Mushtaq Ahmad, J.:— (Jan. 6, 1953) — This is an application in revision against an order refusing to substitute the applicant as the legal representative of his father Amanatullah, the sole plaintiff-appellant in an appeal in a preemption suit.

2. Pending that appeal the appellant Amanatullah died on the 3rd September, 1949. On the 2nd December, 1949 the applicant applied for substitution of his name on the basis of a document dated the 31st July, 1949 purporting to be a will, by which, inter alia, Amanatullah had authorised the applicant to look after the preemption case if he (Amanat Ullah) died pending the same. On the 5th December, 1949 Mohammad Ayub, another son of Amanatullah, in his turn applied for the substitution of the names of himself and of the other sons of the deceased, swearing by an affidavit that on account of illness he had not been able to apply earlier. To this no counter-affidavit was filed by the vendees-respondents in the appeal.

3. The lower appellate court dismissed both the above applications and finally it “dismissed” the appeal also, holding that the document relied upon by the applicant had not been proved to be genuine and also that, on Amanatullah's death, the right to continue the appeal had not survived to his legal representatives. The application of Mohammad Ayub was dismissed also as barred by time. In these circumstances the proper order would obviously have been one declaring the appeal as having abated and not “dismissing” it.

4. In taking the above view the learned Civil Judge relied on the Bench decision of this Court in Mohammad Husain v. Niamatun-Nissa I.L.R 20 All. 88. in which it had been held that

“according to the Mohammedan Law applicable to the Sunni sect if a plaintiff in a suit for preemption has not obtained his decree for preemption in his life-time, the right to sue does not survive to his heirs.”

5. This proposition was professedly based on certain original texts referred to in the last but one paragraph of the judgment of the Bench.

6. The main argument addressed to me by the learned Counsel for the applicant was that, even under the Mohammedan Law, the right of preemption was a right essentially attached to and flowing from the ownership of property and that any one in whom the property for the time being vests is entitled to pursue the claim either in the original or in the appellate court.

7. It would be elementary to mention that there are three classes of preemptors in Mohammedan Law, and they are:

(1) Shafi Sharik, a co-sharer in the property,

(2) Shafi Khalit, a participator in appendages of the property and

(3) Shafi Jar, a neighbour, meaning of course one who owns some property in the neighbourhood.

8. This classification at once brings into prominence the fact that the right in question arises essentially from a certain status, that being co-ownership, a certain unity of enjoyment in respect of the property sold or the ownership of property in close proximity. In all these cases the common element of an interest either in the property sold or in some other property is essentially present. Viewed in this light the question to be decided assumes a somewhat simpler aspect and all that remains to be considered is—whether, if the interest just mentioned has passed from the original preemptor to his heir, the latter can also pursue the claim in the original or the appellate court.

9. The vital point to determine is with regard to the nature of a right of preemption under the Mohammedan Law. Mahmood, J. in his oft-cited judgment in the Full Bench case of Gobind Dayal v. Inayatullah I.L.R 7 All. 775. expressed himself on the point thus:—

“I may, however, observe that the nature of the right, as appears from the definition which I have given, partakes strongly of the nature of an easement,—the “dominant tenament” and the “surviant tenament” of the Law of Easement being terms expressly analogous to what I may respectively call the “preemptive tenament” and “pre-emptional tenament” of the Mohammedan Law of preemption. Indeed, the analogy goes further, for I shall presently show that the right of preemption, like an easement, exists, before the injury to that right can give birth to a cause of action for a suit,—sale in the one case corresponding to the invasion of the easement in the other. In short, I maintain that, under the Mohammedan Law, the rule of preemption, proceeding upon a principle analogous to the maxim sic utera tuo ut alinum non laedas, creates what I may call a legal survitude running with the land.”

10. There was no dissent from this enunciation by the remaining four members of the Bench.

11. In Kaunsilla Kunwar v. Gopal Prasad I.L.R 28 All. 424. Stanley, C.J and Burkitt, J. observed:—

“The right of preemption 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 preempt exists can maintain a suit for preemption notwithstanding that he was not the owner at the date when the cause of action accrued.”

12. The learned Judges, in making the above observation, followed an earlier Bench decision of this Court in Mohammad Yusuf Ali Khan v. Dal Knar I.L.R 20 All. 148., in which it had been laid down that

“the daughter of Hindu widow to whom the widow had relinquished a share in a village, of which shares she was in possession as a widow's life estate, was entitled to preemption in respect of a sale which had taken place in the village prior to the relinquishment made to her by her mother.”

