Punjab Pre-emption Act (1 of 1913)---
----Ss. 15, 13 & 17---Suit for pre-emption ---Rival suits were filed by real sister of vendor and real uncle of vendor---Respective shares of such claimants-- Vendor's sister claimed that she being sharer would exclude uncle of vendor who was residuary---Uncle's claim was based on the fact that though he was residuary yet he being entitled to inherit residue simultaneously with sister of vendor, was entitled to 1/2 share in suit for pre-emption ---Provisions of S. 15, Punjab Pre-emption Act, 1913if read with provisions of Ss.13 & 17 of the Act would indicate that if competition was between two pre-emptors on basis of their relationship with vendors, they would be entitled to inherit property of vendor simultaneously, to the extent of their shares, without excluding each other-- Both of them, in that eventuality would be having equal right of pre-emption. and subject-matter of pre-emption would have to be shared by them in proportion to shares which they would inherit from such property, if sale had not taken place---Real sister and paternal uncle, though falling in different categories i.e. sharer and residuary, would, however, inherit simultaneously to the extent of their shares prescribed by personal law without excluding each other, therefore. they would have equal right of pre-emption and no one would exclude the other in the matter of pre-emption ---Trial Court having rightly-decreed rival pre-emption suits to the extent of 1/2 share to each claimant, its judgment and decree were restored while that of Appellate Court decreeing sister's suit to the extent of whole property were set aside in circumstances.
Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879; Mst. Raz. Khanum Bibi v. Nazir Ahmad and others 1985 SCMR 1725; Karim Bakhsh and others v. Jehandad Khan and others 74 PR 1906; Jhang Bahadur Khan v. Karam Khan and others (1908) 21 PR 132; Sabz Ali Khan v. Khair Muhammad Khan ILR 3 Lah. 48; Muhammad and another v. Muhammad Yar and another PLD 1986 SC 231 and Rehmat Ullah through Legal Heirs and others v. Abdul Karim 1994 SCMR 399 ref.
Khawaja Mukhtar Ahmad Butt for Petitioner.
Raja Abdul Razzak for Respondent No. 1.
FATEH MUHAMMAD VS MST. RABIA BIBI1998 M L D 456[Lahore]Before Sayed Najam-ul-Hassan Kazmi, JFATEH MUHAMMAD through Legal Heirs---PetitionerversusMst. RABIA BIBI and 4 others---RespondentsCivil Revision No. 1828-D of 1982, decided on 24/10/1997.
----Ss. 15, 13 & 17---Suit for pre-emption ---Rival suits were filed by real sister of vendor and real uncle of vendor---Respective shares of such claimants-- Vendor's sister claimed that she being sharer would exclude uncle of vendor who was residuary---Uncle's claim was based on the fact that though he was residuary yet he being entitled to inherit residue simultaneously with sister of vendor, was entitled to 1/2 share in suit for pre-emption ---Provisions of S. 15, Punjab Pre-emption Act, 1913if read with provisions of Ss.13 & 17 of the Act would indicate that if competition was between two pre-emptors on basis of their relationship with vendors, they would be entitled to inherit property of vendor simultaneously, to the extent of their shares, without excluding each other-- Both of them, in that eventuality would be having equal right of pre-emption. and subject-matter of pre-emption would have to be shared by them in proportion to shares which they would inherit from such property, if sale had not taken place---Real sister and paternal uncle, though falling in different categories i.e. sharer and residuary, would, however, inherit simultaneously to the extent of their shares prescribed by personal law without excluding each other, therefore. they would have equal right of pre-emption and no one would exclude the other in the matter of pre-emption ---Trial Court having rightly-decreed rival pre-emption suits to the extent of 1/2 share to each claimant, its judgment and decree were restored while that of Appellate Court decreeing sister's suit to the extent of whole property were set aside in circumstances.
Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879; Mst. Raz. Khanum Bibi v. Nazir Ahmad and others 1985 SCMR 1725; Karim Bakhsh and others v. Jehandad Khan and others 74 PR 1906; Jhang Bahadur Khan v. Karam Khan and others (1908) 21 PR 132; Sabz Ali Khan v. Khair Muhammad Khan ILR 3 Lah. 48; Muhammad and another v. Muhammad Yar and another PLD 1986 SC 231 and Rehmat Ullah through Legal Heirs and others v. Abdul Karim 1994 SCMR 399 ref.
Khawaja Mukhtar Ahmad Butt for Petitioner.
Raja Abdul Razzak for Respondent No. 1.
JUDGMENT
This order will decide Civil Revision No. 1828-D of 1982 and Civil Revision No. 1829 of 1982, as common question will arise therein.
2. Land measuring 13 Kanals 5 Marlas, in Village Chak Gillani Tehsil Daska District Sialkot was sold by Allah Ditta respondent No.4 herein, in favour of Muhammad Siddique, respondent No.3, through sale-deed, dated 18-8-1977. To pre-empt this sale, three suits for pre-emption were filed by the pre-emptors: --
(1) Mst. Rabia Bibi, respondent No. 1 herein, (on the plea of being sister of the vendor),
(2) Fateh Muhammad (petitioner herein), on the plea of being uncle of the vendor and
(3) Shukar Din; respondent No.5 herein, (as owner and co-sharer).
3. The three suits were consolidated. After issues and evidence, the learned trial Court, vide judgment and decree, dated 6-5-1980, allowed 1/2 share in land to Mst. Rabia Bibi, having superior right of pre-emption as real sister of the vendor and the remaining 1/2 share was allowed to Fateh Muhammad, rival pre-emptor, being uncle of the vendor. Regarding Shukar Din, it was observed, that his right was subservient to the right of the two pre -emptors. The decree was challenged in appeal by Mst. Rabia Bibi and Fateh Muhammad. Shukkar Din did not agitate his matter any further. In appeals, the learned Additional District Judge vide judgment and decree, dated 7-9-1982, dismissed the appeal of Fateh Muhammad for non-payment of court-fee. However, appeal of Mst. Rabia Bibi, was accepted on 7-9-1982 and she was allowed the entire land with the observation, that being sister of the vendor, she would exclude the uncle. This judgment of the learned Additional District Judge has been called in question in this revision petition (No. 1828-D of 1982).
4. The facts in C.R No. 1829-D of 1982 are identical except that land measuring 23 Kanals 18 Marlas in village Chak Gillani tehsil Daska District Sialkot was sold by Muhammad Hussain alias Hassan Jat son of Sher Muhammad, vide sale-deed, dated 18-8-1977. To pre-empt this sale, three sits, one by Mst. Rabia Bibi and the other two by Fateh Muhammad and Shukar Din respectively were filed on the ground of being sister, uncle and owner/co-sharer respectively. The three suits after consolidated hearing were decided on 6-5-1980 by the learned trial Court which allowed 1/2 share to Mst. Rabia Bibi, remaining 1/2 share to Fateh Muhammad while Shukar Din third pre-emptor was declared to have right subservient to the right of the other two rival pre -emptors. Shukar Din did not agitate the matter any further. Two appeals were filed, one by Mst. Rabia Bibi and other by Fateh Muhammad. The Appeal of Fateh Muhammad was dismissed for deficient court-fee while the appeal of Mst. Rabia Bibi was allowed and she was given the entire land with the observation that being heir she would exclude the uncle, who is residuary. This judgment of the learned Additional District Judge dated 7-9-1982 is subject matter of challenge in Civil Revision No. 1829-D of 1982.
