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Regular Second Appeal No. 164 of 1955, and Letters Patent Appeal No. 27 of 1956, decided on 16th May, 1960.
---S. 15 (b) Fourthly- Right of pre‑emption‑Sale of occupancy rights in Shamilat‑Land lord having no share in Shamilat cannot claim superior right as against co‑sharer in Khata comprising occupancy rights‑Punjab Tenancy Act (XVI of 1887), S. 114 (2) (a)‑Effect of vendor becom ing a landlord.
A landlord in a village who has no share in the shamilat deh cannot claim a superior right of pre‑emption as against an occupancy tenant who is a co‑sharer in the khata comprising the occupancy rights which were sold by one of his co‑tenants.
Such a co‑sharer would still have a superior right of pre emption as against the other landlords in the village even though the vendor became a full owner of the land in suit by virtue of section 114 (2) (a) of the Punjab Tenancy Act, 1887 as amended by the Punjab Tenancy (Amendment) Act of 1952.
Right heritable, whether based on property qualification or on relationship‑ Civil Procedure Code (V of 1908), O. XXII, r. I‑[Nawab and others v. Mst. Irshad Begum P L D 1953 Lah. 317 overruled].
Whether the right of pre‑emption is herditable like any other property and accrues to the heirs of a deceased pre‑emptor or would be pre‑emptor after his death, irrespective of the considera tion whether the limitation for filing the pre‑emption suit by such heirs is still in subsistence or has already expired
The above question was involved in a Second Appeal before C. M. Sharif, J., who in view of the importance of the question, referred the case to a larger Bench.
On reference to Kaikaus and Qadeeruddin Ahmad, JJ. there was a difference of opinion.
Kaikaus, J. answered the question thus:--
"A right of pre‑emption devolves on the heirs subject to the condition that the heir too has a preferential right as against the vendee either on account of his ownership of land which may have devolved upon him or on account of his being a nearer heir of the vendor than the vendee."
Qadeeruddin Ahmad, J., held that in the area which was formerly the Punjab, the right of preemption is neither heritable nor does it survive the death of a pre‑emptor. A suit instituted by a pre‑emptor abates on his death if the death takes place during the pendency of the suit. If an heir of a deceased pre‑emptor is qualifi ed to pre‑empt he can exercise the right in virtue of his qualification subject to all the limitation of his own right.
There was a further Reference to a Full Bench consisting of Kayani, C. J. Kaikaus, and Qadeeruddin Ahmad, JJ.
Held (Qadeeruddin Ahmad, J. dissenting) that if the owner of the pre‑empting property dies, the person who succeeds to the property should inherit the right of pre‑emption if it has not been waived or become time‑barred.
If a right based on ownership is heritable, a right based on relationship should also be heritable.
"I realize that the simpler thing to do is to make the right of pre‑emption non‑heritable. That would end the controversy, but s6 far as that argument goes, there would be no controversy at all if the right of pre‑emption were itself abolished, as in cantonments. But so long as it is allowed to exist, let not the ordinary law of inheritance be excluded from its sphere of jurisdiction. Perhaps it would be convenient to suggest to Government that certain obvious deductions may be incorporated in the Act, so as to dispel uncertainty. It may, for instance, be provided that the right of pre‑emption can be exercised by an heir of the pre‑emptor only if the pre‑emptor has actually instituted a suit, but that, even in the base of a suit, no person who succeeds as an heir should be allowed to continue it if he could be said to have waived the right."
Nawab and others v. Mst. Irshad Begum P L D 1953 Lah. 317 overruled.
(For a resume of arguments of Kaikaus and Qadeeruddin Ahmad, JJ. vide judgment of Kayani, C. J.
Cases referred to in judgment of Kayani, C J :‑-
Amir Chand v. Chuni Oat 90 P R 1909 ; Wajid Ali v. Shaban I L R 31 All. 623 (F B) ; I L R 1942 Lah. 155 and Nawab v. Irshad Begum P L D 1953 kah. 317.
Cases referred to in judgment of Kaikaus, J. :‑
Sitaram Bhaurao Deshkh v. Jiaul Hasan Sirajul Khan 48 I A 475 ; Dhani Nath v. Nudho 136 Pun. Rec. 1894 Ellis's Pre emption Act, Sixth Edition paper 127‑128, 173; Muhammad Ayub Khan and another v. Bure Khan and others 95 P R 1901 ; Sheo Narain v. Hira I L R 7 All. 535 ; lf, deal, Sadiq Hussain and another v. Muhammad Karim and others I C 53 ; Wajid All v. Shaban I L R' 31 All. 623 ; Fateh Pan v. Muhammad and others 98 Pun. Rec. 1898; Kaunsilla Pan v. Goal Prasad I L R 28 All. 424 ; Ramji v. Mst. Muktai 5 I C 570; Sayyed Maul Hussain Khan v. Sitaram Bhau Deshmukh I L R 36 , m. 144 ; Sarfraz Khan v. Muhammad Yaqub Khan A I R 1962 Pesh. 23 ; Nawab v. Mst. Irshad Begum P L D 1953 Lah. and Faqir Ali Shah v. Ram Kishan and others 133 P R 1907(F B).
Cases referred to in judgment of Qadeeruddin Ahmad, J :‑--
Rajjo v. Lalman I L R 5 All 180 ; Faqir Ali Shah v. Ram Kishan and others 133 P R 1 7 (F B) ; Dilsukh Ram v. Nathu Singh and Sita Ram P R 98 of 1894 ; Amir Chand and others v. Chun Lal 90 P R 1909 Kanwar Digamber Singh v. Kanwar Ahmad Sayeed Khan 284 ; Sanwal Das v. Gur Parshad 90 P R 1909 Hidaya by Hamilton pp. 563 & (xlvii) ; Mirza Sadiq Hussain v. Muhammad Karim 70 I C 53 (D B) ; Wajid Ali and nother v. Shaban and others 31 All. 623 (F B) ; Sheo Narain v. lira I L R 7.Al1. 535 F B ; Gobind Dayal v. Inayatullah I L R All. 775 (F B) ; Partab Singh and other v. Daulat and others L R 36 All. 63 ; Nawab and others v. Mst. Irshad Begum P L D 953 Lah. 317.
Cases referred to in order of reference by C. M. Sharif, J. :‑
Nawab and others v. Mst. Irshad Begum P L D 1953 Lah. 317 Faqir Ali Shah v. Ram Kishan and others 133 P R 1907 (F B) ; Yet Ram and others v. Dal Chand and others I L; R 14 Lah. 421 ; Yayat Bakhsh v. Mansabdar Khan I L R 16 Lah. 921 ; Jallu v. Shahu I L R 19.Lah. 93 ; Muhammad Ayub Khan and another v. Rure Khan and others 95 P R 1901 ; Wajid Ali v. Shaban I L R 31 All. 623 (F B) ; Fateh Khan v. Muhammad and others 98 P R 1898 ; and Ram Gopal v. Piari Lal I L R 21 All. 441:
Whether personal right Purpose and origin.
Sh. Muhammad Shafi for Appellants R. A. No. 164 of 1955.
Sh. Chiragh Din for Respondents L. P. No. 27 of 1956.
Mahmud Ali assisted by Z. K. Dastgir and Sh. Rafiq Ahmed for Appellant.
Iftikhar‑ul‑Haq Khan with Muhammad Nazir for Respondents.
Dates of hearing (before D. B) ; 29th February 1960 and 1st March 1960.
This second appeal is by the defendants and directed' against the judgment of the Senior Civil Judge, Jhelum is whereby he has decreed the plaintiff‑respondents' suit for possession by pre‑emption of the suit land on payment of Rs. 2,000. Briefly stated the facts are as follows.
The occupancy rights in suit were purchased by Allah Dad and Fazal Dad defendants from one Allah Ditta for Rs. 2,000 on 4th November 1952. Nek Muhammad, i e deceased plaintiff, brought a suit for possession by pre‑emption : and based his claim on his relationship with the vendor as and the ground that he was a co‑sharer in the joint khata, to be exact in the khatauni, of the land in suit. He further averred that the sale had been effect ed for Rs. 900 one. but the price had been fictitiously shown in the sale deed as . 2,000 with a view to defeating his right of pre‑emption. Nek Muhammad died during the proceedings in the trial Court and his le al representatives, namely, Hukam Dad and others (the present respondents), were brought on the record.
The defendants contorted all the three allegations of the plaintiffs enumerated in the plaint and urged that Rs. 2,000 had in fact been paid by them as the sale price and that the market value of the suit land was also the same.
The following issues were frame for determination
(1) Whether the plaintiffs have got preferential right of pre emption
(2) Whether Rs. 2,000, the sale price, was fixed in good faith or was actually paid
(3) If not, what is the market value of the suit land
(4) Relief.
The trial Court decided issue No. 1 against the plaintiffs on the ground that as the sale of occupancy rights in the suit land had been made in favour of the landlords, it was not open to pre emption. Issues Nos. 2 and 3 were, however decided in favour of the defendants bait on its finding on issue No. 1 tae trial Court dismiss ed the suit with costs. On appeal the learned Senior Civil Judge, after taking the additional evidence of Munshi Fazal Hussain Patwari on his own motion, came to the conclusion that as Allah Ditta had become full owner of the land in suit on 29th January 1952, by virtue of the provisions of section 114 (2) (a) of the Punjab Tenancy Act, as amended by the Punjab Tenancy (Amend ment) Act, 1952, he wag as good a landlord in the village as the vendees and therefore the pre‑emptor and his legal representatives, who are related to the vendor and were also co‑sharers in the khata comprising the suit land, were entitled to a decree for possession. On the other two issues, the learned Senior Civil Judge agreed with the trial Judge and affirmed his finding that the sale price should be Rs. 2,000. Consequently, he passed a decree for possession in favour of the plaintiffs on payment of the amount mentioned above but without costs.
The learned counsel for the defendants argued (a) that the learned Senior Civil Judge should not have recorded additional evidence in the appeal because it could be finally disposed of with out that evidence ; ,(b) that the learned Judge had no right to set up a new case for the plaintiffs which did not arise out of their pleadings ; (c) that if the additional evidence was eliminated from consideration, the finding of the trial Court was correct because the vendees were admittedly the landlords in the village according to the statement of Nek Muhammad himself as P. W. 1 ; (d) that the present plaintiffs were in any case not entitled to a decree for possession because the right of pre‑emption, being a personal right, came to an end with the death of Nek Muhammad.
In reply, the learned counsel for the plaintiffs contended (1) that even if the vendees were proved to be the landlords in the villages, it was not established on the record that they were entitled to a share in the shamilat deh, of which the suit land admittedly formed a part according to the latest Jamabandi (Exh. P. 1) and as such the occupancy rights could not be deemed to have vested in the defendants, who, though owners in the village, had no share in the common land of the village ; (2) that the additional evidence re corded by the lower Appellate Court had been properly taken and was essential for the proper and final disposal of the appeal ; and (3) that the right of the legal representatives of the deceased pre‑emptor namely, Nek Muhammad, to continue the action was fully recognised by the various authorities of this Court.
The learned counsel for the parties did not contest the finding of the Courts below regarding the sale price of the land in suit.
Now, even if I keep the additional evidence taken by the lower Appellate Court out of consideration, there is not an iota of material on the file to show that the defendants had a share in the shafnilat deh, and as such the finding of the trial Court that as the occupancy rights, which admittedly form part of that shamilat, lx ad been sold to the landlords, Nek Muhammad had no right to pre‑empt the sale, cannot be upheld. A landlord in a village who has no share in the shamilat deh cannot claim a superior right of pre‑emption as against an occupancy tenant who is a co‑sharer in the khata comprising the occupancy rights which were sold by one of his co‑tenants. There is, therefore, no doubt that Nek Muhammad had a superior right of pre‑emption as against the defendants. On the contrary, even if I hold that additional evidence was rightly admitted in appeal, the position will not alter to the advantage of the defendants because Nek Muhammad, who is a co‑sharer in the khata comprising the suit land, even though as an occupancy tenant would still have a superior right of pre emption as against the other landlords in the village even though Allah Ditta became a full owner of the land in suit by virtue of section 114 (2) (a) of the Punjab Tenancy Act, as amended by the Punjab Tenancy (Amendment) Act of 1952. Consequently, the only point which needs serious consideration in the case is whether or not a right to preempt subsists in the legal representatives of a deceased pre‑emptor who dies during the pendency of the pre emption suit, because if it does, the decree of the learned Senior Civil Judge must be upheld ; if, on the contrary, it does not, the decree of the lower Appellate Court must be reversed and the appeal accepted.
As regards the right of a person to pre‑empt on the basis of his relationship with the vendor, it is now settled law that if the, pre emptor dies during the pendency of his suit, the right to continue the same does not survive to his legal representatives and dies with the plaintiff. In Nawab and others v. Mst. Irshad Begum (P L R 1953 Lah. 584 : P L D 1953 Lah. 317) ; the learned Judges who decided the Letters Patent Appeal, made the following observations:‑---
"In cases in which persons sought to be impleaded as legal representatives of the dead plaintiff had the right to sue for pre emption but had not brought a suit, it can hardly be just and equitable to allow them to pre‑empt. In some cases, a suit for pre‑emption, if instituted by the heirs at the time of the death of the plaintiff, would be barred by limitation and, if the heirs were to be allowed to get the property in suit as legal representatives of the dead plaintiff, the law of limitation would be circumvent ed. In cases where the persons sought to be impleaded as legal representatives of the dead plaintiff had not themselves the right to pre‑empt, it would be anomalous to allow them to pre‑empt the transfer as it will amount to a disregard of the general rule that before a plaintiff in a suit for pre‑emption can succeed, he must show that his right of pre‑emption was superior to the vendee not only at the time of the decree but also at the time of the suit."
As regards the cases in which the right of pre‑emption is based on ownership of property, it has been held by the Punjab Chief Court in Faqir Ali Shah v. Ram Kishan and others (133 P R 1907 (F B)) ; that the right of pre‑emption passes with the property to the heirs of the owner of that property, but it does not pass to persons who get that property by transfer. Although that authority is entitled to great weight, but as some 'of the cases decided by this Court after the Full Bench case referred to above have laid down certain principles of law, which are in direct contradiction of those laid in 133 P R 1907, I have come to the conclusion that this authority no longer represents the correct view and should be reviewed by a larger Bench in the light of the legal principles enunciated in the later authorities.
In, Faqir Ali Shah v. Ram Kishan and others; Miran Bakhsh defendant No. 3 purchased the well in suit which was the property of defendants Nos. 1 and 2 at an auction‑ sale held in execution of a decree against the owners thereof on 29th March 1899, for Rs. 8,000. On 4th May, 1899, Miran Bakhsh sold that well to Sayyed Faqir Ali Shah defendant No. 4 for the sale price. On the 29th November 1899, Faqir Ali Shah sold one‑third share of the said well to Ramzan and Sahara defendants Nos. 5 and 6 respectively. The plaintiffs who were the sons of one Irapat, who died some time in January 1900, brought a suit for pre‑emption on 9th February 1900 against the defendants enumerated above on the ground that they, being land‑owners in the village in which the well in dispute was situated, had a preferential right of pre‑emption in respect of it as against the auction purchaser, the second vendee and the sub‑vendees from the second vendee, who owned no land in the said village. The claim of the plaintiff was decreed conditionally on payment of Rs. 8,000. Two appeals were preferred to the Chief Court‑one by Faqir Ali Shah and the other by Ramzan and Sahara. The point that arose for determination was common to both the appeals and it was that the plaintiffs had no locus standi to sue for pre‑emption in respect of the sales in dispute as heirs of Irapat, their father, inasmuch as the alleged right of pre‑emption was personal to Irapat and not having been exercised by him during his lifetime died with him and did not survive to his sons. The learned Chief Judge, who delivered the main judgment in the case, held that the plaintiffs' right to sue for pre‑emption upon a cause of action which had accrued to their father in his lifetime passed to them on their inheriting his land on his death. The learned Chief Judge was of the opinion that as the right of pre‑emption was being claimed under section 12 of the Punjab Pre‑emption Act in virtue of the plaintiffs being the land‑holders in the village, the right was inherent in the land and where it was inherited by the sons of a deceased land‑holder who had the right to pre‑empt the sale of another plot of land situate in the said village, the right to pre‑empt the sale survived to them by inheri tance. Now, the learned Chief Judge conceded in that judgment that the plaintiffs were not the land‑holders in the village at the time of the impugned sales, though they had become land‑holders in the village at the time of filing of the suit and continued to remain so till the date of the decree in their favour. The learned Chief Judge seems to have overlooked the fact that though the right to pre‑empt inheres in the landowners in the village as against the vendees who own no land in the said village, it is still a per sonal right though dependent on their ownership of land in the village. The distinction is rather subtle and was not especially adverted to by their Lordships in their judgment.
