Judgment

HANSARIA, J.:- The law of pre-emption is, historically speaking, a product of custom of the Mohamedan world. It came to be enforced here after the advent of Mohamedan Rule. To start with it was accepted as a part of custom and was applied by the courts, particularly in Northern India accordingly. It received statutory recognition in Section 22 of Hindu Succession Act, 1956. But this Court has regarded this right as archaic, feudal and weak in character.

2. In most of our States the law of pre-emption does not exist as at present. Even the Punjab Pre-emption Act of 1913 (as amended in 1960) has ceased to be a law in the State of Punjab. But in the State of Haryana, as well as in a part of walled city of Delhi, it still prevails. In the present batch of writ petitions and appeals whatever is left of this law after the decision by the Constitution Bench in Atam Prakash v. State of Haryana, AIR 1986 SC 859 has been assailed as violative of Article 14 of the Constitution and of Article 19(1)(f) as it was before its omission.

3. As the aforesaid attempt has been made despite the decision in Atam Prakash. it should be known as to what was decided in that case. Reference to that judgment shows that it relied on three earlier Constitution Bench renderings - these being in Bhau Ram v. Baij Nath, AIR 1962 SC 1476; Sant Ram v. Labh Singh, AIR 1965 SC 314 and Ram Sarup v. Munshi, AIR 1963 SC 553. In Bhau Rams case this Court was concerned, inter alia, with the constitutionality of Section 16 of the Punjab Pre-emption Act, 1913, which conferred right of pre-emption in respect of urban immovable property on co-sharers also. The Constitution Bench did not uphold the contention that this restriction offended Article 19(l)(f) of the Constitution. This is what was stated in this regard in paragraph 11.

"... We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of general public. If an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The result of the law of pre-emption in favour of co-sharer is that if sale takes place the property may eventually go into the hands of one co-sharer as full owner and that would naturally be of great advantage................."

4. Sant Ram Bench referred approvingly to Bhau Rams decision. In Ram Sarup this Court had examined the validity of Section 15(1)(a) of the Punjab Pre-emption Act, 1913 before its amendment in 1960. It was noted in paragraph 16 that the objects behind conferring rights of pre-emption were 5 in number. In paragraph 19 it was thereafter stated that the ground, namely, that the next in succession should have the chance of retaining the property has a nexus and the same has rendered the restriction reasonable and in the interest of general public. It was pointed out in paragraph 21 that a successor like a son would have legitimate expectation of succeeding to the property - an expectation founded on and promoted by the consciousness of the community. The very strong sentimental value that is attached to the continued possession of family property was also taken note of in holding that restriction on the right of free alienation imposed by S. 15(l)(a), limited as it was to be small class of near relations of vendor, was neither unreasonable nor against the interest of general public.

5. Atam Prakashs case (AIR 1986 SC 859) had examined the constitutionality of Section 15(l)(a) of the Punjab Pre-emption Act as amended in 1960. Clause (b) as amended conferred the right of pre-emption in its sub-clause "Fourthly" on "other cosharers". The Constitution Bench, after referring to Bhau Rams case (AIR 1962 SC 1476) upheld that right and took the view that it was founded on a valid classification and did not infringe either Article 14 or 15 of the Constitution its constitutionality qua Article 19(l)(f) having already been upheld in Bhau Rams case (AI