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Rajasthan High Court, Full Bench
Wanchoo C.J., Bapna & Ranawat, JJ.
Panch Gujar Gour Brahmans - Appellant
Versus
Amar Singh - Respondents
C.S.A. No. 295 of 1951
Decided On : October 20, 1953
The reasonableness of a custom is not a constant factor and what is reasonable at one stage of the progress of society may not be so at another stage. The custom of pre-emption came to be followed in India after political domination by Muhammadan Rulers who brought with them their own traditions and law and as time went by the inhabitants of India accepted the custom of pre-emption in most part of India where Muslim domination had been clear and effective. The Sovereign Democratic Republic of India has guarnteed certain fundamental rights to every citizen of India and the reasonableness of the custom is now to be judged in the light of those fundamental rights, and unless the restrictions arising out of a recognition of the right of pre-emption based on the ownership of an adjoining property be reasonable and in the interest of the general public, the custom cannot be permitted to prevail. In a society where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity or class of people and in those times a right of pre-emption to oust a stranger from the neighbourhood may have been tolerable or even beneficial. Our Constitution, however, prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Art. 15 of the Constitution and guarantees a right to every citizen to acquire, hold and dispute of property except by a restriction which may be reasonable and in the interests of general public. Prima facie we have to lean towards the right guaranteed and keep the restriction within permissible limits and in that light the manners and customs which permitted the division of society into groups and exclusion of strangers from any locality should now be considered as unreasonable. On these principles the enforcement of the right of pre-emption of the third class i.e , as based on ownership of adjoining property is not a reasonable restriction on the right to acquire and hold property. (Para 10)
The fundamental rights conferred by the provisions of Part 3 of the Constitution are not conferred, subject to anything what may be contained in other parts of the Constitution. The restrictions, subject to which the fundamental rights are to be enjoyed, are contained in Part III itself. Therefore, the fact that Customary law continues to remain in force by virtue of Art. 372 will not save it from being declared void if it is hit by Art. 13 of the Constitution. (Para 14)
As the opening words of Art. 366 of the Constitution say, the words defined in that Article are to be assigned the particular meaning unless the context otherwise requires. The context in Art. 19 (5) requires that the words "existing laws" should be understood in their broad sense as including any kind of law and there is no doubt that the restrictions imposed by any customary law cannot be more sacrosanct than the restrictions imposed by Statute law and if they are unreasonable they would be void under Art. 13 of the Constitution. (Para 14)
Part III which enumerates and guarantees fundamental rights contains Arts. 12 to 35. In some of the Arts. the guarantee is against interference by the State, as, for example, Art. 13 (2), Arts, 14, 15, 16. 23 and 31. There are other Articles, the matters wherein are connected with the State as, for example, Arts 21 and 22. There are other Articles in which the State is not at all concerned as for example, Arts 24, 25 (1), 26, 27, 28, 29 and 30. Art. 19 is, however, a mixed Art. where certain rights are guaranteed to the citizens of India, subject to certain restrictions which may be imposed by the State. This Article does not say that a citizen will have no remedy if the rights are infringed by other citizens. It may be that if the rights are infringed by other citizens the remedy would lie in the ordinary law courts while if the infringement is by the State the remedy may lie both in the ordinary law courts and in the High Court or the Supreme Court under Art. 32 and 226 of the Constitution. (Para 19)
2. It was alleged that the house of the plaintiff-respondents No, 1 and 2 was situated adjoining the house property sold by respondents 3 to 5 to the appellants on 27th July, 1946, and the plaintiffs as soon as they came to know of the sale offered to pay the same price to the vendees and asserted their right of pre-emption. It was alleged that the vendors and the vendees failed to comply with the request of the plaintiffs. The suit was instituted on 4th March, 1947. The vendors did not put in appearance but the suit was contested by the vendees. They denied that the plaintiffs were owners of the adjoining property. They pleaded that the plaintiffs had failed to perform the requisite Talabs and further alleged that the plaintiffs had declined to purchase the property and were estopped from putting forward their claim.
3. The trial court after evidence found that the plaintiff had failed to prove that the plaintiffs were the owners of the house property adjoining the one sold. It was further held that the plaintiffs had failed to make the necessary demands by Talabs. The suit was accordingly dismissed. On the plea of waiver, the court found against the defendants. On appeal, the learned Civil Judge of Bundi came to the conclusion that the plaintiffs were owners of the property which was adjoining the house property sold by the vendors to the vendees. The appellate court also found that the plaintiffs had asserted their rights in good time. The judgment and decree of the lower court was, therefore, set aside and the suit was decreed in favour of the plaintiffs-respondents 1 and 2 for possession of the property on payment of Rs. 550/- within two months of the date of the decree. The vendees defendants filed a second appeal and one of the grounds argued before the learned Single Judge was that the right of pre-emption in Bundi was based upon custom and the said custom was an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed under Art. 19 of the Constitution and was, therefore, invalid. The learned Judge, who heard the case sitting singly, made a recommendation that as the question was of great importance and was involved in many other cases, a larger Bench may be constituted and the present Full Bench was, therefore, constituted under orders of the Honble the Chief Justice. The leaned Judge has referred the following question for answer by the Full Bench: —
"Whether the custom of pre-emption is an unreasonable restriction on the right to acquire, held and dispose of the property and is invalid, because it is contrary to the exercise of fundamental rights guaranteed by Art. 19 of the Constitution of India."
4. It was contended that under Art. 19(1)(f) every citizen has the right to acquire, and hold property for his own use and the law of pre-emption which entitles some other person to deprive the purchaser of that property is void as it does not come within the four corners of the saving clause which is clause (5) of the Article.
5. It was contended that the restrictions laid down by the Pre-emption Law were not reasonable or in the interests of the general public and of course they have no concern with the protection of the interests of any Scheduled Tribe.
6. The right of pre-emption in Bundi is not created by any enactment but is enforced by custom and this custom is said to be co-extensive with Muhammadan Law of Pre-emption, except in so far as any incidence of that right may have been modified by custom. Under the Muhammadan Law three classes of pre-emptors have been recognised:—
(1) Shafi-i-sharik i.e., one who claims pre-emption on the ground of being a co-sharer in the property,
(2) Shafi-i-khalit i. e., one who claims pre-emption as a participator in immunities and appendages such as a right of way o
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