Now, as regards the principle of law that the pre‑emptor must possess the requisite qualifications to pre‑empt a sale not only at the time of filing a suit for pre‑emption and the passing of the decree in his favour but also at the time of the sale, there can hardly be any dispute in view of the clear pronouncements of this Court in Het Ram and others v. Dal Chand and others (I L R 14 Lah. 421), Hayat Bakhsh v. Mansabdar Khan (I L R 16 Lah. 921), Jallu v. Shahu (I L R 19 Lah. 93), Muhammad Ayub Khan and another v. Rure Khan and others (95 P R 1901) and Wajid Ali v. Shaban (I L R 31 All. 623 (F B)). The following observations of Agha Haidar, J., who delivered the main judgment in the first cited case, may be reproduced with advantage :‑--
"There are, however, more recent decisions of the Allahabad High Court, e.g., Baldeo Misir v. Ram Lagan Shukul 1923 I L R 45 All. 709 and Umrao Q. Lachman 1924 I L R 46 All. 321 in which the view has been expressed that the plain tiff, in order to maintain his suit for pre‑emption, should have his right to pre‑empt on three important dates, namely, (1) the date of the sale, (2) the date of the institution of the suit and (3) the date of the first Court's decree. This seems to be the correct view and, with due respect, I fully endorse it. The law of pre‑emption is a highly technical one, and a plaintiff, before he can succeed, must show that his tight existed not only in its preliminary stages before he went into the Court but also while the case was in the course of active prosecution before the trial Judge and in fact up to the time when the Court passed the decree."
Now, in view of these decisions, it cannot be held that Faqir Ali Shah v. Ram Kishan and others was correctly decided because admittedly the plaintiffs in that case did not hold any land in the village at the time of the three sales which took place on 29th March 1899, 4th May 1899 and 29th November 1899, respectively, and had become land‑holders in the village only on the death of their father, some time in January 1900. Secondly, when a suit for pre‑emption was brought by them, it was still within one year of the respective dates of the three sales. Can it be, therefore, laid down that the principle of law enunciated in the abovemen tioned Full Bench case is of universal application and would also cover those cases where the legal representatives of the deceased per‑emptor are brought on the record after the limitation for filing a suit for pre‑emption had already expired. The question must be answered in the negative, in view of the clear observations of Shabir Ahmad, J. in Nawab and others v. Mst. Irshad Begum wherein his Lordship stated that in some cases, a suit for pre emption, if instituted by the heirs at the time of the death of the pre‑emptor, would be barred by limitation, and, if the heirs were to be allowed to get the property in suit as legal representatives of the pre‑emptor, the law of limitation would be circumvented. Although these observations were made in connection with a case where the right of pre‑emption rested on personal relationship with the vendor, I fail to understand how such a case can be distinguished from the one where the right of pre‑emption is claimed by a pre‑emptor on account of his owing land in the village or in the khata as the case may be. Even in the cases of latter description, the unjustness or inequity of allowing the heirs of a deceased pre‑emptor to pursue the case, although the cause of action did not accrue to them till the limitation for filing a suit for pre‑emption had already expired, would still be there.
The only other question which requires serious consideration is whether the right of pre‑emption, where it is based on property, is a personal right and dies with the pre‑emptor or is a right in the land which passes to the heirs of the deceased pre‑emptor along with the land after his death because if it is not a right in the land, then the Letters Patent authority (1953 Pak. L R Lah. 534 : P L D 1953 Lah. 317) would cover all cases, whether the right of pre‑emption is claimed by the heirs of a deceased pre‑emptor on the basis of their personal relationship with the vendor through the former or on the basis of property inherited by them from him. In the Full Bench case reported in Faqir Ali Shah v. Ram Kishan and others referred to above, the learned Chief Judge, no doubt, expressed his opinion in favour of the later view and there are other cases which also support that view and Fateh Khan v. Muhammad and others (98 P R 1898) is one of them. In that case, Anderson, J. expressed himself thus :‑
"In appeal it is urged that by the provisions of section 5 of the Punjab Laws Act, pre‑emption is not one of the questions where the Muhammadan Law can be made the rule of decision even although the parties concerned be Muhammadans. I think there is no doubt that this contention must be allowed to prevail and that a suit for pre‑emption brought by a landowner regard ing village land should not be regarded as a merely personal action which must terminate on the death of the original plain tiff and does not survive to his representatives who will occupy his exact position in the village community: The practice of the Courts has been to substitute parties in‑pre‑emption suits and to continue to hear pending suits. No objection was taken before the learned Divisional Judge as to the substitution of Malek Khan Muhammad's son being against law, nor was it alleged that the suit had abated on his death."
It may, however, be mentioned that the observation made at the end of this paragraph, namely "that no objection was taken before the learned Divisional Judge' as to the substitution of Malak Khan Muhammad's son being against law, nor was it alleged that the suit had abated on his death" is in direct contradiction to the observation made by Shabir Ahmad, J. in the Latters Patent Appeal Nawab and others v. Mst. Irshad Begum wherein his Lordship held that if no objection is taken before the trial Court as to the sub stitution of the legal representatives of a deceased pre‑emptor, that by itself would not debar the vendee from raising that objec tion in second appeal. It may then be mentioned that the view taken in Faqir Ali Shah v. Ram Kishan and others is also in con formity with that of the Allahabad High Court vide Wajid Ali v. Shaban. On the other hand, certain observations made by Chatterji, J. in his very learned and exhaustive judgment in Muhammad Ayub Khan and others v. Rure Khan and others wherein his Lordship has also referred to a number of other authorities, both of the Chief Court as also of the Allahabad High Court, in support of his conclusion, lend direct support to the former view as expressed above, namely, that a right of pre‑emption is a persona right and does not pass with the land either to the transferee of that land or to the heirs of a deceased pre‑emptor in the village, who had that right by virtue of his ownership of that land. The judgment, no doubt, relates to the case of a transferee by gift who had acquired one half of the property after the sale of the other one half of that property which was sought to be pre‑empted. It can, therefore, be argued that the principle of law laid down in that authority is not in any way in conflict with the ratio decidendi of the Full Bench case, (Faqir Ali Shah v. Ram Kishan and others), but on a careful perusal of the judgment, one cannot divest oneself of the feeling that by giving various illustrations mentioned in the judgment and by referring to section 13 of the Punjab Laws Act (now replaced by section 19 of the Punjab Pre‑emption Act) the learned Judge was clearly contemplating to extend the scope of the ratio also to cases of transfer by inheritance. His tacit approval of the judgment reported in Ram Gopal v. Piari Lal (ILR21 All. 441) also lends support to the view which I take of the abovementioned judgment, viz. Muhammad Ayub Khan and another v. Rure Khan and others. As the relevant observations are scattered all over that somewhat lengthy judgment, I do not propose to reproduce them here.
In a suit where some property, movable or immovable, is in volved, the legal representatives of a deceased person, who are entitled to inherit the same, can certainly pursue the action because the deceased person had a right in praesenti in that pro perty, but this principle of representation, should not, in my humble opinion, be extended to cases where the deceased person has merely a future right of a personal nature to acquire certain property which he might or might not like to exercise. More over, the right of pre‑emption does not in all cases rest on owner ship of land alone but may accrue to a person by virtue of a special custom to that effect. It cannot, therefore, be argued that the right of pre‑emption is a substantive right in the property which necessarily vests in the land which is specially situated with reference to that sought to be pre‑empted. In my opinion, the scope of succession to the property of a deceased person by his heirs, as contemplated by the Succession Act, cannot be extended so as to include the right of pre‑emption in that property, notwith standing the provisions of section 306 of that Act because in that view of the matter the decision in the Letters Patent Appeal, (Nawab and others v. Mst. Irshad Begum) would itself become of doubtful authority, and has in fact been challenged before me in another case as incorrect on the ground that a right to pre‑empt on the basis of personal relationship with the vendor stands on a higher level according to the scheme of the Punjab Pre‑emption Act than the right to pre‑empt on the basis of ownership of land which is specially situated with reference to that sought to be pre empted.
As the point involved in the appeal, whether the right of pre emption is hereditable like any other property and accrues to the heirs of a deceased pre‑emptor or would‑be pre‑emptor after his death, irrespective of the consideration whether the limitation for filing the pre‑emption suit by such heirs is still in subsistence or has already expired, is of some nicety and not free from difficulty and as it is apt to arise in a large number of pre‑emption cases, and as it seems to me eminently desirable that it should be authoritatively answered and the subordinate judiciary left in no doubt in the future as to what the law is, I refer this case to the learned Chief Justice for reference to a larger Bench.
This second appeal has been referred to a Division Bench because of the difficulty and importance of the question of law involved in it, i.e., whether under the law, a right of pre emption is heritable.
2. Shortly stated the facts are that one Allah Ditta sold his share in an occupancy tenancy to Allah Diwaya and Fazal Dad for a sum of Rs. 2j000 on the 4th of November 1952. Nek Muhammad filed the suit out of which this appeal arises for pre emption basing his claim on two grounds :‑
(a) that he was a collateral of the vendor and entitled to in-herit the property occupied by him, and
(b) that he was a co‑sharer in the land sold.
The trial Court found that the sale was by an occupancy tenant in favour of his landlord, and therefore, a suit for pre‑emption did not lie at all. It, therefore, dismissed the suit. The plaintiff, it may be mentioned here, had died during the pendency of the suit and his sons had been brought on the record as his legal representatives. On appeal the learned Senior Civil Judge held that on account of the amendment of the Punjab Tenancy Act in the year 1952 the vendor had become the owner of the land sold. Holding that the plaintiff had a right of pre‑emption, he decreed the suit. The learned single Judge before whom this second appeal by the vendee came up for hearing found that both the grounds of pre‑emption existed; i.e., the plaintiff was a collateral as well as a co‑sharer, it was urged before him, however, that the plaintiff having died during the pendency of the suit, the suit ought to have been dismissed because the right of pre‑emption is personal and does not devolve on the heirs. With respect to the right of pre‑emption based on relationship, there was a Division Bench judgment of the Lahore High Court (Nawab v. Mst. Irshad Begum) wherein it had been held that the right of pre‑emption did not devolve on the heirs. 'So far as the right of pre‑emption was based on ownership of land, there was a full Bench judgment of the Punjab Chief Court in Faqir Ali Shah v. Ram Kishan and others which is in favour of the pre‑emptor. The learned Single Judge was not inclined to accept the Full Bench judgment as correct and has referred the matter to a larger Bench. The only point which has been argued before us and which we have been called upon to decide is whether the right of pre‑emption which was based on relationship as well as on the status of a co‑sharer sur vived to the legal representatives.
3. After giving the matter anxious consideration, I have reached the‑ conclusion that I should answer the question raised in favour of the pre‑emptor. In order to determine whether the right is heritable, the question to be considered is whether it is only a kind of personal privilege which the plaintiff might have exer cised as long as he lived. Jurisprudence divides rights into two categories, proprietary rights and personal rights Proprietary rights, are those which constitute a man s estate, his assets or his property, while personal rights are those which constitute his status. I reproduce below a passage from Salmond's Jurisprudence, page 289, wherein the classification is stated ‑--
"Another important distinction is that between proprietary and personal rights. The aggregate of a man's proprietary rights constitutes his estate, his assets, or his property in one of the many senses of that most equivocal of legal terms. German Jurisprudence is superior to our own in possessing a distinct technical term for this aggregate of proprietary rights, namely, vermogen, the rights themselves being vermogensrechte. The French speak in the same fashion of avoir or patrimoine. The sum total of a man's personal rights, on the other hand, con stitutes his status or personal condition, as opposed to his estate. If he owns land, or chattels, or patent rights, or the goodwill of a business, or shares in a company, or if debts are owing to him, all these rights pertain to his estate. But if he is a free man and a citizen, a husband and a father, the rights which he has as such pertain to his status or standing in the law.
"What, then, is the essential nature of this distinction It lies in the fact that proprietary rights are valuable, and personal rights are not. The former are those which are worth money, the latter are those that are worth none. The former are the elements of a man's wealth ; the latter are merely elements in his well‑being.
"It makes no difference in this respect whether a right is jus in rem or jus in personam. Rights of either sort are proprietary, and make up the estate of the possessor if they are of economic value. Thus my right to the money in my pocket is proprietary ; but not less so is my right to the money which I have in the bank. Stock in the funds is part of a man's estate, just as much as land and houses ; and a valuable contract, just as much as a valuable chattel. On the other hand, a man's rights of personal liberty, and of reputation, and of freedom from bodily harm, are personal, not proprietary. They concern his welfare, riot his wealth they are juridical merely, not also economic. So, also, with the rights of a husband and father with respect to his wife and children. Rights such as these, constitute his legal status, nor his legal estate. If we go outside the sphere of private into that of public law, we find the list of personal rights greatly increased. Citizenship, honours. dignities, and official position in all its innumerable forms, pertain to the law of status, not to that of property."
Ordinarily proprietary rights are heritable, while personal rights are not heritable. That is why I referred to this distinction. This we find stated at page 488 of Salmond's Jurisprudence.
4. Now, the right with which we are concerned cannot obviously be said to be a part of one's status, though it is not a right in, or to, any property. It has a relation to property. Plowden, J. calls it ' jus ad rem acguirem alienden" (136 P R 1 894). It is a restriction on the power to transfer property. According to paragraph 752 of Halsbury Vol. 19, Land Charges (Second edition) contract for pre‑emption is an estate contract and constitutes a charge on land. It is certainly not a right of the kind which is described as a personal right in the classification referred to above. It should, therefore, be classed as a proprietary right and would ordinarily be is heritable. But even a proprietary right may not be heritable. For instance it may be intended to come to an end with the death of its holder. In order to determine there fore whether this right is heritable let us proceed to examine the nature of this right. It is by its definition in the Pre‑emption Act a right to acquire property in preference to others. Now, is a right to acquire property heritable or not If a person has entered into an agreement for purchase of property and he dies before enforcing the agreement, is the right to enforce it not heritable and will not the heirs be entitled to the benefit of the contract Or, suppose a right of pre‑emption is based on a contract (admittedly the right can be so based). One person agrees with another for consideration that whenever he wants to sell a particular property the other will have a right of first purchase. Unless there be a special limitation provided in the contract, the benefit of this contract will pass on to the heirs and they too will have a right of first purchase. The person who entered into this contract had paid good consideration and there is no reason at all that the right should not pass to the heirs. If a right of pre‑emption based on contract is heritable, why should a right of pre‑emption based on statute be not heritable
5. I go a step further. Let us assume for a moment that the ordinary right of pre‑emption was originally intended to be a personal right in the sense that though a proprietary right, it comes to end with death. (Henceforward I will be using the expression personal right generally in that sense). But if a person claims the exercise of his personal right and that claim, if satisfied, should have resulted in the transfer of property, than will the heirs be not entitled to the benefit of that transfer I will cite an example. Let us assume that the members of a club have been given the right to purchase some unwanted property of the club, for example, articles of furniture. Now, this is admittedly purely a personal right. It could not be exercised by any heir, for the right of a member is by itself a purely personal right which does not pass to his heir. Assume that a member had in his lifetime made a claim for the transfer of a particular piece of property, and that by law he was entitled to have that property transferred to him, but that property was quite illegally not transferred to him by the Secretary of the club whose duty it was to transfer the property and he filed a suit for the property but died before the decision of the suit. Will his right to acquire the property not pass to the heirs He would have acquired the property had not the Secretary of the club whose duty it was to transfer property not behaved illegally. Could we refuse the relief to the heirs and help the one who acted in contravention of the law Will the person concerned and his heirs suffer because on an illegality committed by the agent of the other party The case in fact is similar to a personal right of maintenance. Suppose a widow was entitled to Rs. 100 a month for life and for a year towards the end of her life and she was not paid this sum. There is no doubt that the right of maintenance was personal to her for the right of maintenance as such would not pass to the heirs. Does it not seem quite clear that the heirs would be entitled to that part of the money for the recovery of which a cause of action had accrued to the widow To repeat, the exercise of a personal right may result in a right to receive some property and when the matter reaches that stage, the right will pass to the heir. While citing these examples and while I am referring to the acquisition of property as a result of the exercise of a personal right to a person, it may be said that what I say applies only to a case where an actual demand has been made by the person who has the personal right. True, but those who are against the devolution of the right of pre‑emption do not accept that it would devolve even though a claim has been made and a suit had been filed. The case with which I am dealing is of this kind.
