Sheo Kumar Dubey v. Smt. Sudama Devi And Another

Kanhaiya Singh, J.:— 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.

2. 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 preemption is claimed and which forms the subject-matter of the present litigation. 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 preemption 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 preemption, viz., talabi Mowasibat and talab-i-ishhad. She further asked defendant No. 1 to reconvey 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 preemption. 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 preemption the suit was liable to be dismissed.

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

5. From this decision, the plaintiff preferred an appeal. She reiterated the pouts urged before the learned Munsil. 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 are mandatory under the Mahomedan law, were made by the plaintiff and that she was entitled to pre-empt.

6. 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.

7. 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.

8. 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 Article 19(1)(f) of the Constitution.

9. I may state at the outset that there is no dispute that the right of pre-emption is recognised by custom amongst the Hindus, who are either natives of or domiciled in Bihar, and it is governed by the rules of the Mahomedan law of pre-emption, except in so far as such rules are modified by such custom. It has been recently held by their Lordships of the Supreme Court in Audh Behari v. Gajadhar, AIR 1954 SC 417, that a long course of decisions has established the existence of such custom in Bihar, Sylhet and certain parts of Gujerat, and it is by reason of this custom that the plaintiff sought to enforce the right of pre-emption.

10. Further, it must be made clear that even customary law comes within the mischief of Article 13(1) of the Constitution. “Law”, as defined by sub-clause (a) of clause (3) of Article 13 of the Constitution includes “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”, and laws in force, as defined by sub-clause (b), includes.

“laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas”.

11. These definitions of ‘law’ and laws in force’ are thus comprehensive enough to include even custom or usage having the force of law. Therefore, customary law is clearly embraced by those definitions. Accordingly, if this customary law of pre-emption is in conflict with Part III of the Constitution, more particularly, as urged in this appeal, is inconsistent with the provisions of Article 19(1)(f) of the Constitution, it may be struck down as void, Hence, the principal question that falls for determination is whether it is violative of the provisions of Article 19(1)(f) of the Constitution.

12. Under the Mahomedan law, only three classes of persons are entitled to claim pre-emption, viz.,

(1) a co-sharer in the property (sliafi-i-sharik);

(2) a participator in immunities and appendages such as a right of way or a right to discharge water (shafi-i-khalit);

(3) owners of adjoining immovable property (shafi-i-jar).

13. The first excludes the second, and the second excludes the third. Therefore, the right of pre-emption on the ground of vicinage is by far the weaker right. The present case falls under the third category. Mr. Ras Bihari Singh preferred to confine his contention about the Constitutional invalidity of the law of pre-emption to the right of pre-emption founded on vicinage. In my opinion, the principle underlying the right of pre-emption, whether based on partnership or on vicinage, is practically the same, with this difference that in the case of a competition between a partner and a neighbour, the latter must yield to the former.

14. Having regard to the facts of this case, however, it is not necessary, as urged by Mr. Ras Behari Singh, to consider the other classes of the right of pre-emption. Hence, we are only concerned in this case with the right of a neighbour to exercise the right of pre-emption, and not with the right of other parties, like co-owners.

15. The right of shufaa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person. It may be stated that the right of pre-emption becomes enforceable only when there is a sale. When the sale has taken place, the purchaser is obliged to surrender the property to a neighbour or a partner seeking to enforce that right on receipt of the price of it by him. Accordingly, the person who takes the property by virtue of the right of pre-emption takes under or through the first purchaser as if he were taking it direct from the original vendor. The property is in fact sold by the original vendor, subject to the liability to be taken from the purchaser by any person entitled to the right of pre-emption. The effect of the law of preemption, is that even a purchaser for good consideration is deprived of his property simply because the neighbour had a preferential right to the property sold.

16. Now, the contention of Mr. Ras Bihari Singh is that the law of pre-emption violates the Constitutional guarantee for citizens of India to acquire, hold and dispose of property as enshrined in Article 19 of the Constitution. There is no justification, he went on to argue, to deprive a person of his property which he has purchased for valuable consideration, and in so far as the law of pre-emption operates to deprive a person of such property, it is indeed a clog on the right to acquire and hold property. Thera is a similar restriction on the power of the owner to dispose of the property as he liked. He cannot have freedom to negotiate for sale of his land in any way and with any person he liked. His right is conditioned by the right of his neighbour or partner to acquire that property.

