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Nathuram and ors. Vs. Patram and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberSpecial Bench Civil Ref. Nos. 39, 60 and 76 of 1959
Judge
Reported inAIR1960Raj125
ActsConstitution of India - Article 19 and 19(1); Alwar State Pre-emption Act, 1946 - Sections 15 and 16
AppellantNathuram and ors.
RespondentPatram and ors.
Advocates: J.P. Jain, Adv. for; Nathuram,; Mangilal and;
DispositionAppeal dismissed
Cases ReferredRam Dayal v. Mangilal
Excerpt:
- - the respondents, however, contended that the view taken in panch gujar gaur brahmans' case, ilr (1954) 4 raj 84: (air 1954 raj 100) (fb), could not be sustained in view of the pronouncement of their lordships or the supreme court in air 1954 sc 417. it was further urged that the right of pre-emption in the instant case bad arisen prior to the coming into force of the constitution and could not be defeated even if it is held that section 16 of the alwar act was bit by article 19(1)(f) read with article 13 of the constitution. an appeal was filed by the vendee in the court of the district judge, jaipur, but without success. ' 10. before we deal with the questions raised before us, we would like to make certain observations with regard to the nature of the right of pre-emption. but.....bhandari, j.1. all these three appeals arise in pre-emption suits. the principal point for determination in the first two appeals is as to the extent to which the provisions of the alwar state pre-emption act (act no. vii of 1946) hereinafter called the alwar act, are void under article 13(1) of the constitution on the ground that they infringe the rights of a citizen to acquire, hold and dispose of property as guaranteed under article 19(1)(f) of the constitution. in the third appeal, the question relates to the extent to which the custom of pre-emption was void under article 131. the determination of these points will require the examination of the correctness of the authorities of this court in panch gujar gaur brahmans v. amarsingh, ilr (1954) 4 raj 84: (air 1954 raj 100) (fb) and.....
Judgment:

Bhandari, J.

1. All these three appeals arise in pre-emption suits. The principal point for determination in the first two appeals is as to the extent to which the provisions of the Alwar State Pre-emption Act (Act No. VII of 1946) hereinafter called the Alwar Act, are void under Article 13(1) of the Constitution on the ground that they infringe the rights of a citizen to acquire, hold and dispose of property as guaranteed under Article 19(1)(f) of the Constitution. In the third appeal, the question relates to the extent to which the custom of pre-emption was void under Article 131. The determination of these points will require the examination of the correctness of the authorities of this Court in Panch Gujar Gaur Brahmans v. Amarsingh, ILR (1954) 4 Raj 84: (AIR 1954 Raj 100) (FB) and Shanker Lal v. Poonam Chand, ILR (1954) 4 Raj 310: (AIR 1954 Raj 231), and the other cases following these two authorities. These appeals came up for decision before Single Judges of this Court and in view of the decision of their Lordships of the Supreme Court in Audh Rehari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417, these cases had been referred to the larger Benches and this Special Bench has been constituted to hear all these appeals. We propose to dispose of these appeals by one common judgment as the principal points in all these appeals have a close bearing on one another and call for interpretation of Articles 13 and 19 of the Constitution.

2. In Civil Second Appeal No. 7 of 1954, the plaintiffs Patram and Hetoo instituted a suit on 28-7-1945 in the Court of the Nizamat, Kishengarh (Alwar) for declaration that the sale of 14 pilots of land situated in village Harsoli (Dist. Alwar) by Harlal (Defendant No. 1) to Nathuram (Defendant No. 2) for Rs. 2,500/- by the sale-deed dated 18-8-1943 was void and illegal as it was made in contravention of Section 129 of the Alwar State Land Revenue Code, 1925. The plaint was subsequently amended and the suit was converted into a suit for pre-emption. The pre-emptors based their claim on the grounds that they were the collaterals of the vendors and also the owners of the patti in which the plots were .situated, and, as such under Section 15 of the Alwar Act, they had a right of pre-emption as the vendee was merely a stranger. The suit was contested by the vendee and it was decreed by the trial court on 25-8-1952. On appeal by the vendee it was remanded for fresh decision by the District Judge, Alwar, but the suit was again decreed by the trial Judge on 23-1-1953. Again an appeal was preferred by the vendee to the District Judge, Alwar, but the appeal was dismissed on 21-12-1953. The vendee has filed Appeal No. 7 of 1954 to this Court.

3. The contention of the appellant is that Section 15 of the Alwar Act had become void under Article 13(1) of the Constitution on the date when the suit was decreed by the trial court i. e. on 23-1-1953 as the provisions of Section 15 infringed the fundamental right of the vendor to dispose of the plots of land in dispute and the right of the vendees to acquire and hold them, and, as such, on the date of the decree the pre-emptors had lost their right of pre-emption and the suit of the pre-emptors should be dismissed following the authority of this Court in ILR (1954) 4 Raj 310: (AIR 1954 Rai 231).

4. On behalf of the pre-emptors, it is urged that Article 13 has got no application to the instant case as the sale had taken place on 18-8-1943 before the Constitution had come into force and the suit had been filed and even the amendment of the plaint converting the suit into a suit for pre-emption was made prior to that date. It is also argued that the provisions of the Alwar Act were made for the purpose of preserving the homogeneity of the villages and consolidation of the holdings in so far as they related to the agricultural lands and they were thus in the nature of reasonable restrictions on the exercise of the right conferred on a citizen by Article 191. In this connection our attention is drawn to the fact that the Alwar Act was on the same lines as the Punjab Pre-emption Act (No. 1 of 1913) and the Punjab High Court has held that law to be valid in Uttam Singh v. Kartar Singh, AIR 1954 Punj 55 (FB).

It is urged that there is no reason to hold to the contrary with regard to the Alwar Act as the conditions prevailing in the area to which the Alwar Act was applicable, were the same as those prevailing in the adjoining area of the Punjab. It is also urged that the Alwar Pre-emption Act places no restriction on the rights of the vendor or the vendee to hold or acquire any property inasmuch as the property itself suffers from some defect or disadvantage (of being liable to be preempted on a sale), and when such a sale takes place, the right of the vendor to sell the property is in no way affected as he enjoys all his rights over the property proposed to be sold subject to the rights available to the pre-emptor under the Alwar Act and pari passu the vendee also gets the property subject to the game defects or disadvantages and cannot be said to be in any way affected in acquiring or holding the property,

The argument is that it is the property which itself has been stamped with a defect and neither the vendor nor the vendee can make any complaint that their freedom to dispose of or to acquire and hold the property is in any way adversely affected. In this connection, it is urged that the observations of this Court in Panch Gujar Gaur Brahamans' case, ILR (1954) 4 Raj 84: (AIR 1954 Raj 100) (FB) that according to the Mohammedan Law, the right of pre-emption is a personal right of the pre-emptor, are not correct and should be taken to be overruled by the decision of their Lordships of the Supreme Court in the case of AIR 1954 SC 417.