6. It will be appropriate to refer here to section 306 of the Succession Act, It runs :‑
"All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators ; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party ; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."
According to this section it is only in a case where the right is of a kind which cannot be enjoyed by a person other than the deceased at all that a demand or right of action would not devolve. I accept that if the right of pre‑emption was personal, the right itself will not devolve but still a claim made and a right actually accrued as to the acquisition of property will devolve. This section does require an executor or an adminis trator, but it will not be reasonable to grant or not to grant a right of pre‑emption because of the existence or non‑existence of the executor or the administrator. The section lays down a principle which, in the absence of anything to the contrary, we should accept even in cases where the section is not in terms applicable. In Sitaram Bhaurao Deshmukh v. Baud Hasan Sirajul Khan (48 I A 475), their Lordships of the Privy Council referred without disapproval to the Courts below having regarded the right of pre‑emption as being vested in the administrator: Their Lordships say :‑--
"He died, and ultimately an administrator was appointed in whom his right, such as it was treated by the Courts below as having vested the reason being this : that it was not a case of an unexercised option which was said to have passed to the administrator, but an option which the uncle in his lifetime had actually exercised, because the uncle, almost immediately upon October 17, 1908, gave through his solicitor a formal notice to the vendor, declaring his intention to exercise his right of pre emption and asking for the address of the purchaser and inspection of the deeds."
7. A strong argument in favour of the heir is the result of not granting the heir a right‑of pre‑emption in cases where the right of preemption relates to urban immovable property. The right of pre‑emption in respect of urban immovable property is based on contiguity, common entrance from the street, common stair‑case, ownership of the site of the building when the building is sold and vice versa, ownership of a dominant or servient tenement and a share in the property sold. The object of the right of pre‑emption is to exclude strangers, and it is obvious that great inconvenience would be caused by the introduction of strangers in cases where a right to pre‑empt urban immovable property is granted. Now, suppose that the dominant tenement has been sold and the owner of the servient tenement has riled a suit, or the house with which there is common entrance or common stair‑case has been sold and a suit for pre‑emption has been filed. During the pendency of the suit (he may die even after the conclusion of arguments and before the announcement of the judgment) the plaintiff dies. Now should a stranger be forced on the person who lives. in the house to which is attached the right of pre‑emption just ,because the plaintiff has not survived the decision of the suit The person now living in the house is only the son of the pre‑emptor. Was it the inten tion of the law that the son should suffer inconvenience because of the accident of death of his father. The son could not have filed a suit when his father was alive. His father did file a suit. The pre‑emptor or his son have not been guilty of any negligence. The suit may have been prolonged either by the tactics of the defendant or on account of the indisposition of the judge. The judge may take long to deliver judgment. The plaintiff may, as I have already said die after the conclusion of arguments. I am on principle opposed to it that delay in the decision of a suit should affect the merits. If one could do it, every, suit should be decided the moment it is filed. If it is not so decided, it is no fault of the party. The delay occurs because the State cannot provide a sufficiently large number of Judges to decide cases in a very short time. Why then should the party suffer just because a case has been delayed
8. In cases where a right is based on ownership of land, it does not at all appear to me to be reasonable or to be consistent with the conception of the right of pre‑emption that strangers should get into the group from which they are intended to be excluded just because it is not possible for the persons who filed the suit to remain alive till the date of the decree. In the example which I have cited above, I do not think it could be the intention of the Pre‑emption Act to deprive the owner of the house to which is attached the right of pre‑emption of the opportunity to acquire the property, because of the death of the particular owner who was alive at the time of the sale which is sought to be pre empted. Why should, under these circumstances, a stranger be necessarily introduced It is quite pertinent to mention here that the proposition that the right of pre‑emption in such cases goes with the land is supported by good authority and cannot seriously be contested.
9. Another point to consider is that, as has been observed by Plowden J. in Dhani Nath v. Budho (136 P R 1894 ), the primary right of the pre‑emptor is that the property sold should be offered to him. The secondary right is to follow the thing sold and to acquire it. If it was the right of the pre‑emptor that the property should have been offered to him and he would have acquired it if it was offered, then the result should not be different if he wanted to acquire the property in his life‑time but could not acquire it just because the vendor did not do his duty and did not offer it to him. Nobody should be allowed to take advantage of a wrong, an illegal act ; nor should any person suffer on account of another's wrong. The proposition that there is a primary and secondary right, as stated above, is supported by abundant authority (pp. 127‑128 of Ellis's Pre‑emption Act, Sixth Edition). 1n any case, the violation of the right that the property be offered to him will grant to the pre‑emptor the right to have this property transferred to him and that is a kind of right which should ordinarily pass to the legal representatives.
10. At this stage I will deal with the main objections which are taken on behalf of the vendee to allowing a devolution of a right of pre‑emption. The first is that in a number of judgments this right has been regarded as a "personal right". The second is that by transfer the right of pre‑emption does not pass and it should also not pass in case of inheritance. The third is that according to a course of decisions the right of pre emption is to exist at three stages, i.e., at the time of the sale, at the time of suit and at the time of decree, and where the pre‑emptor has died this condition cannot possibly be fulfilled. The first and second objections may be taken together. It will be observed that in the authorities relied upon the words "personal right" refers only to the fact that it is not capable of transfer. Cases cited on the point are Muhammad Ayub Khan and another v. Rure Khan and others (95 P R 1901) and Sheo Narain v. Hira (I L R 7 All. 535). In Muhammad Ayub Khan v. Rure Khan and others a person had gifted the house, on which a right of pre‑emption was based, to his mother. Neither the son nor the mother; it was held, could pre‑empt the sale made before the gift. There is an observation in the judgment that the right of pre‑emption being personal cannot be transferred. I will reproduce a paragraph from the judgment wherein the nature of this right is described :‑--
"A consideration of the fundamental principles which govern and regulate the right of pre‑emption leads me to the conclu sion that the right is not properly speaking a right to or in any property. It. ordinarily accrues no doubt by virtue of the claimant being owner of other immovable property which is specially situated with reference to that sought to be pre empted, but even this is not absolutely indispensable. One can conceive, as was argued in this very case and found by the first Court on remand, that a relation of the vendor without posses sing any property in the village in which the property sold is situate may be entitled by custom to claim pre‑emption though such instances are unknown. But relationship frequently forms a very important element in giving rise to the right of pre emption, more especially in villages. So far the right is undoub tedly personal and incapable of being assigned. For example, in a village held on ancestral shares if a proprietor alienates his land to an outsider, the vendee's position as a pre‑emptor is markedly different from that of his vendor. He cannot succeed to the latter's rights as a relation with respect to land held by his agnates. It is also not a substantive right in property which is capable of transfer. It is ordinarily attached to, and dependent on, ownership of other property in the locality, but is not vested or unconditional right in the property subject to the claim, and in this respect differs from an easement which is incapable of transfer apart from the tenement to which it pertains, but capable of transfer with it. It is not jus in re alima, but jus ad rem aliman acquirendam. It merely is a burden or restriction on the right of alienation of the owner of the property subject to the right, and only comes into being when a transfer takes place and the possessor elects to comply with all the conditions necessary to bring it into actual existence. Until that moment no right attaches to the property sought .to be pre‑empted. In other words, the primary right of the pre emptor is that an offer should be made to him when the property subject to the right is about to be transferred. He is not bound to accept the offer, and when he does so, or even gets a decree, he still has no interest of any kind in the property itself until he pays the price fixed within the appointed time. It follows that up to that 'moment he has no right which he can convey to others, and that a bare right of pre emption is not transferable."
In Sheo Narafn v. Hira the question for decision was the same that is whether a transferee of property to which ii attached a right of pre‑emption could pre‑empt a sale already taken place. The word "personal" was used in this judgment too with respect to the transferability of the right. From the fact that either the right of pre‑emption itself is not allowed to be transferred or that on a transfer of the land the right does not pass, it cannot be inferred that the right is not of a kind that is heritable. The reason why its transfer is not allowed is that such transfer would defeat the right of pre‑emption, but this consideration does not apply to a devolution by inheritance. If the right of pre‑emption were to pass by transfer, strangers could be introduced in property from which the law of pre‑emption intends to exclude them for the right could be sold to any person and this sale itself would not be subject to the right of pre emption. Similar considerations would apply to the sale of land to which the right of pre‑emption is attached. If the person to whom the land, which carries with it the right of pre‑emption, is sold is not already an owner of other land which too carries the same right of pre‑emption, then he is a stranger, and it would be wrong to allow him to pre‑empt sales by members of the particular group. This was the basis of the judgment delivered by Mahmud J. in Sheo Narain v. Hira. The learned Judge said :‑----
"I have on previous occasions explained that, in cases like the present, where, even though the right is not claimed under the Muhammadan Law, but under a custom recognized in the wajib‑ul‑arz, the rules of the Muhammadan Law must be applied by analogy, because equity follows the law, and the only system of the law of pre‑emption to which we can look for equity to follow is the Muhammadan Law. Under that law, when the ownership of the pre‑emptive tenement is transferred or devolves by act of parties, or by operation of law, the transfer or devolution passes preemption to the person in whose favour the transfer or devolution taken place; but the rule is essentially subject to the proviso that such person cannot enforce pre‑emption in respect of any sale which took place before such transfer or devolution. This rule must also be applied to the present case. The reason why, although the right of pre‑emption runs with land, the plaintiff in this case cannot be allowed to enforce it, is that, to rule otherwise, would in effect be to allow a stranger to oust one who was not .a "stranger" at the time of the sale."
The learned Judge had accepted that on transfer of the land to which a right of pre‑emption is attached, or by its devolution: the right will pass to the person to whom it is transferred or on whom it devolves; but the learned Judge added a proviso that the transferee or heir will not be allowed to pre‑empt sales already taken place. The learned Judges in Mirza Sadiq Hussain and another v. Muhammad Karim and others (70 IC53), to which fuller reference will presently be made, accepted the general proposition of Mahmud, J. but objected to the proviso as not being based on any authority. I too do not accept the proviso so far as devolution is concerned. By allowing the right of pre‑emption which has accrued to a person to devolve on his heir will not be introducing strangers. On the other hand, if we do not allow the devolution of the right, we will be introducing strangers.
11. There are other objections too to allowing the right of pre‑emption to pass by a transfer. A person owns one hundred bighas of land in an estate. There is a sale of some land in that estate by some other person. Now, this owner sells sixty‑three out of one hundred bighas of land to various persons for different prices. In what proportion will the right of pre‑emption pass and will he lose his own right of pre emption or retain a part of it Suppose we are to fix a proportion, will that proportion be according to the area or according to the price. None of these considerations arises in the case of a devolution of property by inheritance.
12. I come to the third objection. The judgments that say that the right of pre‑emption should exist on three dates are also based on the ground that strangers should not be allowed to be introduced and that if the right of pre‑emption does not exist on all these dates, the decree will instead of supporting the right of pre‑emption defeat it. If a person, who is an owner of land at the date of the disputed sale, alienates the property on the basis of which he claims the right of pre‑emption either before he files the suit or before he is granted a decree, then to allow him to acquire the property would amount to the introduction of a stranger in the proprietary body who have a right of pre‑emption inter se. It is in view of this result that the proposition that the right of pre‑emption should exist on these dates was in the first instance laid down Subsequently this proposition was applied also to a case where the preemptor loses his preferential status not because he has parted with the property on which his claim was based but because the vendee has improved his status so that he remains no longer a stranger and possesses on the date of the decree a right of pre‑emption equal with that of the pre‑emptor. But I do think that in the case of acquisition of property by the vendee after the sale, the opposite view could have been taken. It is quite reasonable to take the view that we should not take into consideration any acquisition of property during the pendency of the suit on fact, now there is a provision in the Pre‑emption Act (section 21‑A) preventing an acquisition during the suit from affecting the pre‑emptor's right of suit. It is pertinent to note here that in section 21‑A a distinction is drawn between a devolution of interest by inheritance and that by transfer, and while the status of the vendee cannot be improved by a voluntary transfer, it does stand improved by acquisition of property by inheritance. So the law does recognise that a right of pre emption based on inheritance of property is available in respect of a sale which has already taken place. It is pertinent to pause here and ask the question. If you allow to the defendant‑vendee a right of pre‑emption in respect of a sale which had taken place before he inherited the property on which his right is based, on what ground can you refuse the plaintiff‑pre‑emptor a right to pre‑empt a sale which had taken place already It is to be remembered that when the defendant is allowed to plead improve ment of status by subsequent inheritance of property he is being allowed a right of pre‑emption on its basis. Unless it was held that he possessed, on account of the subsequent acquisition by inheritance, a right of pre‑emption in respect of the sale in dispute, he could not successfully defend‑the suit.
13. I would concede that in the face of all these judgments which held that the right of pre‑emption should exist on three dates, it will not be proper to grant a decree to a person if the grant of a decree will amount to the introduction of a stranger. I have said already that this is the principle of these judgments. But then the only result can be that while allowing the right of pre‑emption to devolve, we should see that it does not create a result which is not consistent with these judgments. To this extent along the devolution of the right is to be limited. The actual result will be this that in a case where a right of pre emption is based on inheritance, it will pass only to the person to whom the property, which is the basis of the right, passes, and in a case where a right is based on being an heir the decree should be granted only to a person who himself is a nearer heir than the vendee. If, in a case of right of pre‑emption based on ownership, the property which is the basis of the right does not pass to the heir the right of pre‑emption will not devolve on the heir (the property may be bequeathed to a stranger and a case of will I would regard as a case of voluntary transfer not of devolution by inheritance). In order that the right of pre emption based on land may pass to the heir, the heir should be the person who also inherits that land for the right runs with the land. If he does' not inherit the land to allow him to exercise the right of pre‑emption would amount to the introduction of a stranger. Similarly, when the right of pre‑emption is based on the right to inherit, the legal representatives of the pre‑emptor should be personally a nearer heir of the vendor than the vendee, for on the same principle to allow a person who is not a nearer heir of the vendor to acquire the property would mean the introduction of a stranger. When the law gives to the owners in an estate the right of pre emption inter se the object is to keep the property within the group. Similarly, when the right of pre emption vests in the heirs of the vendor the object is to keep the property with the heirs and any person other than an heir of the vendor being a stranger to this group should not be allowed to pre‑empt a sale of his property. The above is the conclusion which I would reach on a logical consideration of the nature of the right and the object which it is intended to serve. I am supported in this conclusion by the view of a well known writer on pre‑emption. Ellis says in his Law of Pre‑emption (page 173, Sixth Edition) :‑
"Though the right is not transferable, it descends to the heir of the person who held it, if the heir possesses the same statutory capacity.