13. The claim for preemption in this last case was no doubt based on the wajib-ul-arz and not on Mohammadan law, but this did not affect the general proposition laid down by the Bench in 28 All. 424 referred to above, as apparently no distinction was conceived between the two classes of cases. For my own part also I can see none.

14. Again, in the Full Bench case of Wajid Ali v. Shaban I.L.R 31 All. 623., which was based on custom, Richards, J. who was arryed on the majority side remarked that

“in the present case the custom as proved gives the right to preempt as an incident to co-ownership and I think we ought to follow the ruling in Mohammad Yusuf Ali Khan v. Dal Kuar. The circumstances of that case and the present are identical in principle. In each case the preemptor derived title by inheritance, and I think that the ruling in 7 All. 535 may be distinguished.”

15. It may incidentally be remarked that Mahmood, J. in the case just mentioned had held that, where the co-sharer who was originally entitled to preempt had, before making a claim, passed on his interest to another, the latter could not preempt. That was a case of transfer and not of inheritance and was distinguished on that ground by Richards, J. in the ruling in I.L.R 31 All. 623. Tudball, J., the other member on the majority side, quoted the passage I have already set forth above from the case in I.L.R 28 All. 424 with approval. Banerji, J. however, on the minority side was of the opinion that, the right of preemption being a right of substitution, the heir of a preemptor, not having himself a right of preemption at the date of the sale, could not maintain a suit. This was of course on the assumption that the right was not attached to property and was not an incident to or arose out of the ownership of property. The majority view was also affirmed by a Full Bench of the Bombay High Court in Dashrathlal Chhaganlal v. Bai Dhondubai A.I.R 1941 Bom. 262. which too was a case of custom.

16. On the authority of the above case-law I should be inclined to hold that even under Mohammedan Law the right of preemption is a heritable right and can be claimed and pursued after the death of the original plaintiff by his heir, both in the original and the trial courts.

17. The same result would appear to be reached from another stand-point, and that raises the question as to whether the date of the judgment of the trial court, whether it has been in favour of the preemptor or against him, is the crucial date to determine the right of the preemptor's heir to enforce the claim. I am noting this aspect of the case in deference to the argument of the learned counsel for the opposite side that, Amanantullah's suit having been dismissed by the trial court, it was not open to his heirs in the appellate court to claim substitution in his place as appellants and continue the appeal. In Baldeo Misir v. Ram Lagan Shnkal7 Lindsay and Sulaiman, JJ. expressed themselves on this point thus:—

“A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right to preempt continues upto the date when the decree ought to have been passed in his favour, namely the date on which the case was disposed of by the first court. It matters little whether the court of first instance did actually dismiss or decree his suit. The date of that court's decree is the date on which, if the plaintiff's contention is correct, the decree ought to have been passed in his favour. This principle was the basis of the decision in the following cases:—

“Ram Gopal v. Piari Lal I.L.R 21 All. 441., Bhagwan Das v. Mohan Lal I.L.R 25 All. 421., Mohan Singh v. Bhau Lal I.L.R 31 All. 530. and Shankar Lal v. Karori Mal S.A No. 518 of 1922., decided on the 1st June, 1923. The last crucial date in such cases must, therefore be taken to be the date of the first court decree. If subsequent events were allowed to alter the form of the decree which would lead to much confusion it is impossible to hold that having regard to the position of the parties, as stood on the date of the first court's decree, any other decree could have been passed on that date.”

18. This view was affirmed in the later case of Umrao v. Lachhman I.L.R 46 All. 321..

19. I have already said that I do not see any difference in principle between a claim based on Mohammedan Law and one based either on custom or wajib-ul-arz so far as the right of the preemptor's heir to continue the claim is concerned, the essential element of the right, namely some proprietary or easementary interest in the property sold, being common to all these classes. What is even more perplexing is that the denial of the right of the preemptor's heir to pursue the claim was held in the case of Mohammad Husain v. Niamat-un-nissa, relied upon by the lower appellate court, as a particular feature of the law governing the Sunni sect. The ruling was no doubt based on certain original texts referred to in the judgment, but in none of them do we find any juristic basis for a distinction between the law as applicable to the Sunni sect and that governing the other sects of the community. Of course the two stand-points mentioned by me above, from which the general question of the heir's right to pursue the claim may be considered, would seem to render it needless to investigate the basis of this distinction.