5. The facts in Civil Second Appeal No. 134 of 1954 are that by the sale-deed dated 9-11-1949, a plot of land situated in the town of Malakhera, which formed part of the erstwhile Alwar State, was sold by Maharaj Kumar Yashwant Singh to Ram Dayal for Rs. 251/-. Thereupon Mangi Lal filed a suit for pre-emption on the 2nd of November, 1950, alleging that he had his spouts and windows towards that land which was in his vicinity and that the vendees were strangers having no concern with the disputed land. The defendants contested the suit mainly, on the ground that there was a lane between the house of the plaintiff and the land sold by the vendor to the vendees. Some other pleas were also raised which need not bo reiterated.

5a. The learned Munsiff held that there was no lane between the house of the plaintiff and the land sold and that the land was in the vicinity of the plaintiff's house and he had a right of preemption on that account. The learned Munsiff overruled the other pleas raised by the defendants and decreed the suit on 24-3-1952. The vendees filed an appeal in the court of the Civil Judge, Alwar and they relied on the authority of this Court in Panch Gujar Gaur Brahmans, ILR (1954) 4 Raj 84: (AIR 1954 Raf 100) (FB) for the plea that the suit was not maintainable if the pre-emption was claimed on the ground of vicinage, but the learned Civil Judge Overruled this plea on the ground that the ruling was given in a case where the right of pre-emption was claimed under a custom but as in the case before him there was a specific law, namely, the Alwar Pre-emption Act, in force, that ruling was not applicable. The other pleas of the vendees were also rejected and the appeal was dismissed on 11-5-1954.

Thereupon Ram Dayal filed the instant appeal in this Court and it came up for hearing before one of us Bapna J. It was argued that the right of pre-emption based on vicinage was an un-reasonable restriction and was void by virtue of Article 19(1)(f) of the Constitution. The respondents, however, contended that the view taken in Panch Gujar Gaur Brahmans' case, ILR (1954) 4 Raj 84: (AIR 1954 Raj 100) (FB), could not be sustained in view of the pronouncement of their Lordships or the Supreme Court in AIR 1954 SC 417. It was further urged that the right of pre-emption in the instant case bad arisen prior to the coming into force of the Constitution and could not be defeated even if it is held that Section 16 of the Alwar Act was bit by Article 19(1)(f) read with Article 13 of the Constitution.

6. The argument addressed by the appellant was that the case was covered bv the authority of this Court in. ILR (1954) 4 Raj 310: (AIR 1954 Raj 231) and that in any case the suit was not instituted till the coming into force of the Constitution and as such, it could not be enforced in a suit instituted after the coming into force of the Constitution.

7. Bapna J. referred to a Division Bench the following question:

'Whether a right of pre-emption arising on the ground of ownership of the adjoining property arising on a sale which took place prior to the enforcement of the Constitution of India cannot be enforced in a suit instituted after the enforcement of the Constitution of India.'

The Division Bench in its turn referred this case to a larger Bench. There are some other points of law arising in this appeal, but if the case is not disposed of on the question referred, the appeals shall go to the Single Bench for deciding those points.

8. In the last Civil Second Appeal No. 130 of 1954 the question relates to the pre-emption of the house property situated in the City of Jaipur. The suit was instituted on 15-5-1951 by Kalyan Bux appellant alleging that Anand Behari defendant had sold a portion of the house in which the parties resided, for Rs. 2,200/-/- by sale-deed dated 29-1-1950. The pre-emption was claimed on the basis of the custom prevalent in the Jaipur City. It was stated that both the pre-emptor and the vendee were co-sharers in the property sold and they had equal rights of pre-emption. The plaintiff claims possession of half of the property sold on payment of half of the sale-price. One of the points raised in the written statement of the vendee was that the suit was not maintainable as the custom of pre-emption was void under Article 13 of the Constitution in view of the fact that it infringed the rights of the vendee under Article 19(1)(f) of the Constitution.

A preliminary issue was framed by the trial court and the suit was dismissed on the ground that the Custom of pre-emption was void. An appeal was filed by the vendee in the court of the District Judge, Jaipur, but without success. The pre-emptor has come in second appeal. The point that arises in this case for decision is -- whether the customary right of pre-emption in case the vendee and pre-emptors were co-sharers of equal degree had become void after the enforcement of the Constitution under Article 19(1)(f) read with Article 13 of the Constitution.

(8a) The points that emerge for consideration may be stated somewhat broadly, as follows:

(1) Whether Sections 15 and 16 of the Alwar Act infringe in any way the rights of a citizen to acquire, hold or dispose of the property as guaranteed by the Constitution under Article 19(1)(f);

(2) If so, whether the restrictions on the exercise of that right by Sections 15 and 16 of the aforesaid Act are reasonable restrictions within the meaning of Article 19(5) of the Constitution;

(3) Whether a right of pre-emption arisisng on the ground of ownership of the adjoining property as provided under Section 16 of the Alwar Act on a sale which took place prior to the enforcement of the Constitution of India cannot be enforced in a suit instituted after the enforcement of the Constitution of India.'

(4) Whether under the custom relating to preemption as prevalent in the Jaipur City, a pre-emptor co-sharer is entitled to share equally with the vendee the property sold even in case the vendee is also a co-sharer and the pre-emptor has no preferential right. IF so, whether such custom can be upheld even after coming into force of the Constitution.

8b. We may quote here the relevant provisions of the Alwar Act. The right of pre-emption has been defined in Section 4 in that Act which runs as follows:

'The right of pre-emption shall mean the right of a person to acquire agricultural land or village immoveable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property.'

Section 14 limits the exercise of the right of preemption in respect of lands sold only to a member of agricultural tribe. Section 15 deals with the persons in whom the right of pre-emption vests in respect of the sale of agricultural land and village immoveable property. It runs, as follows:

'Subject to the provisions of Section 14, the right of pre-emption in respect of agricultural land and village immoveable property, shall vest --

(a) Where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession who, but for such sale would be entitled, on the death of the vendor or vendors to inherit the land or property sold:

(b) Where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly,

firstly, in the lineal descendants of the vendor in order of succession;

secondly, in the co-sharers, if any, who are agnates, in order of succession;

thirdly, in the persons not included under firstly or secondly above, in order of suceession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold;

fourthly, in the co-sharers;

(c) if no person having a right of pre-emption under Caluse (a) or Clause (b) seeks to exercise it,

firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the supreme proprietors;

secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate;

thirdly, in the owners of the estate;

fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or Property;

fifthly, in any tenant having right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated.

