JUDGMENT Trivedi, J.
1. Defendant-respondent No. 2 Mohammad Husain was the owner of two shops. On 31-10-1955 he sold them to Jagdish Saran, appellant, The plaintiff-respondent. Brij Raj Kishore, who owned an adjoining shop filed the suit for pre-emption of the sale of the two shops on the basis of customary right of pre-emption on the grounds that the water of the roofs of the plaintiff's house and shop used to flow through the same spout along with the water of the shops sold, and that the beams of the plaintiff's shop rested on the wall intervening between the plaintiff's shop and the shops sold. He alleged that he approached the defendant Jagdish Saran also for executing the sale deed of the two shops in his favour, but he paid no heed, hence the suit for pre-emption.
2. The defendant-appellant contested the suit on numerous grounds including the ground that the custom relating to the right of pre-emption was ultra vires the Constitution. The trial court decreed the plaintiff's suit and the decree of the trial court was confirmed by the lower appellate court, hence this Second Civil Appeal.
The main question raised in the Second Appeal was that the custom of preemption set up by the plaintiff was void, as it violated Article 19(1)(f) of the Constitution. The learned Single Judge, before whom the appeal came up for hearing, referred the same to a Bench. The Bench was of the opinion that the matter deserved consideration by a larger Bench and that is why this appeal has been laid before us.
3. Mulla's Mohammedan Law specifies the classes of persons successively entitled to exercise the right of preemption as under:--
(1) A co-sharer In the property (Shafi-i-Sharik).
(2) A participator in immunities and appendages, such as a right of way or a right to discharge water (Shafi-i-Khalit).
4. What we have to decide is whether customary right of pre-emption on the ground set up by the plaintiff offends Article 19(1)(f) or not. In Bhau Ram v. Bail Nath Singh, AIR 1962 SC 1476, laws of three different States came up for consideration. The Supreme Court held that all laws of pre-emption impose restrictions on the fundamental rights of both the vendor and of the vendee to hold and dispose of property guaranteed by Article 19(1)(f). The Supreme Court then considered the question whether the various laws allowing pre-emption on different grounds were saved (sic) the Clause (5) of Article 19, i.e. whether they imposed reasonable restriction in the interest of the general public. It held that the laws conferring a right of pre-emption upon a co-sharer (Shafi-i-Sharik) imposed reasonable restriction in the interest of the general public; and observed:--
"If an outsider is introduced as a co-sharer in a property, it will make common management extremely difficult and destroy the benefits of ownership in common".
The Supreme Court also upheld the validity of the laws giving right of preemption to owners of properties, who had a common staircase with the property sold and who had a common entrance from the street with the property sold. The Supreme Court was of the view that pre-emption on these two grounds stood on the same footing as pre-emption by co-sharer. The law providing for pre-emption on the basis of vicinage (Shafi-i-Jar) was struck down as imposing unreasonable restriction on the fundamental right, observing:--
"We do not think that the restrictions placed by the law of pre-emption In a case based on vicinage have any effect on prices being reasonably fixed, and the main effect we can see is that the law may give rise to a crop of litigation. We cannot, therefore, see any advantage to the general public by such a law of pre-emption, and in any case, the disadvantage certainly overweighs the advantage that may result to a small section of the public".
Under one of the laws, under consideration, it was provided that the right of pre-emption in respect of urban immoveable property shall vest also: "where the sale is of a servant property, in the owners of the dominant property, and vice versa". But since in that case the right was not claimed on this ground, the Supreme Court did not pronounce upon its validity. The principles laid down by the Supreme Court in this case apply also to the customary law of the pre-emption.
5. We may now notice two decisions relating to the right of pre-emption on the basis of easementary right. In Mahboob Hasan v. Ram Bharosey Lal, AIR 1966 All 271, a Division Bench of this Court held that the custom of preemption in favour of a Shafi-i-Khalit, who merely enjoys an easementary right, was void, as it placed unreasonable restrictions on the fundamental rights guaranteed by Article 19(1)(f). The reason given for the decision is:--
"All that the owner of an easementary right may reasonably claim is continuation of his easementary right. Now, it does not appear that the sale of adjoining property endangers the easementary rights. Mere sale of adjoining property does not extinguish easementary rights".
With respect, we agree with this reasoning and with the decision in this case. In Sewa Nath v. Faqir Chand. AIR 1965 J & K 62 (FB) a Full Bench of the Jammu and Kashmir High Court held that the right of prior purchase conferred by Section 15 of the Jammu & Kashmir Prior Purchase Act on person in possession of an easementary right over the property sold did not offend Article 19(1)(f), as it did not place any unreasonable restriction on the right of alienation. The main basis of this decision is that the Supreme Court in Bhau Ram's case. AIR 1962 SC 1476 though it condemned the right of pre-emption on the ground of vicinage, did not condemn the right on the ground of easement. The learned Judges referring to the Supreme Court decision observed:--
"If they were of the opinion that the right of easement should not be up-held as a ground of pre-emption, their Lordships would have necessarily made that comment".
From this it has been inferred that the Supreme Court upheld the right of preemption on the ground of easement. With respect to the learned Judges, it appears to us that they have not correctly appreciated the decision of the Supreme Court. In the cases before the Supreme Court though the right of pre-emption was claimed on several grounds, in no case was it claimed on the ground of easement. It was, therefore, not necessary for the Supreme Court to consider this ground. The Supreme Court did not condemn this ground for pre-emption, simply because it did not arise for consideration and not because it approved of It
6. Let us now examine the right of pre-emption claimed by the plaintiff in the present case. The right is said to be based on two alleged easementary rights, namely. (1) the right to flow water through a common spout and (2) the right to rest beams on the wall intervening the shop of the plaintiff and the shops sold. From the Commissioner's map and the report on the record it appears that the water spout is situated at a place where the roof of the plaintiff joins the roof of the shops sold. Rain water from the roofs of the shops flows through this spout along with the outer wall. The water falling on the roof of the plaintiff's shop does not flow over the roofs of the shops sold, but directly through the spout. The finding recorded by the lower appellate court in this respect is in these words:--
"I agree with the finding of the learned Munsif and hold that the water of the roof of the plaintiff's shop used to flow through the same parnala along with the water of the roofs of the disputed shops".
