JAGANNATH YESHWANT BADADE Vs. KAZI JANIMIYA MAINODDIN PATEL

JUDGEMENT

(1.) The only question which arises in the above second appeal and which was referred to the Division Bench, was whether the plaintiff was entitled to a decree for pre-emption having regard to the decisions of the Supreme Court in Bhau Ham v. Baij Nath Singh, AIR 1962 SC 1476, and in Sant Ram v. Labh Singh, AIR 1965 SC 314, where it was laid down that the customary law of pre-emption on the ground of vicinage imposed an unreasonable right to hold, acquire and dispose of property guaranteed under Art, 19 (1) (f) and was void.

(2.) The ground on which the learned Assistant Judge, in this case, distinguished the present case was that although the right of pre-emption based on custom, was void, according to the said decisions of the Supreme Court, the plaintiff's right to claim pre-emption on the basis of his personal law, which had continued to operate after the coming into force of the Constitution, was not affected by the said decisions.

(3.) Mr. Abhyankar, the learned counsel for the appellants, has rightly argued that the personal law of the plaintiff viz. Mabomedan Law, was itself based on custom as one of its sources, and, therefore, the learned Judge erred in law in making a distinction between pre-emption based on custom and pre-emption based on personal law. The contention must be upheld, as personal law must be also read subject to the provisions of the Constitution, The definition of the phrase "laws in force" in Article 13 (3) (b) was held to include law based on custom and usage in India; and the customary law of pre-emption on the ground of vicinage was held uncon-stitutional and void as it imposed unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by Arti-cle 19 (1) (f) of the Constitution.