JUDGMENT Srivastava, J.
1. These are two second appeals arising out of two pre-emption cases. It will be convenient to deal with them together because they involve a common, question of law.
2. S.A. No. 620 of 1957 is a defendants' appeal. Srimati Kesri Begum, the second respondent in that appeal owned two houses in the town of Milak in the district of Rampur. By a sale-deed dated 4th of December, 1953, she sold the two houses to the appellant. The respondent no. 1 Sri Labh Singh owned a house adjacent to the houses sold. He sought to pre-empt the sale on. the ground that there was a custom of pre-emption prevalent in the town of Milak in accordance with which he, being a Shafi-e-jar was entitled to have the two houses in preference to the appellants. He, therefore, claimed the two houses in enforcement of his right of pre-emption. The suit was contested on various grounds. The existence of the custom of pre-emption relied upon was denied. The performance of the necessary Talabs was disputed and it was also pleaded that the plaintiff could not claim a right of pre-emption because a strip of land measuring three feet and six inches separating the plaintiffs house from the property sold had not been sold and was still being retained by the vendor. The other pleas raised were repelled but the last mentioned plea was accepted by the trial Court which on that ground dismissed the suit.
The plaintiff questioned the decision of the trial Court in appeal. The lower appellate Court confirmed the findings of the trial Court on the other question involved tut did not agree, about the loss of the plaintiffs right of preemption on the ground that a strip of land immediately adjacent to his house had not been sold. The learned Civil Judge was of the opinion that the device adopted to defeat the plaintiff's right was a fraudulent, imperfect and insufficient one. It was argued before the learned Civil Judge that on the coming into force of the Constitution, the law of pre-emption under which the plaintiff claimed, had become void but the plea was not accepted. The appeal was, therefore, allowed and the plaintiffs suit was decreed. The vendee then filed a second appeal in this Court and among the questions which were raised on his behalf in this Court was the question, relating to the constitutionality of the law in question after coming into force of the Constitution. Mr. Justice V.D. Bhargava before whom the appeal came up for disposal was of opinion that authorities on the point were conflicting and that the question was one which deserved consideration by a Division Bench. He, therefore, framed the following question and referred it to a Division Bench for consideration :
"Whether after coming into operation of the Constitution, the right of pre-emption is contrary to the provisions of Article 19(1)(f) read with Article 13 of the Constitution, or is it saved by Clause (5) of Article 19 ?''
3. In the other Second Appeal No. 2656. of 1959, Irshad Ahmad and Iqbal Ahmad sold a house situated in the town of Varanasi by a sale-deed dated 4th of June, 1954, in favour of Srimati Karam Ilahi'. Alleging that a custom of pre-emption was prevalent in the town of Varanasi, Ikhtiar. Ahmad sought to pre-empt the sale. He questioned the correctness of the consideration entered in the sale-deed and claimed to have performed the necessary Talabs. The suit was contested on various grounds. It was pleaded that he had no right of pre-emption, that he had not performed the Talabs that the suit was barred by estoppel and acquiescence and that the consideration entered in the sale deed was the real consideration.
4. In the trial Court, the plaintiff claimed to be a Shafi-e-jar as well as a Shafi-e-Khalit. He alleged that his house was situated just adjacent to the house in dispute on the north. He also alleged that he shared in the amenities and appendages of the house sold inasmuch as the water of his house and the water of the house, in dispute flowed through the same drain. The vendee also claimed to be a sharer in the appendages of the house in dispute as she alleged that she was the owner of a house situated on the east of the house in dispute and the water of her house also flowed through the same drain through which the water of the disputed house flowed.
