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Bhimrao Ekanth and anr. Vs. Patilbua Ramkishan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1743 of 1957 and Civil Ref. No. 14 of 1959
Judge
Reported in(1960)62BOMLR574
ActsConstitution of India - Articles 13, 13(1), 19(1) and 372
AppellantBhimrao Ekanth and anr.
RespondentPatilbua Ramkishan and ors.
Appellant AdvocateS.J. Deshpande, Adv. for ;M.H. Madhekar, Adv., ;H.R. Gokhale, ;Y.S. Chitale, ;N.B. Kotak, ;B.V. Bhat and ;V.S. Deshpande, Advs.
Respondent AdvocateA. Jahagirdar and ;R.R. Jahagirdar, Advs.
Excerpt:
constitution of india, articles 19(1)(f), 13, 372(1) & (2) - law of pre-emption arising out of custom and acquiring force of lex loci whether void under article 13 read with article 19(1)(f)--customary law whether can be struck down under article 13(1) if violative of fundamental rights--scope and ambit of article 19(1)(f).;the law of pre-emption arising out of custom and acquiring the force of lex loci in particular territories does not offend the provisions of article 19(1)(f) of the constitution of india and is, therefore, not void under article 13 of the constitution. ;under article 13(1) of the constitution even a customary law can be struck down if it is violative of any of the provisions of part iii of the constitution. ;article 19 (1)(f) of the constitution does not give a.....mudholkar, j.(1) two questions bearing on the law of pre-emptions have been referred to us by the learned chief justice on the recommendation of justice miabhoy. these questions are:-(1) has the right of pre-emption become void under article 13 read with article 19 of the constitution of india?and (2) did the law of pre-emption prevailing in the former hyderabad state require that the right should subsist on the date of the decree also?in civil reference no. 14 of 1959 the civil judge, (junior division), pardi, has referred one question to the high court. that question is whether the custom of pre-emption is inconsistent and void under the indian constitution of 1950. the learned chief justice has referred the question to us.(2) we heard both the matters together and at considerable.....
Judgment:

Mudholkar, J.

(1) Two questions bearing on the law of pre-emptions have been referred to us by the learned chief Justice on the recommendation of Justice Miabhoy. these questions are:-

(1) Has the right of pre-emption become void under Article 13 read with Article 19 of the Constitution of India?

and

(2) Did the law of pre-emption prevailing in the former Hyderabad state require that the right should subsist on the date of the decree also?

In Civil Reference No. 14 of 1959 the Civil Judge, (Junior Division), Pardi, has referred one question to the High Court. That question is whether the custom of pre-emption is inconsistent and void under the Indian Constitution of 1950. The learned Chief Justice has referred the question to us.

(2) We heard both the matters together and at considerable length. My learned brogher proposes to examine in detail the arguments advanced before us as well as the various decisions, which were cited at the bar. since the main question that is, whether the law of pre-emption has been rendered void by the Constitution is of considerable importance, I wish to express, though very briefly, my opinion thereon.

(3) It was urged, on behalf of the appellants in Second Appeal No. 1743 of 1957 and the defendants in the Civil reference No. 14 of 1959, hat the law of pre-emption imposes undue and unwholesome restrictions on the right to hold and dispose of property that it operates as a clog on the right of transfer of property and that the law is not in accordance with the principles of justice, equity and good conscience and, therefore, it is violative of the provisions of Article 19(1)(f) of the Constitution. Since accortding to them, it is violative of those provisions, it has been rendered void by the provisions of clause (1) of Acrticle 13 of the Constitution.

(4) Mr. V. S. Deshpande, who appeared for the appellants and Mr. R. A. Jahagirdar, who appeared for the defendants contended gthat an unbridled right to pre-emnpt a sale conferred by the Mohammedan Law, which has been applied in certain parts of India as costomary law is an unrasonable restriction on the right to dispose of property and that, where such a right is based merely on vicinge, there is nothing therein to commend it. In support of their contentions that a right of pre-emption conferred by the Mohammedan Law has been rendered void by the Constitution, they relied upon the decisions in Moti Bai v. Kand Kari Channayya AIR 1954 Hyd. 161; Rangnath v. Babu Rao, (S) AIR 1956 Hyd. 120; Panch Gujar Gaur Brahmans v. Amar Singh AIR 1954 Raj 100; Siremal v. Kanti Lal ; Kesar Devi v. Nanak singh and Babulal v. Gowardhandas, (S) Air 1956 Mb 1 . I will leave it to my learned brother to examine these decisions in detail, but the sum and substance of all these decisions is that the right of pre-emption imposes an unreasonable restriction on the reight of a citizen to dispose of property and the law permitting the exercise of such a right is, therefore, unconstitutional.