20. For an authoritative decision of the point raised in this case, however, involving, as it may, a reconciliation of the case-law to the original texts and a determination whether the disability of a Sunni preemptor's heir to pursue a claim for preemption as such is referable to any juristic ground, it is necessary and desirable to have the case decided by a larger Bench. Accordingly I refer it to such a Bench.

Referring Order of Division Bench Consisting of Agarwala & Oak, JJ.

21. Agarwala, J. (April 19, 1955):— The question in this case is whether the right of the Dre-emptor to preempt the property according to the rules of Mohammadan Law devolved on his heirs after his death when he, in his lifetime, had not obtained a decree for preemption in his favour. In the case of Mohammad Husain v. Niamat-un-Nissa it was held by a Division Bench of this Court that a right of preemption in these circumstances would not survive after the death of the preemptor. This was on the ground that it was a personal right and not a right attached to property. In a recent Supreme Court decision, however, vide Shri Audh Behari Singh v. Gajadhar Jaipuria A.I.R 1954 S.C 417., it was held that the right of preemption is not a personal right but is an incidence of proprietary right and goes with the land. It, therefore, appears that the view of the Bench of this Court in the case of Mohammad Husain v. Niamat-un-Nissa might have to be reconsidered. We, therefore, refer this case to the Hon'ble the Chief Justice so that if he thinks fit he may have it decided by a Full Bench of three Judges. Let the papers of this case be laid before Hon'ble the Chief Justice.

JUDGMENT OF THE FULL BENCH

22. Agarwala, J.:— This is an application in revision against an order rejecting the applicant's application for being brought on the record as the successor-in-interest of the plaintiff-appellant who had died during the pendency of the appeal in the lower appellate court. The facts in brief are as follows.

23. Amanatullah, father of the applicant, owned a house in the city of Banaras. Adjacent to it to the north is the house of Abdul Rashid and Abdul Jalil, opposite parties Nos. 1 and 2. The latter sold their house by means of a deed of sale dated 20th July, 1946 to Barkatullah, opposite party No. 3 for a sum of Rs. 1200. Amanatullah claimed a right of preemption with regard to this sale on the ground that he was the owner of the adjoining house and that he also participated in the appendages of the house in other words, he claimed to be a Shafi-e-Jar and a Shafi-e-Khalit. He claimed that he had performed the necessary demands. The suit was instituted in the court of the Munsif Banaras.

24. The defence was that the plaintiff did not possess the preferential right of preemption nor had he made any demands as required by the Mohammedan Law. There were other defences with which we are not concerned.

25. The Munsif dismissed the suit on the grounds that the plaintiff did not possess a preferential right of preemption and that he had not made the necessary demands. Amanatullah appealed to the lower appellate court but died during the pendency of this appeal leaving six sons, Mohammad Ayub, opposite party No. 4 and Mohammad Ismail, the applicant. It is not necessary to mention the names of the other four sons. Mohammad Ayub and Mohammad Ismail both made applications to the court below as successors of Amanatullah for being brought on the record in place of Amanatullah and being allowed to prosecute the appeal.

26. The court below dismissed their applications and one of the grounds mentioned by the court below was the maxim-actio personalis moritun cum persona applied to the case, as according to the Hanafi Mohammadan Law which governed the parties, the right of preemption was a personal right and did not survive to the heirs if the preemptor died before obtaining a decree in his favour. Reliance was placed by the court below upon a ruling of this Court in Muhammad Husain v. Niamat-un-Nissa. The court below by the same order dismissed the appeal also. The applicant then came up in revision to this Court and urged that the view taken by the court below that the right did not survive to the heirs of the deceased preemptor was erroneous. The case came up before a learned Single Judge who considered that the right survived to the heirs because it was not a personal right but was attached to property, but because of the Division Bench Ruling in Muhammad Husain's case, he referred the case for decision by a Division Bench. The case came up before a Division Bench and in view of the Supreme Court Ruling reported in Shri Audh Behari Singh v. Gajadhar Jaipuria in which it was held that the right of preemption was not a personal right but was attached to property, and in view of the importance of the question involved in the case, the Bench referred the case to a Full Bench.

