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Writ Petition No. 334 of 1982, decided on 21st January, 1981.
‑‑ Inheritance ‑ Nearer in degree excludes more remote ‑Deceased brother of petitioners dying issueless‑Petitioners, held, have no locus standi for substitution for original pre‑emptor in presence of their father‑Civil Procedure Code (V of 1908), O. XXII, r. 3.‑[Pre‑emption].
Muhammad Iqbal and others v. Ghulam Ali Shah P L D 1975 Lah. 1205 ; Allah Dad v. Hukam Dad P L D 1960 Lah. 900 and Nawab v. Irshad Begum P L D 1953 Lah. 317 rel.
M. Aslam Riaz and Syed Abdul Saleem for Petitioners.
Nemo for Respondent.
Date of hearing : 21st January, 1981.
In this constitutional petition the order of the learned District Judge, Faisalabad dated 10th December, 1980 by which he accepted the revision petition filed by the respondents and dismissed the application tiled by the petitioners for substitution as heirs of the deceased ‑pre‑emptor has been challenged. A brief narration of the facts would not be out ‑of place.
2. One Rehmat Ali had three sons, the petitioners and one Tahir Saleem, Rehmat Ali sold his land to the respondent and Tahir Saleem filed a suit from pre‑emption. During the pendency of the suit Tahir Saleem died. An application was made by Muhammad Iqbal and Ghulam Sarwar, the real brothers of the deceased for being substituted as plaintiffs for Tahir Saleem. The application was contested by the defendants but the appli cation was allowed on 20th December, 1978 by the trial Court. The respon dents also made an application for review before the trial Court which also did not find favour which was dismissed by the order dated 8th February, 1979. The respondents filed a revision on which it was held that the peti tioners had no laces standi to file the application for being substituted for the original pre‑emptor as the father of Tahir Saleem was alive and as such the petitioners were not the heirs.
3. It is an established proposition of law that under the Muhammadan Law when there is no child the father inherits as a residuary and the nearer in blood would exclude the remoter. The observation of the learn ed District Judge that the petitioners are not the heirs so as to entitle them to the inheritance of the estate of Tahir Saleem is unexceptionable.
4. The learned c9unsel for the petitioners relied on Mohammad lqbal, etc. v. Ghulam All Shah (P L D 1975 Lab. 1205) in which earlier case reported as Allah Dad v. Hukom Dad (P L D 1960 Lah. 900) was considered and earlier judgment reported as Nawab v. Irshad Begum (P L D 1953 Lah. 317) was overruled. There is no dispute about the proposition that the right of pre‑emption is heritable. In Iqbal's case it was observed that Order XXII, C. P. C. does not give the heir an unquali fied right of substitution for deceased under Order XXII, rule 3, C. P. C. legal representatives of the deceased‑plaintiff are to be made a party to proceed with the suit if the right to sue survives. The facts of this case were that M transferred by sale agricultural land to a person for a sum of Rs. 5,610 N mother of vendor M instituted pre‑emption suit to pre‑empt the land Pending this suit N died S daughter of N and sister of the vendor M moved application for being impleaded as legal heir of her mother N ,Pending her application for being impleaded as legal representative under Order XXII, C. P. C. S also died. On her death her husband G put in application for being impleaded as legal heir and representative of his wife S. In these circumstances the question arose whether the right of pre‑emption was heritable and as such S could be impleaded as legal representative of her mother N the deceased pre emptor and whether G the husband of S claiming inheritance from S could be impleaded as her legal representative.
It was held that though the right of pre‑emption was heritable but would only be inherited by those persons who have a preferential right either on account of ownership of land which may devolve upon them or on account of their being a nearer heirs of the vendor than the vendee. This judgment does not, in any way, advance the case of the petitioner. The learned District Judge has correctly applied the law regarding the substitution of the original plaintiff/pre‑emptor. No exception can be taken to the findings.
5. This writ petition has no force which is hereby dismissed in limine.
M. Y. M Petition dismissed.
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