In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word 'agnates' in this section shall mean the agnates of the person through whom she has succeeded.'

8c. Section 16 deals with the persons in whom the right of pre-emption vests in urban immovable property and runs, as follows:

'The right of pre-emption in respect of urban immoveable property shall vest -- firstly in the co-sharers in such property, if any;

Secondly, where the sale is of the site of the building or other structure in the owners of such building or structure;

thirdly, where the sale is of a property having a staircase common to other properties, in the owners of such properties;

fourthly, where the sale is of property having a common entrance from the street with other properties, in the owners of such properties;

fifthly, where the sale is of a servent property, in the owners of the dominant property and vice Versa;

sixthly, in the persons who own immoveable property contiguous to the property sold.'

9. Section 21 provides for the suit for preemption and runs, as follows:

'Any person entitled to a right of pre-emption may, when the sale or forecloure has been completed, bring a suit to enforce that right.'

10. Before we deal with the questions raised before us, we would like to make certain observations with regard to the nature of the right of pre-emption. The origin of the right of pre-emption in British India is to be found in the rules of Mohammadan Law as to pre-emption. Sir John Edge in Kumar Digambar Singh v. Ahmad Sayeed Khan, AIR 1914 PC 11 at p. 14, has traced the origin of pre-emption in village communities in India. He observes

'Pre-emption in village communities in British India had its origin in the Muhammadan law as to pre-emption, and was apparently unknown in India before the time of the Moghul rulers, In the course of time customs of pre-emption grew up or were adopted among village communities. In some cases the sharers in a village adopted or followed the rules of the Muhammadan law of pre-emption, and in such cases the custom of the village follows the rules of the Muhammadan law of pre-emption. In other cases, where a custom of pre-emption exists, each village community has a custom of pre-emption which varies from the Muhammadan law of pre-emption and is peculiar to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all cases the result of agreement amongst the share holders of the particular village, and may have been adopted in modern times, and in villages which were first constituted in modern times. Rights of pre-emption have in some provinces been given by Acts of the Indian Legislature. Rights of pre-emption have also been created by contract between the sharers in a village. But in all cases the object is, as far as possible, to prevent strangers to a village from becoming sharers in the village. Rights of preemption, when they exist are valuable rights, and when they depend upon a custom or upon a contract, the custom or the contract, as the case may be, must, if disputed, be proved.'

The same observation is true with regard to the origin of the right of pre-emption with respect to the urban immoveable property. A great deal of controversy developed with regard to the nature of the right. The first important case on the subject is that of Sheikh Kudratulla v. Mahani Mohan Shaha, 4 Beng LR FB 134. It was held in that case that a Mohammedan owner of property was subject to no legal, disability arising out of pre-emption and was free to sell it regardless of that right and that on sale the full ownership passed to the vendee and did not involve any defect of title because it could not be regarded as an infringement of pre-existing pre-emptive right. According to that case, the right of pre-emption was 'A mere right of repurchase not from the vendor but from the vendee.' Mahmood J. in the celebrated case of Gobind Dayal v. Inavatullah, ILR 7 All 77.5 (FBI, did not approve of these observations and defined pre-emption as a right which the owner of a certain immovable property possesses, as such, for the quiet enjoyment of that immovable property to obtain, in substitution of the buyer proprietary possession of certain immovable property not of his own, on such terms as those on which such latter immovable property is sold to other person.' It was further observed by Mahmood J. that

'under Mohammedan law right of pre-emption is not a right of repurchase either from the vendor or from the vendee, involving any new contract oi sale, but simpty 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 the rights and obligations arising from a sale under which he derived his title.'

According to that eminent Judge, the right of preemption exists as a restriction or qualification of the right of sale possessed by the owner subject to pre-emption.

'It is not an absolutely unqualified disability, for it does not prohibit sale without the consent of the pre-emptor. But that it amounts to a qualified disability distinctly operating in derogation of the vendor's absolute right to sell the property and thus affects his title which otherwise amounts to absolute dominion, cannot be doubted.'

The Bombay High Court in Hamedmiya Badamiya v. Dr. Joseph Benjamin, ILR 53 Bom 525: (AIR 1929 Bom 206), agreed with the view expressed in Sheikh Kudratullah's case, 4 Beng LR FB 134 but in a later case Dashrathlal Chhaganlal v.. Bai Dhondubai, ILR (1941) Bom 460: (AIR 1941 Bom 262) (FB), the Allahabad view was accepted.

11. In Achutanauda Parsait v. Biki Bibi AIR 1922 Pat 601: ILR 1 Pat 578, the Patna High Court followed ILR 7 All 775 in preference to 4 Beng LR FB 134.

12. In all the above cases the question for consideration was whether the Mohammedan Law of pre-emption applied where the vendee was a Hindu, This Court had to consider the nature of the right of pre-emption in entirely different context in ILR (1954) 4 Raj 84: (AIR 1954 Raj 100) (FB). It was held that the right of pre-emption was a restriction to hold property and in reply to the argument that that right was an incident of the property and therefore Article 19(1)(f) did not come into play support was taken from the decision in Sheikh Kudratullah's case, 4 Beng LR FB 134. This controversy is, however, now set at rest bv their Lordships of the Supreme Court in AIR 1954 SC 417. It was held that the view taken by the Allahabad High Court was the correct view and the right of pre-emption under Mohammedan Law was not a personal right on the part of the pre-emptor to get a retransfer of the property from the vendee, who has already become owner of the same. It was observed, as follows :

'It is true that the right becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. We agree with Mr. Justice Mahmood that the sale is a condition precedent not to the existence of the right but to its enforcibility. .... The correct legal 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 compels him to sell the property to his co-sharer or neighbour as the case may be. The person who is a, co-sharer in tbe 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. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a 'bona fide' purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of preemption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.'

Their Lordships further held that the same was the position where the right was claimed not under Mohammedan Law but on the basis of custom. Recently there has been another decision of their Lordships of the Supreme Court in Bishan Singh v. Khazan Singh, AIR 1958 SC 838. Their Lordships in that case approved of the statement of the law given by Plowden T. in Dhani Nath v. Buclhu. 136 Pun Re 1894 at p. 511, in which it was said that a pre-emptor has two rights, a primary right being the right to the offer of a thing about to be sold and the secondary right was the right to follow the thing sold, when sold without the proper offer to the pre-emptor and to acquire ft, if he thinks fit, in spite of the sale, made in disregard of bis preferential right. Their Lordships summarized the law on the subject in the following words:

'(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 re-purchase 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 and not a share 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 his place. (6) The right being a 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.'