17. He further argued that such a right is not protected by clause (5) of Article 19 of the Constitution, because it cannot be regarded as reasonable restriction on the exercise of the right to acquire, hold and dispose of property. In support of his contention, he referred to the Full Bench decisions of the Hyderabad High Court in Moti Bai v. Kand Kari Channaya, AIR 1954 Hyd. 161 (FB), the Madhya Bharat High Court in Babulal v. Gowardhandas, (S) AIR 1956 Madh B. 1 (FB) and the Rajasthan High Court in Panch Gujar Gaur Brahmans v. Amar Singh, AIR 1954 Raj 100 (FB) and also to a Special Bench decision of the Rajasthan High Court in Nathuram v. Patram, AIR 1960 Raj 125 and to a decision of the Division Bench of the Rajasthan High Court in Shankerlal v. Poonamchand, AIR 1954 Raj 231. These cases support his contention.

18. On the other hand, the learned Government advocate appearing for the respondents contended that the right of pre-emption is an incident to property, and, therefore, the land is held by the vendor subject to the right of the third party to insist on being allowed to become purchaser, if the vendor should ever sell the land to another person. Since it is a right attaching to the land, the purchaser takes the property subject to that right, and if the person entitled to the right of pre-emption claims that property, he cannot complain that he has been deprived of the right guaranteed to him by the Constitution.

19. He urged that when this right attaches to the land and the purchaser takes it subject to that incident, there is no violation of Article 19(1)(f) of the Constitution, inasmuch as the right to hold and dispose of properties is in no way circumscribed. Reliance was placed upon the Full Bench decisions of the Allahabad High Court in Gobind Dayal v. Inayatullah, ILR 7 All 775, the Nagpur High Court in Ramchandra v. Janardan, AIR 1955 Nag 225 (FB) and the Bombay High Court in Dashrathlal v. Bai Dhondubai, AIR 1941 Bom 262 and also upon the Full Bench decision of the Punjab High Court in Sardha Ram… v. Haji Abdul Majid, Etc.…, AIR 1960 Punj 196 (FB) and the Division Bench decision of the Bombay High Court in Bhimrao v. Patilbua Ramkrishan, AIR 1960 Bom 552. These decisions support his contention and have laid down that the customary law of pre-emption is valid and constitutional. We are thus confronted with conflicting decisions of the different High Courts, and the solution of the question, in my opinion entirely depends upon the nature of the right of pie-emption under the Mahomedan law.

20. Formerly, there was a conflict of decisions as to whether pre-emption is a mere personal right or an incident of property. The view that weighed with the Calcutta High Court was that the right of pre-emption was a personal right, a right of repurchase from the buyer. The majority decision of the Full Bench of the Calcutta High Court in Shaikh Koodrutoollah v. Mohinee Mohun Shaha, 13 Suth WR (FB) 21 laid down that the right of pre-emption, was not a right that attaches to the land but was a personal right. Macpherson and Norman JJ., however, differed from the majority view and held that it was an incident to the ownership of the property and the vendor possessed the property act absolutely but subject to the right of pre-emption and the purchaser took the property subject to that right. In their opinion, it was not a personal right.

21. The Full Bench of the Allahabad High Court, however, differed from the majority view of the Calcutta High Court, and accepting the minority view, laid down in Gobind Dayal's case, ILR 7 All 775 that the right to claim pre-emption is not a personal right but a right which attaches to the and. Mahmood J., who delivered the leading judgment of the Full Bench, has observed that under Mahomedan law, the right of pre-emption is not a right of re-purchase either from the vendor or from the vendee, involving a new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which he derived his title. It is, in effect, as if in a sale deed the vendee's name were rubbed out and the pre-emptor's name inserted in its place.

22. Previously, the Bombay High Court accepted the Calcutta view as correct, but in a later case, AIR 1941 Bom 262, a Full Bench of the said Court has accepted the Allahabad view. It has laid down that the right of pre-emption is a right attached to land and not mere personal right. In this Court, a Division Bench in Achutananda Parsait v. Bild Bibi, ILR 1 Pat 578 : (AIR 1922 Pat 601) accepted the Allahabad view in preference to The Calcutta view.

23. The decision of the Privy Council in Sheoinaran Singh v. Kulsumunnissa, AIR 1927 PC 113, though not directly in point, lends considerable support to the view that the customary right of pre-emption is a right annexed to the land and not a mere personal right.

24. The entire controversy now has been set at rest by their Lordships of the Supreme Court in AIR 1954 SC 417, wherein the view taken by the Allahabad High Court that it was not a mere personal right but an incident annexed to the land has been accepted as correct. In order to appreciate the precise nature of the law of pre-emption, it will be necessary to reproduce here the observations of their Lordships of the Supreme Court. They have observed as follows:

“In our opinion it would not be correct to say that the right of pre-emption under Muhammaden law is a personal right on the part of the pre-emptor to get a re-transfer of the property from the vendee who has already become owner of the same ……It is true that the right becomes enforceable only when there is a sale but the right exists and ??? to the sale, the foundation of the right being the avoidance of the inconvenience and disturbances which would arise from the introduction of a stranger into the land. We agree with Mr. Justice Mahmood that the sale is a condition precedent not to the existence of the right but to its enforcibility………The correct legal position Seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's ion-fettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled, even though it does not amount to an actual interest in the property sold.

25. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the tide of the owner restricting his right of sale in a certain manner, a “bona fide” purchaser “without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.”

26. Their Lordships have laid down that the burden and benefit of a right of pre-emption are incidents annexed to the lands belonging respectively to the vendor and the pre-emptor and is not the right merely one of re-purchase, which a neighbour or co-sharer enjoys under Mahomedan law, and which he can enforce personally against the vendee in whom the title to the property has already vested by sale.

27. In a recent case, Bishan Singh v. Khazan Singh, AIR 1958 SC 838, their Lordships of the Supreme Court, while considering the Punjab Pre-emption Act (1 of 1913), have summarised the law of preemption as follows:

“(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of repurchase i.e, the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) That right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.”

28. It is thus evident that the entire land is clogged with an encumbrance in the shape of the right of pre-emption. It is not a personal right; the vendor possesses the property not absolutely, but subject to the right of pre-emption. The vendee thus purchases the property not as a whole free from all liabilities, but as one impressed with a particular quality or incident. It creates a defect in the title of the vendor, and the vendee thus acquires an imperfect title, which is defeasible in the event of the neighbour or the partner exercising his right of pre-emption. The vendee cannot plead ignorance of this infirmity in the land acquired; he will be fastened with the knowledge of the prevalence of the customary law of pre-emption. When the vendee knowingly takes the property subject to the liability to the claim of the pre-emptor, the inevitable consequence is that the right cannot avail him and cannot prevail against the superior right of the pre-emptor. When, on operation of the law of pre-emption, the property goes to the pre-emptor, there is indeed prima facie deprivation of the vendee of his property but it is not due to imposition by law as such; it is inherent in the transaction itself as a result of the exercise of the right of pre-emption by the neighbour or co-sharer, as the case may be. It is plain that the law of pre-emption does not forge any fetter on the right of a citizen to hold, possess and dispose of the property. The property, as it is, may be possessed or dealt with freely. It thus involves no infringement of the right guaranteed by Article 19(1)(f) of the Constitution; the right remains intact. When the very title of the vendor is subject to the right of pre-emption, the vendor cannot pass-to the vendee with notice a better tide than he himself had.

29. If the contention of the learned counsel for the appellant were to prevail, the Constitution operated to augment the right of the purchaser by freeing the property of all the obligation attaching to it. The purchaser had taken with his eyes open a property which was subject to a certain liability, and he cannot legitimately urge that the Constitution has increased his right by removing that liability. The purchaser had never any vested right which was not subject to the right of pre-emption. In effect and in essence, the law of pre-emption does not operate to divest a person of a vested right. He had never any vested right to take the property free from any disability. In my opinion, it is quite plain that when the property is charged with any liability or obligation, whether created by a covenant or by any law, the person purchasing the same with notice of the said liability or charge would be bound in the same way as the vendor was bound. Neither in law nor in equity the purchaser can even claim a right higher than what the seller himself possessed.

30. As laid down by their Lordships of the Supreme Court in Director of Endowments, Govt. of Hyderabad v. Akram Ali, (S) AIR 1956 SC 60, the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. On the date of the Constitution, therefore, the property was subject to the right of pre-emption, and the purchaser having notice of the same took the property subject to that liability, and, therefore, the pre-emptor has the right to follow the property in the hands of the purchaser and to enforce his right against him. Therefore, my considered view is that the customary law of pre-emption does not violate the provisions of Article 19(1)(f) of the Constitution.

31. I now proceed to examine the cases relied upon by both sides. The view I have expressed is supported by the Bench decision of the Bombay High Court in Bhimrao's case, AIR 1960 Bom 552, referred to above. Mudholkar J. has summarised the legal position as follows:

“Article 19(1)(f) of the Constitution merely guarantees to the individual the right to acquire, hold and dispose of property. But it does not give a citizen a larger right to hold or dispose of property than what the citizen possessed in that property before the Constitution came into force. Thus, where prior to the commencement of the Constitution, a person holding certain property had restricted rights to the enjoyment thereof because of the personal law governing the person or because the property was inalienable by custom, he would not get the property freed from those restrictions merely as a consequence of the coming into operation of the Constitution. Similarly, where a property was subject to any easement or any other burdens, those burdens would not evaporate merely because the Constitution has come into force. What Article 19(1)(f) guarantees is a right to hold the property in the right in which that property was acquired or owned by the individual and to dispose of that property. Now, it is not disputed that the right to dispose of property has not been taken away by the custom of pre-emption. This custom has merely placed restrictions on the right to sell property and certain person or persons have been given a preferential right to purchase the property from the owner thereof.”