"This rule is an opposition to Muhammadan Law which so strictly interprets the personal nature of the right as to disentitle the heirs to exercise it.
The view given above is not only consistent with equity and the principles of pre‑emption (as there can be no defeating the aims of pre‑emption by allowing an heir to prosecute a suit), but it is in accordance with correct rules of jurisprudence the heir simply representing the persona of the original pre emptor."
The above statement is in accord with the conclusion I have reached. It allows the right to devolve on the heir subject to the qualifications which I have attached.
14. In so far as the right is based on ownership of land, there is good deal of authority including three Full Bench judg ments, one of the Punjab Chief Court, one of the Allahabad High Court and one of the Oudh Chief Court, which supports its devolution on the heirs. In Faqir Ali Shah v. Ram Kishen the claim was based op the pre‑emptors being owners of land in the village. The plaintiffs were not land owners at the time the sale took place because at that time their father was alive. The plaintiffs pleaded that a cause of action had accrued to their father to enforce his right of pre‑emption and that. right had devolved on, them. The Full Bench held that the right of pre emption when it is based on ownership of land was inherent in the land, for it would pass by a transfer of the land, and prima facie the right to pre‑empt a sale which had already taken place should also pass along with it. However, on a reference to Sheo Narain v. Hira, wherein the objectionable results of allowing the transferee to pre‑empt sales already taken place have been pointed out (I have already reproduced the relevant passage), and on some further reasoning of their own the learned Judges were of the view that the right of pre‑emption in respect of previous sales should not be allowed to pass in case of voluntary transfers. The main reasons which influenced them in making this exception were two. One was that this would not be consistent with the right of pre‑emption for strangers would be allowed to pre‑empt sales and the second was that if this was allowed, people would rush and begin making purchases of small plots of land in order to pre‑empt sales which had already taken place and this would lead to a great deal of inconvenience. The learned Judges found, however, that while there were good objections to allowing an alienee by voluntary transfer to pre‑empt sales already taken place, there was no reason why the right of pre‑emption should not devolve in cases of inheritance, for ‑the objections taken in the case of voluntary transfer did not apply to such a case.
15. In Wajld Ali v. Shaban (I LR31All.623), the right of pre‑emption on account of ownership of land had accrued to two persons, Wajid Ali and Bakht Ali. Bakht Ali was alive at the date of the sale but had died without making any claim for pre‑emption. A suit was filed by Wajid Ali and Ali Ahmad, the grandson of Bakht Ali. Defence was taken that Ali Ahmad had no right of pre‑emption at all and that Wajid Ali had forfeited his right to pre‑empt by joining Ali Ahmad as a co‑plaintiff who was a stranger. The majority of the Full Bench held that the right of pre‑emption of Bakht Ali had devolved on Ali Ahmad and he was entitled to file a suit. Reliance was placed on behalf of the vendee on Sheo Narain v. Hira. The majority of the learned Judges were not prepared to agree with the reasoning in that judgment, but they distinguished the case on the ground that it was a case where there was a voluntary transfer of land, while Banerji, J., who constituted the minority, decided on the ground that there could be no difference between transfer and inheritance. The majority followed an earlier authority of their Court in I L R 20 All. 148, which they found on all fours with the case before them, for in that case too an heir had been allowed to pre‑empt a sale which had occurred before the property had devolved on her.
16. The Third Full Bench case is Mirzu Sadiq Husain and another v. Muhammad Karim and others. The right in this case was based on ownership of land and the plaintiff in the suit was the one to whom the land had been gifted by his own father. The learned Judges came to the conclusion that the right of pre emption being a right inherent in land would pass even by the gift. They were not inclined to accept that there was any difference between a case of inheritance and the case before them, which was not of a pre‑emptable sale but of a gift by a father to a son. They were of the opinion that the objections on the basis of which Mahmud, J. had in Sheo Narain v. Hira refused to allow the transfer of the right of pre‑emption were not applicable to the case before them for the transferee (the plaintiff) was not a stranger and the alienation in his favour was not pre‑emptable. The judgment is an exhaustive one and deals with a large number of cases. It does not accept the whole reasoning of Mahmud, J. in Sheo Narain v. Hira, though it distinguishes that case. I have already pointed out that the learned Judges had in this case accepted the proposition of Mahmud, J. as to the passing of the right by a transfer or devolution, but had refused to accept the proviso which the learned Judge added that the previous sales could not be pre‑empted by a transferee.
16‑A. In Fateh Khan v. Muhammad and others (98 P R 1898), it was held that the suit for pre‑emption was not a personal action which would terminate on death of the plaintiff and that the practice was to substitute the legal representatives in such cases.
17. In Kaunsilla Kunwar v. Gopal Prasad (I L R 28 All. 424), a suit to pre empt a foreclosure had been filed by the widow of one Chandrika Prasad. Chandrika Prasad was alive on the date of the fore closure. Objection was taken to the suit on the ground that the plaintiff was not entitled to succeed to the cause of action which accrued to her husband. It was contended that the right of pre emption was a personal right and did not pass to the widow. The right of pre‑emption was in that case based on ownership of land. Following Muhammad Yusuf Ali v. Dal Kauri (I L R 20 All. 148), the learned Judges held that the widow had a right to pre‑empt. They said, "The right of pre‑emption is a right which is incident to or arises out of the ownership of land, and it seems to us that the persons who are for the time being entitled to the land to which the right is incident may exercise the right so long as it is not barred by limitation or by conduct or circumstances which would render it inequitable on their part to enforce the right. We think that so long as the right is not barred by limitation or by any matter which would render it inequitable to enforce it, the owner of the property in respect of which the right to pre‑empt exists can maintain a suit for pre‑emption notwithstanding that he was not the owner at the date when the cause of action first accrued." I have already stated in an earlier part of this judgment that the proposition that such a right is an incident of property is supported by good authority. I have already referred to the Full Bench of the Oudh Chief Court. I may here observe that this is accepted even by Mahmud, J. in Sheo Narain v. Hira and by Banerji, J., who wrote the dissenting judgment in Wajid Ali v. Shaban.
18. In Ramji v. Mst. Muktai (15 I C 570), a distinction was made between devolution by inheritance and transfer by sale etc. and it was held that while the right of pre‑emption stood transferred to the heir, it did not pass to the transferee by means of an alienation.
19. In Sayyed Jiaul Husain Khan v. Sitaram Bhau Deshmukh (I L R 36 Bom. 144), section 89 of the Probate and Administration Act, (which is the same as section 306 of the Succession Act), was held applicable to a right of pre‑emption and it was held that the right devolved on the executor of the administrator. This is the same case which had gone to the Privy Council in Sitaram Bhaurao Deshmukh v. Jiaul Husain Sirajul Khan, cited above I have already referred to section 306 of the Succession Act which, in my opinion, would be applicable unless of course we come to the conclusion that the right of pre‑emption was a personal privilege of the pre‑emptor and that privilege had not as yet been exercised so as to give rise to a right to property.
20. In Sarfraz Khan v. Muhammad Yakub Khan (A I R 1942 Pesh. 23), it was held, following Faqir Ali Shah v. Ram Kishen and others, that the right of pre‑emption survived to the heir; the right was based not on ownership of land but on being one of the heirs of the vendor. Although the judgment is short, the reason given is the same on which I have relied in relation to the exercise of the right in his life time by the pre‑emptor. I have said that even in the case of purely personal right, if the right is exercised by its holder so as to give rise to a right of property, it does, in any case, become a heritable right.
21. In Nawab v. Mst. Irshad Begum (P L D 1953 Lah. 317) it was held no doubt that when the right of pre‑emption was based on relationship, it did not pass to the heir. I had appeared as a counsel in that case for the vendee, but with great respect I am of opinion that the case was not correctly decided. An important consideration is the one on which I have relied even with respect to a purely personal right and which is referred to in the preceding paragraph. I have already explained by reference to the right of a member of a club that when a personal right is exercised, it gives rise to a right to property and there is no principle on which this right to property would be not heritable. Of course, we should place such restrictions on this inheritance as are essential having regard to the nature of the right as explained in a series of judgments. But otherwise there is no reason why a right to property should not devolve on the heir. At the same time, so far as the right of pre‑emption based on ownership of land is con cerned, there is little doubt in my mind that it was not the intention of the law to allow the introduction of a stranger merely because the pre‑emptor bad not survived the end of the suit. Authority too is all on the side of the pre‑emptor in a case where the right is based on ownership. I do not think we should make a distinction between cases where the right is based on relationship, i.e., on being heir of the vendor and cases where it is based on ownership. As I have said, the intention in the case of a right based on relationship is to keep the property within that group which is constituted of the heirs of the vendor just as in the case of a right based on ownership the intention is to keep the property within the group constituted by the owners of a particular class. But though I am not agreeing with Nawab v. Mat. Irshad Begum, I do not feel the necessity of a reference to a Full Bench because that case relates to a right of pre‑emption based on relationship and in the case before us both the grounds exist. That case is no authority for a right of pre‑emption based on ownership.
22. I would hold that a right of pre‑emption devolves on the heirs subject to the condition that the heir too has a preferential right as against the vendee either on account of his ownerships of land which may have devolved upon his or on account of his being a nearer heir of the vendor than the vendee. I would dismiss this appeal, but would leave the parties to bear their own costs.
‑I am sensible of the great delay that has already occurred in the disposal of this appeal, but my views differ so widely from those expressed by my learned brother that I feel constrained, with deep respect for his vast experience and learning, to dissent from him.
2. A different approach to the subject attracts my mind, for I have the humble advantage of never yet being too familiar with this branch of the law and as such being unaccustomed to taking for granted the prevalent conflicting views regarding the nature of the right of pre‑emption and the relative importance of the object of the law of pre‑emption as compared with the importance of the conditions in which the right can be exercised.
3. The right has been defined by statute. The Punjab Pre emption Act, 1913, has laid down that the right of pre‑emption is the right of a person to acquire property in preference to others, yet there is a controversy as to whether the right devolves with the devolution of the property which qualifies a pre‑emptor to pre‑empt and whether it is a right "to" property or not. Divergent consequences follow the adoption of one of the two views, and influence thought even when the right is not founded on ownership of property but arises from the relationship of the pre‑emptor with the vendor only. Similarly there is a contro versy regarding an essential condition subject to which the right can be exercised. Judicial opinion is unanimous that pre‑emptor should be qualified to pre‑empt at least on the date of the sale from which his right arises. In consequence the right of pre emption has been defeated in innumberable cases owing to the non‑fulfilment of this condition ; but this condition has not been recognised as essential in a few important cases. In these cases the right was founded on ownership of property and was exercised on the ground that the property had devolved on the claimants of the right, carrying with it the right of pre‑emption, after the sales in question had taken place. I state with ‑respect that there is a conflict of principles in those cases.
4. My learned brother has derived support from those cases but has been principally guided by the object of the law of pre emption to exclude strangers from the society of the pre‑emptors.
To him the condition that the qualification to pre‑empt should exist on the date of the sale in virtue of which the right arises, is subservient to the object of the law of pre‑emption and the right of pre‑emption is itself capable of devolution on the heirs of the pre‑emptors. As far as I am able to see devolution is inconsistent with the nature of the right of pre‑emption, and the condition subject to which it can be exercised, namely that the right should at least exist on the date of sale or foreclosure is an essential characteristic of the right itself. I shall try in the following pages to explain the reasons for holding this view and shall frequently refer to the exhaustive judgment written by my learned brother in acknowledgment of the valuable help that it has been to me in appreciating the main trends of all relevant thought.
5. The main question that was referred to us in this appeal is.‑----
"Whether the right of pre‑emption is hereditable like any other property and accrues to the heirs of a deceased pre emptor or would be pre‑emptor after his death, irrespective of the consideration whether the limitation for filing the pre emption suit by such heirs is still in subsistence or has already expired."
There is little doubt that the right of pre‑emption is not heritable "like any other property". It is not property, not even in the sense of being a contingent interest in property. There is a temptation during the endeavour to describe its nature to call it an "incident of property", but it is not so, because among other reasons, it can be enjoyed in virtue of the relationship of the pre‑emptor to the seller of the property. There is no provision in the Punjab Pre‑emption Act, 1913, that makes it heritable. As inheritance is governed in our country by the personal law of the citizens, it is important to note that there is nothing in the personal law of any citizen inhabiting the area of the former Punjab that can be said to make it heritable. No code of personal law of any such citizen, except that of the Muslims and the customary law recognizes the right of pre‑emption. Neither Muhammadan Law nor any generally. applicable customary law recognizes the principle of heritance in pre‑emption. On the contrary, as is well known, Muhammadan Law treats the right of pre‑emption as uninheritable. It is noteworthy that most of the discussion on the law of pre‑emption in which expressions akin to "heritance" are used really relates to the problem of the survivorship of the right of pre‑emption after the pre‑emptor's death to enable his legal representatives to continue a pending action, rather than to inheritance as such. Kaikaus, J. has discreetly used the word "devolves" in his final answer to the question referred to us and not the expression "is inherited". Viewed in this perspective the question assumes this form. Whether the right of pre‑emption survives the death of the pre‑emptor and devolves on his heirs
6. Kaikaus, J. has answered this question conditionally in paragraph 6 of his judgment as follows:
"I accept that if the right of pre‑emption was personal, the right itself will not devolve, but still a claim made and a right actually accrued as to the acquisition of property will devolve."
The final answer to the question therefore, should, be taken in the context, to depend on the determination of two issues, firstly, whether the right of pre‑emption is a personal right ; secondly, whether (a) a claim made on its basis survives the death of the pre‑emptor and (b) the right itself devolves on his heirs once it matures to the degree of becoming a right to the acquisition of property. The idea contained in the latter part of the second issue is rather elusive. In a sense the right of pre‑emption is from the beginning the right to acquire property. That is apparently not what is meant. The same idea has been expressed by Kaikaus, J. in paragraph 20 of his judgment in the following words :‑
"* * * * * If the right is acquired by its holder so as to give rise to a right of property, it does, in any case become a heri table right."
The right does not become a "right of property" or a right to take the property by dispossessing the vendee so long as a decree is not passed and consideration is not paid. If this is the degree of maturity that is in view, then devolution of the right during the pendency of a suit by which it is exercised is out of question. The second issue is, however, an exception to the first issue, and therefore, the first problem is the determination of the nature of the right.
7. Section 4 of the Punjab Pre‑emption Act, 1913, has defined the right of pre‑emption as follows :‑
"The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property."
"Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale."
It is, therefore, "the right of a person" to acquire certain varieties of immovable property "in preference to" others and "arises" in the stated circumstances. The pre‑emptor must establish a superior right to that of the vendee. After the right has arisen it should continue to exist to be exercisable. The defendant vendee or defendant mortgagee can defeat the claim of the pre emptor with an equal right of pre‑emption to that of the plaintiff and need not retain that qualification after the date of the tran saction on the basis of which the right is claimed, because a preferential right cannot arise if the defendant had an equal right at the time of the transaction. The difference in the character of a claim to pre‑empt and that of the defence to that claim has been well emphasised by Sir Shadi Lal in his book on the Punjab Pre‑emption Act, 1905, at page 75. He wrote :‑
"The point is not whether the defendant‑vendee could have sued for pre‑emption, but whether he is entitled to successfully resist the claim of the plaintiff pre‑emptor. There are many cases in which a vendee has successfully resisted the claim of the pre‑emptor, though as a plaintiff he would have failed. A vendee whose status was equal to that of the pre‑emptor on the date of the sale will defeat the claim of a pre‑emptor, though the former has ceased to have that status on the date of suit.---‑44 P R 1903. It is also urged that the defendant having, at all events, immediately parted with his own house ought not to be allowed to retain the one in suit on the strength' of his ownership of that house. But he is defendant, not plaintiff . . . . It would have been different had the plaintiff been in his position," . . . . per Chatterji, J., in 44 P R 1903, page 156. Similarly in 3 P L R 1907 and 26 All. 389, a vendee whose status was inferior to that of the pre emptor at the time of the sale defeated the pre‑emption suit, because, by subsequent purchase, he had, at the time of the suit, acquired a status equal to that of the pre‑emptor.
