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Allahbad High Court
V.G.OAK,D.D.SETH
Mahboob Hasan - Appellant
Versus
Ram Bharosey Lal - Respondent
Decided On : 08/23/1965
PRE-EMPTION - CUSTOM - VALIDITY - CONSTITUTIONALITY - ARTICLE 13 AND 19 - SHARI-I-SHARIK, SHARI-I-KHALIT AND SHARI-I-JAR - DISTINCTION - REASONABLE RESTRICTION - INTEREST OF GENERAL PUBLIC - CUSTOMARY LAW - DEFINITION - ARTICLE 366 - INTERPRETATION - SCOPE OF CLAUSE (5) OF ARTICLE 19 - EXTENT OF PROTECTION.
Fact of the Case:
Two suits for pre-emption were filed, one in Bareilly and the other in Muzaffarnagar. In the Bareilly suit, the plaintiff claimed pre-emption as a shafi-i-sharik (co-sharer), while in the Muzaffarnagar suit, the plaintiff claimed pre-emption as a shafi-i-khalit (participator in immunities and appendages). Both trial courts dismissed the suits, holding that the custom of pre-emption was void under Article 13 of the Constitution. On appeal, the lower appellate courts reversed the trial courts' decisions and held that the plaintiffs were entitled to pre-empt the properties. The defendants in both suits filed second appeals in the High Court.
Finding of the Court:
The High Court held that the custom of pre-emption is not void under Article 13 of the Constitution as regards pre-emption by a shafi-i-sharik (co-sharer). However, the custom of pre-emption is void under Article 13 of the Constitution as regards pre-emption by a shafi-i-jar (owner of adjoining immovable property). The court further held that whether the custom of pre-emption as regards a shafi-i-khalit (participator in immunities and appendages) is void or not will depend upon the nature of the claim. The court also held that the custom of pre-emption is void under Article 13 of the Constitution 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.
Issues: 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?
Ratio Decidendi: 1. The court held that the custom of pre-emption is not void under Article 13 of the Constitution as regards pre-emption by a shafi-i-sharik because it 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. 2. The court held that the custom of pre-emption is void under Article 13 of the Constitution as regards pre-emption by a shafi-i-jar because it imposes an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed by Art. 19(1)(f) of the Constitution. 3. The court held that whether the custom of pre-emption as regards a shafi-i-khalit is void or not will depend upon the nature of the claim. The court held that the custom of pre-emption is void under Article 13 of the Constitution 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 because such a restriction is not a reasonable restriction in the interest of general public.
Final Decision: The court answered the questions referred to it as follows: (1) The custom of pre-emption is not void under Article 13 of the Constitution as regards pre-emption by a shafi-i-sharik. Custom of pre-emption is void under Article 13 of the Constitution as regards pre-emption by a shafi-i-jar. Whether custom of pre-emption as regards a shafi-i-khalit is void or not will depend upon the nature of the claim. (2) The custom of pre-emption is void under Article 13 of the Constitution 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.
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 property upon payment of Rs. 500. Against the decision a second appeal has been filed in his Court by Mahboob Hasan and Ayub Hasan defendants. This is second appeal No. 3473 of 1959.
3. Suit No. 31 of 1956 arose in district Muzaffarnagar. In that case Sita Ram purchased certain property; and Atma Ram filed the suit for pre-emption. That suit was dismissed by the learned Munsif, Kairana on the ground that the custom of pre-emption is void under Art. 19(1)(f) of the Constitution. That view was accepted in appeal by the learned Additional Civil Judge of Muzaffarnagar. Atma Ram's appeal was dismissed. Atma Ram has now come to this Court in second appeal. This is second appeal No. 623 of 1959.
4. When these two second appeals came up before a learned single Judge of this Court, he noticed that there were conflicting decisions on the question whether the custom of preemption is void under Art. 13 of the Constitution. He, therefore, referred to a larger Bench the two questions of law quoted above.
5. Three different classes of persons may claim pre-emption :-
1. a co-sharer in the property (shafi-a-sharik).
2. a participator in immunities and appendages, such as a right of way or a right to discharge water (shafi-i-khalit), and
3. owners of adjoining immovable property (shaft-i-jar), (Principles of Mahomedan Law by D.F. Mulla, Fourteenth Edition, pages 211 and 212).
6. It will be seen that a person may claim the right of pre-emption on three separate grounds. As regards the validity of the law of pre-emption claimed by a shafi-i-sharik and shafi-i-jar, the point is now settled by two decisions of the Supreme Court. In Bhau Ram v. Baij Kath, AIR 1962 SC 1476, it was held that the law of pre-emption giving right of pre-emption to a co-sharer 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.
7. In Sant Ram v. Labh Singh, AIR 1965 SC 314, it was held that the customary law of pre-emption on the ground of vicinage imposes unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by Art. 19(1)(f) of the Constitution and is void.
8. These two decisions of the Supreme Court lay down authoritatively that a custom of pre-emption based on co-ownership is valid, whereas custom of pre-emption based on vicinage is invalid. It only remains to consider whether the right of pre-emption of a shafi-i-khalit can be recognised under the Constitution.
9. Under Art. 13 of the Constitution, all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the extent of
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