Find a Lawyer

Civil Revision No. 491/D of 1986 decided on 1st December, 1986.

‑‑‑S. 15(b), thirdly‑‑Muslim Family Laws Ordinance (VIII of 1961), S.4‑‑Right of pre‑emption‑ ‑Pre‑emptor, a paternal cousin of vendor, and vendee a grandson of vendor‑‑Competitive claims in regard to superiority of right of pre‑emption‑ ‑Court has only to keep in view pre‑emptor and vendee and no other relation of vendor while determining superiority of right of pre‑emption‑ ‑Court would take it that vendor had died and to find out as to who of the parties of suit was entitled to inherit his property to exclusion of the other‑‑Person so entitled would have superior right of pre‑emption‑‑ Where such person was pre‑emptor he would get a decree, and if he was a vendee, pre‑emptor's suit would be dismissed‑‑Where parties to suit of pre‑emption were entitled to inherit equally, right to pre‑empt, was to be declared equal and pre‑emptor's suit would fail.

Khan v. Mst. Zewar Nisa and another A I R 1942 Pesh. 22 and Jalal Din v . Saeed Ahmad and others P L D 1979 S C 879 rel.

‑‑‑S. 15(b), thirdly‑‑Muslim Family Laws Ordinance (VIII of 1961), S.4‑‑Civil Procedure Code (V of 1908), S. 115‑‑Right of grand‑children to inherit‑‑Nature, scope and extent of right‑‑In event of death of any son or daughter of propositus before opening of succession, children of such son or daughter, living at time such succession opens, held, would per stripes receive a share equivalent to share which such son or daughter would have received, if alive‑‑Vendee being entitled to take a share in inheritance of his grandfather (vendor) alongwith pre‑emptor, would not be excluded from inheritance‑‑Right of pre‑emption being equal between pre‑emptor and vendee, same, held, could not be exercised‑‑High Court declined to interfere in revisional jurisdiction with findings of Appellate Court which was based on correct view of law.

Muhammad Munir Peracha for Petitioner.

This civil revision by the vendee arises out of a suit brought by Manzoor Elahi petitioner to pre‑empt sale of some property made by Sher Muhammad son, Ghulab Jan daughter of Muwwaz io Tahir Masood, for Rs.9,000 vide deed of sale registered on 19‑2‑1984. Manzoor Elahi as paternal‑cousin of the vendors and co‑sharer in the property in suit pre‑empted the sale and brought a civil suit against the vendee in the Court of Civil Judge, Attock, on 18‑2‑1985. Price paid for the property was also disputed and it was alleged that, in fact, it was sold for Rs.4,000 only and the rest was a false show. Pre‑emption suit was resisted. Contest gave rise to as many as three issues which covered the dispute as to the superior right of pre‑emption, fixation and payment of sale price and the market value of the property. On examination of the evidence, learned Civil Judge found for the plaintiff and gave him decree for the land sold on payment of Rs.9,675 to be deposited in Court till 29‑6‑1986. In regard to the superior right of pre‑emption, Court found that the plaintiff as a nearer relation, had better right. The vendee preferred an appeal. Learned Additional District Judge relying on section 4 of the Muslim Family Laws Ordinance, 1961, found that the right of Tahir Masood vendee as daughter's son of 5her Muhammad vendor was at par with the pre‑emptor and to the extent of land sold by Sher Muhammad, dismissed the pre‑emption suit. With the aforenoted modification, appeal Court gave decree to the pre‑emptor for the land sold by Mst. Ghulab Jan only subject to payment of proportionate price viz. Rs.3,225. Aggrieved of the decision giver, in appeal, pre‑emptor has preferred this civil revision. It was contended for him that appeal Court was erroneous in relying on section 4 of the Muslim Family Laws Ordinance, 1961 to determine the order of succession between the pre‑emptor and the grandson of Sher Muhammad vendor, particularly when Vendee' s mother was alive.

After having heard the learned counsel at some length and examination of the evidence available on record, I find that the contention I raised has no substance. It is correct that the point raised is not covered by any authority and appears to be case o , first impression However, when deciding the competitive claims in regard to the superiority of right of pre‑emption under section 15(b) thirdly the Courts have only to keep in view the plaintiff and the vendee and no other relation of the vendor. They have to take it that the vendor died and have to find out as to who of the parties before them at‑‑pre emptor and the vendee‑‑is entitled to inherit his property to the exclusion of the other. The person who is so entitled has a superior right of pre‑emption. If he is a pre‑emptor he gets a decree; and if he is a vendee, the pre‑emptor's suit is dismissed. On the other hand, if it is discovered that they are entitled to inherit equally, their right to pre‑empt is declared to be equal and the pre‑emptor fails. It was so held in Khan v. Mst. Zewar Nisa and another A I R 1942 Pesh. 22 and since then in series of judgments has been accepted as correct statement of law. Refer Jalal Din v. Saeed Ahmad and others P L D 1979 S C 879. Relationship inter se parties is not in dispute. Rather, it was conceded, that Tahir Masood was grandson of Sher Muhammad vendor. Section 4 of the Muslim Family Laws Ordinance, 1961 provides for the inheritance to grand children. 1t states that in the event of death any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive. Section 4 when applied to the facts of the case BI under consideration, visibly shows that Tahir Masood vendee was entitled to take a share in the inheritance of his grandfather alongwith pre‑emptor and the latter could not totally exclude the former from the inheritance of aforesaid Sher Muhammad. The view of law taken by the learned Additional District Judge, therefore, appears to be absolutely correct.) This civil revision has, therefore, no force and is accordingly, dismissed in limine.

A . A . Revision dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.