"These and many other similar cases show that the vendee may defeat the claim of the pre‑emptor though he would have failed if he had come in as a plaintiff." ‑
It is important to note that, in terms of the statutory definition, the right of pre‑emption is not deemed to exist at the time of a sale or foreclosure, but arises or is born in the given circum stances. It, therefore, cannot "run" with the land, as if it were attached to the land. It is not a right "in" or "to" the land, nor is it "inherent" in the land. Sections 6 and 7 of the Act have described it as a right "in respect of" the property and section 5 of the Act has described it as a right "in respect of the sale of or the foreclosure of the right to redeem", section 9 of the Act has described it as a right "in respect of any sale" made by or to the Government and section 12 of the Act has described it as "in respect of all sales and foreclosures". It is connected with property as much as it is connected with the transactions. It will be as erroneous to regard it as inherent in property as to regard it as inherent in sale or foreclosure. Section 13 of the Act has made it clear that it "vests" in the pre‑emptors themselves. T. P. Ellis was, therefore, obviously right in stating that:
(P. 152, 1913 Edition).
" . the right of pre‑emption is one belonging to an individual who possesses certain statutory qualifications under the Pre‑emption Act."
The qualifications vanish with his death and his right should be extinct. There is no doubt that the qualifications constitute the pre‑emptor's legal status and not his legal estate. It is of the same category as any other "personal right", to use the expression of Salmond and does not differ in nature from the right of citizenship in the sphere of public law. Citizenship too is connected with territory.
8. I have utilized the expressions used by Salmond in his book on Jurisprudence for convenience and clarification of distinctions, but they are not to be strained because the con ceptions of English Jurisprudence are foreign in origin to our conception of the right of pre‑emption which was meant to be embodied in the Punjab Pre‑emption Act.
9. Learned Judges and text‑book ,writers have, for three quarters of a century done their best to explain the nature of the right of pre‑emption but their disagreement could not be completely eliminated in spite of a general agreement amongst them regarding it. In Rajjo v. Lalman (I L R 8 All. 180), Mahmood, J. has described the right of pre‑emption as a "Transient right" and as a "personal privilege". Sir Shadi Lai has described it at page 40 of his book on the Punjab Pre‑emption Act, 1905, as a "personal privilege" Clark, C. J. who held it to be heritable though not transferable appears to have approved in Faqir Ali Shah v. Ram Kishen and others the characterisation of the right as "a transient right" and a "personal privilege." Kaikaus, J. has suggested in paragraph 3 of his judgment that a "personal privilege" could be heritable. He has observed :‑
"in order to determine whether the right is heritable, the question to be considered is whether it is only a kind of personal privilege which the plaintiff might have exercised as long as he lived."
The statutory definition of the right of pre‑emption and the Scheme of the statute should have put an end to the controversy but the exclusion by the statute of the application of Customary law and Muhammadan Law has never been accepted without reservation because the Judges and text‑book writers have looked upon the right from the point of view that the legislature did not create or determine it but only aimed at recapitulating the existing conception of the right of pre‑emption in pithy and formal language. Sir Shadi Lal criticised, at page 50 of the book on the Punjab Pre‑emption Act, 1905, the Severity with which the statute excluded the customary law. He almost suggested that the administration of the‑law as enacted was impracticable. He said : ‑‑
"I cannot conceive a custom of pre‑emption in the abstract without its incidents, and fail to see how such a custom could be proved without bringing in the incidents at the same time. The Legislature has, however, laid down the lave, and it is the duty of the Courts to carry out 'its intentions as best as they could."
Ellis wrote of the definition:
"The present Act has given in section 4 a partial definition only of the right of pre‑emption. It has defined it as a right to acquire property in preference to other persons, but the right of pre‑emption is considerably, more than this" (p. 119), and proceeded to explain the characteristics of the right evolved from Muhammadan Law.
11. In the endeavour to grasp the whole conception, Judges and authors of books on pre‑emption have tirelessly tried to discover and reach its origin but unfortunately, for this branch of the law, they succeeded in arriving at different spring‑heads at their destination and have not agreed on which of them was the real source. They are almost unanimous that the right, in urban areas, is traceable to Muhammadan Law. The credit for this goes mostly to the perspicuous judgments of Mahmud, J. of the Allahabad High Court. The origin of the right in the rural areas has been considered, in the territory of the former Punjab, to be in indigenous Hindu village institutions. There were many adherents of this view who found a firm ground on which to base their theory in the writings of Sir William Rattigan and Sir Henry Main. A full Bench pointed out at p. 354 in Dilsukh Ram v. Nathu Singh and Sita Ram (P R 98 of 1894) that the source of the obligation to which the right of pre‑emption in a village corresponds was an ancient view that was entertained lay village communities. It was that the subject of sale was jointly held by a group of proprietors of which the vendor was a member. In the absence of an agreement to the contrary, it was a necessary consequence of this view that a member of the group was incompetent to sell a part of the property conjointly owned by the group in disregard of their consent.
12. This object and the object of Muhammadan Law of pre‑emption were different. Their contrast has been brought out by Shah Din, J. in Amir Chand and others v. Chuni Lal (90 P R 1909). I quote from page 14 of the 3rd Edition of the commentary on Punjab Pre‑emption Act, 1913, by Sir Shadi Lal, as revised by K.J. Rustomji:
"The institution of customary pre‑emption (in villages) is not in all respects identical with pre‑emption as known to the Muhammadan Law ; the chief ground of distinction being that, whereas under the Muhammadan Law, pre‑emption, as the word shufa itself denotes, is based upon conjunction of the vendor's property with that of the pre‑emptor, and its main object is to prevent inconvenience arising from the introduc tion of strangers, the customary right of pre‑emption is primarily founded upon the pre‑emptor's right, inherent in him as a member of a landowning group holding property with the vendor in joint ownership, to prevent the latter from dealing with that property so as to disturb the normal course of its devolution and thus to preserve the integrity of the village community. Considered from a slightly different point of view, pre‑emption under the Muhammadan Law postulates the existence of a free power of transfer and is intended only to neutralize the evil effects of such power taken in connection with the privacy of family life and with the minute sub division of property resulting from the unfettered operation of the law of inheritance ; while customary pre‑emption presup poses and springs from a state of society in which the owner's power of disposal of property is at first absent and in later times very much restricted, and represents a con venient compromise between the conservative feelings of the village community struggling to keep intact the nexus of joint ownership and kinship in blood, on the one hand, and the inevitable tendency towards social disintegration and the growth of individual property, on the other. Pre‑emption under the Muhammadan Law is, properly speaking as evidenced by its actual working in practice a town institution ; while customary pre‑emption, as known to us in the Punjab, is in its inception a village institution, intimately connected with the origin and development of village communities."
13. Let it be remembered that the idea of pre‑emption as we know it was unknown in India before the arrival of the Muslims, K. J. Rustomji has explained at page 5 of his book Pre‑emption in British India, that the idea of pre‑emption could not, and need not have taken birth in this country in its early history: He is obviously right. A need was created subsequently to preserve the decaying integrity and compactness of village communities and, therefore, the idea of pre‑emption, brought by the Muslims, was borrowed as useful. The purpose of adopting the idea was, therefore, different from the original purpose of the right of pre‑emption but it is a borrowed idea and its origin is Muhammadan Law. Aggarwala has reproduced extracts at pages 14, 15 of the book on the Law of Pre‑emption (4th Edition) from 3 judgments to indicate that the origin of the law of pre emption was judicially declared to be in the old Hindu conception of village society, and has remarked:
"with all the respect to the learned Judges, I must point out that they beg the question."
He is blunt but not wrong, for by explaining‑ the reasons for which the conception of pre‑emption was borrowed you do not explain away that it was not borrowed. The Privy Council has held in Kanwar Digamber Singh v. Kanwar Ahmed Sayeed Khan (28 I C 34 (38)) that:
" Pre‑emption in village communities in British India had its origin in the Muhammadan Law as to pre‑emption, and was apparently unknown in India before the time of the Moghul Rulers." '
13. (sic) To the extent to which the origin of a law or of a legal conception determines its nature, the right of pre‑emption cannot be heritable, for one of the essential characteristics of the original conception is that the right of the pre‑emptor to pre‑empt is extinguished by his death. It is beside the point to call it a "personal right" or "personal privilege" and then to consider whether a "personal right or privilege can be heritable according to the concepts of European, or Anglo‑American Jurisprudence. A relevant question can be : was this original quality lost in the Punjab There is little evidence to support the possibility. The answer should be in the negative if the history of statutory law on the subject is an index of the state of the law which the statutes codified. Moreover, the supporters of its heritability do not contend that it was heritable by any general custom. If it was heritable by custom in any locality, that characteristic cannot be extended outside the limits of that locality with the help of logic. Custom is independent of logic and incapable of being enlarged with the help of philosophy nor is it bound by rules of equity. Ellis, who was a sympathiser of the view that the origin of the law of pre‑emption in the rural areas of the Punjab was not Muhammadan Law, has noted this drawback at page 29 as follows :‑
" . . . . . while historically correct in treating the rural law of pre‑emption as referable to archaic law, and while recognizing Muhammadan Law as the probable basis of urban pre‑emption, the Punjab Legislature and Courts, in expressly excluding from consideration the principles of Muhammadan Law, have left little to refer to for guidance in cases where equity has to be administered, or the general principle underlying the Law of Preemption has to be ascertained."
He could .find no solution of the problem except to fall back on Muhammadan Law. He said (page 29).
"General principles and equity are not matters evolvable from a, nebulous systems or inner consciousness ; they follow and are based on law, and as the only original system of law relating to pre‑emption in India containing well known and well defined rules of equity and principles of pre‑emption was the Muhammadan Law, the main rules of equity and principle relating to pre‑emption are derivable from that source alone."
He was not happy with the solution, but it was not his solution, for the Courts had found it with "the curious result", to use his words, "that while, expressly debarred from resorting to Muhammadan Law, the Courts in the Punjab have been compelled to go to that law (Muhammadan Law) for its equitable rules and for guidance in determining what are the principles of the law of pre‑emption." To him the origin of the right of pre‑emption was in the customary law of the vast rural areas of the Punjab which had its sources in the indigenous Hindu institutions. He, therefore, described the state of the law of pre‑emption in the Punjab as :‑---
"Opposed to sound system of jurisprudence."
14. If the origin of the right of pre‑emption is Muhammadan Law and if its equitable and general principles are also derived from Muhammadan Law, its characteristics should be the same as of that right in Muhammadan Law ; which means that it should become extinct with the death of the pre‑emptor. There is disagreement amongst the authorities on this question Kaikaus, J. 'has observed in paragraph 13 of his judgment that the law stated by Ellis in this respect "is in accord with the conclusion" at which he himself has arrived. The passage quoted from his book by Kaikaus, J. shows that he was in favour of acceding heritability to the right of pre‑emption, inconsistently with Muhammadan Law, but as in accordance with correct rules of jurisprudence", for the heir simply represented the persona of the original pre emptor, and also as "consistent with equity and the general principles of pre‑emption", for the aim of pre‑emption was not defeated if an heir was allowed to prosecute a suit. These arguments advanced by Ellis with accuracy and brevity have been advanced by the staunchest supporters of the view less accurately but elaborately. I venture with respect to point out that the utility of a law is controlled and circumscribed by the limi tations of the nature of that law. An argument founded on the object or utility of a law in support of survivorship of a right created by that law is futile if by its nature it is ex tinguished at the death of its holder. If Muhammadan Law is the origin as well as the source of the rules of equity and the general principles underlying the law of pre‑emption, it is contra dictory to regard the right of pre‑emption hereditable on considerations of equity and general principles evolved from its object and utility, but in disregard of its original nature and character. Creating such a state of law and thought will not be in consonance with sound jurisprudence. Eliminating the influence of the original conception of Muhammadan Law in respect of heritability will amount to a purification' of the system of the law to those who think that, the origin and make‑up of the law of pre‑emption is not' essentially Muhammadan.
15. Several schools of thought are discernible in this branch of the law. There were at least three main schools in the Punjab. One of them was of the view that Muhamm3dan Law was the source of the law of pre‑emption and continued to guide the course of its administration. It had the distinguished leadership of Mahmood, J. and I believe, was the largest school. Another school of thought was of the view that early Hindu village institutions were the source of the law. It had two branches. One of them thought that old Hindu institutions and early Hindu law could afford substantial guidance. In any case, they could do so if their principles were supplemented with the principles of other laws and statutes. Two outstanding judgments of this branch are by Sir Meredyth Plowden in Dilsukh Ram v. Nathu Singh and Sita Ram (98 P R 1894) and by Shah Din, J. in Sanwal Das v. Gur Parshad (90 P R 1909). The other branch liberally sought guidance from Muhammadan Law but regretted‑ it. T. P. Ellis belonged to this branch. The third school regarded the right of pre‑emption to be of "practical nature" and a distressful anachronism". It hoped that some patriot at no distant date will introduce a bill for its total abolition in urban areas." , (See pp. 1‑2 of the Law of Pre‑emption by Sir Shadi Lal 2nd Edition revised by Rustomji).
16. The right is not an evil nor a nuisance, if kept within proper bounds. Their Lordships of the Privy Council have judicially declared it to be a "valuable right" in Kanwar Digamber Singh v. Kanwar Ahmad Sayeed Khan (28 I C 34). It is nevertheless a burdensome' right, for it imposes the will of the pre‑emptor "in order to prevent apprehended inconvenience to him" on the vendor and the vendee, by restricting the freedom of the vendor to sell his property to anybody he liked and that of the vendee to buy any property he chose. Muhammadan Law recognizes this character of the right for it has curbed and controlled it by imposing several important restrictions. Some of them are procedural and some substantive in nature. The right can be claimed under Muhammadan Law only according to a detailed procedure. It is lost by delay in claiming it or by ac quiescing in the transaction in relation to which it arose. It is neither transferable nor heritable and can be defeated by legitimate devices. Moreover the qualification to exercise it must exist at the time of the transaction owing to which it arises as well as at the time of the claim and decree of the Qazi. Everyone of these restrictions when enforced is bound to violate the privacy of the pre‑emptor and introduce a stranger into his sanctuary, but the right is no more than that. The policy of the law towards the exclusion of strangers is not more exacting. It is immaterial from this point of view as to what is meant by the expression stranger' and who is the lesser or greater stranger. Here a passage from Hidaya will not be out of place:
"A device, as above described, for eluding the privilege of Shaffa is not abominated by Aboo Yoosaf. According to Muhammad, however, it is abominable ; because (as he argues) the privilege of Shafa is instituted solely with a view, to prevent the inconvenience which might otherwise ensue to the Shafee ; but if devices are admitted to elude and set at nought his privilege, the inconveniences which may ensue will not be prevented, and the end of the institution will be defeated. The argument of Aboo Yoosaf is, that as the above devices prevent the right of Shafa from ever being established, the incon veniences that may accrue to the 'Shafee ought not to be considered." (p. 563).
Hamilton's remarks on this right, which he made in the intro duction or "Preliminary Discourse" to his Translation of Hidaya, are also pertinent:
" However accommodating to the interests and partialities of individuals this privilege may nevertheless be considered‑ as liable to some objection, on the score of affording room for endless litigation. Under certain restrictions, it is both a just and a human institution." (p. xlvii).
