OAK, J. :- The following two questions of law have been referred to us :-

1. Whether a custom of pre-emption is void under Art. 13 of the Constitution irrespective of the fact whether it gives a right of pre-emption to a shafi-i-sharik, a shafi-i-khalit or a shafi-i-jar ?

2. Whether a custom of pre-emption is void under Art. 13 of the Constitution in so far as it gives a right of pre-emption to a shafi-i-khalit who is merely the owner of an easementary right in the property sought to be pre-empted ?

2. This reference has arisen out of two suits for pre-emption. Suit No. 584 of 1955 arose in district Bareilly. In that case Mohammad Nabi defendant, who was the owner of a certain house, sold it to Mahoob Hasan and Ayub Hasan, defendants Nos. 1 and 2 for Rs. 500. Ram Bharosey Lal filed the suit for acquiring the property basing his claim on his right of pre-emption. The learned Munsif City Bareilly, dismissed the suit on the ground that the custom of pre-emption was hit by Art. 13 of the Constitution, and was void. That decision was reversed in appeal by the learned 1st, Additional Civil and Sessions Judge. Bareilly. He held that the plaintiff was entitled to pre-empt the propert