(5) On behalf of the other side, that is the respondent in the appeal and the plaintiff in the reference, Messrs. S. J. Deshpande and H. R. Gokhale respectively contended that Article 13(1) does not render a customary law void even if that law is found to be in conflict with any of provisions of Part III of the Constitution. They further contended that the custom, which permits pre-emption, is not an unreasonable restriction on the right to hold or dispose of property, but, on the other hand, the right of pre-emption has been recognised in various countries and has many reasons to commend it. They further contended that the law of pre-emption is not in conflict with the provisions of Art. 19(1)(f) of the Constitution and that, therefore, it has nto been rendered void.

(6) I shall briefly dispose of Mr. Gokhale's contention that Art. 13(1) of the Constitution does not touch a customary law at all and that it is limited in its application only to statute law. art. 13(1) reads thus:

'All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void'.

It is thus clear that this provision in the Constitution is intended to affect all laws, which were in force at the commencement of the Constitution. 'Law' has been defined in sub-clause () of clause (3) thus:

(a) 'Law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law'.

It will thus be clear that this definition does include a custom, and, therefore, includes also a customary law. Mr. Gokhale's argument, however, is that this definition is really intended for the purpose of interpreting the provisions of clause (2) of Act. 13, which prevents the State from making a law, which takes away or abridges the rights conferred by Part III of the Constitution. According to him, the expression, which we have to construe while interpreting clause (1) of Art. 13, is 'Laws in force'. This expression has also been defined in sub-clause (b) of clause (3) of Art. 13. The definition runs thus.

(b) 'Laws in force' includes Laws passed or made by a Legislature or other5 competent authority in the teerritory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.'

According to him, the opening words of Art. 13 are 'all laws in force' in the territory of India and, therefore, those words have rto be given the meaning which is accorded to them in the definition. He says further that though this definition is an inclusive one, it should be undersrtood to be really a complete definition and not merely an inclusive one. If, therefore, it is a complete definition, then it would follow that the expression 'laws in force' used in clause (1) of Art. 13 relates to statute law and nothing else. A similar argument was advanced before this Court in State v. Narasu Appa Mali, : AIR1952Bom84 but was repelled by Cjag;a C. J. It may be pointed out that the word 'law' occurs at three places in Art. 13. It is to be found in clause (1), then in Clause (2) and then in sub-clause (b) of clause (3). The Constitution has defined this word and, therefore, unless there is a repugnancy in the context, this word shall have to be given the meaning accorded to it in the definition. Even the expression 'Laws in force' does include the word 'Law' and, therefore in sub-clause (b) of clause (3) that word must be given the meaning, which is accorded to it by the definition. Thne only object with which the expression 'laws in force' has been separately defined is to make it clear that a law shall be regarded as being in force even though such law or a part thereof may not be in operation at all or may not be in operation in a particular area. This seems to be the only object with which the expression has been defined and it was not the intention of the Constitution in defining this expression to cut down the meaning of the word 'law' given in the definition in sub-clause (a) of clause (3) of Art. 13. We respectfully agree with the views expressed bny Chagla C. J. that the definition of 'law' contained in sub-cl (a) of clause (3) was intended to apply to that word occurring in clause (2) Art. 13 July. As has beebn pointed out by the learned Chief Justice, it would make no sense if the constitution were understood as prohibiting the State from 'making any custom or usaage' because a custom or usage is not capable of being made by a Legislature. I am, therefore, clear that under Art. 13(1) even a customary law can be stuck down if it was violative of any of the provisions of Part III of the Constitution.

(7) Even though that is my view and it is also the view of my learned brother, it is difficult to sya, extensive thoug the right of pre-emption conferred by the Mohammedan law and by the Customary law may be, it violates the provisions of Art. 19(1)(f) of the Constitution, as is contended for on behalf of the appellants. No doubt, this law has not found favour with the Courts and even the Supreme Court in a recent decision has said that it operates as a clog on the right of free transfer of property. Even so, that would hardly be a ground for striking it down. Before a law can be struck down, it has to be established that that law violates the provisions contained in Part III of the constitution or those in any other part of the Constitution.

(8) Now, merely because a right has not found favour with the Courts it would not be rendered void under Art. 19. Art. 19(1)(f) of th3e Constitution merely guarantees to the individual the right to acquire, hold and dispose of property. But it does not give a citizen a larger right to hold or dispose of property than what the citizen possessed in that property before the Constitution came into force. Thus, where prior to the commencement of the Constitution, a person holding certain property had restricted rights to the enjouyment thereof because of the personal law governing the person or because the property was inalienable by custom, he would not get the property freed from those restrictions merely as a consequence of the comming into operation of the Constitution. Similarly, where a property was subject to any easement or any other burdens, those burdens would not evaporate merely because the Constitution has come into force. What Art. 19(1)(f) guarntees is a right to hold the property in the right in which that property was acquiredor owned by trhe individual and to dispose of that property. Now, it is not disputed that the right to dispose of property has not been taken away by the custom of pre-emption. this custom has merely placed restrictions on the right to sell property and certain person or persons have been given a preferential right to purchase the property from the owner thereof.

