RAM BABU CHAUDHARY Vs. SARASWATI DEVI

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit to enforce the right of pre-emption. Holding Nos. 85 and 72 in Mohalla Begumpur within the jurisdiction of Patna Municipal Corporation are contiguous the former belonging to the plaintiffs and the latter to defendants 1 and 2. On the 29th February 1956, defendants Nos. 1 and 2 conveyed their Holding No. 72 to defendant No. 3 by a registered instrument of sale for a consideration of Rs. 725/-. Plaintiffs alleged that they learnt about this sale on the 28th March 1956, and immediately thereafter they performed the necessary formalities of pre-emption and brought the suit for recovery of possession on the ground that they asked defendant No. 3 to re-convey the disputed holding to them on receipt of the price which he had paid to defendants Nos. 1 and 2, but he refused.

(2.) Defendant No. 3 resisted the suit and denied the performance of the formalities for preemption by the plaintiffs, and alleged that the plaintiffs had no right to pre-empt.

(3.) Both the courts below found that the two essential formalities for the exercise of the right of pre-emption were duly performed by the plaintiffs. They, however, came to the conclusion that the customary law of pre-emption violates the fundamental right guaranteed under Article 19(1)(f) of the Constitution of India, and, therefore, was unconstitutional. On this ground, they unsuited the plaintiffs and dismissed the suit. The plaintiffs have come up in second appeal.