27. The case has been ably argued before us by learned counsel for both sides. Upon hearing them we have come to the conclusion that this revision must fail. It may be observed that when Amanatullah died he had not obtained a decree for preemption in his favour, as his suit had been dismissed by the trial court. The question is whether under the Hanafi Mohammedan Law the heirs of Amanatullah could continue the appeal and claim to preempt the property.

28. The right of preemption signifies “the becoming proprietor of lands sold for the price at which the purchaser has bought them, although he be not consenting there unto. The word “Shafa” (preemption) is derived from a right which signifies conjunction, i.e the lands sold are conjoined to the land of the preemptor”. See Hedaya by Hamilton Vol. 3 p. 561. The right is available first to a partner in the property of the land sold, second to a partner in the immunities and appendages of the land, and third to the owner of the land adjoining the lands sold. The basis of the right is to prevent apprehended inconveniences by the introduction of a stranger as partner or neighbour. Shaffa is, therefore, a right to have an offer of sale made to the preemptor in the first instance before the property is sold to a stranger and if the property is sold to a stranger, the preemptor has a right to be substituted in the sale in place of the purchaser.

29. Inasmuch as the right of preemption is “the disseizing another of his property merely in order to prevent apprehended inconveniences” it is considered to be “a feeble right” by Hanafi Mohammedan Lawyers, vide, Hamilton's Hedaya, Vol. Ill, p. 568, and for this reason the right is circumscribed or hedged in by certain conditions the fulfilment of which is essential for the enforcement of the right in a court of law. The first of these conditions is that the pre-emptor must himself be the owner of the property by virtue of which he claims the right at the date of the sale. The second condition is that he must make known his intention to preempt without delay by making the two demands which are technically called ‘Talab Mawasibat’ or immediate claim and ‘Talab Ishhad’ or claim by confirmation before witnesses. The Talab Mawasibat is made immediately when the preemptor is apprised of the sale being concluded. If he makes the slightest delay his right is gone. He must further make the second demand in the presence of witnesses against the purchaser if he is still in possession of the land or against the seller or upon the spot. The third condition is that he must continue to possess his right of preemption so long as a decree is not passed by the Court in his favour, for if he loses his right before that event happens, he cannot claim to be entitled to a decree. The Mohammedan Law texts are clear on the point. At page 568, Vol. Ill of Hamilton's Hedaya, it is stated thus:—

“The right of Shaffa is not established untill the demand be regularly made in the presence of witnesses; and it is requisite that it be made as soon as possible after the sale is known; for the right of Shaffa is but a feeble right, as it is the disseizing another of his property merely in order to prevent apprehended inconveniences. It is therefore requisite that the Shafee without delay discover his intentions, by making the demand; which must be done in the presence of witnesses, otherwise it cannot be afterward proved before the Kazee.

When the demand has been regularly made in the presence of witnesses, still the Shafee does not become proprietor of the house until the purchaser surrender it to him, or until the magistrate passes a decree; because the purchaser's property was complete, and cannot be transferred to the Shafee but by his own consent, or by a decree of a magistrate; in the same manner as in the case of a restriction of a grant, where the property of the grantee being completely established by the grant, it cannot be transferred to the granter, but by the surrender of the grantee, or by a decree of a magistrate. The use of this law appears in a case where the Shafee, after having preferred his claim before witnesses previous to the decree of the magistrate or the surrender of the purchaser, dies, or fells the house from whence he derived his right; or where the house adjoining to that to which the right of Shaffa relates is sold; for in the first of these instances the house is not a part of his hereditaments, because it was not his property; and the right of Shaffa fails in the second instance, as the fundamental principle of that right is extinguished previous to his becoming the proprietor; and in the third case, he has no right to Shaffa with respect to the house which is sold, since the house from which he would have derived that right is not his property.”

30. Again, at page 600, while dealing with the circumstances which invalidate the right of Shaffa, the learned author states as follows:

“If the Shafee dies, his right of Shaffa becomes extinct. Shafei maintains that the right of Shaffa is hereditary. The compiler of the Hedaya remarks that this difference of opinion obtains only where the Shafee dies after the sale, but previous to the Kazee decreeing him the Shaffa; for if he dies after the Kazee has decreed his Shaffa, without having paid the price, or obtained possession of the property sold, his right devolves to his heirs, who become liable for the price. 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 Shaffa; and the property did not devolve to his heirs until after the sale. Besides, it is an express condition of Shaffa, that a man be firmly possessed of the property from which he derives his right of Shaffa 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 Shafee remain firm until the decree of the Kazee be passed; and as this does not hold on the part of the deceased Shafee, the Shaffa is therefore not established with respect to any one of his descendants, because of the failure of its conditions.”