5. The trial Court held that there was a custom of pre-emption of which the plaintiff could get advantage and that the necessary Talabs had been performed. About the consideration, it held that the real consideration was Rs. 1900/- as entered in the sale-deed and not Rs. 1500/- as alleged by the plaintiff. That the plaintiff had a house adjacent to the house in dispute and could on that account claim to be a Shafi-e-jar wag not disputed but the learned Munsif was of the view that the plaintiff could not claim to be a Shafi-e-Khalit, as it was only a public drain through which the water of the plaintiff's house and that of the disputed house flowed. There was, therefore, no sharing in any common appendage. The plea of the defendant that she also shared an appendage to the house was rejected on the ground that the house on the east of the house in dispute of which the defendant claimed to be the owner really belonged not to her but to her husband. The gift which the plaintiff claimed had been made in respect of that house by her husband in her favour was not held to be proved. The plea of estoppel and acquiescence was rejected. The plaintiff's suit was, therefore, decreed.
The defendant went up in appeal against the decree. The appellate Court took the view that on the coming into force of the Constitution, the portion of the law of pre-emption which gave a person a preferential right to get a property on the ground of vicinage had become unconstitutional. The plaintiff could not, therefore, base his claim on the ground that he was a Shafi-e-jar. Differing from the trial Court, the appellate Court held that the alternative claim of the plaintiff that he was a Shafi-e-Khalit was well founded as he did in fact share one of the appendages of the house in dispute. It was of opinion that that part of the law of pre-emption which entitled a Shafi-e-Khalit or Shafi-e-Sharik to claim a preferential right to have a property had not been affected by the Constitution. The findings about the existence of the custom, the performance of the Talabs and the consideration were upheld. It was also held that no case of estoppel or acquiescence had been made out. The decree passed by the trial Court was, therefore, confirmed and the appeal was dismissed.
6. The vendee came up in second appeal to this Court and two points were urged on her behalf. The first wag that the entire law of pre-emption under the Mohammadan Law became void under Article 13 of the Constitution, as It imposed; an unreasonable restriction on the fundamental right of acquiring and holding property guaranteed under the Constitution, and the plaintiff could not, therefore, claim a right of pre-emption on the ground that he was a Shafi-e-Khalit or Shafi-e-jar, The other contention was that the plea of estoppel and acquiescence ought to have been accepted. Both the points were considered to be of importance deserving consideration by a larger Bench and the appeal was, therefore, referred to a larger Bench. That is how it has come to us.
7. The question of law which is thus common to both the appeals is whether on the coming into force of the Constitution, the customary law of pre-emption according to Mohammadan Law has become void and in particular whether that portion of the law which entitles a person to pre-empt on the ground of vicinage or sharing in appendages has become bad.
8. Before addressing ourselves to this question, we would like to dispose of the second contention raised in Second Appeal no. 2656 based on the ground of estoppel and acquiescence. The plea of estoppel and acquiescence was rested in the present case on the allegation that the plaintiff bad full knowledge of the transaction of the sale in favour of Shrimati Karam Ilahi and at his instance certain recitals had been made in the sale-deed. It was contended that on that account, the plaintiff could not be allowed to pre-empt the sale. There is on this point the concurrent findings of fact recorded by both the Courts below that the defendants' allegations were not established. The trial Court held:-
"It is not satisfactorily made out that the plaintiff had taken any part in the transaction or sale maturing in favour of defendants 1 and 2 or that be had any knowledge of it prior to the actual transfer .......'' The lower appellate Court agreed and said:--
10. Reliance was, however, placed on a Full Bench decision in Kutina Bibi v. Baikuntha Chandra Dutta, AIR 1961 Assam 1. That case appears to be clearly distinguishable on facts and cannot be of any help to the appellants. In that case a share in the joint property had been sold. The plaintiff also claimed to be a cosharer on the ground that he owned a specific share in the property and sought to pre-empt the sale on that ground. The share which the plaintiff chimed had earlier been sold by another cosharer along with that qosharer's own share. It was the purchaser at that sale who had subsequently made the sale that was being sought to be pre-empted. It was held that as long as the earlier sale of the plaintiff's share by the other cosharer remained uncancelled the plaintiff had no right to maintain a suit for pre-emption on the ground that he was a cosharer. The facts of that case have thus nothing in common with the facts of the present case.