It may also be noted that the last case of their Lordships of the Supreme Court was under the Punjab Pre-emption Act and the provisions of the Alwar Act are for all practical purposes the same as in the Punjab Pre-emption Act (Act No. 1 of 1915).

13. Having thus briefly surveyed the law regarding the nature of the right of pre-emption, we proceed to consider the points referred to in the earlier part of our judgment.

14. The first point relates to the question whether the rights guaranteed to the citizen under Article 19(5) are in any way infringed by the provisions of the Alwar Act. We have already referred to the relevant provisions of that Act. In substance, the right of pre-emption under section of that Act is a right vested in the persons referred to in Sections 15 and 16 in the order mentioned therein to acquire agricultural land or village immovable property or urban immovable property in preference to others. As pointed out by their Lordships of the Supreme Court, this right has got two incidents, one is that the vendor is under an obligation to offer the property to the pre-emptor before sale and the pre-emptor has the right to the otter of the thing about to be sold and thereby to acquire that property by purchasing it, and if such otter is not made, then there is the secondary right of the pre-emptor to follow the thing sold and thus compelling the vendee to part with the property in favour of the pre-emptor by a decree of a court of law.

Viewed in this light, the rights of both the vendor and the vendee are adversely affected. As pointed out by Mahmood J. in the passage already quoted in Gobind Dayal's case, ILR 7 All 775, so far as the vendor is concerned, the right of preemption operates on the vendor's absolute right to sell his property. He is bound to offer it first to the pre-emptor. It was observed by the learned Judge that the right no doubt operates as a restriction on the principle of free sale and thus tends to diminish the market value o the property,' It is true that the vendor may disregard this obligation to offer to the pre-emptor before selling it to others or that he may negotiate for the highest price in the market. None the less, the person offering to purchase the property is likely to take notice of the disability with which the pre-emptor is suffering and this must naturally affect the market value of the property. Judged in this perspective, it cannot be said that the vendor's right to dispose of the property is not affected by the existence of the right of pre-emption. Their Lordships of the Supreme Court also recognised in AIR 1954 SC 417 that the vendor's right to sell the property is restricted to a certain extent by the existence of the custom of pre-emption.

15. We are, therefore, of opinion, that the vendor's right to sell his property has been restricted by the provisions of the Alwar Act but the impact of the law is in more pronounced form so far as the rights of the vendee are concerned. It cannot be denied that after the purchase by him of the property, he is the owner thereof in the eye of law. But he is compelled to part with the property by the observance of the law of pre-emption much against his wishes. It may turn out that he has struck a very good bargain and the price of the property may be much more than what he is paid, yet the compensation he is entitled to obtain in consequence of his parting with his property in favour of the pre-emptor is only what he had paid for the property and not what may turn out to be the market value of the property.

His right to hold the property is taken away under certain circumstances and this surely affects his fundamental right which has been guaranteed to him under Article 19(1)(f). This Court in Punch Gujar Gaur Brahmins' case, ILR (1954) 4 Raj 81: (AIR 1954 Raj 100) (FB), held that the right of pre-emption operates as a restriction on the rights of the vendee to hold the property. As observed above, in our opinion, the right of a vendor to dispose of his property is also adversely affected and there is a restriction placed on his right to sell the property to whomsoever ho wishes. In our opinion, therefore, the rights of the vendor and the vendee are both restricted, and unless such restrictions can be justified under Article 19(5), the provisions of the Alwar Act or of any other law relating to pre-emption would become void.

15a. It is urged that in view of the pronouncement of their Lordships of the Supreme Court, pre-emption is not a personal right but is an incident of the property. Although it did not create any interest in the property in favour of the pre-emptor, yet the right of the pre-emptor ran with the property sold and he had the right to follow the property in the hands of the vendee. It is urged that in view of the pronouncement of their Lordships of the Supreme Court, the property must be taken to be stamped with such defect OH the right of the vendor to sell the property and also with a corresponding right in the pre-emptor to acquire the property from the vendee. The property itself being subject to such rights and liabilities, it must be taken that the vendee purchased it subject to such rights of the pre-emptor and neither the vendor nor the vendee can complain that the rights of the vendor to dispose of the property or that of the vendee to hold the property are in any way affected by the enforcement of the right of pre-emption.

We have examined this argument with care and though it appears at first sight to be plausible, but on a deeper consideration, it turns out to be altogether fallacious. Article 15(1) of the Constitution lays down 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 of the Constitution, are void to the extent of such inconsistency.' The Alwar Act was a law in force before the commencement of the Constitution and was not repealed by any enactment. If such a law creates any inconsistency in the enjoyment of the right of freedom guaranteed under Article 19(1), that law is void. The proper approach, therefore, is to see whether the right to freedom 'guaranteed' under Article 19(1)(f) is in any way adversely affected by any law in force. For this purpose it is to be seen whether a law in force creates any restrictions on the right to freedom guaranteed under Article 19(1).

If any law in force creates any restrictions on the right to freedom, that law is to be struck down. The fallacy in the argument lies in treating the law as Fully effective and then examining the question that the restricted right to freedom guaranteed under Article 19 is not in any way affected. A diminution in the right to freedom of a citizen may arise, directly when it is ordained that the citizen is not to enjoy such freedom. It may be equally curtailed by making a provision in the Jaw that a particular property shall be subject to such and such restrictions which may turn out to be an impediment to the right of a citizen to acquire, hold and dispose of that property. It cannot be said that because the law of pre-emption creates a sort of defect in the property the right of freedom of a citizen to acquire, hold and dispose of that property is not affected.

In essence by stamping the property with any defect which may operate on the owner adversely in respect of his right to acquire, hold and dispose of that property, the right of a citizen to acquire, hold and dispose of the property is affected. In this connection, we may examine this question from the point of view of Article 182. Suppose there is no law of pre-emption in existence at the time of the earning into force of the Constitution but the State makes a law on that subject after the coming into force of the Constitution. It cannot be seriously disputed that in such a case Article 19(1)(f) will directly come into play and the State is not free in making any law which takes away or abridges any right conferred by Article 19(1)(f). We do not think that it would be proper to hold that a law in force stands on a different footing.

