1. Zafrulla Khan, J.:—This is a defendants' appeal founded on the usual certificate under s. 205 (1) of the Constitution Act from a judgment of the Lahore High Court granting the plaintiffs a decree for possession of land by pre-emption of a sale made in favour of the defendants. The question for determination in the appeal is whether those portions of s. 15 of the Punjab Pre-emption Act (Punjab Act I of 1913) which confer upon the heirs of a vendor a right of pre-emption in respect of sales of land are repugnant to the provisions of s. 298 (1) of the Constitution Act. This section provides, inter alia, that no subject of His Majesty domiciled in India shall on the ground only of descent be prohibited from acquiring or holding property. The appellants' contention was that inasmuch as the effect of the relevant portions of s. 15 of the Punjab Preemption Act was to enable the heirs of a vendor ultimately to deprive the vendee of the benefit of a sale made in his favour, the vendee was by virtue of these provisions in effect prohibited from acquiring property, or having acquired it was prohibited from continuing to hold it. We do not think there is any force in this contention. Section 4 of the Pre-emption Act defines the right of pre-emption as the right of a person to acquire certain descriptions of property in preference to other persons, and limits its operation in the case of land to sales. Where a pre-emptor claims to exercise a right of pre-emption by virtue of his relationship to the vendor, no doubt he bases his claim upon his own descent from the vendor or from some ancestor common to the vendor and himself. If he succeeds in establishing his descent and is found to fulfil the other conditions prescribed by the Pre-emption Act, he is entitled to a decree, the broad effect of which is that on compliance with its terms he is substituted as the purchaser in place of the original vendee. But because the right of pre-emption in such cases is based on descent, it cannot be argued that the effect of the exercise of that right is to prohibit the acquisition or holding of property by a vendee who is either not related to the vendor at all or is not related to him so nearly as the pre-emptor. No prohibition is in such a case imposed upon the vendee on account of his descent or lack of descent from any particular person. Nor does the grant of a right to one person to acquire property in preference to other persons amount to a prohibition against the acquisition or holding of property by those persons. In our judgment, therefore, s. 298 (1) of the Constitution Act does not operate to render invalid a right of pre-emption based upon relationship with the vendor, and the suit was rightly decreed by the High Court.
2. The appeal fails and is dismissed. It was heard ex parte against the respondents. The Advocate-General, Punjab, appeared in response to a notice under O. XXXVI, r. 1, of the Rules of this Court. There will therefore be no order as to costs in this Court.