11. Coming to the question of law raised in the two appeals, it has been found as a fact in both the cases now before us that there was a custom of pre-emption prevalent in the two localities in which the properties in dispute in these two cases existed viz., the town of Milak in the district of Rampur and in the town of Varanasi. The incidents of that custom of pre-emption were the same as those provided in Mohammadan Law. It has also been found as a fact in both the cases that the necessary Talabs had been performed and that the plaintiff in the two cases had a right of pre-emption. In Second Appeal No. 620 of 1957, the right of pre-emption was based on vicinage and the plaintiff has been held to be a Shafi-e-jar. In the other case, Second Appeal No. 2656 of 1959, the plaintiff has been found to be a Shafi-e-jar as well as a Shafi-e-Khalit.
12. It is, however, contended on behalf of the appellants in the two appeals that whatever may have been the position till the 25th of January, 1950 when the Constitution came into force on the 26th of that month, all rights of preemption came to an end. The law of pre-emption became void under Article 13 of the Constitution because at encroached on the fundamental right guaranteed in Article 19 of it. When Second Appeal no. 2656 of 1959 was being argued before Mr. Justice Lal, reference appears to have been made to Article 31(1) of the Constitution also. No reliance was, however, placed on that provision when the case was being argued before us and it is, therefore, unnecessary For us to refer to it.
13. The case as put forward on behalf of the appellants is that under Article 19(1)(f), all citizens of this country have a right to acquire, hold and dispose of property. Any existing law in force on the date of the corning into force of the Constitution became void under Article 13 to the extent to which it was inconsistent with this fundamental right. The customary law of pre-emption in accordance with the Mohammadan Law was a law in force at the time when the Constitution came into force. Under that law, any person who could claim to be a Shafi-e-Sharik, a Shafi-e-jar or Shafi-e-Khalit, could compel the owner of a property who was intending to sell it to sell it to him and if the property was sold to another person, he could also compel the purchaser to allow him to let him have the property on the same price. This, it is contended, to a great extent fetters the vendor's right to dispose of the property in any way he likes and the purchasers' right to acquire and hold property. It is conceded that under Clause (5) of Article 19, reasonable restrictions in the interest, of general public can be imposed on the right guaranteed under Clause (1) (f) of the Article but it is urged that the restriction imposed by the law of pre-emption can in no way be considered to be reasonable and is in any case not in the interest of general public. Emphasis is laid in this connection upon the progress which Society has made during the last several centuries and it is pointed out that though it may have been necessary to restrict the right of transfer in the earlier stages of the society, the need cannot be said to exist now. It is stressed in particular that the right given to any person to claim a property only on the ground that he owns the adjoining property Or that he shares an appendage of the property cannot be justified on any ground whatsoever.
14. The question whether the validity of the law of pre-emption has been affected by the coming into force of the Constitution has been considered by the various High Courts in a number of cases but the decisions do not appear to be uniform. The question has been raised before the Supreme Court in Bhau Ram v. Baijnath Singh, Civil Appeal No. 270 of 1955 : (AIR 1961 SC 1327), an appeal by special leave from the decree of Judicial Commissioner's Court Vindhya Pradesh but as far as we are aware the question has not yet been decided.
