1. This second appeal by defendant Dhonkal son of Bhoma has been referred to a division bench of this Court by an order of a learned single Judge dated August 28, 1962, as it raises an important question as to the validity of Clause '3rdly', read with the subsequent provision about the drawing of lots of Section 9 of the Ajmer Laws Regulation, 1877, hereinafter referred to as the Regulation.
2. The facts of the case may be stated briefly for they are not in dispute. Defendant-appellant Dhonkal son of Bhoma purchased 9 bighas and 7 biswas of agricultural land in village Tihari, bearing Khasra No. 1133, from defendant Dhonkal sort of Hardeo of that village. The sale-deed was executed on October 6, 1950. Plaintiff Rugha filed a suit on October 4, 1951, in the court of Sub-Judge First Class, Ajmer, against both of them, for preemption, alleging that he was entitled to purchase the land in preference to Dhonkal son of Bhoma. The claim was denied by the defendant-vendee who took some other pleas also but it is not necessary to refer to them as they were given up during the course of the trial or in the lower appellate court. The plaintiff, it appears, set forth his claim on the said Clause '3rdly' of Section 9 of the Regulation. The suit was decreed by the trial court and an appeal was therefore preferred by the vendee, but without success. The only point which was pressed for consideration at the first appeal was whether the provisions of the said-clause were ultra vires the Constitution and that is the sole point for decision in this second appeal before us.
3. It would be advantageous, for a proper appreciation of the controversy, to reproduce the whole of Section 9 of the Regulation, which runs as follows,--
'9. Devolution of right when property to be sold or foreclosed is proprietary tenure.-- If the property to be sold or foreclosed is a proprietary tenure, or a share of such a tenure, the right to buy or redeem such a property belongs, in the absence of a custom to the contrary,--
1st, to co-sharers of such tenure, in order of their relationship to the vendor or mortgagor;
2ndly, to co-sharers of the whole mahal in the same order; and
3rdly, to any member of the village-community.
Where two or more persons are equally entitled to such right, the person to exercise the same shall be determined by lot.'
The term 'member of the village-community' occurring in the section has not been defined in the Regulation. Moreover, it suffers from vagueness because a person may claim to be a member of a village community on the ground that he is a resident of the village, while others may advance a similar claim for the reason that they cultivate the land in that village or follow other vocations there. There might be yet others who may claim to be members of a village-community on account of their ownership of property in the village, and so on. The vagueness of the definition need not however, detain us in this case for, as would appear from the judgment of the trial court, it was admitted by the parties during the course of the trial that none of them fell within the category of the first two classes of preemptors under the aforesaid Section 9 of the Regulation and that both of them belonged to the third category 'being members of the village-community'. We shall therefore proceed to consider the question whether Clause '3rdly' of Section 9 of the Regulation and the subsequent provision thereof about the drawing of lots are valid in a case where the rival claimants are members of the same village-community. In other words, the point for decision before us is whether the provision in the Regulation that if two or more 'members of the village-community' are equally entitled to buy or redeem the property the matter shall be determined by lots, is valid under the Constitution.
4. The right of a person over his property is an important right. It has been declared to be fundamental under Article 19 of the Constitution and has thus been guaranteed to all citizens of the country. We are therefore concerned with Clause (1) (f) of Article 19 which is as follows,--
'19(1) All citizens shall have the right --
(f) to acquire, hold and dispose of property.'
This provision is governed by the further provision in Clause (5) of the Article which is as follows,--
'19(5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent 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.'
5. It is beyond doubt that the restriction imposed by Section 9 of the Regulation on the right to dispose of property is a clog on the owner's right guaranteed under the Constitution, namely, the right to acquire, hold and dispose of his property as he likes. This basic proposition is not disputed before us by the learned counsel for the parties who have confined their arguments to the question whether the restriction imposed by the third clause of Section 9 of the Regulation and its provision for the drawing of lots is reasonable in the interests of the general public.
6. The right of pre-emption is a weak right and their Lordships of the Supreme Court have been at pains in Bishan Singh v. Khazan Singh, AIR 1958 SC 838 in examining its implications. They have laid down the general law on the point as follows,--
'The general law of pre-emption does not recognise any right to claim a share in the property sold, when there are rival claimants. It is well established that the right of pre-emption is a right to acquire the whole of the property sold in preference to other persons: See Moolchand v. Ganga Jal, ILR 11 Lah 258 at p. 273: (AIR 1930 Lah 356 at p. 357) (FB).
The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee.'