5. Learned counsel for the petitioner submits, that the view taken by the learned Additional District Judge is against law inasmuch as it was incorrectly assumed as if respondent No. 1 would exclude the petitioner or that she had somewhat superior right than the petitioner. He submitted, that respondent No. 1 and petitioner, have equal right of pre-emption as in case of demise they would inherit, simultaneously, in equal share, being his sister and paternal uncle. It was argued, that in the absence of son, daughter, father and brother, the real sister does not inherit the total estate of the vendor but instead the estate would devolve upon respondent No. 1 and the petitioner, simultaneously, therefore, no one of them could exclude either of the two. He, therefore, argued, that the trial Court rightly allowed the petitioner and respondent No. 1 to pre-empt the sale in equal share i.e. 1/2 share of the property each.
6. Conversely, learned counsel for the respondent, supported the judgment of the learned appellate Court and argued that the interpretation made of the term "in order of succession" in the matter of a comparison between the pre-emptor and vendee will not apply and though in those cases, it is observed that the right of pre-emption vests in all the heirs, who would be entitled to inherit the estate of vendor, no matter the nearer in relation may not choose to initiate proceedings, yet while considering the two claims between the rival pre- emptors, the nearer will exclude the remoter and since respondent No. 1 being sister falls in the category of sharer while the petitioner happens to be in the 'fit" category of residuary, therefore, respondent No. 1 would exclude the petitioner and will get the total property in preference to the petitioner.
7. Section 17 Punjab Pre-emption Act provides that if several pre-emptors are found by the Court to be equally entitled to the right of pre-emption, the said right shall be exercised, if they claim as heirs, in proportion, among themselves to the shares to which but for such sale they would inherit the land or property in the event of the vendor's demise, without other heirs. Similarly, section 13 ibid contemplates that whenever a right of pre-emption vests in any clause or group of persons, the right may be exercised by all the members of such clause or group jointly, and, if not exercised by them all jointly, by any two or more of them jointly, and, if not exercised by any two or more of them jointly, by them severally.
8. Section 15 of Punjab Pre-emption Act, provides, that the right of pre -emption shall vest in the lineal descendants of the vendor, in order of succession.
9. In number of cases, a question, as to the interpretation of section 15 of the Punjab Pre-emption Act, viz-a-viz the right of pre-emptor to file a suit on the ground of being a prospective heir of the vendor was considered and it was argued that in the presence of nearer relation, a suit by remoter relation should not be entertained. In those cases, considering the relevant provision of law it was held that the word persons" means and includes every person entitled, on the death of existing holder of estate, to succeed either immediately or ultimately, to whole or portion of estate." It was further observed that use of plural word "persons" does not lead to inference that such right vested in whole body of heirs, as a body corporate, and not in individual". Repelling the plea of non-maintainability of the suit on the ground that in the presence of the nearer relation the suit of remoters should not be entertained, it was held, that nearer heirs may have their own reasons not to exercise right of pre-emption and it could hot be said that even if such suit is not filed by the nearer relative, the remoter could not file the same. It was consistently found that every person entitled to succeed under law shall be competent to maintain suit for pre- emption.
10 In the present case, the sole question for consideration is, whether respondent No. 1, being claimant, as real sister of the vendor, could exclude the petitioner who claims as paternal uncle. In the matter of inheritance, though the sister, in the absence of father, son, daughter and brother, inherits as a sharer yet she can inherit only 1/2 share of the property and though the paternal uncle falls to the category of residuary yet he inherits the residue simultaneously with the sister. The property thus falls on the two heirs, i.e. sister and paternal uncle, simultaneously without excluding each other. In Jalal Din v. Saeed Ahmad and others (PLD SC 879), it was held, that the whole bargain, inter se, will be taken by the heirs in their respective shares and that the bargain will divide inter se according to their respective rights. The observation made in this case, at paragraph No. 11 of the judgment which clinches the whole controversy is as follows"
"It was, then, argued that in Islamic Law all the heirs succeed jointly, and when it is stated that the right shall vest in the "persons" to order of succession who, but for such sale would be entitled on the death of the vendor to inherit the land, it meant with reference to the plural word "persons" that the right vested in the whole body of heirs as a body corporate and not in an individual. Apart from the fact that plural word obviously includes singular, the contention, even otherwise, has no merit, because, even if the whole body sued, they took the whole bargain inter se according to their respective right. From this one can then easily hold that if some or only one sued they or he took the whole bargain dividing inter se according to their right and if all sued in separate suits the result would exactly be the same. This is expressly provided for in section 17(b) of the Act. The word "persons" really means and includes every person who in the event of the decease of the existing holder of an estate under the Personal Law would be entitled either immediately or ultimately to succeed to the whole or the portion of the estate of such person. The use of the plural word "persons", therefore, does not lead to the inference which the learned counsel wanted to draw from it and any argument based on that construction cannot be accepted."
