AGARWALA, J.

( 1 ) THIS is an application in revision against an order rejecting the applicants application for being brought on the record as the successor-in-inte-rest of the plaintiff-appellant who had dled during the pendency of the appeal in the lower appellate court. The facts in brief are as follows :

( 2 ) 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 20-7-1946 to Barkatullah, opposite party No. 3 for a sum of Rs. 1200/ -. Amanatullah claimed a right of pre-emption with regard to this sale on the ground that he was the owner of the adjoin-ing 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.

( 3 ) THE defence was that the plaintiff did not possess the preferential right of pre-emption nor had he made any demands as required by the Mohammedan Law. There were other defences with which we are not concerned.

( 4 ) THE Munsif dismissed the suit on the grounds that the plaintiff did not possess a pre-ferential right of pre-emption 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.

( 5 ) 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 pre-emption was a personal right and did not survive to the heirs if the pre-emptor 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, 20 All 88 (A ). 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 pre-emptor 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 De-cause of the Division Bench Ruling in

muhammad Husains case (A), 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 -- audh Behari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417 (B) in which it was held that the right of pre-emption 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.

( 6 ) 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 pre-emption 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 pre-empt the property.

( 7 ) THE right of pre-emption 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" (pre-emption) is derived from a right which signifies conjunction, i.