Learned counsel for the pre-emptors relied on Ramchandra Krishnaji v. Janardan Krishnappa, (S) AIR 1955 Nag. 225 (FB). In that case Ch. 14 of the Berar Land Revenue Code (1928) was under consideration. It was held by Sinha C. J. that that chapter had engrafted the rules of pre-emption on the land tenures in Berar covered by that chapter and that for that reason the property governed by that legislation was peculiar tenure which had been created by the State. Such a tenure with its peculiar limitations was said to be capable of being held and disposed of like any other property with its own limitations and for that reason the provisions of Article 19(1)(f) were not infringed. In the first place, that case is distinguishable from the present case inasmuch as the Alvvar Act imposes restrictions on all sorts of tenures as also on the urban immovable property.

We may further point out that Sinha C. J. relied on the interpretation placed on Article 19(1)(f) by Patanjali Sastri C. J. in State of West Bengal v. Subodh Gopal, AIR 1954 SC 92. According to Patanjali Sastri C. J. Article 19(1)(f) declares the citizen's right to own property and has no reference to the right to the property owned by him which is dealt with in Article 31. It was further held that Article 19(1) only dealt with natural rights inherent in the free citizen while the protection of concrete rights of property owned by a person were dealt with in Article 31. It may also be pointed out that the other two Judges of the Full Bench Kaushalendra Rao and Hidayatullah JJ. did not express any definite opinion on the point, Kaushalendra Rao J. with whom Hidayatullah J. agreed, said that he was not sure whether the observations of Patanjali Sastri C.J. in AIR 1954 SC 92 on which Sinha C.J. relied can be taken to be the final opinion of the Supreme Court on Article 191. The learned Judge preferred not to rest his opinion on the ground that Article 19(1)(f) was not attracted to the cases before him.

16. As it turned out, doubts expressed by Kaushalendra Rao J. came to be confirmed later. in the Commr., Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar AIR 1954 SC 282 a Bench consisting of seven Judges of the Supreme Court preferred to proceed on the view that Article 19(1)(f) was applicable even to cases where the protection to be granted related to the granting of concrete rights to property. We may quote the following observations of their Lordships:

'A point was suggested by the learned Attorney General that as Article 19(1)(f) deals only with the natural rights inherent in a citizen to acquire, hold and dispose of property in the abstract without reference to rights to any particular property, It can be of no real assistance to the respondent in the present case and Article 31 of the Constitution, which deals with deprivation of property, has no application here. In the case of AIR 1954 SC 92 an opinion was expressed by Patanjali Sastri C.J. that Article 19(1)(f) of the Constitution is concerned only with the abstract right and capacity to acquire, hold and dispose of property and that it has no relation to concrete property rights. This, it may be noted, was an expression of opinion by the learned Chief Justice alone and it was not the decision of the Court; for out of the other four learned Judges who together with the Chief Justice constituted the Bench, two did not definitely agree with this view, while the remaining two did not express any opinion one way or the other.

This point was not raised before us by the Advocate General for Madras who appeared in support of the appeal, nor by any of the other counsel appearing in this case. The learned Attorney General himself stated candidly that he was not prepared to support the view taken by the late Chief Justice as mentioned above and he only raised the point to get an authoritative pronouncement upon it by the Court. In our opinion, it would not be proper to express any final opinion upon the point in the present case when we had not the advantage of any arguments addressed to us upon it. We would prefer to proceed, as this Court has proceeded all along, in dealing with similar cases in the past, on the footing that Article 19(1)(f) applies equally to concrete as well as abstract rights of property.''

17. The position in law obtaining at present is that Article 19(1)(f) can be invoked even in cases where the capacity of a citizen to acquire, hold and dispose of the property is not involved but his rights to acquire, hold and dispose of the property in question are only involved on the ground that the restrictions imposed by the Legislature invade his concrete rights in the property.

18. For the reasons aforesaid we are of opinion that the rights of a citizen to acquire, hold and dispose of the property as guaranteed under Article 19(1)(f) of the Constitution are infringed by the Alwar Act.

19. This takes us to the second point as to whether the restrictions imposed by the Alwar Act are reasonable within the meaning of Article 195. For this purpose, we have to examine Sections 15 and 16 of the Alwar Act. On a closer examination of the provisions of Section 15, we find that the right of pre-emption is granted to the persons mentioned therein mainly on the basis of his relationship with the vendor. Thus in Clause (a), the right of preemption is vested in the persons in order of succession who, hut for such sale would be entitled on the death of the vendor or the vendors to inherit the land or property sold.

Under Clause (b) which speaks of the sale of a share of a joint land or property which has not been made by all the co-sharers jointly, the right of pre-emption vests firstly in the lineal descendants of the vendor in order of succession, then in the co-sharers, if any, who are agnates, in order of succession, thirdly in the persons who but for such sale, would be entitled on the death of the vendor to inherit the land or property sold and fourthly in the co-sharers. Except for the 4th case, there is a clear preference shown for the persons, who are relations of the vendor. Under Clause (c), there are five categories of persons in whom the right vests one after the other in case there is no person having a right of pre-emption under Clause (a) or Clause (b) seeking to exercise it. We propose to confine ourselves to the determination of the rights as claimed here and we need not deal with all other categories provided in these sections.

20. The question in Appeal No. 7 of 1954 is whether the provisions of the Alwar Act Section 15(a) and (b) and the provision regarding accruing of the right of pre-emption in the owners or patti under Clause (c) can be said to be reasonable restriction in the interest of the general public. Learned counsel for the pre-emptor in this appeal has strongly relied on the decision of the Punjab High Court in AIR 1954 Punj 55. In that case, the provisions of Sections 15 and 16 of the Punjab Pre-emption Act which are practically repeated in the Alwar Act were held to be in the interests of the general public of that State. Their Lordships of the Pun-fab High Court reached the conclusions that the objects underlying Sections 15 and 16 were--

(1) to preserve the integrity of the village and the village community;

(2) to avoid fragmentation of holdings:

(3) to implement the agnatic theory of the law of succession;

(4) to reduce the chances of litigation and friction and to promote public order and domestic comfort;

(5) to promote-- private and public decency and convenience.

So far as agricultural land is concerned, No. 5 has no application. We are prepared to concede that the law of pre-emption may be taken to be in the interests of general public when it leads to the consolidation of the holdings. We may observe, however, with great respect, that the implementation of the agnatic theory of the law of succession can have no effect on the consolidation of holdings. An agnatic relation may be a stranger so far as the village where the property situated is concerned and still he shall have a right of preemption even above a co-sharer. Similarly we are at a loss to understand whether one should go to the extent of ousting persons from purchasing land in a village in modern times, though such persons may be excellent agriculturists in order to preserve the integrity of the village and the village communities.