11. Similarly in Mst. Raz Khanum Bibi v. Nazir Ahmad and others (1985 SCMR 1725), it was held, that the words "in order of succession" will mean that under Islamic Law if there is a contest between "heirs" or in a given case some "heirs" and some "residuaries", who, for example, succeed simultaneously and no one excludes the other and each succeeds to the extent of his share, then, as the order of succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre-emptor and the vendee are heirs of the above categories. The operative part of the judgment is as follows:--
"This is so, because, the right is to vest in the persons concerned " in order of succession" which simply means the order in which persons inter se would be entitled to inherit. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship". The order of succession is to be determined with reference to the Personal Law of the parties and when that has been determined the person entitled to succeed in order of succession is the person first entitled to pre-empt. If the nearest in order of succession does not seek to pre-empt, then, the person next in succession may do so until all the heirs in succession are exhausted. A study of the history of Pre-emption Law in the Punjab will show that the present section 15, so far as relevant for the discussion of the point in hand is concerned, is based on Karim Bakhsh and others v. Jehandad Khan and others 74 P R 1906, where it was held that the expression "in the order of relationship" which was the term then existing in section 12(b) of the Punjab Laws Act IV of 1872 had no reference to degree of propinquity but was equivalent to "order of succession" in cases of landed property. In that case, under customs, the plaintiff was 4 degrees removed from the vendor, the vendees 6 degrees but their rights of succession were identical and it was held that they had equal right to pre-emption. Then came Jhang Bahadur Khan v. Karam Khan and others (1908) 21 PR 132 on those very lines which was approved by the Privy Council in Sabz Ali Khan v. Khair Muhammad Khan ILR 3 Lah.48."
12. Similar rule was laid in Muhammad and another v. Muhammad Yar and another (PLD 1986 SC 231) and Rehmat Ullah through Legal Heirs and others v. Abdul Karim (1994 SCMR 399). It is, therefore, observed, that under section 15 of the Punjab Pre-emption Act, read with sections 13 and 17 of the Act, if the competition is between the pre-emptors; and the two pre-emptors, on 8 the basis of their relationship with the vendor, are entitled to inherit the property of the vendor, simultaneously, to the extent of their share, without excluding each other, then both of them will be having equal right of pre-emption and the property subject matter of pre-emption will have to be shared by them in proportion to share which they will inherit from the property, if the sale had not taken place. In this case, the petitioner and respondent No.l, being paternal uncle and real sister, respective though falling in the category of residuary and sharer inherit simultaneously, to the extent of their share prescribed by their personal law, without excluding each other, therefore, the two had equal right of pre-emption and no one exclude the other in the matter of pre-emption. The learned trial Court, therefore, did not commit any error, in decreeing the suit of petitioner and respondent No.l to the extent of 1/2 share each in the property. The appellate Court, being oblivious of the provisions of law and on the basis of erroneous assumptions as well as in total disregard to the rule laid down by the Hon'ble Supreme Court proceeded to reverse the decree in the suit of the petitioner and granted a decree for the total property to respondent No.l which cannot sustain in law.