31. Analysing this passage, we find two reasons for the view that the right of preemption does not survive to the heirs if the preemptor dies before obtaining a decree in his favour:

(1) that the preemptor must be possessed of the property on account of which he claims preemption on the date of the sale. This condition is not satisfied by the heirs,

(2) that the preemptor must be firmly possessed of his own property till the date of the decree in his favour, and if he dies before that date, this condition is not fulfilled.

32. The same view is expressed in Baillie's Digest of Moohummudan Law 1875 Edition, page 505: In Chapter 8 the learned Author described the mode in which the right of preemption is rendered void after it has been established. He says that:

“The right of preemption is rendered void in two different ways after it has been established. One of these is “Ikhtiyaree, or voluntary, the other Zurooree, or necessary.” …..The right of preemption is rendered void necessarily when the preemptor has died after the two demands and before taking the thing under the preemption; for the right is then extinguished according to ‘us’. But it is not made void by the death of the purchaser; and the preemptor may, accordingly, assert his right, and take the subject of sale from his heirs.”

33. This view seems to be well established, see Shyama Charan Sirkar's Mohammedan Law, Second Edition, I Volume, 603, and Tyabji's Muhammadan Law, 1940 Edn. p. 696, paragraph 532. Ameer Ali Muhammadan Law Vol. I, 2nd Edn. p. 603. These authorities were followed by a Division Bench of that Court in Muhammad Husain v. Niamat-unnissa. That was a case the facts of which were very similar to the facts of the present case. In that case the preemptor brought a suit for preemption against the vendor and the vendee. The suit was dismissed. He died after the decree but before the appeal was filed. His heirs filed the appeal. The lower appellate court decreed the suit. From this decree the defendant appealed to the High Court and the High Court decreed the appeal holding that the right of preemption had determined upon the death of the preemptor and did not survive to his heirs. This is what they observed:—“All the authorities of which we are aware show that it did, that the right of preemption is gone when the preemptor is a Sunni of the Hanafi Sect and has not obtained the decree during his life time and the right to sue does not survive to his heirs.”

34. It is true that the right of preemption has been stated to be not a personal right but a right attached to property, see Govind Dayal v. Inayatullah and Shri Audh Behari Singh v. Gajadhar Jaipuria. In Govind Dayal's case the question was: “in a case of preemption where the preemptor and the vendor are Muhammadans and the vendee a non-Muhammadan, is the Muhammadan Law of preemption to be applied to the matter in advertence to the terms of Sec. 24 of Act VI of 1871,” and the question was answered in the affirmative on the ground that preemption was a right which the owner of certain immovable property possessed as such for the quiet enjoyment of that immovable property to obtain in substitution for the buyer, proprietary possession of certain other immovable property not his own on such terms as those on which such latter immovable property is sold to another person, that the right partakes of the nature of an easement and is in the nature of a legal servitude running with the land and that the right exists before sale and does not come into existence after the sale. In Shri Audh Behari Singh's case the question was whether the Muhammadan Law of preemption which prevailed in the city of Banaras under a custom could be availed of in a case where neither the vendor nor the vendees were the natives of Banaras but were residents of a different province. It was in this connection that it was observed that the right of preemption is a right attached to property and is not a personal right. The question which arises in the present case did not fall to be considered in any of the above cases, and the learned Judges were not called upon to consider the circumstances in which the right is lost or becomes unenforceable. There is nothing illogical in the right being not personal and attached to property and at the same time not being heritable or transferable after the sale has been made to a stranger but before a decree has been passed in favour of the preemptor. There are many interests in land which are neither heritable nor transferable and the bare right of preemption after the sale has been effected but before it has ripened into a decree of Court, seems to be such a right.