Tbe question of reducing the chances of litigation and friction and of maintenance of public order is very problematical and cannot be said to have any relation with the right to obtain property by preemption. The assertion of the right of pre-emption itself creates chances of litigation and friction which may in its turn adversely affect public order. We do not favour that any right of pre-emption based on relationship should be recognized. Such a law originated, if we may say so, from the custom prevailing in tribal regions and in the modern times when the old affinity based on agnatic theory is losing ground and the means of communications have so developed as to make free intercourse more and more possible as well as desirable, it would be not proper to stick to such notions.

Whatever may be the conditions in the State of Punjab, we find that so far as the State of Rajas-than is concerned, the Alwar law is applicable to a small portion of territory forming the State of Rajasthan and in the major portion of the State there is no such right of pre-emption in the relations of the vendor. Even in that territory we do not think there are considerations which may prompt us to say that keeping intact the right of pre-emption in a relation would in any way be in the interests of general public. It would tend to perpetuate casteism in the villages. It may rather turn out that free intercourse among the inhabitants of the country may prove more beneficial.

In a way the insistence on the relationship theory may impede the progress of the consolidation of holdings inasmuch as a relation may be a stranger to thy village but shall have a priority over a co-sharer. Taking a broad view of the matter, we are of the opinion that it is not possible for us to say that Clauses (a) and (b) of Section 15 except when it refers to co-sharers impose reasonable restriction On the freedom of a citizen to hold or dispose of property. As already stated in respect of Clause (c) also, we confine our attention to the case before us and we find that ownership of land in a patti On a sub-division by itself cannot lead to the consolidation of holding which alone is the object which has appealed to us as being one in the interest of the general public. By merely owning some lands in a patti it cannot be said that such owner becomes a co-sharer, though such a word is used in Section 15. We are, therefore, not prepared to uphold that the ownership of some land in a patti should furnish any ground of pre-emption.. We express no opinion on the other parts of Clause (c).

21. Coming to Section 16 which provides for a right of pre-emption in urban immovable property, we would uphold all the provisions of Section 16, except the last which provides that the persons who own immovable property contiguous to the property sold should enjoy the right of pre-emption. In the Full Bench case of this Court in ILR (1954) 4 Raj 84: (AIR 1954 Raj 100) (FB), it has been held that contiguity or vicinity cannot be taken to be a good ground for upholding the custom of pre-emption. The same considerations apply when the right of pre-emption is based on a statutory provision. We adopt the reasoning in that case for the purpose of. striking out the last portion of Section 16, i. e.,

'sixthly, in the persons who own immoveable property contiguous to the property sold.'

22. The fame view has been taken by the Punjab High Court in Kesar Devi v. Nanak Singh, AIR 1958 Punj 44, that the right of pre-emption on the basis of vicinage of contiguity is void as infringing Article 19(1)(f) of the Constitution in that case.

23. The Hyderabad High Court in Rangnath v. Babu Rao, (S) AIR 1956 Hyd 120, and the Madhya Bharat High Court in Babu Lal v. Gowardhandas, (S) AIR 1956 Madh B 1 (FB) have also taken this view. There is nothing in the judgment of their Lordships of the Supreme Court in AIR 1954 SC 417, which may require reconsideration of the view taken in the Full Bench case of this Court. ILR (1954) 4 Raj 84: (AIR 1954 Raj 100) (FB) and we have already given our reasons for adhering to that view in spite of the fact that the right of pre-emption is not a personal right but an incident of the property.

24. Now we take up the question whether the right of pre-emptor, who claims on the ground of vicinage, arising on a sale which had taken place before the coming into force of the Constitution, is in any way affected because of the fact that the suit or the enforcement of the right of pre-emption has been filed after the coming into force of the Constitution. This is the third point referred to in the earlier part of the judgment. There is a Division Bench authority of this Court in ILR (1954) 4 Raj 310: (AIR 1954 Raj 231), in which it has been held that the law of pre-emption based on vicinage having become invalid from the 26-1-1950, a decree for pre-emption cannot be passed on or after that date as the pre-emptor would not have a subsisting right of pre-emption from that date.

This case has been approved by the Hyderabad High Court in (S) AIR 1956 Hyd 120, but it has been dissented from by the Madhya Bharat Court in (S) AIR 1956 Madh B 1 (FB), and by the Allahabad High Court in Sobhnath v. Ambika Prasad, AIR 1958 All 419. In ILR (1954) 4 Raj 310: (AIR 1954 Raj 231), the Division Rench relied on Ram Gopal v. Piari Lal, ILR 21 All 441, Janki Prasad v. Ishar Das, 1899 All WN 126 (FB), Baldeo Misir v. Ramlagan Shukul, AIR 1924 All 82, Hans Nath v. Ragho Prasad Singh, AIR 1932 PC 57, Madho Singh v. Lt. James R. R. Skinner. AIR 1941 Lah 433 and Gopichand v. Meenalal, ILR (1951) 1 Raj 329: AIR 1952 Raj 5), for taking the view that the right to pre-empt must exist in the pre-emptor not only on the date of sale but also on the date of the institution of the suit and also on the date of the decree. That this is the rule of Mohammedan Law based on the status of the pre-emptor cannot be seriously disputed. Tyabji in his Treatise on Mohammedan Law. 3rd Edition (1940) has stated the rule thus in Section 541(D)(1):

The pre-emptor must at the time of the sale, and until the institution of a suit to enforce preemption, and, semble, also until the decree for preemption is passed by the trial Court, have the status by virtue of which he claims pre-emption, viz., the status o co-sharer or participator or neighbour as the case may be.'

In Shankar Lal's case. ILR (1954) 4 Raj 310: (AIR 1954 Raj 231), it was further laid down that if the law of pre-emption on which the right is based becomes invalid or void, the right of the pre-emptor .to claim pre-emption is lost and the above mentioned rule which relates to the status of the pre-emptor would be attracted. It was held that there was no difficulty in holding that if the right is lost in any way at the date of the decree, the court cannot grant a pre-emption decree and that the invalidity of the law is one of the modes in which the right may be lost. Reliance was also placed on ILR 21 All 441, in which the pre-emptor had lost his right because of the perfect partition in the village. We may, however, point out that in that case the pre-emptor lost his status of a co-sharer and the rule of the Mohammedan Law is that if the status of a pre-emptor by virtue of which the right of pre-emption is lost at any time before the passing of the decree the pre-emptor is not entitled to claim pre-emption. It appears to us that the broad view taken in Shankar Lal's case, ILR (1954) 4 Raj 310: (AIR 1954 Raj 231), needs re-examination.

