SYED JAMSHED ALI, J. - Land measuring I6 kanals, 14 marlas in village Mangowala Tehsil and District Gujrat was owned by Ghous Muhammad. Vide registered sale-deed dated 13.4.1972, he sold it for a consideration of Rs.5,000/- to Lal Khan, respondent No. 1. Muhammad Sadiq the appellant herein filed a suit for pre-emption on 11.4.1973 on the ground of being a collateral of the vendor, co-sharer in the khata and owner of the estate.
The pre-emptor also disputed the sale consideration.
2. The suit was contested by the vendee. Superior right of the plaintiff-pre-emptor was disputed. It was reiterated that sale consideration in the sale-deed had correctly been recorded. It was also averred that the land in dispute had been alienated by the vendee in favour of Mst. Khurshid Begum through an oral sale on 2. 12.1972 vide mutation No. 1744.
3. Mst. Khurshid Begum was also impleaded to the suit. Her defence was that she was a collateral of the vendor, co-sharer and Pattidar and, therefore, had a preferential right. She also averred that mutation No. 1744 could not be attested as the village was under consolidation.
Necessary issues were framed and the suit was tried.
4. The learned Trial Court found that the plaintiff had- superior right qua the first and the second vendee as a collateral of the vendor. The sale consideration recited in the sale-deed was Rs.3200/- while the vendee claimed to have paid Rs.1800/- as earnest money vide receipt Ext. D-3 which was not found proved. Accordingly, the suit of the plaintiff was decreed for a consideration of Rs.3200/-.
5. Both the vendees took separate appeals before the learned District Court. The appeal of Lai Kh^n was dismissed and that of Mst. Khurshid Begum was allowed by the learned Addl. District Judge Vide judgment and decree dated 18.2.1978. It was found by the learned first Appellate Court that Mst. Khurshid Begum was a Collateral of vendor and could successfully defend the sale in her favour. The sale consideration was held to be Rs.5000/-.
6. This finding has been assailed by the learned counsel appearing for the appellant and has contended on the basis of Mst. Zaidan and another Versus Mehr Dad (PLD 1967 Lahore 1214) that Mst. Khurshid Begum as a female descendant of great grandfather of the vendor could not compete with Muhammad Sadiq, the pre-emptor who was a male child of the common ancestor.
7. There are three pedigree tables on the record. Ex.P-1 and Ex.P- 2 produced by the appellant and Ex.D-A produced by Mst. Khurshid Begum before the learned first Appellate Court and admitted in evidence as additional evidence. Relevant extract is reproduced below for facility of understanding.
HAMID ___________________________________________________________________________________________________ Karam Dad. Mubarak Mehra Khushia ___________________________________________________________________ Ghaus Muhammad Sardar Rehman Ahmad Muhammaad (Vendor)
Mst. Khurshid Begum Muhammad Sadiq (Vendee) (Pre-emptor) {{TABLE}} This pedigree is admitted by both the parties, as the position according to Ex.D-A produced and relied upon by Mst. Khurshid Begum remains the same.
8. What emerges from the above pedigree is that Mubarak was the common ancestor of the vendor Ghaus Muhammad, Muhammad Sadiq, the pre-emptor and Mst. Khurshid Begum while Muhammad Sadiq is a male descendant and qualifies as a residuary. Mst. Khurshid Begum, as a female child is not an heir of the vendor, Ghaus Muhammad and cannot compete with the pre-emptor. The rule laid down in Muhammad AH Khan son of Ghulam Haider Versus Mst. Zewar Nisa (AIR (29) 1942 Peshawar 22), and Mst. Shahzad Bibi and another Versus Gulzar Khan (PLD 1973 Lah. 878) has not been properly understood by the learned Addl. District Judge. The case of Muhammad Ali Khan supra was noted with approval by the Supreme Court in Jalal Din Versus Saeed Ahmad and others (PLD 1979 S.C. 879).
9. The legal position is quitely clearly established. The competition is between the pre-emptor and the vendee. The one who excludes the other has superior right. If both are equally entitled to inherit the estate of the vendor, it is the pre-emptor who fails. Here, the pre-emptor Muhammad Sadiq excludes Mst. Khurshid Bibi because in this case in the presence of a male descendant (the pre-emptor), Mst. Khurshid Begum as a female descendant is not entitled to inherit the estate of the vendor. The finding of the learned first Appellate Court that Mst. Khurshid Begum had an equal right and could, therefore, successfully defended sale in her favour is not, therefore, tenable.
10. The learned counsel for the appellant did not dispute the finding of the learned first Appellate Court that sale consideration was Rs.5000/- and not Rs.3200/- as found by the learned Trial Court.
11. In view of the above, this appeal is accepted, the judgment and decree dated 18.2,1978 of the learned first Appellate Court is set aside and the suit of the pre-emptor is decreed for. a consideration of Rs.5000.-. The parties are left to bear their on cost.