(9) The Supreme court, while considering the incidence, of this right in audh Behari Singh v. Gajadhar Jaipuria and Co., : [1955]1SCR70 , has laid down in clear and unambibguous terms that where the right of pre-emption rests upon custom, it becomes the lex loci or the lawof the place and the right of pre-emption attaches to the properties situated in that place. Thus, the liability of a property to be pre-empted is a burder attaching to that property. Sincew, that is the position, it would follow that wherever the custom of pre-emption prevails, the properties were subject to the nurden of pre-emption before the commencement of the Constitution. This burden was not in any way removed or taken away by Art. 19(1)(f) of the Constitution.

(10) Mr. Jahagirdar's argument is that where this burden is imposed by custom, which is violative of the provisions of Art. 19(1)(f), the burden must disappear because the law imposing the burden has been rendered vopid. This argument; if we may say without disrespect, merely begs the question. rthe whole question is whether the custom has been rendered void bny Art. 19(1)(f), and this has to be shown with reference to the provisions of the Article. As already pointed out, Art. 19(1) has nothing whatsoevef to do ith the quality or extent of the right dealt with by it. If, therefore, at the commencementof the Constitution, a person held a right, which was subject to aburden, it is that reight and that right alone, which he isw entitled to enforce and the mere fact that the burden to which that right is subject has originated from a custom, which is not looked upon with favour by the Courts, would not entitle that person to have that right enforced free from the custom. It would thus follow that Art. 19(1)(f) does not in terms or even by implication affect the customary law or the Mohammedan Law of Pre-emption. Since that is that position, it is difficult to see how that law has been redereed void.

(11) My answer to the first question is thus in the negative. In the light of this answer, there is no occasion to give any answer on the second point

Naik, J.

(12) I am broadly in agreement with the view expressed by my learned Brother. tjhe importance of the points involved merits a fuller and more detailed discussion and that task has been left over to me by my learned Brother.

(13) It will not be out of place to state the facts of the two cases referred to us. The facts underlying the Reference made by Justice Miabhoy may be outlined as follows:-

(14) Defendant No. 3 was the original owner of the suit land. He sold that land to defendants I and 2 on the 13th May 1949. The plaintiffs claimed a right to pre-empt the suit property on the ground that they were the owners of the adjacent land. They claimed to have performed the necessary defands or Talabs. they brought this suit on 15-1-1950 for enforcing their right of pre-emption. The trial Court decreed the suit on 27th December 1950. Defendants Nos. 1 and 2 went in appeal to the district Court and the district Court confirmed the decfree on 9-12-1952. Both the lower courts recorded a finding that the plaintiffs had perfored the necessary Talabs. The second appeal came up before Zmr. Justice Miabhoy, and Mr. V. S. Deshpande, who appeared on behalf of defendant No. 1, stated that he proposed to raise a point of constitutional law in the ppeal. His contention was that the right of pre-emption claimed by the plaintiffs became void under Art. 13 read with Article 19 of the Constitution of India. Mr. S. J. deshpande, who appeared on behalf of the plaintiffs, submitted that the further question, namely, whether the law of the further question, namely, whether the law of pre-emption prevailing in the Hyderabad State required that the right should subsist till the date of the decree should also be referred to the Division Bench. It is for that reason that Mr. Justice Miabhoy referred the following points for decision by a Division Bench:

(1) Has the right of pre-emption become void under Article 13 read with Art. 19 of the Constitution of India? And

(2) Did the law of pre-emption prevailing in the former Hyderabad State requires that the right should subsist on the date of the decree also?

The facts underlying the second case stand as follows:

(15) One Dayalji Kakirbhai was the original owner of the suit property. He had three sons: Gulabbhai, Ranchhodji, and Kunverji. The suit property, which is a fraction of the original property fell to the share of ranchhodji. The heirs of Ranchhodji sold the same to the defendants. Plaintiffs 1 and 2 are the sons of Kunverji and they filed the suit for pre-emption against the defendants on the ground that they, as the adjoining owners, are entitled to claim to be the prreferential purchasers.

(16) On behalf of the defendants the suit was resisted on the ground that the right of pre-emption was opposed to the fundamental right to hold and was opposed to the fundamental right to hold and dispose of property, guaranteed under Article 19(1)(f) of the constitution. That is why the Civil Judge who heard the suit, thought it fit to refer the matter to this Court.

(17) It will thus be noticed that the first question arising in the Marathwada reference is common to both these matters. So far as the second question is concerned, it is relevant only to the Reference made by Justice Miabhoy.

(18) I will deal first with the common question that arises in these two references.