13. For the reasons above, the two revisions are accepted, the judgment of the appellate Court in the two cases are set aside, and in consequence, the two judgments and decrees of the learned trial Court, allowing petitioner and respondent No. 1, 1/2 share each in the two suits, are restored, subject to deposit of pre-emption money, by them to the extent of their share, which if not deposited by now, shall be deposited within two months, failing which the suit shall stand dismissed. No order as to the cost.
A.A./F-42/LRevision accepted.
This order will decide Civil Revision No. 1828-D of 1982 and Civil Revision No. 1829 of 1982, as common question will arise therein.
2. Land measuring 13 Kanals 5 Marlas, in Village Chak Gillani Tehsil Daska District Sialkot was sold by Allah Ditta respondent No.4 herein, in favour of Muhammad Siddique, respondent No.3, through sale-deed, dated 18-8-1977. To pre-empt this sale, three suits for pre-emption were filed by the pre-emptors: --
(1) Mst. Rabia Bibi, respondent No. 1 herein, (on the plea of being sister of the vendor),
(2) Fateh Muhammad (petitioner herein), on the plea of being uncle of the vendor and
(3) Shukar Din; respondent No.5 herein, (as owner and co-sharer).
3. The three suits were consolidated. After issues and evidence, the learned trial Court, vide judgment and decree, dated 6-5-1980, allowed 1/2 share in land to Mst. Rabia Bibi, having superior right of pre-emption as real sister of the vendor and the remaining 1/2 share was allowed to Fateh Muhammad, rival pre-emptor, being uncle of the vendor. Regarding Shukar Din, it was observed, that his right was subservient to the right of the two pre -emptors. The decree was challenged in appeal by Mst. Rabia Bibi and Fateh Muhammad. Shukkar Din did not agitate his matter any further. In appeals, the learned Additional District Judge vide judgment and decree, dated 7-9-1982, dismissed the appeal of Fateh Muhammad for non-payment of court-fee. However, appeal of Mst. Rabia Bibi, was accepted on 7-9-1982 and she was allowed the entire land with the observation, that being sister of the vendor, she would exclude the uncle. This judgment of the learned Additional District Judge has been called in question in this revision petition (No. 1828-D of 1982).
4. The facts in C.R No. 1829-D of 1982 are identical except that land measuring 23 Kanals 18 Marlas in village Chak Gillani tehsil Daska District Sialkot was sold by Muhammad Hussain alias Hassan Jat son of Sher Muhammad, vide sale-deed, dated 18-8-1977. To pre-empt this sale, three sits, one by Mst. Rabia Bibi and the other two by Fateh Muhammad and Shukar Din respectively were filed on the ground of being sister, uncle and owner/co-sharer respectively. The three suits after consolidated hearing were decided on 6-5-1980 by the learned trial Court which allowed 1/2 share to Mst. Rabia Bibi, remaining 1/2 share to Fateh Muhammad while Shukar Din third pre-emptor was declared to have right subservient to the right of the other two rival pre -emptors. Shukar Din did not agitate the matter any further. Two appeals were filed, one by Mst. Rabia Bibi and other by Fateh Muhammad. The Appeal of Fateh Muhammad was dismissed for deficient court-fee while the appeal of Mst. Rabia Bibi was allowed and she was given the entire land with the observation that being heir she would exclude the uncle, who is residuary. This judgment of the learned Additional District Judge dated 7-9-1982 is subject matter of challenge in Civil Revision No. 1829-D of 1982.
5. Learned counsel for the petitioner submits, that the view taken by the learned Additional District Judge is against law inasmuch as it was incorrectly assumed as if respondent No. 1 would exclude the petitioner or that she had somewhat superior right than the petitioner. He submitted, that respondent No. 1 and petitioner, have equal right of pre-emption as in case of demise they would inherit, simultaneously, in equal share, being his sister and paternal uncle. It was argued, that in the absence of son, daughter, father and brother, the real sister does not inherit the total estate of the vendor but instead the estate would devolve upon respondent No. 1 and the petitioner, simultaneously, therefore, no one of them could exclude either of the two. He, therefore, argued, that the trial Court rightly allowed the petitioner and respondent No. 1 to pre-empt the sale in equal share i.e. 1/2 share of the property each.