15. The nature of the right of pre-emption under Mohammadan Law was considered by their Lordships of the Supreme Court in Audh Behari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417. There were two rival theories, one propounded by Mr. Justice Mitter in the Full Bench case of Sheikh Kudratullah v. Mahani Mohan, 4 Beng LR 134 (FB) and the other by Mr. Justice Mahmood in Govinda Dayal v. Inayatullah, ILR 7 All 775 (FB). According to the former, the right of preemption was nothing more than a mere right of repurchase not from the vendor but from vendee. According to the latter, however, the right was not a right of re-purchase either from the vendor or from the vendee involving a new contract of sale. It was simply a right of substitution entitling the pre-emptor, by reason of a legal incident to which the sale itself wag subject, to stand in the shoes of the vendee in respect of all the rights, and obligations arising from the sale under which he has derived his title, Mitter, J., had considerable doubt whether the burden and benefit of a right of preemption were incidents annexed to the lands but Mahmood, J., was positive that it was a right annexed to land. Their Lordships of the Supreme Court expressed their preference for the view of Mr. Justice Mahmood and agreed that the right was a right of. substitution and was an incident of property attached to the land itself. They were not prepared to accept that the right was an analogous to a right of easement and Mr. Justice Mukherjea who was delivering the opinion of the Court stated:--
''Analogies are not always helpful and even if there is resemblance between the two rights, the differences between them are no less material. 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 cosharer or neighbour as the case may be. The person who is a cosharer in the 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 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........"
In view of this pronouncement of the Supreme Court, it is not possible to contend that a right of pre-emption is not a restriction or fetter on the right to acquire, hold or dispose of property. The appellants are, therefore, correct when they contend that the right of pre-emption amounts to restriction on the right guaranteed by Article 19(1)(f) of the Constitution.
16. The question to be considered, however, is whether the restriction is reasonable and can be considered to be in the interest of the general public. If it is not, the law imposing the restriction must be held to have become void under Clause (1) of Article 13.
17. While deciding whether a restriction is a reasonable or not we have to bear in mind what the Supreme Court held in Dwarka Prasad Laxmi Narain v. State of U.P., 1954 SCR 803 ; (AIR 1954 SC 224) to be the meaning of the phrase "reasonable restriction'' used in Clause (b) of Article 19. It observed that "the phrase "reasonable restriction" imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature and beyond what is required in the interest of the public. The word "reasonable" implies knowledge, care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality."
18. In the State of Madras v. V.G. Row, 1952 SCR 597 at p. 607 : (ATR 1952 SC 199 at p. 200), Patanjali Sastri, C. J., laid down:--
"The test of reasonableness, wherever prescribed should be applied to each individual statute impugned, and no abstract standard, or general pattern of "reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given ease, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense or responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all ......"
19. The significance of the words "in the interest of the general public" used in Clause (5) of Article 19 must also not be lost sight of. The restriction must not only be reasonable but must also be in the interest of the general public. They can only be imposed in the public interest. Both the tests must be satisfied. It is not at all difficult to imagine a restriction which may be imposed in the interest of general public but which may not be reasonable. A restriction can only be in the interest of general public if it is meant for the good of the people in general and its purpose is either to prevent loss, inconvenience, harassment and disadvantages being caused to them or to improve their lot, status and condition and to make the life in society more pleasant, secure and harmonious.
20. While the question of reasonableness of the restrictions imposed by the law of pre-emption on the right to acquire and hold property is being considered, the limitations inherent in the law have to be taken in account. The right of preemption is granted only to a limited class of persons. The qualifications they must possess before they can claim that right are that they must either be cosharers in the property, or be sharers in appurtenances or appendages or they must own property in its immediate vicinage. The right accrues only in the case of a real sale. No other kind of transfer can rise to that right. Strict compliance is required of the technical requirements of enforcing the right. Pre-emption cannot be claimed on the ground of mere vicinage or participation in appendages where the estates are of considerable extent. The right is conceded to be a weak right and can easily be avoided by taking recourse to any of the well-recognised devices for defeating it. The pre-emptor only gets substituted for the vendee. He has to pay the full price and gets the property subject to all its liabilities and disabilities. The fetter put on the light of transfer or of acquiring and holding property is, therefore, very limited in nature and extent.