(19) The argument advanced by Mr. Jahagirdar and mr. Deshpande on behalf of the defendants is very simple and may be set out as follows. Article 19 of the Constitution guarantees to every citizen the right to acquire, hold and dispose of property. any l;aw already existing or to come into existence in future would be void if it infringes for whittles down the right to hold that property unless the same can be justified on the basis of Clause (5) of Article 19. In other words, the law will become invalid unless it can be supported on the ground that it imposes reasonable restrictions on the exercise of the said right in the interest of the general public. Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III shall to the extent of such inconsistency be void. The argument is that the right of pre-emption creates a clog on the right to dispose of the property. This right is the creature of custom having the force of law. So, the custom having the force of law, which has created the said right is violative of the fundamental right to hold and dispose of the property. The law of pre-emption, therefore, is invalid and must be struck down.

(20) As against this, Mr. H. R. Gokhale and Mr. S. J. Deshpande, for the plaintiffs, submitted firstly that the right which is based on custom does not attract the provisions of Art. 31 of the Constitution. Secondly, it was contended that the fundamental rights guaranteed under Chapter III are intended for the protection of the citizens from infringement or interference of those rights at the hands of the State, and they are not intended to operate against any action taken by individuals. Thirdly, it was argued that the right of pre-emption is itself a reasonable right and that it has come into operation because it supplied certain felt needs of the Society.

(21) Before examining the rival contention and considering the various authorities, to which we have been referred to it will be necessary to have a clear idea regarding the nature of the right of pre-emption that is claimed in these two cases. So far as the right of pre-emption claimed in Civil Reference No. 14 of 1959 is concerned, the right of pre-emption is a right, which is recognised by custom among Hindus. Sir Dinshah Mullah at page 210 S. 229 of his Mahomedan Law says:

'The right of pre-emption is recognized by custom among Hindus who are either natives of or are domiciled in Behar, Sylhet and certain parts of Gujarat, such as Surat, Broach and Godhra, and it is governed by the rules of the Mohamedan Law of pre-emption except in so far as such rules are modified by such custom.'

It is common ground that the parties come from that part to which the above statement of law will be applicable. So far as the law of pre-emption prevailing in the former Hyderabad State is concerned, the position may be summed up in the words of Justice Kumarayya, in (S) AIR 1956 Hyd 120 as follows:-

'In the State of Hyderabad which was never directly brought under the sway of the British Rulers the Mohammadan law of pre-emption prevailed. It was the general law of the Land and was applicable to all alike, no distinction being made between persons of different races or creeds.' 'In these parts the law of pre-emption was adminitered as the customary law. This customary law was ordinarily co-extensive with the Muhammadan law.'

In this background let us turn to the argument advanced by Mr. Gokhale on the question as to whether Article 13 is applicable to the law pre-emption, which is a creature of custom. Article 13 falls in two parts. Part I, which deals with existing law, provides :-

'All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.'

The plural word 'laws' is important. It obviously connects laws of different kinds arising out of different sources, such as statute law, customary law or any other kind of law. Part II relates to a law, which the State may make after the coming into operation of the Constitution and it provides that:

'The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention, be void.' Clause (3) contains definitions of two key-terms in (a) and (b). Sub-clause (a) defines 'law' and sub-clause (b) defines the expression 'laws' in force.' The word 'law' is defined thus:

' 'Law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.'

It will thus be seen that the definition of the word 'law' is inclusive and it covers a variety of laws arising from different sources. Even so, it is noteworthy that statute law has not been included in the aforesaid inclusive definition. The reason for the omission may perhaps be that it was not felt necesary to expressly include statute law. The expression 'law in force' occurs in clause (1) of Art. 13. Sub-clause (b) of clause (3) defines that expression to mean laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution.

(22) Mr. Gokhale's argument was that the expression 'laws in force' used in clause (1) of Art. 13 must be interpreted in the same sense in which the expression 'law in force' has been defined on sub-clause (b) of clause (3). I am unable to accept this argument. Having defined the general word 'law' it was really not necessary to specifically define the expression 'laws in force'. The definition , however of that expression was felt necessary with a view to make it clear that 'laws in force' do not necessarily mean laws that are in operation and are enforceable in Courts of law. Ordinarily, 'laws in force' mean laws, which can be enforced in a Court of law, but sub-clause (b) covers laws passed by the Legislature or other competent authority notwithstanding that such law of any part thereof has not been in operation at all or in particular areas. Even though the laws have not been brought into operation, they are included in the definition 'laws in force' and such laws will also become void under clause (1) of Art. 13. This view is in consonance with the view expressed by the learned Chief Justice Chagla in : AIR1952Bom84 and I am in respectful agreement with the same.

