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Yakub Mohammad Shakur Mohd. Vs. Karim S/O. Mahammad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 154 of 1957
Judge
Reported inAIR1960MP191
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 2; Constitution of India - Articles 13(1) and 19(1); Bhopal Pre-emption Act, 1934 - Sections 11(6)
AppellantYakub Mohammad Shakur Mohd.
RespondentKarim S/O. Mahammad and ors.
Appellant AdvocateS.L. Dubey, Adv.
Respondent AdvocateG.W. Oak, Adv.
DispositionAppeal dismissed
Cases ReferredShaikh Mohammad v. Amir Mohammad
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....j. in shaikh mohammad v. amir mohammad, 1958 m. p. l. j. 419: (air 1958 madh-pra. 423) where the learned judge observed that the mohammaden customary law of pre-emption could not be said to have been abrogated by the new constitution. in that case pre-emption was claimed on the basis of vicinage. the learned judge went on to observe that on the question of reasonablenass,''i am unable to see anything unreasonable, as customary law of pre-emption is prevalent in punjab as also in other states there is statutory law of pre-emption in respect of agricultural holdings.'with all due respect to the learned judge, i think he oversimplified the matter of the validity of the mohammaden customary law of pre-emption permitting a person to pre-empt a property on the basis of vicinage when he held.....
Judgment:

P.V. Dixit, J.

1. The appellant instituted a suit in the Court of the Munsiff, Sehore, to enforce his right of pre-emption in respect of a house situated in Sehore. That suit was decreed by the learned Munsiff. The defendant Karim, who had purchased the house from Nathobai on 5th July 1952 then preferred an appeal in the Court of the District Judge of Bhopal. That appeal was allowed by the learned District Judge and the plaintiffs suit was dismissed. The learned District Judge took the view that Section 11(6) of the Bhopal Pre-emption Act 1934 was void from 26th January 1930 by reason of Articles 13(1) and 19(1)(f) of the Constitution. The plaintiff has now preferred this second appeal.

2. Mr. Dubey, learned counsel for the appellant, first contended that the judgment recorded by Mr. Gupta, the District Judge of Bhopal, and pronounced by his successor Mr. Pathak in the appeal preferred by the defendant was not valid inasmuch as when Mr. Gupta wrote out the judgment he had relinquished the charge of the office of the District Judge and had no jurisdiction over the suit. Learned counsel relied on Lalshah v. Rikhiram, 7 C. P. L. R. 18. This objection must be rejected in view of the decision dated 6th February 1959 of a Division Bench of this Court (Jabalpur) in First Appeal No. 30/55, Dammulal v. Smt. Kalavati Devi, 1959 M. P. L. T. (Notes) No. 82: (AIR 1960 Madh-Pra 18). While dissenting from the decision in 7 C. P. L. R. 18 it has been held that Order 20 Rule 2 C. P. C. empowers the successor to pronounce a judgment which was written by his predecessor after he had ceased to have jurisdiction over the Court. The judgment pronounced by Mr. Gupta must, therefore, be held to be valid.

3. It was then urged that Section 11(6) of the Bhopal Pre-emption Act, which gives to a person the right of pre-emption by vicinage was not repugnant to Articles 13(1) and 19(1)(f) of the Constitution. In view of what I have said in Babulal v. Gowardhandas, (S) AIR 1956 Madh Bha 1, I am unable to accept this contention In AIR 1956 Madh-B 1 a Full Bench of M. B. High Court exhaustively dealt with the question whether a statutory provision giving right of pre-emption by vicinage can be said to be valid after 26th January 1950 by reason of Articles 13(1) and 19(1)(f) of the Constitution and came to the conclusion that such a statutory provision was void as from 26th January 1950.

Learned counsel referred me to Ramchandra v. Janardan, (S) AIR 1955 Nag 225, in which a Full Bench of this Court upheld the validity of the law of pre-emption contained in the Berar Land Revenue Code 1928. aS pointed out in (S) AIR 1956 Madh-Bha 1, the decision in (S) AIR 1955 Nag 225 and other cases dealing with statutory provisions relating to pre-emption of agricultural lands are distinguishable by the fact that in those cases the relevant provisions were held to be reasonable because they tended to preserve the integrity of the village and the village community and to avoid fragmentation of holdings.

4. Learned counsel then drew my attention to the decision of Tare J. in Shaikh Mohammad v. Amir Mohammad, 1958 M. P. L. J. 419: (AIR 1958 Madh-Pra. 423) where the learned Judge observed that the Mohammaden customary law of pre-emption could not be said to have been abrogated by the new Constitution. In that case pre-emption was claimed on the basis of vicinage. The learned Judge went on to observe that on the question of reasonablenass,

''I am unable to see anything unreasonable, as customary law of pre-emption is prevalent in Punjab as also in other States there is statutory law of pre-emption in respect of agricultural holdings.'

With all due respect to the learned Judge, I think he oversimplified the matter of the validity of the Mohammaden customary law of pre-emption permitting a person to pre-empt a property on the basis of vicinage when he held it to be valid just by observing that it was not repugnant to the new Constitution and that it was not unreasonable. The attention of the learned Judge was not drawn to the decision in (S) AIR 1955 Nag 225 and the decisions of many other High Courts in which the question of the validity of statutory provisions of the relevant Pre-emption Acts was considered at length and where the distinction between the law relating to agricultural holdings and that concerning urban property has been emphasized. I do not, therefore, regard that decision as an authority for holding that the provisions of Section 11(6) of the Bhopal Pre-emption Act are even today valid,

5. For these reasons, this appeal is dismissed. In the circumstances of the case, parties shallbear their own costs of this appeal.


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