25. It has been held by their Lordships of the Supreme Court in Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128, that Article 13(1) can have no retrospective effect but is wholly prospective in its operation. It was also pointed out that Article 13(1) does not in terms make existing laws, which are inconsistent, void ab initio or for all purposes. Mahajan J. has pointed out that Article 13 cannot affect any past transactions whether closed or inchoate and that Section 6 of the General Clauses Act should be applied even to cases where statutes become void by reason of their being repugnant to the Constitution as that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country.

This statement of law has been consistently followed by their Lordships of the Supreme Court in subsequent cases. Reference may be made to Bhikaji Narain Dhakras v. State of Madhya Pradesh, (S) AIR 1955 SC 781 and Purshottam Govindji v. M. D. Desai, (S) AIR 1956 SC 20. Under Section 6 of the General Clauses Act, in spite of repeal of the law by any Central Act, or Regulation, any legal proceeding may be instituted, continued or enforced as if the repealing Act or Regulation had not been passed. This means that in spite of the invalidity of the law of pre-emption relating to vicinage or for that matter on any other ground from the date of the commencement of the Constitution, the legal proceeding to enforce the right available to a person before the commencement of the Constitution can be enforced as if that law had not been declared invalid or void by virtue of Article 13(1) of the Constitution.

The rights of such a person continue to be governed by the law as it stood before it was declared invalid or void under Article 13(1) of the Constitution. That law says that unless there is change in the status of the pre-emptor having the effect of lowering his status, his right to obtain a decree of pre-emption cannot in any way be taken away. In our humble opinion, there is nothing in- Article 13(1) by which it can be said that his right is lost. On the other hand, it remains intact and is governed by the law as it was before the commencement of the Constitution and that law is that if the pre-emptor continues to have the status of pre-emptor by virtue of which he claims preemption, he is entitled to obtain a decree of preemption. After the coming into force of the Constitution, he is still entitled to obtain a decree for pre-emption.

26. It will be unjustified extension of the rule of the Mohammedan Law that that right will be lost for any other reasons than those provided under that law. That rule is based on the ground that the status of pre-emptor must not change so as to place him at par with the vendee even up to the date of decree. If his status so changes, the pre-emptor cannot say that a stranger or one with lesser rights is being introduced in the property. When the law is on a date subsequent to accrual of right declared invalid from that date, his status is not changed and the general rule of the law that repeal of law cannot take away the rights already vested must apply.

27. For these reasons, we are unable to subscribe to the view taken in ILR (1954) 4 Raj 310. (AIR 1954 Raj 231). That case lias been criticised in AIR 1958 All 419 and in (S) AIR 1956 Madh B 1 (FB) on grounds which can be explained.

We must say with utmost respect that the learned Judges have not properly appreciated the ratio decidendi in Shankar Lal's case. The reasoning behind that judgment is that the right to claim pre-emption under Mohammedan Law must exist not only on the date of the sale but also on the the date of the institution of the suit and also on the date of the decree and that if that right is lost for any reason after the coming into force of the Constitution the very rule of the Mohammedan Law disentitles the pre-emptor to claim preemption. If one agree with the latter proposition, there is no inconsistency in the judgment and Article 13(1) is given no retrospective effect. But as we have pointed out that that proposition is too broadly stated. In our opinion, there is nothing in Mohammedan Law to warrant the proposition that the right of pre-emption is lost, except by the change in the status of the pre-emptor as aforesaid. The observation in Shankar Lal's case, ILR (1954) 4 Raj 310: (AIR 1954 Raj 231),

'that the Jaw is that the right must subsist not only on the date of sale but also on the date of institution of the suit and the date of decree',

must be understood to apply to the cases where the status of the pre-emptor is lost or forfeited under the Mohammedan Law as explained above.

28. The Madhya Bharat High Court has taken the view that if the sale had taken place before the date of coming into force of the Constitution and the suit had also been instituted before that date, the right of pre-emption to claim a decree is in no way affected. It, however, expressed no opinion on the question as to what must be taken to be the law if the sale takes place before the date of the coming into force of the Constitution and the suit is instituted after that date. Dixit J., without expressing any firm opinion on the subject has opined that if the right of pre-emption becomes a vested right on the institution of the suit to enforce it, then clearly the plaintiff cannot be granted a decree for pre-emption. This is, if we may so, a conditional statement of law.

In the case before us, we have to determine when the right of pre-emption becomes a vested right, whether on the date of the sale, or on the date of the institution of the suit to enforce it. We may, in this connection again revert to tho observations of the Supreme Court in AIR 1958 SC 838, that the secondary right of pre-emption is to follow the thing sold. That right is also called a remedial right by their Lordships. Now the remedial right pie-supposes a complete right to acquire property by instituting a suit and thus the vesting of right is complete in the pre-emptor prior to the institution of the suit. As soon as the sale is complete, a full-fledged right to pre-empt becomes vested in the pre-emptor to follow the property sold and this can be enforced by filing a suit for pre-emption.

29. NO doubt the Mohammedan Law enjoins formalities of talabs but the non-performance of talab results in the loss of the right of pre-emption. It cannot be inferred that there is no right to preempt in the pre-emptor because of the requirement of talabs. We may, in tills connection, again refer to Section 531, at Page 694 of the Mohammedan Law by Tyabji:

'A person otherwise entitled to claim preemption, loses that right if he expressly or impliedly waives it, or omits duly to assert, demand or enforce his claim, or acquiesces in the sale of the land, or any part thereof, notwithstanding that ho may have already asserted and demanded it, or associates in a suit to enforce pre-emption a co-plaintiff who has no claim to it and in that manner waves part of the claim, and extinguishes the whole of it.'

The non-performance of the talabs is given by the learned author in the paragraph relating to the loss of Right of Pre-emption, and according to the learned author, the right is lost if there are omissions duly to assert demand. This again leads to the conclusion that there is a complete right to follow the property even before the talabs are performed. The right to follow the property arises as soon as there is sale of the property. In the very nature of things by performing the talabs, the pre-emptor is insisting and conveying to the vendor his intention to follow the property or to take the property. We do not find anything in the Mohammedan Law from which it can be said that the right of pre-emptor does not vest in him as soon as there is complete sale and it vests only in him when he performs the talabs or when he institutes the suit. We are, therefore, of opinion that if the sale has taken place at any time before the coming into force of the Constitution, the pre-emptor claiming his right to pre-emption on the ground of ownership of adjoining property is entitled to enforce it by way of a suit, even though the suit may be filed after the coming into force of the Constitution.