(23) In support of the above argument Mr. Gokhale referred to the provisions of Art. 372(I) relates to the continuance in forcing of existing laws and their adaptation. Article 372(1) in substance provides that all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force thererin until altered or repealed or amended by a competent Legislature or other competent authority. Clause (2) says that the President may by order make such adaptation and modification of such law, whether by way of repeal or by amendment, etc. It is clear from the wording of these two clauses that the expression 'laws in force' in this Article stands for law made or passed by the Legislature or other competent authority. The expression would obviously be inapplicable to the case of customary law. No adaptation can possibly be made in regard to the customary law. So, even on the interpretation of the words used in clauses (1) and (2), it is clear that the words used in clauses (1) and (2), it is clear that the words 'laws in force' stand for laws passed or made by the Legislature or other competent authority. But the matter does not rest there. There is an explanation in which the expression 'laws in force' includes a law passed on made by a Legislature or other competent authority of India. Mr. Gokhale, therefore, argued that the meaning that is given to the expression 'laws in force' in Art. 372 should also be given to the same or similar expression used in Art. 13. I am not prepared to accept this argument. The explanation itself makes it clear that the meaning given therein in the expression 'law in force' is restricted for the purpose of that Article, that is, 372. This meaning, therefore, cannot be extended by analogy to the other provisions of the Constitution. I must, therefore, hold that it there is any custom or usage, which has the force of law and which is inconsistent with the fundamental right, that custom or usage will become void.

(24) The second line of argument adopted by Mr. Gokhale can be set out as follows: That argument is based on clause (5) of Art. 19, which runs thus:

'Nothing in sub-cls. (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.'

The expression 'existing law' has been defined in the interpretation clause Art. 366(10) to mean any law, Ordinance, Order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation. It is clear from this interpretation that the expression 'existing law' does not include a law based on custom. Mr. Gokhale, therefore, argued that so far as the statute law is concerned, it is open to the State or any other interested party to plead that if the restrictions imposed in the statute are reasonable restrictions and are restrictions imposed in the interest of the general public, then the law imposing those restrictions would not be invalid. But whenever the law is based on custom, such a plea is not open to the aggrieved party. He, therefore, argued that in view of clause (5) of Art. 19, it will be more appropriate to restrict the meaning of the expression 'laws in force' in Art. 13 to laws made by the State. There is undoubtedly some force in this line of reasoning, but no such argument can prevail over the plain meaning of the words, used in Art. 13 to which reference has already been made above.

(25) Mr. Gokhale also suggested that the rights guaranteed in Ch. (Part?) III of the Constitution of India and in particular the rights under Art. 19, are rights which are intended to be protected from invasion or infringement at the hands of the State. In this connection he referred to certain passages in the judgment of Justice Gajendragadkar in : AIR1952Bom84 . Justice Gajendragadkar agreed with the view of Chief Justice Chagla, but in arriving at the conclusion he pursued a somewhat different line of approach. As a matter of fact, the actual decision in : AIR1952Bom84 , confines itself to the status of personal law and all that was decided in that case was that personal law is not included in the expression 'laws in force' used in Art. 18 of the Constitution. Mr. Gokhale pointed out that according to Chief Justice Chagla, Customary Law is governed, by the meaning of 'law' in clause (a) of Art. 13(3). Mr. Justice Gajendragadkar observed that he felt considerable difficulty in accepting the argument, namely that custom or usage having the force of law is also included in the expression 'laws in force'. He said that if that was the intention then it was not necessary to provide for the abolition of untouchability expressly and specifically by Art. 17. At the same time, although he indicated the difficulty, he did not lay down any particular proposition in that respect. The observations on which reliance is placed by Mr. Gokhale are to be found at pp. 786 and 787 (of Bom LR): (at pp 90 and 91 of AIR) as follows:

'There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India.'(786 of Bom LR): (at p. 90 of AIR).

'Article 13(2) is clearly prospective and the effect of its provisions is that if any law is made hereafter by the State on the gound that it is based on custom or usage having the force of law, the law would not be valid if it takes away or abridges the fundamental rights. The Constitution has thus made it clear that no custom or usage having the force of law can validly be made the basis of any law in future if such custom or usage offends against the fundamental rights.' (787 of Bom LR): (at p. 91 of AIR)

In my view, these observations in no way support the position which Mr. Gokhale is trying to take up on this point. All that is emphasised is that the State is not competent to undertake a legislation on the basis of a prevailing custom, if that custom offends any of the fundamental riths. The wording of Art. 19 is general and the opening words are 'all citizens shall have the right...............' A citizen can claim protection of his fundamental rights against customary law in the same way as against the law of the State. He can ward off the threat of invasion against these rights, whatever the source from which the threat emanates.