The same view formed the basis of a full bench decision of this Court in Nathu Ram v. Pat Ram, ILR (1960) 10 Raj 443: (AIR 1960 Raj 125) its which it was held that
'the right of pre-emption is not exercisable unless the plaintiff is in a position to show that his right is not only 'as good as that of the vendee but it is superior to that of the 'vendee' '.
7. It would thus appear that preference being the essence of the right, the plaintiff must have a superior right to that of the vendee before he can be allowed to follow the thing sold and claim it for himself. There would be no such justification if the rival claimants are equally entitled to the property and it cannot be said to be reasonable if, even in such a case, a restriction is imposed upon the ower's right to sell the property by subjecting the alienation to challenge under a provision for the drawal of lots as is contemplated under the impugned provision of the Regulation. At any rate, such a provision cannot be said to enure to the benefit of the general public in any way.
8. Moreover, it is the admitted case of the parties that they belong to the same village Tihan and cultivate different fields there. There is therefore no question of saving the villager-community from disruption by permitting the sale of the disputed land to an outsider. The sale being to a member of the village-community, there is nothing to be Rained by a provision that it should be permissible for another member of the same village-community to assail the alienation under the impugned provision of Section 9 of the Regulation by demanding that lots should be drawn to decide which of them would ultimately be entitled to the land. On the other hand, such a provision might tend to disrupt the communal life and the atmosphere of amity and good-will, which might otherwise prevail in the village, by giving rise to litigation in the hope that the result of the lot might favour the preemptor in the end, in a court of law. Such a provision restricting the owner's right to alienate his property is, therefore, not reasonable and must be struck down.
9. We may here mention that Mr. Inani, learned counsel for the vendor, argued that, as has been held by their Lordships of the Supreme Court in Ram Sarup v. Munshi, AIR 1963 SC 553 the objective to preserve the integrity of the village and the village-community is prima facie reasonable and calculated to further the interests of the general public. He has therefore urged that the decision of this Court in Kishori v. Board of Revenue, AIR 1957 Raj 182 that no principle could be conceived on the basis of which the mere residence may give a preferential right of pre-emption, is no longer good law. The argument is of no avail in the present case for we are not called upon to decide whether the provision of Clause '3rdly' of Section 9 of the Regulation, shorn off the subsequent provision for the drawal of lots, is a reasonable restriction on the vendor's fundamental right under Article 19(1)(f) of the Constitution. As has been stated we are merely concerned with the question whether the provision of the said clause read with the subsequent provision for the drawal of lots is constitutionally valid and we have therefore confined our attention to that point alone.
10. There is yet another reason for the view we have taken. The right granted to a citizen By Article 19(1)(f) of the Constitution is a very valuable right and it can hardly be said to be reasonable that the owner's right to dispose of his property or, for the matter of that, the right to acquire by voluntary purchase, should be defensible by an uncertain eventuality like the drawal of lots. It is common knowledge that where lots are drawn the result is beyond the realm of rational calculation for every thing depends on sheer chance so that no one can be sure of the outcome. How can it be reasonable, therefore, to provide that the property right of the citizens should' depend on mere unpredictable chance? A great deal of sanctity has always attached to one's right in his property and that is why courts have all along been examining property disputes with great care and caution. Now that the right has been recognized as fundamental to a citizen and enshrined in Article 19(1)(f) of the Constitution, there is all the more reason that it should not be allowed to be defeated or jeopardized by making it dependent on such an uncertain factor as the drawal of lots, by any authority whatsoever.
11. We would therefore hold that Clause '3rdiy' of Section 9 of the Regulation read with the subsequent provision for the drawing of lots is invalid, being ultra vires the Constitution. We, however, express no opinion on the validity of the other two clauses of that section as well as on the provision for the drawing of lots in respect of them for we are not concerned with that aspect of the matter at present.
12. The learned Advocate General, to whom a notice was given under Section 27A of the Code of Civil Procedure, frankly conceded that he was not in a position to support the validity of Clause '3rdly' when read with the provision for the drawing of lots where two or more equally entitled persons set up a claim for pre-emption. He, however, urged that the clause should, by itself, be held to be valid and that only the provision for the drawing of lots should be struck down. We have already expressed our inability to examine the two provisions disjunctively for the case before us rests on both of them jointly. Besides, we are disposed to think that these two provisions are inseparably inter-connected and it is not possible to strike down the one and save the other, so that both of them must fall together. We hold accordingly.
13. The whole case has been referred to us for a decision and not merely the short question about the validity of the impugned clause of Section 9 of the Regulation referred to above. As we have struck down that clause as invalid, the result would be that the plaintiff-pre-emptor would mot be entitled to succeed and his suit must therefore be dismissed. We allow the appeal and order accordingly, but, in the circumstances of the case, leave the parties to bear their costs throughout.