21. The origin of the right of pre-emption is shrouded in antiquity but there are indications to show that it has been recognised as a valuable right at one stage or the other in most ports of the world. As has been observed by M. Ullah S. Jung in his Preface to the Mohammadan Law of Pre-emption:
"It is very difficult to trace the origin of the Law of Pre-emption, but some sort of pre-emptive law is found to be prevalent almost in every part of the world. It was in existence in Babylonia and Egypt. It was known to the Jews. It was prevalent under the Roman Law. It was within recent time in vogue in Germany, it is now found in Norway, in Sweden, in Switzerland, in Austria, in France, in Italy, in Spain, in Russia, in the United States of America and also in England. It is also found in China and it was prevalent in Burma among the Buddhists, though it appears that there was no pre-emption under the Hindu Law. The Law of Pre-emption is even found in the modern International Law.''
22. The history of pre-emption in India was traced by Sir John Edge in Digamber Singh v. Ahmad Syeed Khan, ILR 37 All 129 : (AIR 1914 PC 11) in these words:-
"Pre-emption in village communities in British India Bad 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 and were adopted among village communities. In some cases the sharers in a village adopted or followed the rules of the Muhammadan law of preemption, 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 a particular village, and may have been adopted in modern times and in villages which were first constituted in modern times. Rights of preemption have in some provinces been given by Acts of 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 pre-emption, 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."
23. At some places, the custom of pre-emption has become prevalent an cities also and is applicable at such places to sales of houses. It will thus appear that for several centuries society in a large part of this country has approved of and recognised the law of pre-emption and has allowed it to prevail. It has always considered the right to be a valuable right. In a large part of the country, the law of pre-emption according to MOhammadan Law has been administered as a rule of justice, equity and good conscience. Only in the State of Madras and in a part of Bombay, the right has not been recognised. For a long time, therefore, in the major part of the country no exception has been taken to the reasonableness of the restriction imposed by the law on the right to hold and acquire property. On the other hand, society has actually been approving of the law and allowing it to be enforced.
24. There appear to be good grounds for this attitude of society towards this law. Some of the advantages which accrue from it are summed up by Saxena in his Muslim Law 1954 Third Edition at page 667 as follows :
1. The hardships and inconveniences of a joint owner would be greater than those of a stranger vendee, and in having him as his participator, it may happen that he may be required to abandon his property.
2. The democratic conception underlying the Muslim Law of inheritance tends to disintegrate the family property and the law of pre-emption considerably mitigates the evil.
3. Sharaya-ul-Islam has allowed this right, as division would cause loss and damage.
4. The Hidaya has given recognition to the right of pre-emption to prevent apprehended inconvenience.
5. Again it explains that the ground principle of shufaa is the conjunction of property and its object is to prevent the vexation arising from a disagreeable neighbour.
25. The right of pre-emption given to a cosharer or a Shafi-e-Sharik has obvious advantages, It is the desire of every community to maintain the integrity of its property and to avoid disharmony. If a stranger is allowed to intervene and acquire a part of the property, difficulties are likely to be created not only for the stranger himself but also for the other cosharers. Harmonious enjoyment of the joint property, therefore, can be secured only if a cosharer is given a preferential right to purchase the share of another cosharer. The grounds on which the recognition of a right of pre-emption in favour of a cosharer of a village can be based were summarised by Kapur, J. in Uttam Singh v. Kartar Singh, AIR 1954 Punj 55 as follows :
1. To preserve the integrity of the village and the village community;
2. to avoid fragmentation of holding;
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; and
5. to promote private and public decency and convenience.
The considerations are applicable with equal force to cosharers of properties in cities where the law of pre-emption is enforceable by custom.
26. The grounds on which the law of preemption can be justified in the case of cosharers can be utilised without much modification to the case of Shafi-e-Khalit i.e. persons who are cosharers in appurtenances and appendages. Difficulties, friction, disharmony, litigation and pinpricks at all times can easily be avoided if the right of preemption is recognised in the case of cosharers in appendages and easeraentary rights. It was stressed in this connection on behalf of the learned counsel for the appellants in Appeal no. 2656 that in modern cities where there are big buildings containing flats belonging to different owners and where sanitary conveniences have been provided by the State or Municipal Corporations, a right of pre-emption granted to cosharers in appendages may instead of producing harmony result in disharmony. He cited instances where water of several houses flowed in a public drain or sewer and urged that that could not furnish a ground for granting a right of pre-emption to the owner of one of the several houses. Strictly speaking, however, the owners of two houses whose drains join a public drain or a public sewer cannot claim to be cosharers in a joint appendage. The public drain is not appendage to either of the two houses. In the case of two owners sharing the same appendage or even in the case of various flats in the same building belonging to several persons, the existence of a right of pre-emption on the basis of vicinage or sharing appendage will obviously make life more harmonious and avoid difficulties.