17. Sharp differences in views have, however, manifested themselves in the administration of the law in pre‑Partition India, owing, I humbly state, to freedom exercised in the selection of principles. The Judges do and should exercise freedom which is necessary in the administration of justice ; for the Judges do not have simply to declare the Law but "to apply the rule/which in all the circumstances appears most reasonable". They can nevertheless legitimately do so without disobeying the will of the law, its basic conceptions and accepted doctrines. In Mirza Sadiq Hussain, v. Muhammad Karim (70 I C 53 (D B)) the only son of the plaintiff was allowed to continue the suit in virtue of the gift made by his father during the pendency of the suit, of the property which was the qualification of the father to‑sue for pre‑emption. It was held that the gift by the father to his son was akin to a transfer, by inheritance. In Faqir Ali Shah v. Ram Kishan and others the right of pre‑emption was held to "pass with the land" when land was inherited but not when it was voluntarily transferred, for the power to convey the right of pre‑emption by voluntary transfer of land was considered to involve "a very reasonable danger" that "any number of persons hungering after that property might set about to buy small plots, not with any desire to own those plots but simply as a foundation for pre‑emption suits. This would be a great hardship to the original vendee exposing him to a number of suits, which he had no reason to anticipate at the time of his purchase, and would be otherwise of very undesirable state of affairs." In Wajid Ali and another v. Shaban and others (31 All. 623 (F B)) their Lordships held that the right of pre‑emption recorded in wajib‑ul‑arz descended along with the property with reference to which it arose and subsisted to the heir of the pre‑emptor. Tudbal, J. observed at page 627:
"The analogy of Muhammadan Law moreover can only be applied to cases of custom under a wajib‑ul‑arz where it is not repugnant to the principles of equity, justice and good conscience. In the Full Bench ruling (7 All. 535) Mahmud, J. applied to the case of a transfer by sale to a stranger. I do not think that he can be said to have held that it should be applied even in the case of inheritance of a share by an heir'. In equity and justice, there is clearly no reason that an heir who inherits a share should not pre‑empt in the case of a sale which took place before the estate vested in him. None of those incon veniences or absurdities which Mahmud, J. pointed out, could arise in such a case. I can see no reason to apply the arbitrary and inequitable rule of the Hanafi School of Muhammadan Law."
The learned Judge discarded the analogy' of Muhammadan Law altogether on considerations of equity, justice and good conscience, and without recognising that the Hanafi Law, which was admi nistered by the Muslim rulers in India, was the origin of the law of pre‑emption in India.
18. Kaikaus, J. has extended the application of the con clusions arrived at in the above mentioned Full Bench judgments to those cases in which the right to pre‑empt arises with reference to relationship, and not ownership of property. He has observed in paragraph 21 of his judgment:
"I do not think we should make a distinction between cases where the right is based on relationship, i.e., on being heir of the vendor, and cases where it is based on ownership."
With respect, I fully agree with his generalization, because in principle, there is no difference between the two categories. I venture, therefore, to state; with very great respect, that Mahmud, J. had correctly enunciated the principles of the law in Sheo Narain v. Hira (I L R 7 All. 535 (F B)) and that his observations could not, in principle, be distinguished with the aid of the illustrations given by him. The "inconveniences and absurdities" pointed out by him were a matter of detail. The proviso added by him, to which reference has been made by Kaikaus, J. is perfectly sound because it is based on the principle that the pre‑emptor should have the qualification to pre‑empt at the time of the transaction which gives birth to his right. The following passage from Hidaya provides the authority for it, if authority was needed, as well as the grounds of that view:
"The argument of our doctors upon the point in which they differ from Shafei is, that the death of the Shafee extinguished his right in the property from which he derived his privilege of Shafa ; and the property did not devolve to his heirs until after the sale. Besides, it is an express condition of Shafa, that a man be firmly possessed of the property from which he derives his right of Shafa at the time when the subject of it is sold, a condition which does not hold on the part of the heirs." It is, moreover a condition that the property of the Shaffee remain firm until the decree of the Kazee be passed ; and as this does not hold on the part of the deceased Shafee, the Shafja is, therefore, not established with respect to any one of his descendants, because of the failure of its conditions." (p. 562).
The last argument should be noted. It is consistent with the conception of personal privilege.
19. 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 devolve on successors‑in‑interest in testamentary succession. 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 (I L R 7 All. 775 (F B)) and its object is to prevent alienation of family property resulting from minute divisions ; 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 P R 1909) the meaning of the word stranger' is by no means certain. More distant 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 (I L R 36 All. 63). Moreover, utter strangers blessed with wealth, once they acquire a foothold in a village and become entitled to pre‑empt, can disrupt the integrity of the village community with the help of the law of pre‑emption itself.
20. The right or privilege of pre‑emption under discussion being the consequence of status or qualification, the death of a pre‑emptor not only extinguishes that status or qualification but as stated earlier, also the consequential right or privilege, and leaves his heirs or successors‑in‑interest without the advantage of his status or qualification to pre‑empt. An action commenced n by a pre‑emptor unless matured by a decree must, therefore, abate at his death. Chitaley and Rao have stated the principles of abatement in regard to suits of pre‑emptors in their Commentary on Order XXII, rule 1, Civil Procedure Code, as follows :‑---
"In deciding the question whether the right to sue in pre emption suits survives or not, it is necessary to see whether the right claimed is one incidental to the ownership of property or only a personal right. The answer to the question will, in turn, depend upon the origin of the right. It may be founded on Muhammadan Law or on custom or it may have been given by statute".
I have tried to explain that on none of these considerations the right to sue can be said to survive in a pre‑emption suit in the area of the former Punjab.
21. The latest direct authority on the subject is Nawab and others v. Mst. Irshad Begum by their Lordships Shabir Amad, J. and Muhammad Munir, J. (now the Chief Justice of Pakistan). Pre‑emption had been claimed in that suit on the basis of relationship, and not ownership of property. Kaikaus, J. had contended as a counsel in that case that the, right of pre‑emption under the Punjab Pre‑emption Act was a personal right as under Muhammadan Law and did not survive the death of the pre‑emptor. Their Lordships examined the question in the light of the provisions of the statute and came to the conclusion that the right to sue did not survive the death of the pre‑emptor. I respectfully agree with C. M. Shatif, J. on whose reference this appeal was heard by us, that if the right of pre‑emption was not a right 'in' the land, the above mentioned authority would cover all cases, whether the right is claimed by the heirs on the basis of their personal relationship or on the basis of property inherited by them. I have tried to explain that the right is not 'in' or to' the land. I have already expressed my agreement with Kaikaus, J. that there is no distinction in principle between the right of pre‑emption based on relationship and that based on ownership of property. In conclusion, I further agree with C M Sharif, J. that Faqir Ali Shah v. Ram Kishan and others though "entitled to a great weight", did not represent the correct view of law.
21. My answer, therefore, to the question referred to us is that:
In the area which was formerly the Punjab, the right of pre‑emption is neither heritable nor does it survive the death of a pre‑emptor. A suit instituted by a pre‑emptor abates on his death if the death takes place during the pendency of the suit. If an heir of a deceased pre‑emptor is qualified to pre‑empt he can exercise the right in virtue of his qualification subject to all the limitation of his own right.
22. The appeal is accepted with no order as to costs and the decree of the trial Court is restored.
.‑Regular Second Appeal No. 164 of 1955 was referred by the late C. M. Sharif, J. to a larger Bench for a decision of the question whether a right of pre‑emption which is based on property is heritable. A Division Bench consisting of Kaikaus and Qadeeruddin, JJ. heard the appeal and while the former answered the question in the affirmative, the latter answered it in the negative. Meanwhile, Letters Patent Appeal No. 27 of 1Y56 came up for hearing before Kaikaus, J and myself. The right of pre‑emption in this case was based on relationship with the vendor, but as the question of heritability was again involved, at the request of counsel I referred both cases to a Full Bench, and I thought it would be both instructive and interesting if I sat with my brothers who constituted the Division Bench.
2. In Regular Second Appeal No. 164, Nek Muhammad had brought a suit for possession by pre‑emption of occupancy rights which were found subsequently‑at the stage of appeal to have been converted into ownership by the operation of a new law, and the ground of pre‑emption was both relationship with the vendor and ownership in the same khata. During the pendency of the suit Nek Muhammad died and was substituted by his sons, daughters and widows. It was contended for the vendee that the right of pre‑emption having died with Nek Muhammad, the suit had abated. Although the learned Single Judge has not referred the question at issue in any particular form, it has been stated in para. 5 of the judgment of Qadeeruddin, J. in the following terms :‑--
"Whether the right of pre‑emption is heritable like any other property and accrues to the heirs of a deceased pre emptor or would be pre‑emptor after his death, irrespective of the consideration whether the limitation for filing the pre emption suit by such heirs is still in subsistence or has already expired."
At the end of the paragraph, however, the question, according to him, assumes this form:
"Whether the right of pre‑emption survives the death of the pre‑emptor and devolves on his heirs."
The answer of Kaikaus, J. is that "a right of pre‑emption devolves on the heirs subject to the condition that the heir too has a preferential right as against the vendee either on account of his ownership of land which may have devolved upon him or on account of his being a nearer heir of the vendor than the vendee:" Qadeeruddin, J. however, replied that "in the area which was formerly the Punjab, the right of pre‑emption is neither heritable nor does it survive the death of a pre emptor."
3. In Letters Patent Appeal No. 27 of 1958, the judgment under appeal is again by C. M. Sharif, J. In that case, the pre emptive suit had been brought by Mst. Jindan, mother of Karim Bakhsh vendor, and upon her death during the pendency of the suit two applications were brought by her legal representatives for being allowed to take her place‑one by her son Khuda Bakhsh (apparently brother of the vendor) and the other by her step‑daughter. The step‑daughter was excluded as not being an heir, and as regards the son, it was held, following Nawab v. Irshad Begum that the right of pre‑emption based on personal relationship with the vendor does not survive the latter. It should be stated, however, that before Mst. Jindan's death, the vendees had admitted her superior right and the only question at issue between them, the price actually paid or the market value, had been referred to the adjudication of a Commissioner.
4. I shall first reproduce briefly the broad outline of the respective reasoning of my brothers, largely with a view to projecting myself into a subject which presents two equally attrac tive alternative at first sight. The view of Kaikaus, J. is that the right of pre‑emption is not a personal right in the sense in which a right goes with the status of a man, like personal liberty or reputation. It goes with the estate or property, and if property is heritable, why should not a right going with it, a right to acquire property, be heritable But assuming it to be a personal right, if it has been exercised, it becomes heritable. It will indeed be inequitable, after a suit has been instituted and the plaintiff dies, if his heir is not allowed to continue the suit, even though the passing of a decree was delayed by the dilatoriness of procedure or a cause attributable to the defendant. The object of pre‑emption being to exclude a stranger from the property, it should not be allowed to be defeated by the incident of the pre‑emptor's death, if an heir can take his place.
5. Kaikaus, J. Jdrew a distinction between a transfer of ownership by inheritance and a transfer by sale. In the latter case also, the right of pre‑emption passes with the property, but if it is projected into the past, the effect would be to introduce a stranger at a date when he has not the least concern with the land on which he bases his claim to pre‑emption. In the case of inheritance or succession, the heir is not a stranger, but the son of his father. On the other hand, the exclusion of such an heir will result in the introduction of a stranger. He then referred to cases where it had been held that the right of pre emption should exist at three dates, the date of the sale sought to be pre‑empted, the date of institution of the suit and the date of the decree, and observed that the governing principle of these cases was also the exclusion of strangers. At first it was applied to a case where a co-sharer who could pre‑empt a sale sold his own land to a stranger after the date of the pre‑emptible sale, on which date the second vendee was clearly a stranger. Next it was extended to a case where the vendee improved his status during the pendency of the suit. The opposite view‑that he could not improve his status‑could also be reasonably taken, and that view has now received legislative sanction by the introduction of section 21‑A in the Punjab Pre‑emption Act. But it is significant that section 21‑A, while it prevents a vendee from improving his status during the pendency of the suit, exempts from its operation a devolution by inheritance or succession. If the vendee's status can improve by inheritance then he is in effect allowed a right of pre‑emption on the basis of that inheritance even in respect of a sale which has taken place before he became heir. Why, then should the heir of the pre‑emptor be excluded on the ground that he did not possess a right on the date of the sale
6. But Kaikaus, J. places restrictions on the right of pre‑emption which is based on devolution by inheritance, and these restrictions, he says, as incidental, to the principle that a stranger is not to be introduced. Thus, where a right is based on the ownership of property, the property should pass to the heir, for if he does not inherit the property to allow him to exercise the right would amount to introducing a stranger, Similarly, when the right is based on relationship with the vendor, the relative on whom the right devolves should be nearer in relationship to the vendor than the vendee. In principle, there Was no difference between a right based on the devolution of property and a right arising out of relationship with the vendor, The intention in the one case is to keep the property within a certain group of owners, in the other to keep it within a certain group of relatives.
7. Qadeeruddin, J. found strong appeal in the judgments which held that the right of pre‑emption should exist on the date of the sale which was sought to be pre‑empted. Those who thought that in cases where the right is founded on property, the date of sale may be ignored were introducing a conflict in principle. Since the right arises from the sale and does not exist before hand, it cannot be said to run with the land. Section 15 of the Act says that it "vests" in the pre‑emptor. It is a personal right, like the right of citizenship, and the one goes no more with property than the other goes with territory.
8. But the mainstay of his argument was the Muslim law of pre‑emption, which, according to him, was the origin of customary pre‑emption in India. In Muslim law, shufa, as its meaning indicated, was based on a "con junction of property, and its object was to prevent the inconveniency arising from the introduction of strangers. In India, custom borrowed the idea for a different purpose‑the preservation of the integrity of a village community. But if the origin of a legal conception determines its nature, the right of pre‑emption should not be heritable, because that is the rule of Muslim law, there is no evidence in custom that it has last its original quality and become heritable. Even Ellis, who thinks that the origin of pre‑emption in rural areas is not Muslim Law, concedes that Courts had to fall back on Muslim law for laying down principles of equity. But if Muslim law is the origin as well as the source of the rules of equity and general principles underlying pre‑emption, it is contradictory to regard the right of pre-emption as heritable on considerations of equity and general principles evolved from its object and utility, but in disregard of its original nature and character.
9. As regards the rule of excluding a stranger, it was not absolute : Muslim law permits devices to defeat pre‑emption and these devices enable strangers to come in. The rule of excluding strangers is not a certain guide and in some cases more distant kindred may be lesser strangers than the sons of the pre‑emptor.
10. Now since the two judgments of my brothers have covered practically the entire field of the law of pre‑emption on the question involved, I think I am entitled to form conclusions without frequent references to case‑law. The first thing which catches the eye-almost hitting it‑in the argument of Qadeeruddin, J. is his reliance on the Muslim law. It is the source and inspiration of the law of pre‑emption in India and Pakistan : it should be the future guide also. Whether it is really the source is a matter of academic interest. It certainly is not the source of rural pre‑emption. At best, one might say, in the words of Qadeeruddin, J. himself, that the "idea" was "borrowed" from Muslims. If that is so, then the better part of the idea has been metamorphosed beyond recognition. The Muslim law of pre‑emption is called shufa because it is based on conjunction or contiguity of area and it can be defeated by such artificial devices as the exclusion of a narrow strip of land adjoining the pre‑emptor's land from sale. If this narrow strip is not sold, but gifted to the vendee simultaneously with the sale, the pre‑emptor's right is defeated. One may well ask, why go through this formality Why not abolish the law of pre emption altogether After all, this is not the only gate to the paradise of neighbourliness. But if the object of the law of pre‑emption even according to Muslim law was "to prevent inconvenience arising from the introduction of strangers", (I quote from the judgment of Shah Din, I. in Amir Chand v. Chuni Lal (90 P R 1909) which my brother Qadeeruddin has used in para 11 of his judgment) then the adoption of these devices aggravates the inconvenience and reduces the law of pre‑emption to a nebulous juristic conception. But, so far as I am aware, my brother is relying on the Hanafi school of thought only, for the Shafei and the Shia schools differs from this view, and they hold the right of pre‑emption to be heritable. And if I may say so with great respect, both for the Hanafi school and for Tudball, J. the latter was not far wrong when he said in Wajid Ali v. Shaban (31 All. 623) that the Hanafi rule was "arbitrary and inequitable". That has been the feeling of most Judges both in Allahabad and Lahore.
