JUDGMENT - (1) Two questions bearing on the law of pre-emptions have been referred to us by the learned chief Justice on the recommendation of Justice Miabhoy. these questions are:-

(1) Has the right of pre-emption become void under Article 13 read with Article 19 of the Constitution of India?

and

(2) Did the law of pre-emption prevailing in the former Hyderabad state require that the right should subsist on the date of the decree also?

In Civil Reference No. 14 of 1959 the Civil Judge, (Junior Division), Pardi, has referred one question to the High Court. That question is whether the custom of pre-emption is inconsistent and void under the Indian Constitution of 1950. The learned Chief Justice has referred the question to us.

(2) We heard both the matters together and at considerable length. My learned brogher proposes to examine in detail the arguments advanced before us as well as the various decisions, which were cited at the bar. since the main question that is, whether the law of pre-emption has been rendered void by the Constitution is of considerable importance, I wish to express, though very briefly, my opinion thereon.

(3) It was urged, on behalf of the appellants in Second Appeal No. 1743 of 1957 and the defendants in the Civil reference No. 14 of 1959, hat the law of pre-emption imposes undue and unwholesome restrictions on the right to hold and dispose of property that it operates as a clog on the right of transfer of property and that the law is not in accordance with the principles of justice, equity and good conscience and, therefore, it is violative of the provisions of Article 19(1) (f) of the Constitution. Since accortding to them, it is violative of those provisions, it has been rendered void by the provisions of clause (1) of Acrticle 13 of the Constitution.

(4) Mr. V. S. Deshpande, who appeared for the appellants and Mr. R. A. Jahagirdar, who appeared for the defendants contended gthat an unbridled right to pre-emnpt a sale conferred by the Mohammedan Law, which has been applied in certain parts of India as costomary law is an unrasonable restriction on the right to dispose of property and that, where such a right is based merely on vicinge, there is nothing therein to commend it. In support of their contentions that a right of pre-emption conferred by the Mohammedan Law has been rendered void by the Constitution, they relied upon the decisions in Moti Bai v. Kand Kari Channayya, AIR 1954 Hyd. 161; Rangnath v. Babu Rao, (S) AIR 1956 Hyd. 120; Panch Gujar Gaur Brahmans v. Amar Singh, AIR 1954 Raj 100; Siremal v. Kanti Lal, AIR 1954 Raj 195; Kesar Devi v. Nanak singh, AIR 1958 Punj 44 and Babulal v. Gowardhandas, (S) Air 1956 Madh-B 1 (FB). I will leave it to my learned brother to examine these decisions in detail, but the sum and substance of all these decisions is that the right of pre-emption imposes an unreasonable restriction on the reight of a citizen to dispose of property and the law permitting the exercise of such a right is, therefore, unconstitutional.

(5) On behalf of the other side, that is the respondent in the appeal and the plaintiff in the reference, Messrs. S. J. Deshpande and H. R. Gokhale respectively contended that Article 13(1) does not render a customary law void even if that law is found to be in conflict with any of provisions of Part III of the Constitution. They further contended that the custom, which permits pre-emption, is not an unreasonable restriction on the right to hold or dispose of property, but, on the other hand, the right of pre-emption has been recognised in various countries and has many reasons to commend it. They further contended that the law of pre-emption is not in conflict with the provisions of Art. 19(1) (f) of the Constitution and that, therefore, it has nto been rendered void.

(6) I shall briefly dispose of Mr. Gokhales contention that Art. 13(1) of the Constitution does not touch a customary law at all and that it is limited in its application only to statute law

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