsequential. Indeed, the condition, as noted by Qadeeruddin Ahmed, J., seemed to have been introduced out of expediency, in order to keep total strangers away an out-come which, any way, as observed by the same learned Judge, was by no means certain. It may also bear mention here that the Full Bench case of Faqir Ali Shah v. Ram Kishan, 133 PR 1907, pertaining to pre-emption rights based on ownership of property and their passing with the property to the heirs has, throughout, been left undisturbed.
26. ' There is yet another error in the otherwise very elaborate and well-considered judgment, of Aftab Hussain, J., and that consists in his drawing a distinction between legal' represetatives and heirs of a deceased plaintiff of defendant in a suit. No doubt, there is a distinction between the two but a legal representative, as defined, by section 2(11), C.P.C., includes all the heirs of a deceased party besides other person, if the provision makes them relevant. It was an error on the part of the learned Judge to exclude from the array of the parties, in a pre-emption suit, those successors in whom, according to his view, the right to sue did not come to vest. His conclusion as regards the right to sue surviving under Order XXII, rule 3, C.P.C. Was equally defective. The correct position, in our opinion, is that if a pre-emption suit was duly filed and the pre-emtpor expired during its pendency, all the legal heirs of the deceased pre-emptor should entitled to be impleaded because, the right to sue, being heritable, obviously survives in favour of all of them, the other conditions imposed, as seen, being redundant. This is precisely the effect of the current law also namely, the Punjab Pre-emption Act, 1991, which, per section 16 thereof, goes, indeed, a step further, postulating that where a pre-emptor dies after making any of the demands under section 13, the right of pre-emption shall stand transferred to his legal heirs. Much as in the N.-W.F.P. Under the current dispensation the right, however, still remains otherwise non-transferable and indivisible.
27. ' This brings us to Mst. Zairiab Khatoon v. Tahir Mehmood (apparently unreported). There, it came to transpire that the relevant civil appeal was allowed on 4-2-1991. A review, however, succeeded and paragraphs 3 to 5 of the order in review, dated 5-5-1991, being applicable, are reproduced herein- below:-- "(3) Notice in this case was given to the respondents who in spite of service remained absent. The learned counsel for the petitioners contended that the authority relied upon by this Court reported in PLD 1988 SC 384 is clearly distinguishable in that in the precedent case the pre-emptor had died before the institution of suit and his legal heirs who had no right of pre-emption at the time of sale had filed the suit on the basis of right of original pre-emptor, wherein in the instant case the suit was filed by the predecessor-in-interest of the petitioners who had the superior right of pre- emption and it was his right which had to be asserted, of course, through his legal representatives.
28. He further submitted that in the Punjab unlike the other provinces the right of pre-emption is regulated by the Statute, it has nothing to do with the Muhammadan Law of Preemption. In the Punjab Pre-emption Act under sections 15 and 16 the right of legal representative is recognised as having a vested right to keep the right alive and in existence Lill the date of decree. Reliance in this respect was placed by him in the case of Allah Dad and another v. Hukam Dad and others (PLD 1960 (W.P.) Lahore 900 and Sheikh Inayat Ali v. Ghulam Muhammad and others (1976 SCMR 121).
(4) After hearing the learned counsel for the petitioner, we think that submissions made by him must prevail. The case, as per our order under review, has not been correctly decided. Under the Punjab Pre-emption Act the right to pre-empt a sale is not only heritable but it having been accrued to the deceased can be successfully asserted by his legal representatives. The authorities relied upon by the learned counsel for the petitioner are fully applicable to the case in hand.
(5) As a result of the above, we accept the review petition and dismiss civil Appeal No,378 of 1988 with no order as to costs."
29. ' Our conclusion, therefore, is that under the Punjab Pre-emption Act, 1913, the right of pre-emption, 'after due suit for the same has been instituted, was found judicially to be heritable but not transferable. Such was a further development of the view expressed in the Full Bench case of Faqir Ali Shah v. Ram Kishin, 133 PR 1907, where the heirs and successors of a deceased landholder in a village succeeded in pre-empting successive sales even though neither their predecessor had made any Talab nor instituted the relevant suit in his lifetime.
30. ' Having reached these conclusions, the civil appeal should succeed because Khuda Yar, the predecessor of the appellants, had a better right to preempt than the vendee and, for the reasons already discussed, the personal rights of his legal heirs, which may have been no better than those of the vendee, did not enter the equation.
31. ' Adverting now to the civil petition for leave to appeal, also decided through this common judgment, the leave petition should be dismissed because the High Court as well as the two Courts below decreed the pre-emption suit filed by Syed Noor Badshah, but pursued by his legal representatives upon a finding that it were the rights of such Syed Noor Badshah which alone had to be considered in determining the out-come of the pre-emption suit and not those of his legal representatives, something with which we have found nothing amiss in the discussion above recorded.
32. ' In the result, therefore, the civil appeal stands allowed and the civil petition, correspondingly, dismissed.