(26) The more important question, however, to be considered is whether as a matter of fact the law of pre-emption arising out of custom and acquiring the force of lex loci in particular territory really offends the provisions of Art 19(1)(f) of the Constitution. In order to consider this question, it is necessary to be clear about the nature of the right of pre-emption. On this question two rival views, were in vogue. The one view propounded by the Full Bench of the Calcutta High Court in Sheika Kudratull v. Malini Mohan 4 Beng LR 134 and the other view propounding by the Full Bench of the Allahabad High Court in Gobinda Dayal v. Inayathullah ILR 7 All 775. Justice Mitter, who delivered the leading judgment of the Calcutta High Court in 4 Beng LR 134, expounded the law in these words:

'If that right is founded on an antecedent defect in the title of the vendor, that is to say on a legal disability on his part to sell his property to a stranger, without giving an opportunity to his co-parceners and neighbours to purchase it in the first instance, those co-parceners and neighbours are fully entitled to ask the Hindu purchaser to surrender the property, for although a Hindu, he is not necessarily bound by the Mahomedan Law, he was at any rate bound by the rule of justice, equity and and good conscience to inquire into the titles of his vendor; and that very rule also requires that we should not permit him to retain a property which his vendor had no power to sell. If, on the contrary, it can be shown, that there was no such defect in the title of the vendor, or in other words that he was under no such disability, even under the Mahomedan Law itself, it would follows as a matter of course, that there was no defect in the title of the purchaser, at the time of its creation.................Now, so far as I can judge of the Mahomedan Law of pre-emption from the materials within my reach, it appears to me to be perfectly clear that a right of pre-emption is nothing more than a mere right of re-purchase, not from the vendor but from the vendee, who is treated, for all intents and purposes, as the full legal owner of the property which is the subjec-matter of that right.'

Justice Mahomed in ILR 7 All 775 took a different view. In his judgment he referred in the original text of the Prophet and other Muslim Lawgivers and after considerable research, pointed out that the decision of the Calcutta Full Bench was based upon a mis-translating of the Arabic word 'Tajibo' in Hamilton's Hedaya. Hamilten translated the word as meaning 'established' but it really means 'becomes obligatory, necessary or enforceable.' Justice Mahomood then proceeded to set out the law in the following terms:

'The right of pre-emption is not a right of re-purchase either from the vendor or from the vendee involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title.'

'Pre-emption is a right which the owner of certain immoveable property possesses, as such, for the quiet enjoyment of that immoveable property, to obtain in substitution for the buyer, proprietary possession of ceratin other immoveable property, not his own, on such terms as those on which such latter immoveable property is sold to another person.' '..........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 tenement' and the 'servient tenement' of the law of easement being terms extremely analogous to what I may respectively call the 'pre-emptive tenement' and 'pre-emptional tenement' of the Muhammadan law of pre-emption.'

'The right of pre-emption is the incident of the proprietary tenure. Moreover, the right, though it no doubt operates as a restriction of the principle of free sale, and thus tends to diminish the market value of property, must have enough to recomment itself, for even in some of the most civilised part of Germany, a similar right is still maintained, either as a custom or as a rule of law.' This question was considered by a Full Bench of the Bombay High Court is Dashrathlal Chhaganlal v. Bai Dhondubai : AIR1941Bom262 . Sir John Beaumont who delivered the judgment of the Court, accepted the view expressed by Justice Mahmood in preference to the view expressed by Justice Mitter. He observed:

'There is considerable doubt as to whether the rights and burden of pre-emption are incidents annexed to the land, like an easement, or whether they are personal to the owners of the lands affected.'

He then referred to Justice Mahmood's view and said:

'I agree with the view expressed by Mr. Justice Mahmood that this right of pre-emption was originally under Mahomedan law is a right attached to the land.'

He then referred to a decision of the Privy Council in Sheobaran Singh v. Kulsum-un-Nissa, and said:

'They were dealing there with a case in which the parties were Hindurs, and the owner of the land in respect of which the right of pre-emption was sought to be exercised had become insolvent, and the land had vested in the Official Assignee. It was held by the Privy Council that the Official Assignee took the land with all its benefits and all its burdens, including the obligation of having this right of pre-emption exercised against him. It seems to me to follow from that decision that the Privy Council regarded this right, where it exists by custom, as a right annexed to the land, because if it were a mere personal right, depending on the religious persuation of the parties concerned, it could hardly pass to an Official Assignee.'

(26A) This question came up recently before the Supreme Court in : [1955]1SCR70 . Justice Mukherjea, who delivered the judgment of the Court, referred to the two rival views: one propounded by Justice Mitter and the other propounded by Justice Mahmood and accepted the view propounded by the latter. He observed as follows:

'When a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and effects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself. The right of pre-emption is an incident of property and attaches to the land itself.'

He fully approved of the formulation of the law of pre-emption as made by Justice Mahmood except in one particular. Justice Mahmood had tried to compare the right of pre-emption to an easementary right. In that respect Justice Mukher jea observed:

'Analogies are not always helpful and even if there is resemblance between the two rights the differences between them are no less material. The correct position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and comples him to seel the property to his co-sharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled; even though it does not amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself.'

