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Phool Chand Vs. Lala Neem Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3199 of 1967
Judge
Reported inAIR1978All539
ActsMahomedan Law; Constitution of India - Article 19(1) and 19(5)
AppellantPhool Chand
RespondentLala Neem Chand and anr.
Advocates:K.C. Agarwal, Adv.
DispositionAppeal allowed
Excerpt:
constitution - right of pre-emption - article 19 (1) (f) and (5) of constitution of india - right of pre-emption by servient tenant holder to pre-empt dominant tenement is outside the scope of article 19 (5) and is constitutionally invalid. - - they showed that both the dominant tenement holder as well as servient tenement holder are shown to participate in their appendages and as such are shafi-i-khalit. lal (supra) should not hold good in the case of such a person......to the customary law of pre-emption, he being a shafi-i-sharik (for sharing joint wall) and also shafi-i-khalit for the easement of the light and air, and for easement of discharging of water by the other side was entitled to pre-empt the same. so after performing necessary demands (talabs, though there was no necessity for the same according to the custom) he claimed that the sale be made in his favour but the same having been refused, he filed a suit.4. the defendant no. 1 appellant, who alone contested the suit, alleged that there was no such custom of pre-emption and in any case the plaintiff-respondent was not shafi-i-sharik as the wall was separate and he was also not shafi-i-khalit.5. the learned trial court held that there was no joint wall and so he was not shafi-i-sharik. he.....
Judgment:

Mahavir Singh, J.

1. This second appeal has been preferred by the defendant.

2. The house of the plaintiff respondent No. 1 and the shop in question belonging previously to defendant-respondent No. 2 were contiguous. The water of the roof of the shop flowed through the house of the plaintiff-respondent and thus she had acquired the right of easement of discharge of water. It so happened that the defendant No. 2 transferred this shop to the defendant No. 1, who is now the appellant before this Court on 30-3-65 for Rs. 2500/-. Further the ventilators of the house of the respondent open on the roof of the shop and he had acquired a right of easement for light and air. There was also alleged to be a joint wall between the shop and the house.

3. The case of the plaintiff-respondent is that according to the customary law of pre-emption, he being a Shafi-i-Sharik (for sharing joint wall) and also Shafi-i-Khalit for the easement of the light and air, and for easement of discharging of water by the other side was entitled to pre-empt the same. So after performing necessary demands (Talabs, though there was no necessity for the same according to the custom) he claimed that the sale be made in his favour but the same having been refused, he filed a suit.

4. The defendant No. 1 appellant, who alone contested the suit, alleged that there was no such custom of pre-emption and in any case the plaintiff-respondent was not Shafi-i-Sharik as the wall was separate and he was also not Shafi-i-Khalit.

5. The learned Trial Court held that there was no joint wall and so he was not Shafi-i-Sharik. He also held that there would be no pre-emption on the ground of easementary right of light and air as it was an unreasonable restriction and so void. He, however, held that the plaintiff-respondent was Shafi-i-Khalit on account of his being a servient tenement holder due to the owner of the shop having a right of easement of flow of water through his house and there was a custom for pre-emption for such persons, accordingly he decreed the suit.

6. The learned Additional Civil Judge upheld all the findings of the trial court and so dismissed the appeal.

7. In this appeal here two points have been urged on behalf of the appellant. One is that on the findings recorded by the courts below, the plaintiff-respondent could not be said to be Shafi-i-Khalit and as such was not entitled to pre-empt. Secondly it was contended that even if he was so, such a right of pre-emption offended Article 19(1)(f) of the Constitution inasmuch as it imposed an unreasonable restriction on his right to hold and acquire a property and so it was void and unenforceable.

8. So far as the first point is concerned, the contention of the learned counsel for the appellant is that being a servient tenement holder the plaintiff-respondent has no right. He only has a duty to allow the right of the dominant tenement holder to be performed. This contention is not correct. The expression 'Shafi-i-Khalit' is not concerned with the rights and duties. It only denotes those who share in the appendages of the property. This is not disputed that the dominant tenement holder is Shafi-i-Khalit. It implies that he shares an appendage with the other person who is a servient tenement holder. Therefore, both the dominant tenement holder and the servient tenement holder are Shafi-i-Khalit.

9. In Ladu Ram v. Kalyan Sahai (AIR 1963 Raj 195) the definitions of the word 'Shafi-i-Khalit' given by Sir Roland Kayvet Wilson in 'A Digest of Anglo-Muhammadan Law' and Tyabji in Muhammadan Law have been quoted. They showed that both the dominant tenement holder as well as servient tenement holder are shown to participate in their appendages and as such are Shafi-i-Khalit. Of course in that case persons claiming easements other than those of right of way or discharge of water were not held to be Shafi-i-Khalit but that is a different thing. For this case which deals with the easement of discharge of water, both are Shafi-i-Khalit.

10. The next question raised by the learned counsel for the appellant is, however, important. This is not disputed that a right of pre-emption imposes a restriction on the right of both vendor and vendee to acquire property and was, therefore, hit by Article 19(1) of the Constitution of India. However, Sub-clause (5) of this Article permits reasonable restriction to be placed in the interest of general public or in the interest of Scheduled Tribes. Here there is no case of the latter category. It has, therefore, only to be seen whether the right of pre-emption claimed by the plaintiff-respondent is in the interest of general public; is a reasonable restriction within the meaning of Sub-clause (5) of Article 19 or not.

