SANT RAM Vs. LABH SINGH

JUDGEMENT

(1.) In this appeal by certificate from the High Court of Judicature at Allahabad the appellants are the four original defendants in a suit for pre-emption filed by the first respondent. Kaiseri Begum (respondent No. 2) sold a plot and two houses in mohalla Gher Abdul Rehman Khan, Qasba Milak, Tehsil Milak, District Rampur, to the appellants on December 4, 1953. The first respondent Labh Singh owned the adjacent house and he claimed preemption on the ground of vicinage after making the usual demands. The suit was filed by Labh Singh in the Court of Munsif, Rampur who by his judgment dated September 25, 1955 held that there was a general custom of pre-emption in the town of Milak. He also held that Labh Singh was entitled to pre-empt and had performed the Talabs. He, however, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between Labh Singh's house and the property sold. He made no order about costs. There was an appeal by Labh Singh and the present appellants objected. The District Judge, Rampur allowed the appeal and dismissed the cross-objections. The appellants then filed a second appeal in the High Court of Allahabad. Mr. Justice V. D. Bhargava, who heard the appeal, referred the following question to a Division Bench:-

(2.) The question which was posed by Mr. Justice V. D. Bhargava was considered by this Court in connection with S. 10 of the Rewa State Pre-emption Act in 1946 in Bhau Ram vs. Baijnath Singh, (1962) 3 Suppl. SCR 724. This Court held by majority that the law of pre-emption on the ground of vicinage imposed unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by Art. 19 (I)(f) of the Constitution and was void. It was pointed out that it placed restrictions both on the vendor and on the vendee and there was no advantage to the general public and that the only reason given in support of it, that it prevented persons belonging to different religions, races or castes from acquiring property in any area peopled by persons of other religions, races or castes, could not be considered reasonable in view of Art. 15 of the constitution.

(3.) If this ruling applies the present appeal must succeed. Mr. B.C. Misra who appears for Labh Singh attempts to distinguish Bhau Ram's case, (supra). He contends that the earlier case was concerned with a legislative measure whereas the present case of preemption arises from custom. He refers to the decision in Digambar Singh vs. Ahmad Said Khan, 42 Ind App 10 at page No. 18 where the Judicial Committee of the Privy Council has given the early history of the law of pre-emption in village communities in India and points out that the law off pre-emption had its origin in the Mohammedan Law and was the result, some times, of a contract between the sharers in a village. Mr. Misra contends that Arts. 14 and 15 are addressed to the state as defined in Art. 12 and are not applicable to custom or contract as neither, according to him, amounts to law within the definition given in Art. 13 (3) (b) of the Constitution. He submits that the ruling of this Court does not cover the present case and that it is necessary to consider the question of the validity of the customary law of pre-emption based on vicinage.