(27) Mr. Jahagirdar referred to a still more recent decision of the supreme Court in Bishan Singh v. Khazan Singh, : [1959]1SCR878 , and contended that the view taken in : [1955]1SCR70 . has been modified or whitled down by the observations contained in the later case. The question before the Supreme Court in : [1959]1SCR878 was one, which related to rival claims put forward on behalf of two adjoining owners. One of the adjoining owners brought the suit for pre-emption after a decree was passed in the suit brought earlier by the other. The Supreme Court held that the plaintiff in the second suit is bound to show not only that his right is as good as that of the vendee, but that it was superior to that of the vendee and that this superior right subsisted at the time the pre-emptor exercises his right and that that right is lost, if by that time another person with equal right has been substrituted in place of the original vendee. For resolving the competing claims, their Lordships laid down the following propositions:

'To summarise:

(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right.

(2) The pre-emptor has a secondary right or a remedial right to follow the thing sold.

(3) It is a right of substitution but not of repurchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee.

(4) It is a right to acquire the whole of the property sold.

(5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in the place.

(6) The right a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.'

Mr. Jahagirdar contended that the first proposition whittles down the categorical proposition contained in : [1955]1SCR70 , viz., that the right of pre-emption is an incident of property. I am unable to accept this contention for the following reasons: The first proposition as also the other five must be read in the context of the facts of that case and all that their Lordships wanted to point out was that the right of pre-emption is not fixed or crystallised right; but is liable to be defeated or circumvented in certain circumstances. In other words the right of pre-emption is not a right or interest in the property. If the Supreme court wanted to lay down a proposition different from the one laid down in : [1955]1SCR70 , they would not have failed to refer to the same and discusas the view taken theirin and also give reasons for their dissent. It is significant that no reference has been made to : [1955]1SCR70 , at all. Nowhere has it been said that the right of pre-emption is not a burden attached to the property, not that it is not a right annexed to the land. If this is then the true position of the law of pre-emption, then it is clear that the right to property which is subject to the burden of pre-emption is itself a restricted right. The object of Art. 19 of the Constitution was to conserve the rights to property and not to enlarge them. By conserving these rights and placing them on the pedestal of fundamental rights, the Constituent Assembly laid down that these rights could not be violated by the ordinary Legislature. That does not mean that the existing rights were augmented or enlarged to any edtent. For instance, if a t the commencement of the Constitution, the property held was a lease-hold property and the right under Art. 19(1)(f) will be a right to hold the property as such. Similarly, the right to dispose of that property will be subject to all thje incidents of lease-hold property. The analogy of a tenement burded with an easement may also lead to the same result. There are certain covenants, which are known in English Law as covenants running with the land. If any such convenants are attached to property, the right in such property is in itself from the very nature, a limited right. Therefore, the property, which is subject to the burden of pre-emption is to be held under Art. 19 as it is and it can be disposed of in the way in which any property subject to that burden can be disposed of. The right of pre-emption, being an incident of property, will run with the property itself. If this view is correct. then it is clear that the provisions of Art. 19(1)(f) will in no way be violated by the custom, which recognises the right of pre-emption. If it does not violate the right under Art. 19(1)(f), then the law, which enshrines that cusomary right cannot be regarded as void under Art. 13 of the Constitution. In this connection I may refer to a decision of the Full Bench of the Nagpur High Court in Ramachandra v. Janardan ILR 1955 Nag 378: AIR 1955 Nag 225. the question that was raised in that case was whether the provisions of Ch. 14 of the Berar Land Revenue Code, 1928, are void by reason of Art. 13(1) either as nfringing Art. 19(1)(f) or Art. 14 of the Constitution of India. Chapter 14 of the Berar Land Revenue Code, has engrafted the rules of pre-emption on the land tenures in Berar covered by that Chapter. The position obtaining in Berar was set out at p. 399 (of ILR Nag): (at p. 231 of AIR), in the judgment of Justice Kaushalendra Rao in the words of Batten A. J. C. as follows:

'It (pre-emption) is the territorial law in Berar under the Land Revenue Code, but the principles on which it is based are the same under the territorial law of Berar as under the personal law of Muhammadans. 'The right of shufa or pre-emption owes its orgin to motives of expediency and a desire to prevent the introduction of a stranger among co-sharers and neighbours likely to cause inconvenience or vexation'.'

'It may be more appropriate to regard the right of pre-emption in Berar as a condition or an incident of the occupancy tenure rather than as the law of the territory.'

On this basis it was held that the property covered by the Berar Land Revenue Code is a peculiar kind of land tenure, which has been created by the State. Such a teniure with its peculiar limitations is property capable of being held and disposed of ike any other property with its own limitations. such a property does not infringe the provisions of Art. 19(1)(f) of the Constitution.

