1. The only question which arises in the above second appeal and which was referred to the Division Bench, was whether the plaintiff was entitled to a decree for pre-emption having regard to the decisions of the Supreme Court in Bhau Ham v. Baij Nath Singh, : AIR1962SC1476 , and in Sant Ram v. Labh Singh, : 7SCR756 , where it was laid down that the customary law of pre-emption on the ground of vicinage imposed an unreasonable right to hold, acquire and dispose of property guaranteed under Art, 19 (1) (f) and was void.
2. The ground on which the learned Assistant Judge, in this case, distinguished the present case was that although the right of pre-emption based on custom, was void, according to the said decisions of the Supreme Court, the plaintiff's right to claim pre-emption on the basis of his personal law, which had continued to operate after the coming into force of the Constitution, was not affected by the said decisions.
3. Mr. Abhyankar, the learned counsel for the appellants, has rightly argued that the personal law of the plaintiff viz. Mahomedan Law, was itself based on custom as one of its sources, and, therefore, the learned Judge erred in law in making a distinction between pre-emption based on custom and pre-emption based on personal law. The contention must be upheld, as personal law must be also read subject to the provisions of the Constitution, The definition of the phrase 'laws in force' in Article 13(3)(b) was held to include law based on custom and usage in India; and the customary law of pre-emption on the ground of vicinage was held unconstitutional and void as it imposed unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by Article 19 (1) (f) of the Constitution.
4. The Mahomedan Law of pre-emption is applied by the Courts in India to Mahomedan as a matter of 'Justice, equity and good conscience'', except in the Madras Presidency where the right of pre-emption is not recognised at all unless by local customs as in Malabar. After the coming into force of the Constitution, however, it is not open to the Courts to say that the pre-emption right which is void under Article 19(1)(f) can be recognised as a matter of 'justice, equity and good conscience'. What is opposed to the Constitution must be held to be opposed to 'justice, equity and good conscience.'
5. It should be noted that the Advocate for the plaintiff did not dispute before the learned Assistant Judge that on the date of the sale deed taken by the appellants from defendant No. 1, the road between the adjoining lands was not in existence. It is, therefore, clear that the right of pre-emption was claimed by the plaintiff in the suit only on the basis of vicinage. Such a right is held to be void in the aforesaid decisions of the Supreme Court. The plaintiff's suit is, therefore, liable to be dismissed.
6. Mr. Hussain, the learned Counsel for the plaintiff, submitted that the two Supreme Court decisions are distinguishable, as they dealt with the validity after the Constitution of the customary law and not with the validity of personal law, relying OD a decision of the Division Bench of this Court in State v. Narasu Appa Mali, : AIR1952Bom84 , in which it was held that the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, was a valid Act; and a decision of the Division Bench of the Madras High Court in Srinivasa Aiyar v, Saraswathi Ammal, : AIR1952Mad193 , in which Madras Hindu (Bigamy Prevention and Divorce) Act, was held to be valid.
7. It is true that a distinction is made between personal law and customary law in those decisions; and a view is taken that the words 'laws in force' used in Article 13 may not include personal law. These observations must be understood in the context of the futile challenge to the Hindu Bigamous Marriages Act, which was considered there. They were not observations made in connection with the law of pre-emption, which, as stated above, was applied in this part of the country by this Court, as a matter of 'justice, equity and good conscience' before the Constitution, as stated in Mulla's Mahomedan Law, Seventh Edition, 1972, at para 227 at page 230.
8. Although it is a matter of personal law, the law of pre-emption is applied as a matter of 'justice, equity and good conscience.' The law declared by the Supreme Court is binding on us under Art, 141 of the Constitution. Hence, we do not think it possible to hold that notwithstanding that the Supreme Court has come to the conclusion that a right of pre-emption based on the basis of vicinage is inconsistent with Article 19(1)(f), such a right can exist in this country as a matter of 'justice, equity and good conscience'. 'Justice, equity and good conscience' must yield to the Constitution after the Constitution comes into force.
9. In the facts and circumstances of the case, therefore, we allow the appeal, set aside the judgment and decree passed by the two Courts below and dismiss the plaintiff's suit. The parties should bear their respective costs throughout.
10. In view of this, no order is necessary in Civil Application No. 3282 of 1974, filed by the respondent-plaintiff to join the purchaser pendente lite of the subject matter of the suit, as a party in the above Second Appeal.
11. Appeal allowed.