11. I said that any discussion as to the source of the law of pre‑emption is of mere academic interest. That is because in the Punjab Pre‑emption Act, 1913. According to that Act, the right of pre‑emption is the right of a person to acquire land or property in preference to others and arises in case of sale (section 4). It "vests", in the case of rural property, (a) in the natural heirs in order of succession, but where there are several co-sharers, and only some of them sell, then, firstly, in the lineal descendants of the. vendor in order of succession : secondly, in the co‑sharers who are agnates ; thirdly, in natural heirs who come after the lineal descendants ; and fourthly, in the co‑sharers irrespective of relationship. (Section 15). In the case of urban property, it vests, firstly, in co‑sharers ; secondly, (where the sale is of a building site) in the owners of the building; thirdly, where the property sold has a common staircase with other properties, in the owners of such properties ; fourthly, in the owners of properties having a common entrance ; fifthly, in the owner of the servient or the dominant property, as the case may be ; and sixthly, in the owners of contiguous properties. (Section 16). Thus, so far as rural property goes, the rule of pre‑emption is not the rule of shufa or conjunction' at all, but of family and tribal ties. In the first instance, the property should remain in the family ; in the second instance, it should remain in the same group of owners who are also collateral ; thirdly, in the same group of collaterals. In the case of urban property, contiguity figures in the sixth place only. How could it be intended that if the father who enjoyed the right dies, the son should not inherit him He inherits the property which gave his father that right, and his father had that right because as owner of this property his right to exclude a stranger was recognised. Does the stranger become less inconvenient to the son It seems to me most natural that the son or heir should be placed in the same position in respect of the same property as his father enjoyed. Prima facie, it would be inequitable to call him a comparative stranger upon his father's death, and if indeed a law is enacted which calls this right personal in the sense that it dies with the father's death, then such a law would not appear to be just.
12. Although I do not base my argument on verbal variations, I notice that according to sections 15 and 16, the right "vests" in certain persons. , Qadeeruddin, J. lays emphasis on the persons named, but emphasis may well be laid on the word "vests" and it may be argued that it is a vested right. Whether that is or is not a correct emphasis, I do not say that I would come to a different conclusion if a different word had been used. The only object of my reference to the Act is to show that there is no re ference in it to the Muslim law of pre‑emption, and if the Judges have sometimes "fallen back" on that law in a quest for equitable principles, then only equitable principles should prop them up. That the law in the Punjab has shown a definite tendency towards breaking away from devices is clear from the insertion of section 21‑A in 1944, soon after a Full Bench of the High Court had held I L R 1942.Lah. 155, that the vendee could improve his status and defeat pre‑emption by a subsequent purchase. But it is significant, as Kaikaus, J. points out that even section 21=A permits the improvement of status through inheritance or succes sion. Inheritance has, therefore, been placed on a different footing from an ordinary transfer by sale, and the argument, that inheritance in‑ the case of a vendee has a different complexion from inheritance in the case of a pre‑emptor's son does not after the principle that inheritance should have a uniform effect in all cases.
13. The argument as to the exclusion of strangers, which forms the basis of the judgment of Kaikaus, J., appears to me to be well founded. In the judgment of Shah Din, J. in Amir Chand v. Chuni Lal to which I have already referred, where the object of pre‑emption according to Muslim law is stated to be the prevention of incon venience arising from the introduction of strangers, the object according to customary law is stated to be the preservation of the pre‑emptor's right, as a member of a laud‑owing group, to prevent the vendor from disturbing the normal course of devolution and thereby the integrity of the village community. In both cases, therefore, the ultimate object is to exclude strangers, and in both cases strangers are inconvenient. It is idle to deny it as a guiding principle, because that is the express or implied object of pre‑emp tion according to both systems. Some Judges did say by way of an additional argument that it prevents alienation of family property resulting from the minutest sub‑division, but if that were the object according to Muslim law, that law should have provided for the right of pre‑emption to be based on things other than mere con tiguity. Qadeeruddin, J., says the rule of exclusion of stranger is not absolute, because Muslim law permits devices for defeating the right of pre‑emption, but I have already said that, if only for this reason, Muslim law should not be resorted to for guidance. The further observation that in some cases more distant kindred may be lesser strangers than the sons of the pre‑emptor envisages just the situation which Kaikaus, J., wishes to overcome by an appli cation of the rule.
14. I have, therefore, no doubt that if the owner of the pre‑empting property dies, the person who succeeds to the property should inherit the right of pre‑emption if it has not been waived or become time‑barred.
15. I should now examine the question whether the right of pre‑emption which is based on relationship with the vendor is heritable. It presents some complexities by reason of which Shabir Ahmad J. held in Nawab v. Irshad Begum (Munir, C. J., concurring) that it was not heritable. But before examining those complexities, I should repeat the observation of Kaikaus J. (which he made incidentally, because the right before him was based on ownership of continuous property) that in principle the two rights were similar, ,the intention in the one case being to keep the property within a certain group of landowners, in the other to keep it within the same group of relatives, and that both intentions were motivated by the anxiety to exclude strangers.. With this generalisation, Qadeeruddin, J. agreed, and I submit, with respect, that this would be a correct inference from the arguments employed in relation to the right based on ownership of property: It would also be in accord with the spirit of the Punjab Pre‑emption Act which, in its fifteenth section, lays greater emphasis on relationship with the vendor than on contiguity of property, giving, as it does, preference to those who would succeed to the property but for its sale by the vendor. In short, relationship with the vendor is on a higher plane than ownership of property, and if a right based on ownership is heritable, a right based on relationship should also be heritable.
16. The difficulties envisaged by Shabir Ahmad, J., are the following:
(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 pre‑emptor'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 amount 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 pre‑emptor, and if he succeeds to the right of suit, he will get back property with which he had parted by his own act.
17. These difficulties are surmountable. The law of pre emption is subject to limitation like any other law and the principle of waiver also applied to it; perhaps more effectively than in any other case. What the original pre‑emptor cannot do by reason of the restrictions imposed on him by limitation and waiver, his successor should not be able to do. It is not wholesome to argue that if the application of a law is made subject to so many restrictions, it cannot be good law. Limitations and restrictions there always must be, because a line has to be drawn somewhere.
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 heirs 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 pre‑emptor, then since they could not exercise it in the presence of the pre‑emptor, 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 on the date of suit. 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 owner ship 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 pre‑emptor 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.
21. I realize that the simpler thing to do is to make the right of pre‑emption non‑heritable. That would end the controversy, but so far as that argument goes, th a would be no controversy at all if the right of pre‑emption were itself abolished, as in canton ments. But so long as it is allowed to exist, let not the ordinary law of inheritance be excluded from its sphere of jurisdiction. Perhaps it would be convenient to suggest to Government that certain obvious deductions may be incorporated in the Act, so as to dispel uncertainty. It may, for instance, be provided that the right of pre‑emption can be exercised by an heir of the pre‑emptor only if the pre‑emptor has actually instituted a suit, but that, even in the case of a suit, no person who succeeds as an heir should be allowed to continue it if he could be said to have waived the right.
22. In the view that I have taken, Regular Second Appeal No. 164 of 1955 should be dismissed, while Letters Patent Appeal No. 27 of 1956 should be accepted. The costs should throughout be borne by the parties themselves.
.‑I am in agreement with my Lord the Chief Justice except with respect to the applicability of the principle of waiver regarding which I will presently state my views. My reasons for holding that the right of pre‑emption survives to the heir have already been stated in Allah Ditta (sic) v. Hukam Dad (R S A 164 of 1955) but I feel the need of further discussion in view of the argument at the Bar in the present case and in view of some observation of Qadeeruddin, J. in Allah Ditta (sic) v. Hukam Dad.
2. Before proceeding further, it would be proper to state the fundamental principle on which, according to me, the decision of the question whether a right is heritable must always rest. All that is owned by a person should descend to his heir. That is the basis of the law of inheritance. Any work on jurisprudence will tell us that strictly speaking ownership has relation not to a thing but to a right. Persons are owners not of things but of rights. We do speak of persons as owners of things, but that is only a convenient way of referring to a number of rights which a person owns with respect to a particular thing. If all ownership is to descend to the heir, it means that every right which a person owns will vest, on his death, in his heir. There is only one qualification of this rule. If the nature or incidents of the right be such that either it cannot descend at all or it cannot descend in alt circum stances, then it will either not descend or will descend only in limited circumstances. This limitation on the right of the heir to inherit the rights owned by his predecessor is essential because the nature or incidents of the right cannot be changed by the fact that the owner of the right has died. If the nature of the right be such that it is not capable 6f passing to the heir or it is capable of so passing only under particular circumstances, then the devolution of the right will be controlled by these considerations. The pro position therefore, which I would evolve, is that every right is heritable except to the extent to which such inheritance may be inconsistent with the nature or incidents of the right. It is on the general rule contained in this proposition that I have based my conclusion as to the right of pre‑emption being heritable and it is on the proviso contained in this rule that I have based the restriction which I have attached to its inheritance. In the ultimate analysis, heritability of the right depends upon the nature and incidents of the right. The right we are concerned with is the right to acquire property and for the reasons I have stated in my judgment in Allah Ditta (sic) v. Hukam Dad, there is nothing in tire right which makes it not heritable.
3. Much stress had been placed in the 'judgment of Qadeeruddin, J. on Muslim law. My Lord the Chief Justice has dealt with this aspect and I only want to add that it is not the whole of the Muslim Law but only the Hanafi law that negatives the survival of the right of pre‑emption, and the doctrine of the Hanafi law in this respect is not self‑consistent. According to Hanafi law it is only if a decree has not already been passed in favour of the pre‑emptor that the right would lapse by death, and if a decree has been passed, then, although payment of money has not yet been made, the right will devolve on the heir. Now ownership of property does not pass to the pre‑emptor till the money is paid (Order XX, rule 14, C. P. C. only gives effect to a general principle). Till payment of the price, the pre‑emptor has only a right to acquire the property. It cannot be said, therefore, that on account of decree the pre‑emptor has acquired some rights in immovable property which may pass to his legal representatives. If no rights in property have been acquired by the decree, then how is it that on the/ passing of a decree the legal representative does succeed to the right of pre‑emption A decree does not enhance the original right of the plaintiff. It only recognises that right. The right of the pre‑emptor was only the right to acquire the property and by the decree the very same right is recognised by the Court. In the nature of the right there is no change effected by the fact that a decree has been passed. If it was not heritable before decree, it cannot become heritable after decree. A decree is not something which is by itself heritable; for there is no pro vision of law which ordains that every decree owned by a person shall pass on the death of the decree‑holder to his heir. A decree may be only in respect of a personal right, for instance, a decree for restitution of conjugal rights or a decree in favour of a member of the club entitling him to use the club. Neither of these decrees will pass to the legal representatives. If a decree as such is not heritable, I am unable to see the distinction between the case where a right of pre‑emption is recongnised by a decree and the case where the right is not recognised so far as the devolution of the right is concerned.
4. Qadeeruddin, J. had taken objection to the proviso which I added to the devolution of the pre‑emptive right. I added that proviso on the ground that we cannot do that which is not con sistent with the nature or the incidents of the right of pre‑emption. I stated in my judgment that if I did not add this proviso the abject of the right of pre‑emption would be defeated. The con dition I attached was that if at the time when the property is going to be acquired, i.e. the time of the passing of the decree, the person to whom the property is to pass, is not a better pre‑emptor than the vendee, the decree should not be granted even though the right of the deceased pre‑emptor has devolved on the legal representatives. Objection was taken to this limitation on the right of inheritance on the ground that it is not proper to base any limitation as to devolution on the fact that the object of the right would be defeated. But, by a long course of decisions we have made it an incident of the right that at the time when the decree is granted, the person to whom decree is being granted should have a better right of pre‑emption than the vendee, the reason for attaching this incident being that otherwise the object of the right of pre‑emption would be defeated. Now, it is true that it was not necessary to attach such an incident to the right of pre‑emption and the other view was equally open, but once having attached this incident to the law of pre‑emption, I do not think it will be proper to overrule all those judgments wherein this incident has been recognised and to permit a devolution which is inconsistent with the incident. I do not see any objection to a restricted form of devolution. If in the case of pre‑emptors who are alive, we do consider the state of facts at the time of passing the decree, and in spite of the existence of the pre‑emptive right at the date of sale, refuse a decree if it will lead to the introduction of a stranger, there appears to me no reason why we should not, even in a case where the pre‑emptor has died, give effect to the same principle and refuse the decree if it amounts to an introduc tion of a stanger, i.e., if the right of pre‑emption of the vendee is superior to the right of pre‑emption of the person in whose favour the decree is being passed, as things stand at the date of the decree.
5. I have been asked to explain what I mean by a stranger. It is not at all difficult to give a description. There are different groups of persons who have a right of pre‑emption inter se and qua that particular group every other person is a stranger. There is, for instance, a group of owners in an estate. Every person who is not owner in the estate is a stranger. There is similarly a group of co‑sharers and every person who is not a co‑sharer is a stranger. There is also a family group where the right of pre emption vests in the heir. Those who are outside the family group are strangers. It should be stated here that a group is constituted by persons having an equal right of pre‑emption. Those who have an inferior right of pre‑emption are outside the group. For instance, amongst the heirs, those heirs who have an equal right of pre‑emption would form one group and an heir who, though he has a right of pre‑emption as an heir, has a right inferior to the person belonging to this group would be stranger in relation to this group.
6. I proceed to deal now with Nawab v. Irshad Begum. Shabir Ahmad, J. has put forward three arguments in support of the proposition that the right of pre‑emption based on relation ship should not be heritable. I take them verbatim from the judgment of my Lord the Chief Justice. They are‑
(1) When a person whose right of pre‑emption was ba3ed 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 pre‑emptor'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 amount 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 pre‑emptor, and if he succeeds to the right of suit, he will get back property with which he had parted by his own act.
7. As regards the first argument, let us consider whether allow ing the devolution of the right of pre‑emption will really lead to an injustice in the case of the kind mentioned in this argument. A person sells his land and the right of pre‑emption vests in two of his collaterals who are real brothers. They are bachelors and they are the sole heirs of each other. One of these brothers files a suit and the other does not. A day before argument are going to be heard the pre‑emptor dies. In accordance with Nawab v. Irshad Begum the right should lapse and the property should not pass to the other brother. The objection taken is that if the brother who has not filed the suit is allowed, to be impleaded in place of the deceased, he will get this land and as he has not himself sued this would be unjust. Now, in the first place, it was the duty of the vendor if he obeyed the law to sell the property not to the vendee but to the pre‑emptor, i.e., the brother who has died. Long ago the Chief Court of the Punjab accepted the theory that the right of pre‑emption exists prior to the sale. This proposition will be found in any commentary on the law of pre‑emption in the Punjab. If the vendor had acted in accordance with law and had transferred the property, not to the vendee but to the pre‑emptor, would not the same brother have got this property on the death of the pre emptor What is the injustice then in allowing him to succeed to the right of pre‑emption On the other hand, is it not unjust that he should be deprived of the property sold just because, in the first place, the vendor did not obey the law and, in the second place, the defendant was trying to protract the proceedings and the pre‑emptor died before a decree could be granted to him. To deprive the heir of the right to succeed to the land to which the pre‑emptor was entitled is really putting a premium on violation of law. That the brother, who is now the heir, had not himself filed a suit is really beside the point because a decree will now be granted to him not in his own right but as the legal representative of the deceased, and if he was entitled to inherit the property which belonged to the deceased after the deceased had got a decree and had paid the pre‑emption money, there does not appear to be anything wrong in his coming in at an earlier stage and being impleaded in place of the pre‑emptor so as to secure a de6ree. I should state here that even if the pre‑emptor dies after the decree but has not yet paid the pre‑emption money, the situation will remain the same and still the heir will not be entitled to be impleaded in place of the deceased, if we are to accept the pro position that the right of pre‑emption is not heritable for as I have already explained, even after a decree is passed, there is no change in the nature of the right which the pre‑emptor has.