6. Conversely, learned counsel for the respondent, supported the judgment of the learned appellate Court and argued that the interpretation made of the term "in order of succession" in the matter of a comparison between the pre-emptor and vendee will not apply and though in those cases, it is observed that the right of pre-emption vests in all the heirs, who would be entitled to inherit the estate of vendor, no matter the nearer in relation may not choose to initiate proceedings, yet while considering the two claims between the rival pre- emptors, the nearer will exclude the remoter and since respondent No. 1 being sister falls in the category of sharer while the petitioner happens to be in the 'fit" category of residuary, therefore, respondent No. 1 would exclude the petitioner and will get the total property in preference to the petitioner.
7. Section 17 Punjab Pre-emption Act provides that if several pre-emptors are found by the Court to be equally entitled to the right of pre-emption, the said right shall be exercised, if they claim as heirs, in proportion, among themselves to the shares to which but for such sale they would inherit the land or property in the event of the vendor's demise, without other heirs. Similarly, section 13 ibid contemplates that whenever a right of pre-emption vests in any clause or group of persons, the right may be exercised by all the members of such clause or group jointly, and, if not exercised by them all jointly, by any two or more of them jointly, and, if not exercised by any two or more of them jointly, by them severally.
8. Section 15 of Punjab Pre-emption Act, provides, that the right of pre -emption shall vest in the lineal descendants of the vendor, in order of succession.
9. In number of cases, a question, as to the interpretation of section 15 of the Punjab Pre-emption Act, viz-a-viz the right of pre-emptor to file a suit on the ground of being a prospective heir of the vendor was considered and it was argued that in the presence of nearer relation, a suit by remoter relation should not be entertained. In those cases, considering the relevant provision of law it was held that the word persons" means and includes every person entitled, on the death of existing holder of estate, to succeed either immediately or ultimately, to whole or portion of estate." It was further observed that use of plural word "persons" does not lead to inference that such right vested in whole body of heirs, as a body corporate, and not in individual". Repelling the plea of non-maintainability of the suit on the ground that in the presence of the nearer relation the suit of remoters should not be entertained, it was held, that nearer heirs may have their own reasons not to exercise right of pre-emption and it could hot be said that even if such suit is not filed by the nearer relative, the remoter could not file the same. It was consistently found that every person entitled to succeed under law shall be competent to maintain suit for pre- emption.
10 In the present case, the sole question for consideration is, whether respondent No. 1, being claimant, as real sister of the vendor, could exclude the petitioner who claims as paternal uncle. In the matter of inheritance, though the sister, in the absence of father, son, daughter and brother, inherits as a sharer yet she can inherit only 1/2 share of the property and though the paternal uncle falls to the category of residuary yet he inherits the residue simultaneously with the sister. The property thus falls on the two heirs, i.e. sister and paternal uncle, simultaneously without excluding each other. In Jalal Din v. Saeed Ahmad and others (PLD SC 879), it was held, that the whole bargain, inter se, will be taken by the heirs in their respective shares and that the bargain will divide inter se according to their respective rights. The observation made in this case, at paragraph No. 11 of the judgment which clinches the whole controversy is as follows"
"It was, then, argued that in Islamic Law all the heirs succeed jointly, and when it is stated that the right shall vest in the "persons" to order of succession who, but for such sale would be entitled on the death of the vendor to inherit the land, it meant with reference to the plural word "persons" that the right vested in the whole body of heirs as a body corporate and not in an individual. Apart from the fact that plural word obviously includes singular, the contention, even otherwise, has no merit, because, even if the whole body sued, they took the whole bargain inter se according to their respective right. From this one can then easily hold that if some or only one sued they or he took the whole bargain dividing inter se according to their right and if all sued in separate suits the result would exactly be the same. This is expressly provided for in section 17(b) of the Act. The word "persons" really means and includes every person who in the event of the decease of the existing holder of an estate under the Personal Law would be entitled either immediately or ultimately to succeed to the whole or the portion of the estate of such person. The use of the plural word "persons", therefore, does not lead to the inference which the learned counsel wanted to draw from it and any argument based on that construction cannot be accepted."