(28) It is true that in Berar, the law of pre-emption was a statute-made law and under the provisions of the statute, the incidents of pre-emption were engrafted upon the land tenures in Berar. In my view. that would not make any difference in principle whether the obligations are imposed by statute or by custom. If these obligations are incidents of the property and run with the land, then the holder of the property takes it with the limitations inherent in ti.

(29) I will now examine some of the decisions on which reliance was placed by Mr. Jahagirdar and Mr. deshpande. Two cases decided by the Hyderbad High Court were rel;ied upon: AIR 1954 Hyd 161 and (2) (S) AIR 1956 Hyd 120. It was held by the Full Bench in the frst case that the customary law of pre-emption as enforced by the Courts in Hyderabad State prior to the Constitution violates the fundamental right under Art. 19(1)(f) of the Constitution and, therefore, has become void and unnenforceable under Art. 13(1) after the coming into force of the Constitution of India. The right of pre-emption was expounded by the Hyderabad High Court in the following terms:

'The right of pre-emption is a right to acquire by compulsory purchase in certain cases the immovable property of another in preference to other persons, and as such it is a clog on the right to dispose property.'

Reference was made the rivel views propounded by Justice Mitter on the one side and Justice Mahbood on the other and it was stated that they preferred to accept the view of Justice Mitter. Now, the Supreme Court has adopted the view propunded by Justice Mahmood. That being the case, the decision of the Hyderbad High Court, based as it is on the principles enunciated by Mitter J., can no longer hold good.

(30) The second decision relied upon is reported in (S) AIR 1956 Hyd 120. In that case also the founulation of the law of pre-emption by Justice Mahmood was not accepted in all the implications, as laying down the correct position of law. Stress was laid on the consideration that the right of pre-emption does not create any interst in property. It was on these grounds that it was held that the law of pre-emption which allows the owner of the adjoining property to claim possession merely on the ground that he is the owner of the adjjacent land is void under Art. 13 of the Indian Constitution being contrary to the provisions of Art. 19(1)(f). His Lordship Justice Kumarayya further proceeded to observe that the right is not saved by clause (5) of Art. 19 of the Constitution. On the view that I have expressed above, the question of the application of clause (5) does not fall to be considered so far as the customary law is concernea.

(31) Mr. Jahagirdar and Mr. Deshpande also relied upon two decisions of the Rajasthan High Court: one reported in Air 1954 Raj 100 and the orther in . In the first case, which was a Full Bench decision, the view adopted regarding the nature of the right of pre-emption was the same as propounded by Mitter, J., ion 4 Beng LR 134. Reference was made to ILR 7 All 775, but the view of Mahmood J., did not find favour with their Lordships of the rajasthan High Court. The Rajasthan High Court also referred to the Bombay decision reported in Hamedmiya v. Joseph Benjamin, AIR 1929 Bom 206. It is, however, noteworthy that this decision was overruled buy the Full Bench decision in : AIR1941Bom262 , so far as the nature of the right of pre-emption is concerned. The second case followed the Full Bench decision.

(23) The last case, to which a reference was maee, was . The decision in that case turned upon the provisions of the Punjab Pre-emption Act and it was held that one of the clauses of S. 16 did not fall within the exception of reasonable restrictions embodied in clause (5) of Art. 19 of the Constitution. This decision is not of any assistance in deciding the question at issue.

(33) There was some argument at the bar over the question as to whether the right of pre-emption is suitable in modern conditions or whether it has out-lived its utility.

(34) Genreally speaking, it may be said that the right of pre-emption operated as a clog on the right to dispose of property. Nor is there particular equity in favour of the adjoining owner merely on the ground of vicinage to claim a preferential right to purchase the property. Historically speaking, the rifght of pre-emption was extended to non-Muslims on the ground of justice, equity and good conscience. The Madras High Court in Ibriahim Saib v. Munni Mir Udin said 6 Mad HCR 26, held tht pre-emption is not consistent wioth equity and good conscience. Similar view was expressed in an earlier Bombay case also (see Mahmood Beg Amin Beg v. Narayan Meghaji : AIR1916Bom255 . But the main question considered in these cases was whether the right of pre-emption should be extended to non-Muslims on the ground of justice, equity and good conscience. To that general question the answer was in the negative. The question, however, which we are considering is altogether a different one. Here the right of pre-empted forms part of lex loci and every property is impressed with the obligation of being pre-empted. Pre-emption, therefore, is an incident of property. The question, therefore, as to whether there should or should not be pre-emption in the abstract is not strictly relevant for the purpose of the present discussion. The property is saddled with that obligation and every one must take it subject to that obligation.

(35) For the reasons set out above, I agree with the view of my learned brother and answer the first point in the same way. I alos agree that it is not necessary to express any opinion on the second point.

(36) Reference answered in the negative.


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