27. It was, however, urged vehemently that consideration that might arise in case of cosharers in property or appendages are not necessarily applicable to mere neighbours and pre-emption on the ground of vicinage cannot be upheld on any account. Such a right, it was said, was altogether out of keeping with the growing needs of modern society and the limited accommodation at its disposal. It may be conceded that human society and civilization has advanced considerably during the preceding centuries. Outlooks have widened The field of knowledge has increased and the pattern of behaviour has changed. But in spite of all this, human nature continues to be the same. Man has not yet been able to rise above the failings and weaknesses inherent in him. His actions are still swayed by the same emotions. He still craves for the same sense of security and freedom from interference by others. He continues to be attached to what he considers to be his with the same tenacity. He is instinctively suspicious of strangers and moves in his own group. The right of pre-emption had ats roots in these fundamental traits of human nature. As long as these traits are there, the needs to meet which the principles of this law were evolved, would continue and society wall continue to regard the restriction imposed by the law to be reasonable.
If in spite of all the advances which society claims to have made, these characteristics of human nature are still there, it is difficult to accept the contention that the law of pre-emption has become out-moded. Human nature being what it is, an undesirable neighbour may become a source of constant trouble, irritation and inconvenience. The ownership by a stranger of an adjoining house may sometime lead to conflicts and disturb the peaceful atmosphere of the place. It may on occasions lead even to a breach of peace. The right of privacy in respect of a domestic habitation is cherished as a valuable right by a large part of the community in particular by the Mohammadans. The right of pre-emption based on vicinage tends to protect the right and to prohibit its likely invasion. The law of pre-emption is therefore not without its good points. No exception appears to have been taken to the custom of pre-emption on the ground of unreasonableness at any time before the Constitution was enacted. Had the custom been unreasonable, it would never have been recognised and would not have been allowed to be enforced. We find no justification for the contention that though the law was reasonable upto the 25th of January 1950, it suddenly became unreasonable on the 26th of January of that year when the Constitution came into force.
28. It is also not possible to say that the restriction which the law of pre-emption, imposes on the right of property cannot be in the interest of the general public. It is in the public interest that the life of the community should be conducted with harmony and comfort. It is desirable that everything which may have a tendency to lead to disharmony, inconvenience or discomfort should be prevented. All rules meant for that end must, therefore, be held to be in the interest of the public in general.
29. Restrictions created by the law of preemption therefore fulfil both the requirements of Clause (5) of Article 19. The law cannot, consequently be struck down on the ground that it amounts to unauthorised encroachment on the fundamental right guaranteed by that Article.
30. As we have said, the decisions on the question of the continued validity of the law of pre-emption after the coming into force of the Constitution disclose conflicting opinions.
31. In this Court, the question was raised first in Abdul Hakim v. Jan Mohammad, AIR 1951 All 247. It was urged in that case that the provisions of the Agra Pre-emption Act) (XI of 1922) had become invalid under Article 13 of the Constitution after its enactment. They imposed an unreasonable restriction on the right of the parties. The contention was rejected by Mr. Justice Bind Basni Prasad, who observed :
"The law of pre-emption is not an innovation. It has been in existence an this country for a long time. The fundamental reason behind it is that a stranger should not be allowed to enter into the joint property so far as it is possible. Its aim is to prevent the fragmentation of the zamindari property and to help in its consolidation. We are all aware of the disputes which arise when a Zamindari property is held by a large number of co-sharers. Consolidation of Zamindari helps in its better management and increased production of wealth. It avoids litigation. Formerly, the law of pre-emption in this province was contained in the customary rules and in the Mohammadan law. In 1922 statutory recognition was given effect to this principle. The enactment of the Agra Pre-emption Act, 1922 is a recognition of the principle that the right of pre-emption is for the benefit of the society and that it is reasonable to give effect to that right. There is nothing inherently wrong in pre-emption."
