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Second .Appeal from Order No. 17 of 1957, decided on 23rd October, 1959.

O. XXII, r. 4 --Suit for pre‑emption‑Appeal‑Abatement ‑ Defendant‑Respon dent dying during pendency of appeal‑Legal representatives not brought on record‑Appeal abates in toto.

Muhammad Shafi v. Allah Din A I R 1934 Lah. 429 ref.

Bishan Singh v. Karam Ilahi 132 I C 895 and Sant Singh v. Gulab Singh I L R 10 Lah. 7 ref.

O. XXII, r. 4 --Abatement‑Party concerned not able to discover names of all legal representatives of deceased party‑No abatement.

Begum Jan v. Jannat Bibi A I R 1927 Lab. 6 and Abdul Ghaffar v. Muhammad Haroon A I R 1935 Lah. 712 ref.

M. Z. Khalil for Appellant.

Nemo for Respondents No. 1.

A. R. Niazi for Respondent Nos. 2 to 8.

Dates of hearing : 15th and 23rd October, 1959.

This is a second appeal from the order of the learned District Judge, Shahpur at Sargodha, dated the 8th o f June. 1957 dismissing with costs the appeal of the present appellant against the order of Me. Muhammad Ayyub Khan, Senior Civil Judge Sargodha, dated the 13th of February 1957, by which the plaint of the plaintiff‑appellant under section 24 (4) of the Punjab Pre emption Act was rejected, the parties being left to bear their own costs.

2. The sale in dispute, of 7351 (canals of land situated within the area of village Islampur, Tehsil and District Shahpur, was made by Sikandar Khan defendant No. I in favour of Taj Muhammad, Ata Muhammad and Muhammad Hanif, sons of Ghulam Muhammad, Fazal Ahmad son of Nur Ahmad, and Muhammad Siddiq, Salabat Khan and Muhammad Bakhsh, son of Saleh Muhammad, defendants Nos. 2 to 8, by a registered sale deed dated the 16th of December 1955. The plaintiff, claiming to be a co‑sharer in the land in dispute, a close relation of the vendor, and an owner in the patti, brought the present suit on the 11th of December 1956 for pre‑emption of the transaction. On the same date he was ordered to deposit one fifth of the sale price by the 13th of February 1957 but failed to comply with the direction, the plaint being consequently rejected. His appeal to the learned District Judge was dismissed.

3. At the hearing of the appeal in this Court a preliminary objection was raised by Mr. Niazi, counsel for respondents Nos. 2 to 8, based on the fact that Salabat Khan, defendant No. 7 in the suit, died on the 27th of December 1958 during the pendency of the appeal in this Court, and that although the application to implead his legal representatives was made on the 27th of February 1959, the list of names sought to be brought on the record did not include those of the deceased's father and mother, who, according to Mr. Niazi, are also Salabat. Khan's heirs under Muslim Law. Learned counsel urges that as a pre emption transaction is one and indivisible, failure to implead all or any of the legal representatives of a deceased vendee results in the abatement of the whole appeal.

4. Mr. M. Z. Khalil, on the other hand, contends that at the most the appeal will abate only as against the deceased vendee.

5. The contention of Mr. Niazi that Salabat Khan's parents are heirs under Muslim Law is well founded, the names of the father and mother of a deceased person occurring at Nos. I and 5 of the Table of Sharers under Sunni Law given at page 59 of Mulla's Muhammadan Law, Thirteenth Edition. Mr. Niazi further points out that in the mutation sanctioned on the 23rd of April 1959 the names of Salabat Khan's parents are entered as having succeeded to a part of his property.

6. Mr. Khalil for the appellant attempted to controvert the proposition enunciated by Mr. Niazi that in pre‑emption suits failure to implead all the legal representatives of a deceased vendee results in the abatement of the whole suit, and relies on Bishan Singh v. Karam Ilahi (132 I C 895). It is true that at first sight this authority supports him, particularly if only the relevant head note is read, which runs:

"Where in an appeal by the pre‑emptor in a suit for pre emption in respect of a sale of land to several vendees in distinct shares one of the vendees (respondents) died Held, that the appeal did not abate as a whole but only to the extent of the share of the deceased vendee."

The portion of the judgment on which the above head note is based is as follows :‑

"A preliminary point is taken by the counsel for the respon dents to the effect that the appeal has abated by reason of the death of Khaira, one of the vendees. An application to have his representatives brought upon the record was dismissed by Abdul Qadir, J., on 11^th June 1930, as barred by time. That order is final.

In view of the principle laid down in Sant Singh v. Gulab Singh (I L R 10 Lah. 7) it must be held that the appeal does not abate as a whole but only to the extent of the interest of Khaira which is defined as one‑tenth in the deed of sale."

