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Civil Petition No.143 of 1985, decided on 11th November, 1985.
(On appeal from the' judgment, dated 8‑12‑1984 of the Lahore High Court in Civil Revision No.625 of 1984).
‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), S.15(b), thirdly‑ Right of pre‑emption ‑‑Vests in order of succession‑‑Suit for pre‑emption ‑‑Sale of agricultural land by Muslim decreed in favour of residuary against a distant kindred‑‑Upheld by Supreme Court‑‑Held, in matter of pre‑emption against a residuary everybody else except a sharer with whom residuary stands in same order of succession, was excluded.
Jalal Din v. Saeed Ahmad and others P L D 1979 S C 879 rel.
Ch. Khalilur Rehman, Senior Advocate Supreme Court with Sh. Salahuddin, Advocate‑on‑Record for Petitioner.
Nemo for respondent.
Date of hearing: 11th November, 1985.
This matter arises out of pre‑emption suit. The petitioner, who is the sister's son of the vendor, had purchased the suit land. The sale was pre‑empted by respondent No.1, who is the son of the vendor's brother. The pre‑emption suit has succeeded on the ground that respondent No.1 is residuary of the vendor while the petitioner is a distant kindred. Since respondent No.1 would inherit the vendor's property to the exclusion of the petitioner, he enjoyed a superior right of pre‑emption.
2. Ch. Khalilur Rehman, learned counsel for the petitioner has submitted that the above view is not correct. According to him, even a distant kindred can defeat the right of nearer kindred in so far as the matter of pre‑emption was concerned because the analogy of inheritance is not attracted here.
3. There is no force in this submission.
4. Section 15(b) thirdly of the Punjab Pre‑emption Act together with the proviso preceding the same prescribes "the order" of pre‑emptors in case of sale by a Muslim which is as follows:‑
"Provided that in the case where the sale is by a Muslim, the firstly and secondly shall be inapplicalbe, and the thirdly shall read as follows:‑
"Thirdly in the person in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold."
5. The respondent being a residuary shall in order of succession, under Muslim Law exclude and displace the petitioner, a distant kindred. In fact everybody else, except a sharer, with whom the residuary stands in the name order of succession, is excluded (See this Court' judgment in Jalal Din v. Saeed Ahmad and others P L D 1979 S C 879. There being no merit, in the plea raised on behalf of the petitioner, leave to appeal is refused and this petition is dismissed.
M . I . Petition dismissed.
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