32. In F. A. No. 12 of 1948, D/- 16-9-1960-Shamsuddin v. Madho Prasad a Division Bench of this Court considered the validity of the law of pre-emption. That case related to a pre-Constitution transfer and the Constitution not being retrospective an its effect, the question whether the custom relied upon in that case had been adversely affected by the coming into force of the Constitution was relevant as the right to pre-empt must subsist upto the date of the decree. The question was therefore considered and it was held that though the custom of pre-emption was a restriction on the right to acquire and hold property, it could not be struck down either on the ground that it was not in the interest of general public or on the ground that the restriction was not reasonable. It was further held that the custom did not. infringe Article 14 of the Constitution.
33. More recently, in S.A. no. 757 of 1960, D/- 13-1-1961, Siddiq Ahmad v. Ajodhya Prasad (All), Mr. Justice V. Bhargava also expressed the view that the law of pre-emption had not become void on the coming into force of the Constitution and could still be enforced. The view of this Court since 1951 has therefore been that the law of pre-emption continues to be a valid law even under the Constitution.
34. A Full Bench of the Punjab High Court in AIR 1954 Punj 55, had to consider the question whether the Punjab Pre-emption Act (I of 1913) had become ultra vires after the coming into force of the Constitution and answered the question in the negative. Subsequently, in Kesardevi v. Nanak Singh, AIR 1958 Punj 44, a Division Bench of that Court expressed the view that a right of pre-emption based on vicinage or contiguity was repugnant to the provisions of Article 19 of the Constitution. The conflict between the two decisions was, however, later resolved by another large Full Bench decision of that Court, in Sardha Ram v. Abdul Majid Mohd. Amir Khan, AIR 1960 Punj 196, where all learned Judges held unanimously that the provisions of the Punjab Preemption Act 1913 including those granting the right of pre-emption on the ground of vicinage continued to be valid and had not become ultra vires under the Constitution.
35. A Division Bench of Pepsu High Court in Bhag Singh v. Kartar Singh, AIR 1954 Pepsu 180 also held, that the Punjab Pre-emption Act of 1913 continued to be valid.
36. A Division Bench of the Bombay High Court in Bhimrao Eknath v. Ramkishan, AIR 1960 Bom 552 also came to the conclusion that the law of pre-emption continued to be a valid law and had not been rendered void by Article 13 read with Article 19(f) of the Constitution but based its decision on a somewhat different ground. It took the view that the right of pre-emption was by its very nature an incident of property and attached to the land itself. It was lex loci and governed the property situated in the locality where it was enforceable. Any person dealing with property in that locality, therefore, held the property subject to that right. The provisions in Article 19(f) of the Constitution had neither enlarged the right nor curtailed it It left it unaffected. The validity of the right was therefore not affected by the Constitution.
37. After the decision in Audh Behari Singh's case, AIR 1954 SC 417, the law of pre-emption must be held to be lex leci and the right to preempt recognised under the law is to be considered as attached to the property situated in the locality. But that by itself does not, if we may point out with respect, solve the problem. It may even then be contended that the lex loci is bad and the right conferred by it is not enforceable because the restriction imposed was unreasonable and did not fulfil the conditions required by Clause (5) of Article 19.
