KARTHIYANI Vs. NARAYANA MENOKI

JUDGEMENT

(1.) The Judgment of the learned Judge (Madhavan Nair, J.) holding that the rules of Muhammadan Law are applicable to the exercise of the right of pre emption by an ottidar in Malabar has not been supported by counsel for the respondent on the grounds and reasons given therein, and we think, quite rightly. This would normally have resulted in the allowance of these appeals and the restoration of the decrees passed by the learned District Judge.

(2.) However, counsel for respondent has contended before us that there has not been a fair and proper determination of the market value of the equity of redemption payable to him in the suit for specific performance (O. S. No. 38 of 1954) instituted against him by the appellant. We think that in the circumstances of the case, while declaring and recognising that the appellant before us has the right of pre emption, it is only just and proper that there should be a fair determination of the market price payable for the equity of redemption. On the same being determined, the Trial Court will pass a decree for specific performance on payment of the said amount.

(3.) Counsel for respondent raised before us a constitutional point that the right of pre emption of the Ottidar in Malabar is unconstitutional as violative of Art.14 and 19(1)(f) of the Constitution. The two rulings of the Supreme Court in Krishna Prasad v. Gouri Kumari Devi AIR 1962 SC 1464 and Sant Ram and others v. Labh Singh and another AIR 1965 SC 314 were relied on. These rulings were concerned with the right of pre emption on the ground of vicinage. The special features of the said right and the inequities it created, noticed by the Supreme Court, are absent in the case of pre emption by an ottidar. Besides, we are concerned here with the exercise of a right of pre emption by a person who had an antecedent right in the property, unlike the cases of pre emption on the ground of vicinage, considered by the Supreme Court. This seems to us to make a material difference. We reject the contention of counsel for respondent that the right of pre emption of an Ottidar in Malabar is violative of Art.14 or Art.19(1)(f) of the Constitution.