11. Similarly in Mst. Raz Khanum Bibi v. Nazir Ahmad and others (1985 SCMR 1725), it was held, that the words "in order of succession" will mean that under Islamic Law if there is a contest between "heirs" or in a given case some "heirs" and some "residuaries", who, for example, succeed simultaneously and no one excludes the other and each succeeds to the extent of his share, then, as the order of succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre-emptor and the vendee are heirs of the above categories. The operative part of the judgment is as follows:--
"This is so, because, the right is to vest in the persons concerned " in order of succession" which simply means the order in which persons inter se would be entitled to inherit. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship". The order of succession is to be determined with reference to the Personal Law of the parties and when that has been determined the person entitled to succeed in order of succession is the person first entitled to pre-empt. If the nearest in order of succession does not seek to pre-empt, then, the person next in succession may do so until all the heirs in succession are exhausted. A study of the history of Pre-emption Law in the Punjab will show that the present section 15, so far as relevant for the discussion of the point in hand is concerned, is based on Karim Bakhsh and others v. Jehandad Khan and others 74 P R 1906, where it was held that the expression "in the order of relationship" which was the term then existing in section 12(b) of the Punjab Laws Act IV of 1872 had no reference to degree of propinquity but was equivalent to "order of succession" in cases of landed property. In that case, under customs, the plaintiff was 4 degrees removed from the vendor, the vendees 6 degrees but their rights of succession were identical and it was held that they had equal right to pre-emption. Then came Jhang Bahadur Khan v. Karam Khan and others (1908) 21 PR 132 on those very lines which was approved by the Privy Council in Sabz Ali Khan v. Khair Muhammad Khan ILR 3 Lah.48."
12. Similar rule was laid in Muhammad and another v. Muhammad Yar and another (PLD 1986 SC 231) and Rehmat Ullah through Legal Heirs and others v. Abdul Karim (1994 SCMR 399). It is, therefore, observed, that under section 15 of the Punjab Pre-emption Act, read with sections 13 and 17 of the Act, if the competition is between the pre-emptors; and the two pre-emptors, on 8 the basis of their relationship with the vendor, are entitled to inherit the property of the vendor, simultaneously, to the extent of their share, without excluding each other, then both of them will be having equal right of pre-emption and the property subject matter of pre-emption will have to be shared by them in proportion to share which they will inherit from the property, if the sale had not taken place. In this case, the petitioner and respondent No.l, being paternal uncle and real sister, respective though falling in the category of residuary and sharer inherit simultaneously, to the extent of their share prescribed by their personal law, without excluding each other, therefore, the two had equal right of pre-emption and no one exclude the other in the matter of pre-emption. The learned trial Court, therefore, did not commit any error, in decreeing the suit of petitioner and respondent No.l to the extent of 1/2 share each in the property. The appellate Court, being oblivious of the provisions of law and on the basis of erroneous assumptions as well as in total disregard to the rule laid down by the Hon'ble Supreme Court proceeded to reverse the decree in the suit of the petitioner and granted a decree for the total property to respondent No.l which cannot sustain in law.
13. For the reasons above, the two revisions are accepted, the judgment of the appellate Court in the two cases are set aside, and in consequence, the two judgments and decrees of the learned trial Court, allowing petitioner and respondent No. 1, 1/2 share each in the two suits, are restored, subject to deposit of pre-emption money, by them to the extent of their share, which if not deposited by now, shall be deposited within two months, failing which the suit shall stand dismissed. No order as to the cost.
A.A./F-42/LRevision accepted.
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