38. A Full Bench of the Nagpur High Court in Ramchandra v. Janardan, (S) AIR 1955 Nagpur 225, considered the question of the continued validity of Chapter XIV of the Berar Land Revenue Code, (1928) which conferred a right of pre-emption in respect of agricultural land. The provisions were held to be valid on the ground that the restriction imposed on the right to hold property was reasonable and in the interest of the public in general. The view taken was that the provisions were primarily intended for the benefit of the occupants of land with a view of consolidation of holdings and preventing their divisions and sub-divisions converting them into uneconomic holdings.
39. A Full Bench of the Madhya Bharat High Court in Babulal v. Gowardhandas, (S) AIR 1956 Madhya Bharat 1, considered the question whether the Gwalior Pre-emption Act (1992 Sm) which contained provisions relating to pre-emption had become void after the coming into force of the Constitution of India. All the three judges constituting the Full Bench upheld the provision conferring the right of pre-emption on the ground of co-ownership. Two of them upheld the right on the ground of sharing of easements, but all the three Judges unanimously struck down the right based on the ground of vicinage. A single Judge of the Madhya Pradesh High Court in Mohammad Umar v. Amir Mohammad, AIR 1958 Madh Pra 423 refused to strike down the custom of pre-emption according to Mohammadan, Law on the ground that the restriction imposed upon it on the right to hold property was unreasonable.
40. The two other courts which appear to favour the view that the law of pre-emption has become void are Hyderabad and Rajasthan High Courts. In Moti Bai v. Kandkari, AIR 1954 Hyd 161, a Full Bench of the former Court held that the right of pre-emption being a restraint on the right to dispose of property had become void under Article 13 of the Constitution and the decision was followed by a Single Judge of that Court in Rangnath v. Babu Rao, (S) AIR 1956 Hyd 120.
41. In the Rajasthan High Court, the question arose for the first time in Panch Gujar v. Amar Singh, AIR 1954 Raj 100 (FB). A custom conferring right of pre-emption on the ground of vicinage was questioned and a Full Bench of the Court held that the custom had become void after the coming into force of the Constitution as the restriction imposed was not a reasonable one. In that case, however, learned Judge accepted the Calcutta view taken about the law of pre-emption by Mr. Justice Mitter in 4 Beng LR 134, a view which was: later not accepted by the Supreme Court.
42. Following this Full Bench decision, a Bench of the Court in Shanker Lal v. Poonamchand, AIR 1954 Raj 231 held that the third clause of Section 3 of the Law of Pre-emption in Marwar which was based on vicinage had become invalid from 26th of January 1950. A Single Judge of the Court in Girdhari v. Jawala, AIR 1957 Raj 203 took the same view in respect of Section 15 of the Alwar State Pre-emption Act which also granted a right of pre-emption on the ground of ownership of adjoining property. The question relating to the Alwar State Pre-emption Act was later considered by a Division Bench of Rajasthan in Nathuram v. Patram, AIR 1960 Raj 125 but the earlier view was adhered to.
43. In all these cases the view that the law has become void is based principally on the ground that in the present advanced stage of society the recognition of the right was not reasonable or in the interest of the general public. We have already discussed how far this ground is tenable.
44. It will thus appear that though the decisions on the point are not uniform, the balance of authority lies in favour of the view that the law of pre-emption continues to be valid.
45. After giving our best consideration to the matter, therefore, we, have come to the conclusion that the preferable view is that the law of pre-emption including the provision conferring a right to pre-empt on a shafi-e-jar continues to be valid even after the coming into force of the Constitution. It does put a restriction on the right to acquire and hold property but the restriction cannot be said to be unreasonable or not to be in the interest of the general public.
46. Both the points urged in Second Appeal No. 2656 of 1959 are, therefore, untenable. No other point was pressed in connection with that appeal. That appeal must, therefore, fail and is dismissed with costs.
47. Our answer to the question referred to us in Second Appeal No. 620 of 1957 is that the right of pre-emption based on the ground of vicinage is saved by Clause (5) of Article 19 and has there fore not become void under Article 13 of the Constitution. With this answer that second appeal will now be listed before a learned Single Judge for disposal.