BHAGWATI PRASAD SAH Vs. BHAGWATI PRASAD SAH

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High Court of Judicature at Patna and raises mainly the question of the scope of the right of pre-emption under the Mohamedan law as applied by custom in Bihar.

(2.) The facts lie in a small compass. On June 17, 1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares. Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless. On July 18, 1940, Ram Swarup sold one-half of the said property to the plaintiff-respondent 1. On July 27, 1942, the plaintiff-respondent 1 acquired under a patta some lands adjoining the said property. On October 10, 1949, defendant 3 (respondent 3 herein), alleging to be the husband of the said Parbati Kuer, sold the remaining half of the disputed property to defendants 1 and 2. It may be mentioned at this stage that the land on which the said house and golas stand is Dih-Basgit Lagani (rent-paying) land. On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre-empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him. To that suit, the first appellant and his two sons were made defendants 1, 2 and 2A and their vendor was made defendant 3. The defendants contested the suit, inter alia, on the ground that the ceremonies of pre-emption were not performed and that under the Mohamedan law the plaintiff was not entitled to pre-emption, as the land on which the said house and golas stood was "rent-paying" land. The learned Munsif dismissed the suit. But, on appeal the Subordinate Judge of Chapra allowed the appeal and granted a decree for pre-emption in favour of the plaintiff-respondent 1. On appeal, the High Court agreed with the Subordinate Judge and dismissed the appeal. Defendants 1, 2 and 2A have preferred the present appeal by special leave against the Judgment of the High Court.

(3.) Mr. Varma, learned counsel for the appellants, raised before us the following four points : (1) the right of pre-emption infringes the fundamental right of a citizen under Art. 19(1)(f) of the Constitution and it is not saved by clause (5) thereof : (2) the first respondent failed to establish his title and, therefore, his suit should have been dismissed on that ground; (3) the ceremonies of pre-emption were performed only on October 11, 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20, 1949 and, as the said performance of the ceremonies was premature, they having been performed before the sale was completed, the right of pre-emption could not be enforced; and (4) there is no right of pre-emption in respect of leasehold interest and, therefore, there cannot be a right of pre-emption in respect of a house standing on such land, as Mohamedan law does not recognize a right of pre-emption in mere super-structure.