8. Stress appears to have been laid in the first argument on the fact that the heir did not himself file a suit and this circum stance is relied upon as one which should deprive him not only of his own right but of the right to which under the law he would become entitled as an heir. But let us consider whether the failure to file a suit is something so grossly wrong as to attract this result. If a real brother, who has an equal right of pre emption, files a suit for pre‑emption, is it improper for the other brother not to file a suit, particularly when the brother who has filed a suit is bachelor and his only heir is his brother who has not filed a suit. A brother may not file a suit just because his own brother has filed a suit and he does not want to oppose his brother. He may not want to share the land with his own brother. In a case where he is the sole heir, he does not feel the need of filing a suit. Apart from the fact that the benefit may be ultimately going to the brother who does not a suit, I do not see why we should attach a harmful result to an act which would be in accord with every body's conscience. There may even be cases where the person who files a suit and the person who dies not, are father and son. For instance, a woman sells land and her heirs are her son and her husband. They have equal rights of pre‑emption although they will be entitled to different shares. If the son files a suit, do we expect the father to file a suit to contest the right of his own son
9. I think it will be quite appropriate if I mention here the injustice which will result if we do not allow the right of pre emption based on ownership to be heritable. I do so because I think it will have to be accepted that it is difficult to make any distinction between cases where the right of pre‑emption is based on ownership and cases where the right of pre‑emption is based on relationship, so far as the heritability of the right is concerned. Whatever the sources of the right are, it is a right to acquire property, and there is no difference in its nature and incidents. I have already explained in my judgment in Allah Dad v. Hukam Dad how great hardship would result if in the case of urban immovable property we do not allow the right of pre‑emption to devolve on the heir in cases where the right of pre‑emption is based on contiguity, joint ownership, common entrance from the street, easement, etc. In‑such cases the introduction of a stranger would cause great inconvenience to the party and in fact that is why the Muslim law brought into existence the right of pre emption. Suppose there are two brothers living in two contiguous houses, with a common entrance: from the street, and having easements as against one another, and one of the brothers sells his house to a stranger. The other brother files a suit, and either before arguments or even after decree but before the payment of the pre‑emption money, the pre‑emptor dies. If the right of pre emption is not heritable the stranger will retain the house in the presence of the son of the pre‑emptor, although the pre‑emptor or his son are not guilty of any negligence. The son who is the heir of the deceased pre‑emptor bad no right of pre‑emption at all during the lifetime of his father and could not file a suit for pre‑emption. The only person who could file a suit for pre emption did file one, but, perhaps for the reason that the Judge had been ill for some time, the suit could not be decided before the death of the pre‑emptor. If we do not allow the son to inherit the right of the father, the object of the right of pre emption would be defeated.
10. The second argument put forward in Nawab v. Irshad Begum disregards the fact that the heir takes not his own right but the right of the deceased pre‑emptor. If the deceased pre emptor had actually acquired the property, would not the same heir who is now continuing the suit have inherited it If the pre‑emptor died before the decree or before payment of the money, there does not appear to be any harm that the heir should succeed to the property to which he would have succeeded had the vendor acted in accordance with law and transferred the property to the pre‑emptor. There is one observation which I feel very much inclined to make in this connection. If possible, all suits should be decided on the day on which they are filed. This is not practically possible, but we should as far as possible decide them in the same manner as if they had been decided on the day on which they were filed. No party should be prejudiced by the fact that justice cannot be administered so as to decide disputes on the day on which they are referred to Court. It is true that we do take into consideration, in pre‑emption cases, any difference in status of parties between the date of the suit and the date of the decree. That is a view which, as I have already stated, we have taken in a number of cases though the opposite view could very well have been taken. But we should confine the difference in the result of a suit, which occurs on account of delay in its decision, to what we have already laid down and should not extend it any further.
11. To the third argument the reply is similar to the one which I have given to the second argument. If we keep in mind that what the heir is taking is not his own right but the right of the deceased pre‑emptor, the difficulties mentioned by Shabir Ahmad, J. will disappear. The simplest answer to all the argu ments is that had the pre‑emptor in fact secured a transfer of the land either directly from the vendor or from Court, the heir would have inherited the land which he will get by being implead ed as a legal representative.
12. I now come to the question of waiver. My Lord the Chief Justice applied the principle of waiver to a, number of cases in reply to the argument in Nawab v. Irshad Begm. I have dealt with that argument apart from any question of waiver. I would not, with the greatest respect accept that just because the heir who had an equal right of pre‑emption with the deceased pre‑emptor did not file a suit he should be deprived of the right to inherit the pre‑emptive right. In the first place the decision of the question of waiver would depend upon the particular circumstances of each case, and it would be difficult to lay down general rules. For instance, the heir may be a minor or insane, or he has gone abroad, or he may have filed a suit after limitation had expired though he honestly believed that limitation had not expired. In all these cases there is no waiver of the right of pre‑emption. But, truly speaking no question of waiver is involved so far as the heritability of the right of pre‑emption is concerned. Waiver has been defined as the conscious renunciation of a right. The person who did not file a suit waived his own right of pre‑emption, while in the suit in which he is to be impleaded as heir it is the right of the deceased pre‑emptor that is to be determined. The heir is simply to take the right of the deceased of which right there has been no waiver. The fact that the heir had waived his right should not debar him from stepping into the right of the deceased. One point to consider in this connection is that while the heir may not be interested in exercising a right of pre‑emption in respect of a sale in the lifetime of the deceased pre‑emptor, he may be interested in securing the property sold after the death of the pre emptor because the property sold is needed not for the protection of his own property but that of the deceased pre‑emptor which he has inherited. Or he, being the sole heir of the deceased pre emptor, may not feel the necessity of a suit during the lifetime of the deceased pre‑emptor.
13. The same is my reply to the objection that the vendor himself may be the heir of one of the heirs. He would stave inherited the property had the right of pre‑emption matured into ownership of property. Could the right of inheritance be refused in that case on the ground that he had himself parted with the land At least we cannot say, that there is anything unjust in allowing him to succeed. At the same time I may point out that the vendor may be an heir to the extent of 1/100 of the property. Should‑ then all the heirs to the extent of 9/100 be deprived of the property just because the vendor is one of the heirs I should also point out that the right of inheritance cannot be waived. A person may agree that he will not be an heir but still by the law of inheritance the property of the deceased will devolve upon him.
14. In any case, the question of waiver was not before the Full. Bench. As to when the heir would be deemed to have waived any right is a matter to be decided as and when a case arises.
15. In the present case it was conceded by learned counsel for the respondent that the right of pre‑emption based on ownership was heritable.' It was further conceded by him that under section 306 of the Succession Act if an administrator had in fact been appointed the right of pre‑emption would to heritable in accordance with section 306 of the Succession Act. He did not even object to the procedure adopted in Sayyed Jiaul Husain Khan v. Sitaram Bhau Deshmukh (I L R 36 Bom. 144) that the appeal be stayed in order that the heir may get an administrator appointed.
After reading the lucid judgment written by my lord the Chief Justice, for whose views I have great respect, I wish to add a few words to what I have already written in order to make it clear that I am not against making the right of pre‑emption heritable if the legislature would choose to do so. I have an impression that Turkey has made a legisla tion to the contrary. Shia and Shafei laws recognise the right to be heritable, but they grant the right itself in restricted circumstances as compared to the Hanafi law. What I would emphasise is that the right is not heritable in our country and cannot be made to be so by argument if the principles of interpreta tion founded on the source of the law, which is the Hanafi law, the conditions subject to which it can be exercised or the long standing and accepted doctrines of the law are not flouted. If an inference can yet be drawn that the right of pre‑emption is heritable then it is by no means obvious as is evident from the fact that the judgments of Kaikaus, J. and the Chief Justice are probably the first in the history of the law of pre‑emption in India and Pakistan 'To lay down that the right is heritable even when based on relationship. Moreover, the restrictions imposed on heritability by the two learned Judges are essentially at variance. The view held by the Chief Justice (see paragraph 14 of his judgment) is of much wider application than that held by Kaikaus, J.
2. The emphasis laid by me on the source of the law is not of academic interest, if I may say so with respect, because a close examination of the source and origin of a law is of practical value for interpreting it when uncertainties of argument are to be removed. For this reason we interpret with the help of English law those statutes of our country the principles of which are of English origin.
3. It is a well established doctrine of the law of pre‑emption that the pre‑emptor should be in enjoyment of the right at the time at which the transaction from which the right arose, was made. This was hardly over questioned except on those occasions at which the question of heritability of the right of pre‑emption arose and the existence of the doctrine obstructed the reasoning of those who favoured heritability, for they were confronted in their process of reasoning with the difficulty that an heir, as such, could not possess the right at the time of the transaction. Ellis has written of this doctrine at page 166 of his Book on Pre‑emption (1913 Ed.) as follows :‑---
"All rulings are agreed that the pre‑emptor must possess the pre‑emptive right immediately before and at the time of sale, that is to say, that he must, at that time, "possess the statutory qualifications necessary to enable him to seek pre‑emption, . . . ."
Such a well established doctrine cannot rightly be transgressed for making an argument straight.
4. Tubdall, J. introduced sectarian differences of Muhammadans in support of his deviation from Muhammadan Law by referring to Shia and Shafei laws and describing the Hanafi law of pre‑emption as "arbitrary and inequitable". His argument might appear plausible to some, but with respect, I may observe that it was irrelevant because the Hanafi law and not the Shia or Shafei law of pre‑emption was the source of the law of pre emption in India. If the latter laws were the source and origin then any differences between them and the Hanafi law would have been equally irrelevant, for what is not the source of a law cannot be resorted to for the purpose of interpretation without making the argument incommensurable. Sir Ameer Ali has pointed out in Vol. I of his book on Muhammadan Law (4th Ed.) at page 712 that Hanafi law was the source of the law of pre‑emption in India, as follows:‑---
"The Sunni Hanafi Law of Pre‑emption was introduced in India with the Muhammadan Government and in certain places it has become a part of the lax loci, for example in Behar, parts of the Punjab and the United Provinces, "both Hindus and Muhammadans are entitled to claim the right of pre‑emption. And so well‑established is that right that it is almost invariably recorded in greater or less detail in the village‑administration papers called the Wajib‑ul‑arz."
I should remark that his observations apply to the law applicable to rural areas. He has further observed at page 737:‑--
"Under the Shia Law co‑sharers in the property, that is shafii'i- sharik alone are entitled to the right of pre‑emption ; but as the Sunni Hanafi law of pre‑emption is the law in force in this country either territorially or by custom, a Sunni would be entitled to pre‑emption on the basis of a right of easement or vicinage when the vendor is a Shia. The same rule would apply if the vendor happen to be a Sunni."
5. The contention that the right of pre‑emption is heritable is justified by its supporters by pointing out that it is just and equitable that a son should not lose the benefits of the right merely because his father is dead. Moreover, they contend that the object of the law of pre‑emption being to exclude strangers from the groups of relatives or owners, it is unreasonable to regard a son to be a stranger to such groups if his father was not a stranger to them. With deep respect I may state that both arguments strike me as unessential and superficially persuasive. The law no doubt "owes its origin", in the ‑words of Sir Ameer Ali (at page 712), "to motives of expediency and a desire to prevent the introduction of a stranger among co‑sharers and neighbours likely to cause inconvenience or vexation", but that motive or desire is not the law unrestricted and uncontrolled by certain conditions and weighty doctrines, when uncertainties or obscurities arise, the motive and desire can serve as guides to remove and resolve them to the same degree to which the preamble of a statute may serve as a guide for this purpose, but they cannot override prescribed conditions and superimposed doctrines just as a preamble cannot override the provisions of a statute. Similarly, it is, I believe, not sound to argue on the basis of the illustration of father and son that the right of pre‑emption is heritable, because the law of inheri tance does not recognise sons and daughters only to be the heirs. Often enough the heirs are distinct kindred and strangers to the groups of relatives or owners. It was obviously this realisation that compelled my learned brother Kaikaus, J. to choose a few conditions and to attach them to the proposed heritability of the right of pre‑emption.
6. References were made by learned counsel during the argu ments to sections 306 of the Succession Act, but Kayani, C. J. has rightly not discussed that provision in his judgment because it is not applicable to the facts of these appeals. Kaikaus, J. had referred to it in his judgment but arrived at a conclusion which is almost directly contradictory to it by laying down that the right of pre‑emption was not heritable in cases of testamentary succes sion. I need not examine the effect of that section but would like to quote a short passage from page 126 of the Law of Pre‑emption (1928 Ed.) by Kathalay:
"the intention of the legislature was to make a large innovation upon the personal law of Englishmen as expressed in the old maxim actio personallis moritur cum persona, as well as neces sarily upon the personal law of Muhammadans and Hindus, and that the effect of the act was to make the right survive to the executors and administrators of the deceased, though not to the heirs as such, who are not either executors or administrators. In the case of intestacy, the heirs might, however, take Letters of Administration and continue the suit."
The provision must be enforced in its terms, whatever they are, but does not warrant that abstract principles should be deduced from it and used as guides for interpreting the law of pre‑emption. In Sayyed Jiaul Husan v. Sitaram (I L R (1911) 36 Bow. 144), in which Mr. M. A. Jinnah appeared as counsel, the Court adjourned the proceedings and gave time to the heirs of the pre‑emptors to take out letters of administration. The Court was obviously not bound to do so. No request was made to us on behalf of any party to these appeals to do so.
7. Lastly, I may recall that I have tried to make it clear in my previous judgment that in my view there is no difference in principle, for purposes of heritability, between the right of pre emption based on ownership of property and that based on rela tionship because the right is not an incident of property ; is not attached to property ; does not run' with it and is not a right in' or to' property. Adverting with that background to the argu ments adduced in favour of heritability of the right of pre‑emption I venture to state that if they are correct then very little remains to be said in favour of the contention that the right should not only be heritable but also transferable by voluntary sale or gift of the property on which the right might be based. I may repro duce here a small chain of arguments noted by Kathalay in his book on Pre‑emption at page 491 as it is relevant to the present discussion :‑
" . . . the right of pre‑emption . . . . . is incident to the owner ship of land. There is no reason why such a right should not be inherited . . . . . If the heirs of the pre‑emptor can continue the suit after his death, there appears to be nothing from the point of principle, which should prevent them from continuing the suit during the lifetime of the pre‑emptor if the right of pre‑emption is transferred to them along with the property to which it is appurtenant."
Add to this the obvious argument that there being no difference in principle between a right of pre‑emption based on the ownership of property and that based on relationship, there appears to be nothing in point of principle which should prevent the right from being voluntarily I transferable in either case. A good many of the arguments that are advanced against voluntary transfer ability of the right are destroyed by the basic reasoning adopted by those who support heritability of the right. Those who favour heritability and oppose voluntary transferability may find them selv6s, like Clark, C. J. in Faqir Ali Shah's case, compelled to rely on considerations of expediency and convenience, which should be given the last place in a discussion of principles and of the nature of a right.
8. In humility I maintain the views expressed by me in my judgment delivered in Regular Second Appeal No. 164 of 1955 and consider them to be equally applicable to both the appeals.
9. May I mention that the answer given by me in the end of that judgment is the answer to the question raised by C. M. Sharif, J. in the last paragraph of his judgment. The ques tion raised by him has been quoted by me in his words in the body of my judgment.
10. Regular Second Appeal No. 164 of 1955 is accepted, and L. P. A. No. 27 of 1956 is dismissed with costs.
Regular Second Appeal No. 164 of 1955 is dismissed. L. P. A. No. 27 of 1956 is accepted. There will be no order as to costs.
A. H. Order accordingly.
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