This did not give the plaintiff any easementary right. The plaintiff and the vendor had a common right to discharge rain water through the common spout The lower appellate court had held that this right made the plaintiff a Shafi-i-Khalit entitled to pre-empt.
7. Regarding the second ground on which pre-emption. Is claimed, the lower appellate court has recorded a finding that the beams of the plaintiff's house (shop) rested on the wall of the disputed shops. But it has held that this right of easement did not make the plaintiff a Shafi-i-Khalit and did not entitle him to pre-empt the sale.
8. Every common right and every easementary right does not make a person a Shafi-i-Khalit. The customary right of pre-emption is a legacy of the Mohammadan Law and the texts on this law confine the right of pre-emption in the case of Shafi-i-Khalit to a partner in the right of a way or of water.
9. Bailie's Digest of Mohummudan Law while quoting 'Hidayah' at page 476 writes:--
"as to a small channel from which several lands or several vineyards are watered, and some of the lands or some of the vineyards watered by it are sold:--all the partners are pre-emptors, without any distinction between those who are and those who are not adioining. But if the channel is large, the right of preemption belongs to tihe adioining neighbour".
The nature of a partnership in water contemplated by the law givers there appears to be that of persons who are benefited by the private common channel. Right of water contemplated is right to the use of water. Neither the texts, nor the decided cases lav down that easements of all kinds conferred right of preemption in the nature of Khalit.
10. In Imambaksh Shah v. Muhammadali Khan. 223 Ind Gas 634 = (AIR 1946 Sind 551 it was laid down that where the owners of the land have the right to draw water from a Government watercourse they cannot claim the right of pre-emption as Shafi-i-Khalit. This does not make them co-sharers in appendages or give them easementary rights over the neighbour's land.
11. Similarly the Raiasthan High Court. Ladu Ram v. Kalyan Sahai, AIR 1963 Rai 195, has held that the right of pre-emption as Shafi-i-Khalit cannot be claimed on the basis of a right of light and air and that right does not extend to easements other than the right of way and water.
12. So far as the right to rest the beams on the wall of the disputed shops is concerned, this may be a right of easement but does not make the plaintiff a Shafi-i-Khalit but makes him a Shafi-i-Jar. In Ranchhoddas v. Jugaldas, (1877-78) ILR 24 Bom 414, a Division Bench of the Bombay High Court, after examining the texts and the text books, held that the right of support is not an appendage to property, but it is merely included in the incident of neighbourhood. The following passage from "Hammilton's Hedayah" is quoted and relied upon:
"The laying of beams on the wall of a house gives a right of Shafi from neighbourhood, but not from partnership in the property of the house. In the same manner also, a person who is a partner in a beam, laid down on the top of a wall is only held in the light of a neighbour".
Nothing has been shown to us which may persuade us to take a contrary view. The right of the plaintiff to pre-empt on the basis of the easement of resting his beams on the wall of the shops sold is a right of pre-emption by vicinage. Such a right has been held by the Supreme Court in Bahu Ram's case. AIR 1962 SC 1476 to be unconstitutional and un-enforceable. The plaintiff, therefore, cannot succeed on the basis of this easementary right.
13. The plaintiffs right to flow rain water through the common spout is not a right of easement, as it is not a right over somebody else's property. It is not a right over or in respect of the shops sold. On the basis of this right the plaintiff cannot claim to be a participator in the appendages of the shops sold and is not a Shafi-i-Khalit in that property. This right, thus, does not give the plaintiff any right of pre-emption.
14. Even if it be accepted that the plaintiff had a customary right of preemption on account of his right to flow rain water through the common spout, such a right, in our opinion, offends Article 19(1)(f) and is void. It was urged by the learned counsel for the plaintiff-respondent that this right is akin to a right of pre-emption by a co-sharer. We are unable to agree with this. It cannot be said in respect of this right, as was said by the Supreme Court in respect of the right of co-sharer, that the introduction of an outsider in the shops sold would make common management extremely difficult and would destroy the benefit of ownership in common. In fact, in the case before us no question of common management, at all, arises. As held by the Supreme Court, the right of preemption places restrictions upon the fundamental rights guaranteed by Article 19(1)(f) of both the vendor and the vendee. This restriction gives no benefit to the general public. The only possible advantage is to the pre-emptor and that is to ensure the flow of the rain water through the common spout. We do not think, this right of the pre-emptor is threatened by the sale. The spout remains a common spout even after the sale and the plaintiff's right to discharge the rain water through it is not affected by the sale. Even if the purchaser blocks up his portion of the common spout, the plaintiff can by fixing a spout a few inches on his side of the roof get over the difficulty. The disadvantages resulting from such a custom of pre-emption outweigh the advantages that may result to pre-emptors of this class.
15. We have, therefore, come to the conclusion that the plaintiff was not entitled to sue for pre-emption of the sale either on the basis of his right to rest his beams on the wall of the shops sold, or on the basis of his right to flow rain water through the common spout The courts below have erred in decreeing the plaintiff's suit for pre-emption. The appeal is, accordingly, allowed, the decrees of the courts below are set aside and the plaintiff's suit is dismissed with costs through out