Law:

Section:

Punjab Pre-emption Act (I of 1913)---S. 15-Right of pre-emption-Custom (Punjab)--House in city- Pre-emptor necessarily to prove that custom of pre-emption pre­vailed in sub-division where property located.-[Custom (Punjab)]. Aziz Ahmad on Islamic Law in Theory & Practice, pp. 495-496; Lal Chand v. Kartar Singh A I R 1947 Lah. 265 ; I L R 2 Lah. 136 and I L R 4 Lah. 176 rel. ORDER NASIM HASAN SHAH, J.--This petition is directed against the judgment dated 28-5-1975 passed by a learned Single Judge of the Lahore High Court in R. S. A. No. 91 of 1963. To appreciate the questions arising for decision a reference to the predigree-table of the parties will be helpful which is reproduced below Gulab Din | _______________________________________________________ Allah Din Imam Din Mohammad Din | | Vendor (Defdt. No. 2) Mst. Rehmat Bibi Pre emptor Mohd. Sadiq Fazal Karim (Plaintiff) Vendee (Defdt. No. 1) The father of Fazal Karim, vendee/defendant No. 1 Allah Din died during the lifetime of his father Gulab Din. Some years thereafter Imam Din, the brother of Allah Din stated in the registered sale-deed dated 11-5-1978 that his share in the house was 1/3rd and sold his said share to Fazal Karim. Mst. Rehmat Bibi instituted a suit on 30-5-1958 to pre-empt the sale on the ground that she was a co-sharer in the property having inherited it from his father Mohammad Din who had succeeded Gulab Din in due course while Fazal Karim had no such status. The claim of Mst. Rehmat Bibi was bawd on the ground that under the Islamic Law, the house was inherited by Imam Din and Mohammad Din in equal shares to the exclusion of Fazal Karim on the basis of the doctrine that the nearer excludes the more remote. Accordingly, Mst. Rehmat Bibi inherited on the death of her father 1/2 of 1/2=1/4 share belonging to her father. Fazal Karim in defence of the suit raised several pleas, inter alia that the custom of pre-emption did not exist in the locality where the suit property is situated and that he was also a co-sharer. Taking the second plea first it is an admitted fact that Fazal Karim after the death of his grandfather continued to reside in the house alongwith his uncles and is still in…

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