35. The same thing might be put in another way. It can be said that although the right of preemption runs with the land and is not initially personal it assumes a personal aspect for the purposes of enforceability in a court of law. From the moment of the sale in favour of the stranger till the date of the decree in favour of the preemptor, the right can be enforced only by the person who was the owner of the preemptive property on the date of the sale of the property sought to be preempted. During this interval the right is attached to the person of the owner of the preemptive property and he alone can enforce it in a court of law. The right continues to be personal to him so long as a decree is not passed in his favour. During this interval the right is neither transferable nor heritable. But as soon as a decree is passed in his favour the right ceases to be personal and becomes a proprietary right fit to be transferred as well as to be inherited.

36. Dr. Agarwala in his Commentary on the law of preemption states his opinion thus:—

“The Primary right exists in every owner for the time being of the preemptive property, and entitles him to have an offer of sale made to him whenever the owner of the preemptional property cares to sell it, while the secondary right arises on a sale of the preemptional property in favour of the owner, at that time, of the preemptive property, and is a right of substitution, i.e a right to be substituted for the vendee in the sale transaction. The difference between the persons of inherence in the two cases is very important. The primary right is in every owner for the time being of the preemptive property; the secondary right is only in favour of the person who is the owner of the preemptive land at the date of the sale. The primary right, i.e the right to have an offer of an intended sale, is inherent to the preemptive property and passes along with it to transferees, assignees, legal representatives, and heirs, in other words, it is a right attached to the preemptive property and inseparable from it. The secondary right, i.e the right of substitution which arises only on an infringement of the primary right caused by a sale to a stranger, is personal to the owner of the preemptive property at the time of the sale. It is not heritable, and does not pass with the preemptive property to transferees, assignees, legal representatives and heirs.”

37. Where a rule of Mohammedan Law is well-settled in the view of the ancient expositors of the Mohammedan Law it is not open to us to disregard or to reject it on the ground that to us it appears to be illogical or unsound, provided, of course, it is not contrary to equity, justice and good conscience on which ground alone, as observed by the Supreme Court, the right is enforced at the present day.

38. In cases of preemption arising under the terms of a wajib-ul-arz, it has been held by this Court that the right of preemption is heritable, vide Muhammad Yusuf Ali Khan v. Dal Kuar, Kaunsilla Kunwar v. Gopal Prasad and Wajid Ali v. Shaban. It has also been held that where the preemptor died after the trial court's decree, then even though the trial court had not decreed the suit in his favour, the heirs were entitled to continue the appeal as the appellate court merely passes a decree which the trial court ought to have passed, vide, Sakina Bibi v. Amiran I.L.R 10 All. 472. Rohansingh v. Bhau Lal I.L.R 31 All. 530., Baldeo Misir v. Ram Lagan Shukal I.L.R 45 All. 709. and Umrao v. Lachhman. These decisions which were given in respect of the customary law of preemption based upon the terms of wajib-ul-arzes cannot be made applicable to a case arising under the Hanafi Mohammedan Law especially when the rule under the latter law is clearly against the views expressed in the aforesaid cases.

39. It was urged that under Sec. 306 of the Succession Act, the administrator or executor of a Hanafi Mohammedan estate is entitled to continue the suit which was pending at the date of the death of the deceased and reference was made to Sita Ram Bhaurao Deshmukh v. Jiaul Hasan Sirajul Khan I.L.R 41 Bom. 636. which was affirmed on appeal by the Privy Council in Sita Ram Deshmukh v. Jiaul Hasan Sirajul Khan I.L.R Bom. 1056.. Sec. 306 of the Succession Act provides:—

“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, surviving 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 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.”

40. We are not quite sure whether the right of preemption is not covered by the expression “the relief sought could not be enjoyed” in the above section. However that may be, the section does not apply to the present case inasmuch as there was no administrator or executor appointed for the estate of Amanatullah. The heir himself, unless he has taken out a probate or a letter of administration, cannot take advantage of this section, vide S. Jiaul Husain Khan v. Sitaram Bahau Deshmukh I.L.R 36 Bom. 144, at p. 146..

41. On behalf of the opposite parties two points were urged, first, that in the will executed by Amanat Ullah he had stated that he had only life interest in the property, and as such the right of preemption did not survive to his heirs, and second that the lower appellate court having dismissed the appeal, the applicants should have filed an appeal and not an application in revision.

42. In view of the opinion expressed by us above that according to the rule of Mohammedan Law applicable to Hanifi Mohammedans the right to continue a suit for preemption did not survive to the heirs, it is unnecessary for us to decide these points. The application in revision, therefore, fails and is dismissed with costs.

43. Application dismissed.