The customary law of pre-emption is constitutional and valid.

Kanhaiya Singh, J.

1. The suit in which this appeal has arisen was brought by Srimati Sudama Devi, who is respondent No. 1 to this appeal, to enforce a right of preemption to which she claimed to be entitled under a custom alleged to be prevailing in the State of Bihar. Two plots of land situate in the town of Chapra, viz., plots Nos. 460 and 462, are contiguous, the former belonging to the plaintiff and the latter to Musammat Kabutra Devi, defendant No. 2 each containing a house. It is averred by the plaintiff that on 25th December, 1951, she purchased orally from defendant No. 2 two dhurs forming the western portion of plot No. 462 measuring 1 katha. Thus, only 18 dhurs out of this plot remained with defendant No. 2, and it is this land over which the right of pre-emption is claimed and which forms the subject-matter of the present litigation.

2. The suit property was conveyed by defendant No. 2, to defendant No. 1, the appellant before us, by a registered instrument dated 29th December, 1951. It is said that as soon as the plaintiff received information of the sale she asserted her right of pre-emption and immediately repeated the same in the presence of witnesses on the disputed land, as required by the Mahomedan law. In other words, she performed the two essential formalities, which are prerequisites to the enforcement of the right of pre-emption, viz., talabi Mowasibat and talab-i-ishhad. She further asked defendant No. 1 to reconvey the the disputed land to her on receipt of the price which he had paid to defendant No. 2. As defendant No. 1 refused to comply with this demand, the present suit was brought.

3. Defendant No. 1 alone contested the suit. He denied that the plaintiff was entitled to a right of pre-emption. He denied also that she made the two demands (talabs) in the proper manner, as required by the Mahomedan law. He urged that, by reason of non-compliance with the essential prerequisites to a claim for pre-emption the suit was liable to be dismissed.

4. The learned Munsf held that the plaintiff had a right of pre-emption but since in his opinion the requisite demands which are mandatory under the Mahomedan law were not made by the plaintiff, he dismissed the suit.

5. From this decision, the plaintff preferred an appeal. She reiterated the ponts urged before the learned Munsif. Defendant No. 1, apart from the defence in Court below, challenged also the constitutional validity of the customary law of preemption on account of infraction of the provisions of Article 19(1) (f) of the Constitution. The learned Subordinate Judge who heard the appeal found that the essential demands, which arc mandatory under the Mahomedan law, were made by the plaintiff and that she was entitled to pre-empt.

As regards the plea of voidness of the law of pre-emption, he held that it did not impose any unreasonable restriction on the right of a person to purchase a property and was, therefore, protected by Clause (5) of Article 19 of the Constitution. . He accordingly decreed the suit. Now, defendant No. 1 has come up in Second Appeal.

6. This appeal first came before a Division Bench of this Court. It is now well settled that a finding that the requisite formalities for the exercise of the right of pre-emption were duly complied with is a finding of fact, which cannot be challenged in Second Appeal. Mr, Ras Bihari Singh appearing for the appellant rightly did not contest the correctness of the findings of the lower appellate Court. He urged, however, that whatever may be the legal position prior to the commencement of the Constitution the customary law of pre-emption is now rendered void by reason of infraction of Article 19(1) (f) of the Constitution. In view of divergence of judicial opinion among the different High Courts, this matter was referred to Full Bench for an authoritative ruling. Thus, the question proposed to the Full Bench is whether the customary law of pre-emption is void under Article 13(1) read with Articl