11. In Mahboob Hasan v. Ram Bharos Lal (1965 All LJ 1178) : (AIR 1966 All 271) this question came up for consideration whether custom of pre-emption as regards Shafi-i-Khalit was void being not reasonable according to this Sub-clause (5) of Article 19. It was held that no general opinion could be given about ell kinds of Shafi-i-Khalits. In that case the question of custom of pre-emption about Shafi-i-Khalit concerning dominant tenement holder was in issue and it was held that it was void being unreasonable restriction on the rights of the property of citizens of India. About other kinds of Shafi-i-Khalits, it was observed that it would depend upon the nature of claim in each case.

12. No case dealing specifically with only the claim of servient tenement holder has been cited before me, In Babu Lal v. Gowardhan Das (AIR 1956 Madh Bha 1) (FB) there was a general observation both about dominant tenement holders and servient tenement holders and for both those cases it was held that they even (sic) reasonable provisions. But so far as this court is concerned it has already taken a view that the custom of pre-emption as regards dominant tenement holder is not a reasonable one, vide Mahboob Hasan v R.B. Lal (supra). As there is no separate reasoning for two kinds of tenements, this ruling would have no persuasive value for this claim of a servient tenement holder.

13. Learned counsel for the appellant contends that when the custom as regards dominant tenement holder has been held to be unreasonable and so void, it would naturally follow that the custom of preemption by his counter-part, i.e. servient tenement holder should also be declared void.

14. Learned counsel for the plaintiff-respondent, however, contends that there is a difference in the nature of the two rights, while in the case of dominant tenement holder, the only interest of such a person as observed in Mahboob Hasan v. R.B. Lal (AIR 1966 All 271) (supra) was a continuation of easementary right and it did not matter as to who is servient tenement holder, it makes a difference (sic). By getting a right of pre-emption he will for all time to come unburden himself from the right of dominant tenement holder which may be a constant source of irritation to such a person and as such the view in Mahboob Hasan v. R.B. Lal (supra) should not hold good in the case of such a person.

15. There is no doubt that there is some difference in the nature of the claim of a dominant tenement holder and a servient tenement holder but this difference alone is not enough to bring the case within the protection of Sub-clause (5) of Article 19. As already pointed out, the restriction, which has been protected by this Sub-clause (5) is that which is in the interest of general public. It is pointed out that no public interest would be served by merely transferring a property of an individual to another.

16. In K.K. Kockuni v. The States of Madras and Kerala (AIR 1960 SC 1080) their Lordships of the Supreme Court quoted a passage from Willoughby on Constitutional Law in para 40 of their judgment which very nicely points out the difference between the individual needs and a public interest. The quotation is as follows (at pp. 1098, 1099) :--

'As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighbourly, no obstinacy, however unreasonable, no offers of compensation, however extravagant can compel or require any man to part with an inch of his estate.'

17. So merely because of a great advantage to a servient tenement holder in purchasing the property of a dominant tenement holder the restriction cannot be called reasonable. It has still to be shown that it serves some general public interest.

18. It may also be mentioned that in another case of easement Jagdish Saran v. Brij Raj Kishore (AIR 1972 All 313) (FB) it was held that no public interest is involved in giving right of pre-emption to such persons. It only benefits the pre-emptor.

19. Some indication is, however, available as to what can be public interest in cases of pre-emption (which initially benefit only the pre-emptors) from Bhau Ram v. Baij Nath Singh (AIR 1962 SC 1476) where while upholding the validity of rights of pre-emption to co-sharers, it was observed that in cases of properties subject to common management, it would ultimately lead to proper management of such properties if it remains in the hands of existing co-sharer or co-sharers, but no such purpose is involved in cases of servient or dominant tenement holders. Each of them remains in exclusive charge of his property including the part of easement concerning his property. They have only a duty to each other towards maintaining the easement without having any common management of anything.

20. It is true that on the same person acquiring both the dominant and servient tenements, there would be no longer any bickering that may sometimes take place between the two about working of the easement in question. But that has nothing to do about proper management of their properties. Moreover such a point was also involved when a dominant tenement holder claimed to pre-empt a servient tenement but such a restriction in his case was held to be void in Mahboob Hasan v. R.B. Lal (AIR 1966 All 271) (supra). There is no reason why a distinction be made in favouring a servient tenement holder.

20A. The learned counsel for the plaintiff-respondent relies upon Munshi v. Richpal ((1977) 2 SCC 605) : (AIR 1977 SC 1206) in support of his contention that merger of different rights in a property in one person is in the general interest. In this case, however, this point was not decided. It was merely decided as to whether a tenant, though he had been ousted, even if wrongly, had a right to pre-empt. But even otherwise that case fits in with the general national policy of agrarian reform, giving proprietary right to actual cultivator. No such general interest is involved here.

21. Hence this kind of right of preemption is not within the limits of permissible restriction under Article 19(5) of the Constitution.

22. Accordingly the appeal is allowed with costs. The judgments and decrees of both the courts below are set aside and the suit of the plaintiff-respondent is dismissed with costs.


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