In Sant Singh's case, referred to in the above passage, it was held that as the interest of the deceased respondent in the subject matter of the appeal was separate from those of the surviving respondents (the shares having been defined in the sale deed) and that as it could not therefore be said that the decree of the appellate Court, if in favour of the appellant, would prove ineffective or inconsistent with that part of the lower Court's decree, which had become final upon the abatement of the appeal qua the deceased, the appeal did not abate in its entirety but could proceed against the surviving respondents. Mr. Niazi, on the other hand, places reliance on Muhammad Shaft v. Allah Din (A I R 1934 Lah. 429). In that case the learned Judges laid down that the right of pre‑emption is not a right of repurchase either from the vendor or the vendee, but one of substitution for the vendee in the original sale, and that the pre‑emptor is not only entitled but bound to take over the bargain in its entirety. They con sequently held that where a sale is in favour of two vendees, who are to take the property in equal shares, but the sale is a single and indivisible transaction, and a suit for pre‑emption in respect of it is dismissed and one of the vendees dies pending the appeal but his legal representative is not brought on record within the prescribed time and the appeal abates as against him, the plaintiff's suit must be dismissed as a whole, even though he has prayed in the appeal for possession of the whole property on payment of the full price and impleaded both the vendees in the appeal. Bishen Singh's case, relied upon by Mr. Khalil, was discussed, and the learned Judges remarked that if the decision in that case was not to be taken to be confined to its own peculiar facts, they felt obliged to dissent from it. In an earlier portion of their judgment, the learned Judges in Muhammad Shah's case had drawn a distinction between two classes of case, namely, those in which the purchase price is paid jointly by the vendees without specifying the share contributed by each, and those where the shares contributed by each, and those where the shares contributed are so specified. With respect to the former, their Lordships laid down that failure to bring the legal repre sentatives of a deceased vendee on the record would result in the abatement of the whole suit or appeal, irrespective of whether the shares of the vendees in the property purchased are specified. Referring to Bishen Singh's case, they remarked.

" The terms of the sale‑deed, which was in dispute in that case, are not given in the judgment, and it is not possible to say whether it contained a specification merely of the shares of the vendee or of the sale‑price also, and whether the transac tion was or was not divisible according to the principles laid down in the authorities. The headnote is expressed rather too widely, and in words which have not been taken from the body of the judgment, and it is by no means clear that the learned Judges really intended to lay down a rule of general application. The question was not discussed at any length, but reference was made to the ruling of the Full Bench in Sant Singh v. Gulab Singh. That case however related to a suit for a declaration by the reversioners of a limited owner that the sale effected by him in favour of four vendees, whose shares were specified in the deed, would not affect their reversionery rights. In the course of the appeal one of the vendees had died and his representatives had not been impleaded within time, and it was held that the appeal could proceed against the surviving vendees. The principle underly ing that ruling however cannot be extended indiscriminately to every kind of suit, regardless of the nature of the claim, the cause of action, and the relief sought It certainly cannot override the fundamental rule of the law of pre‑emption which prohibit suits for partial pre‑emption as, indeed, was pointed A out by one of the Judges composing the Full Bench in his judgment at page 19 of the printed report. Therefore if the decision in Bishen Singh v. Karam Ilahi is not to be taken to be confined to its peculiar facts, I must respectfully dissent from it."

7. Mr. Khalil referred to a number of authorities in which it has been held that the failure to implead the legal representatives of a deceased respondent does not cause the appeal to abate in toto but only to the extent of the share of the deceased respondent, but as none of the above cases relates to a pre‑emption suit, they are not in point, it being clear that so far as such suits are concerned the general rule governing the effect of failure to g implead the legal representatives of a deceased party must give way to the special rule applicable to them.

8. Mr. Khalil then fell back upon a second line of defence, namely, that even if the principle enunciated by Mr. Niazi be accepted as applicable to the present case failure to implead all the legal representatives of a deceased respondent is not necessarily fatal, the criterion being whether with the exercise of reasonable care and diligence the party concerned could not have discovered the names of the legal representatives whom he failed to implead. With great respect I agree with this proposition, which is laid down in Begam Jan v. Jannat Bibi (A I R 1927 Lah. 6) and in Abaul Ghaj jar v. Muhammad Haroon (A I R 1935 Lah. 712), but the question for decision is whether in the present case due care was exercised by the appellant, and the answer must be against him. Mr. Khalil argued that the parents of Salabat Khan deceased had left the village in which he lived and taken up residence elsewhere, but if the appellant had made careful enquiries, it would have come to his notice that they were still alive. Moreover, I have already pointed out that in the mutation relating to the property of the deceased, the names of his father and mother are entered as having succeeded to a share therein, and if he had been exercising due diligence, it should have occurred to the appellant that the mutation would throw light on the question of who were Salabat Khan's legal representatives.

9. For the above reasons I hold that the appeal has abated in toto by reason of the appellant's failure to implead the parents of Salabat Khan as his legal representatives. It is accordingly dismissed, but in the circumstances I pass no order as to costs.

K.M.A. Appeal dismissed.

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