S.N. Deedwania, J.
1. These writ petitions at the stage of admission are being decided by this order. The facts need not be given except that non-petitioner No. 1 plaintiff filed the two suits alleging a right of pre-emotion on the basis of easement. Petitioner-defendant No 1 is the purchaser of these two properties and non-petitioner No. 2 is the seller. It appears that non-petitioner No. 2 was a dominant owner and non -petitioner No. 1 plaintiff was a servient owner. The writpetitions are filed presumably under Article 228 of the Constitution. The vires of Section 6(1)(iii) is sought to be challenged, which reads as under -
'Section 6. Persons to whom pre-emption accrues-
(1) Subject to the other provisions of this Act, the right of pre-emption in respect of any immovable property transferred shall accrue to and vest in, the following classes of persons, namelv -
(i) and (ii) ... ... ... ... ... ... ...
(iii) owners of property servient or dominant to the property transferred.'
It is argued by the learned counsel for the petitioner that the react of pre-emption is a personal right and is discriminatory against the petitioner as Article 14 of the Constitution prohibits the discrimination against any citizen only on the grounds of religion, race, caste, sex, place of birth or any of them. Section 6 (1) (iii) of the Rajasthan Pre-emption Act (hereinafter referred to as 'the Act') creates a discrimination against a citizen on the ground of place of birth, inasmuch as, he is deprived of his right to purchase any property of his choice. I have considered the argument carefully. It is no longer open to doubt that a right of preemption on the ground of vicinage is ultra vires the Constitution. It was thus observed in Bhau Ram v. Baii Nath Singh, (AIR l962 SC 1476)-
'But the Constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore, the ostensible reason for pre-emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really meant to prevent strangers i.e., people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of preemption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonablerestriction on the right to acquire, hold and dispose of property as now guaranteed under Article 19(1)(i), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day.
The same reasoning in our opinion will apply to the third ground, 'where the sale is of a property having a stair-case common to other properties, in the owners of such properties'. This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public.'
It was also thus held in Panch Gujar Gaur Brahmans v. Amarsingh. (AIR 1954 Raj 100) (FB).
'Now so far as the re-conveyance of the property to a pre-emptor claiming as a co-sharer or a participator in immunities and appendages is concerned, there were certain reasons of convenience behind this principle, the chief being to prevent any disturbance by a stranger to the enioyment of the property by a co-sharer or participator in the immunities and appendages. Phear. J. observed in 'Nusrut Reza v. Umbul Khyr Bibee'. (1867) 8 Suth WR 309 that the right of pre-emption is founded on the supposed necessities of a Muhammiidan family arising out of their minute sub-division and inter-division of ancestral property. The right of an adjoining owner to claim the property in case of purchase by a stranger however rests on a different footing for the pre-emptor has nothing in common with the property sold beyond the fact that he happens to be an owner of the adjoining property.
Our Constitution however prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, Place of birth or any of them under Art. 15 of the Constitution and guarantees a right to every citizen to acquire, hold and dispose of property except by a restriction which may be reasonable and in the interests of general public. Prima facie, we have to lean towards the right guaranteed and keen the restriction within permissible limits and in that light the manners and customs which permitted the division of society into groups and exclusion of strangers from any locality should now be considered as unreasonable. On these principles the enforcement of the right of preemption of the third class i.e., as based on ownership of adjoining property is in our opinion not a reasonable restriction on the right to acquire and hold property. It may be pointed out that such a right is only recognised in Hanafi Law but not under the Shia Law and even according to Hanafi Law the claim does not lie in respect of sale of large estates, so that among the Muhammadan Jurists also there was a difference of opinion as to the validity of the right of pre-emotion based on vicinity.
Learned counsel for the opposite party argued that pre-emption was an incident of property and, therefore, any person who purchased property took it with that incident. That view has no doubt been held in-- 'Gobind Dayal v. Inayatullah'. (1885) ILR 7 All 775, but in Bombay it has been held in -- 'Hamedmiya v. Joseph Ben jamain', AIR 1929 Bom 206 that the right of pre-emption is not a right which attaches to the land but is a personal right. The same view has been taken in Calcutta in Koodaratullah v. Mohinee Mohun (1870) 4 Beng LR 134 (FB). With great respect we agree with the reasoning in 'Hamedmiya's case for the right is not one which is in existence prior to the sale but arises only when there is a valid and complete sale and in case of no other alienation. The fact that the ground on which the pre-emptor claims his right of preemption should not only exist at the time of sale but at the date of the suit for pre-emption and also up to the time when the decree is passed, supports the view that it is not an incident of the property sold but is a right which comes into existence in persons who have been described as Safi Sharik, Shafi-i-Khalit or Shaft-i-jar. According to Muhammadan Law this a personal right of the pre-emotor, which is lost if the pre-emptor dies without enforcing the same by a suit.'
These observations made in the aforesaid two authorities go a long way to show that right of pre-emption granted to theowners of the property servient or a dominant to the property transferred is a right akin to such a right granted to a co-sharer or a co-owner of a property. This right is not granted on the footing that a stranger should not disturb the homogeneity of a locality or a class of people. I, therefore, feel that Section 6 (1) (iii) of the Act is not ultra vires Article 14 of the Constitution.
2. In the result, these writ petitions are dismissed summarily.