30. This takes us to the fourth point on the subject, which has been stated by us, as follows --

'Whether under the custom relating to preemption as prevalent in the Jaipur City, a co-sharer is entitled to share equally with the vendee the property sold even in case the vendee is a co-sharer and the pre-emptor has no preferential right. If so, whether this custom can be upheld even after coming into force of the Constitution.'

30a. We may state at once that under the custom as prevailing in Jaipur City, the right of pre-emption is co-extensive with the Mohammedan Law. On this point, we may refer to the case of Ram Raich v. Mst. Gulab, ILR (1955) 5 Raj 650: ((S) AIR 1955 Raj 140), in which this proposition of law has been accepted. There is considerable divergence of the opinion as to whether any co-sharer has a right of pre-emption when the other co-sharer is the purchaser. In Lalla Nowbat Lall v. Lalla Jesan Lall. ILR 4 Cal 831, it was held that there was no rule of Mohammedan Law giving one co-parcener any right of pre-emption where another co-parcener is the purchaser. Garth C. J. observed as follows:

'There appears to be no reason, either upon principle or authority, why the right of shaffa should exist as between co-parceners; and the rule as laid down in Hamilton's Hedaya, Vol. III, Bk. 38, Ch. 1, appears to have been misunderstood in this respect. * * * * * The only result of such a sale would be to give the purchaser a larger share in the joint property than he had before, and perhaps larger than the other co-parqeners have.'

But in Enatullah v. Kowsher Ali, ILR 54 Cal 266: (AIR 1926 Cal 1153) (SB), this view was overruled by a Special Bench of the Calcutta High Court. The Allahabad High Court has taken the view that where a vendee is a pre-emptor in equal degree, the pre-emptor has a right to pre-empt to an equal extent. Reference may be made in. this connection to Muhammad Yaqub v. Kanhai Lal, ILR 44 All S3 : (AIR 1922 All 157), Ziauddin v. Md. Abul Hasan, ILR 45 All 487 : (AIR 1923 All 520) and Nadir Husain v. Sadiq Hussain, ILR 47 All 324: (AIR 1925 All 361). Reference may also be made in this connection to the Full Bench case of the Bombay High Court in Vithaldas Kahandas v. Jamietram Maneklal, ILR 44 Bom 887: (AIR 1920 Bom 343) (FB). The same view was taken by Fazal Ali J. in Ramautar Singh v. Brij Kishore Prasad Singh, AIR 1933 Pat 653, where it has been, stated that --

'It seems to be settled law now that according to the Mohammedan law of pre-emption, where both the vendee and the pre-emptor are in the category of pre-emptors, the result is not the dismissal, of the suit, but that the property must be shared by the two claimants.'

But the force of these authorities is much shaken by the observations of the Supreme Court in AIR 1958 SC 838, which have been quoted above. It has been held that preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. It was observed that the vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. After examining the provisions of the Punjab Pre-emption Act, their Lordships further observed that --

'The provisions do not in any way enable the pre-emptor to exercise his right without establishing his superior right over the vendee or the person substituted in his place or to prevent the vendor or the vendee, by legitimate means, to defeat his right by getting substituted in place of the vendee a pre-emptor with a superior right to or an equal right with that of the plaintiff.''

31. In our opinion, the above pronouncement of the Supreme Court sets at rest the controversy and clearly lays down 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.'

32. The Law of Pre-emption based on custom as prevailing in the Jaipur City being co-extensive with that of the Mohammeden Law, the principle enunciated by their Lordships of the Supreme Court in AIR 1958 SC 838, apply to the right of pre-emption enjoyed under the custom as obtaining in the Jaipur City. We are, therefore, of opinion that where the pre-emptor and vendee are co-sharers, the pre-emptor has no right of pre-emption and his suit must be dismissed. We may also arrive at the same conclusion by holding that a custom which permits a co-sharer to pre-empt even in case of a sale of the property to another co-sharer of that property is not a reasonable restriction within the meaning of Article 19(5) of the Constitution, as there is no purpose served by dividing the property between the co-sharers. In this connection we may adopt the reasoning given by Garth C. J. in ILR 4 Cal 831.

33. This exhausts the relevant points for the disposal of the appeals before us.

34. Now we proceed to apply the principles enunciated by us to the appeals under consideration. We have held that the plaintiffs in Civil Second Appeal No. 7 of 1954 cannot claim any pre-emption under Section 15(a) and (b) of the Alwar Act after the coming into force of the Constitution and these clauses of Section 15 are void, we have also held that in clause (c) that portion which relates to the vesting of the right of pre-emption in the owners of the patti or other subdivision of the estate, within the limits of which such land or property is situate, is also void. We express no opinion with regard to the other portion of Clause (c). As the sale however in this case had taken place before the coming into force of the Constitution, the right of the plaintiffs to claim pre-emption is not defeated. In this view of the matter, Civil Second Appeal No. 7 of 1954 (Civil Reference Nathu Ram v. Patram) which is on behalf of the vendee is dismissed. The parties will bear their own costs throughout.

35. In Civil Second Appeal No. 134 of 1954 (Civil Ref. 60 of 1959 -- Ram Dayal v. Mangilal), it has been held by Bapna J. that it was not now open to the plaintiff to press his case that he had spouts and windows towards the land which was the subject of pre-emption. We have further held that Section 16 so far as it relates to the granting of the right of pre-emption to the owner of the contiguous land in the vicinity is concerned, is void, after the coming into force of the Constitution under Article 13(1), but the sale in this case had taken place on 9-11-1949 which was prior to the coming into force of the Constitution and though the suit was filed on 2-11-1950, yet we are of opinion that the pre-emptor is entitled to pursue his remedy as provided under the Alwar Act as his right to recover the property sold had accrued to him on the date of sale. In this view we have differed from the view taken by this Court in ILR (1.954) 4 Raj 310: (AIR 1954 Raj 231). We are of opinion that the point referred by Rapna J. should be so answered. This appeal shall go to the Single Judge for decision on other points which have been summarised at the end of the judgment by Bapna J.

36. Coining to Appeal No. 130 of 1954 (Civil Ref. No. 76 of 1959 -- Kalyan Bux y. Madan Gopal and Anand Behari), we are of opinion that under the custom relating to preemption prevalent in the Jaipur City, a co-sharer is not entitled to share equally with the vendee in case the vendee is a co-sharer and the pre-emptor has no preferential right. We have further held that such custom is void after the coming into force of the Constitution. As the sale had taken place after the coming into force of the Constitution, the suit had been rightly dismissed by both the lower courts. The appeal, therefore, fails and is dismissed. The parties will bear their own costs throughout.


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