MULLA HAJI YUSUFALI Vs. PANDIT LAXMINARAYAN

JUDGEMENT

(1.) This appeal under Order 43, Rule 1 (u) of the Code of Civil Procedure comes before us on a reference under Rule 9 (2) (a) of the High Court Rules for consideration of a substantial question of law involving interpretation of the Constitution by a larger Bench.

(2.) The question is whether Section 11 sixthly of the Bhopal Pre-emption Act, 1934 (III of 1934) providing for a right of pre-emption "in the persons who own immovable property contiguous to the property sold" is void as offending against the provisions of Article 19 (1) (f) of the Constitution. It arises in this manner. By a sale deed dated 14 June 1955, the appellant 1 sold his shop situate in Bhopal town to the appellant 2 for a sum of Rs. 5,000/- without the consent or knowledge of the respondent, who owned immovable property contiguous to that shop. Since the respondent's request for being allowed to pre-empt the sale was not accepted, he filed the suit out of which this appeal arises. The Court of first instance dismissed the suit on the preliminary point that the relevant enactment giving a right of pre-emption on the ground of vicinage was void as contravening Article 19 (1) (f) of the Constitution. The lower appeal Court took a contrary view and remanded the suit for trial on merits. The correctness of that view is in controversy before us.

(3.) There can be no question that the law of pre-emption imposes a limitation or disability upon the ownership of property to this 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, Audh Behari Singh v. Gajadhar Jaipuria, 1955-1 SCR 70 : (AIR 1954 SC 417). Being a clog on the freedom of sale, it tends to diminish the market value of the property. It is a weak right and is not looked upon with favour by the Courts : Radhakishan v. Shridhar, AIR 1960 SC 1368. It has been allowed to be defeated by all legitimate means : Bishan Singh v. Khazan Singh 1959 SCR 878 (AIR 1958 SC 838).