32. I am in respectful agreement with this view. More or less, the same view has been expressed in the other cases relied upon by the learned Government Advocate, to which reference has been made in the earlier part of the judgment, and, therefore, it is fruitless to examine them in detail.

33. Adverting to the cases, on which the learned counsel for the appellant relied, the decisions of the Full Bench in the case of Moti Bai, AIR 1954 Hyd 161 (FB) and in the case of Panch Gular Gaur Brahmans, AIR 1934 Raj 100 and the Bench decision in Shankerlal AIR 1934 Raj 231, based upon the latter Full Bench decision, cannot be regarded as correct, because they proceed on the principle that the right of pre-emption is not a right which attaches to the land, but is a personal right a principle held by the Supreme Court in the case of Audh Behari, AIR 1954 SC 417 to be erroneous.

34. The Special Bench decision of the Rajasthan High Court in the case of Nathuram, AIR 1960 Raj 125 and the Full Bench decision of the Madhya Bharat High Court in the case of Babulal, (S) AIR 1956 Madh B. 1 (FB) deserves careful consideration. These decisions were given after the pronouncement of their Lordships of the Supreme Court in the aforesaid case of Audh Behari. Their Lordships of these two High Courts accept the view that the right of pre-emption is not a personal right, but is an incident of the property. They consider, however, that the said decision of the Supreme Court does not alter the constitutional position. In their view, the right of pre-emption may be a right running with the land; nevertheless it places a restriction on the right of a citizen to acquire, hold and dispose of property, and, therefore irrespective of the nature and the incident of the right of pre-emption the law of pre-emption is violative of the provisions of Article 19(1)(f) of the Constitution. With great deference to the learned Judges, I fail to appreciate the reasons on which those decisions proceed. They take only the limitation created by the law of pre-emption on the vendor's absolute right to sell property and on the vendee's right to acquire property wherever and from whomsoever he likes and hold that this limitation in itself is sufficient to warrant the application of Article 19(1)(f) of the Constitution. In my opinion, it is not correct.

35. In order to judge whether or not the provisions of Article 19(1)(f) are violated, it is necessary to consider not only the limitation but also how the limitation arises. If the prima facie limitation on the right of a citizen to hold and dispose of property is not due to imposition by the Impugned law itself, but is implied in or springs from the nature of the property itself, there is, in my opinion, no violation of the constitutional guarantee embodied in Article 19(1)(f). That the law of pre-emption indirectly imposes restrictions on the owner's unfettered right of sale and on the vendee's right of purchase is self-evident. In his celebrated judgment in the case of Gobind Dayal ILR 7 All 775 (FB), Mahmood, J. recognised this limitation and observed that the right of pre-emption

“is indeed not an absolutely unqualified disability, for it does not absolutely prohibit sale without the consent of he pre-emptor. But that it amounts to a qualified disability, distinctly operating in derogation of the vendor's absolute right to sell the property, and thus affects his title, which would otherwise amount to absolute dominion, cannot, in my opinion, be doubted”.

36. The Supreme Court, in the case of Audh Behari, AIR 1954 SC 417 endorsed this view and laid down as follows:

“The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be.”

37. But, Mahmood J. has also laid down, and the Supreme Court has approved of it, that the rule of pre-emption creates a kind of legal servitude running with the land. It does not directly impose restriction upon the power of a citizen to acquire, hold and dispose of property; it creates a right which attaches not to the owner but to the property itself, with the result that the right of preemption runs with the land and cannot be separated from the land and transferred without it. It is this inherent disability which entitles the pre-emptor to follow the property in the hands of the purchaser. It rather takes away some of the elements of ownership. A citizen's freedom of sale or purchase remains unaffected; it is the property that is affected by the application of the law of pre-emption. When the property itself is defective, no matter whether that defect is brought about by operation of law or custom, the defective nature of the property cannot be ignored in determining whether or not the customary law of pre-emption involves the violation of Article 19(1)(f) of the Constitution, and when it is judged from that point of view, there is evident no kind of restriction on the power to hold or dispose of that property.

38. The fallacy in those decisions is that they ignore of the foundation of the limitation. When the right of pre-emption is considered as an incident running with the property, and there is no doubt about that, there is no escape from the conclusion that there is no restriction whatsoever ??? the freedom of sale and purchase. The prima facie limitation on the power of disposal manifests from the defectiveness of tide to property, and such a limitation does not come within the purview of the guarantee embodied in Article 19(1)(f) of the Constitution.

39. This may be judged also from another point of view. Assume, for instance, that two persons joindy purchase a piece of land and enter into an express contract that neither of them would have the right to sell his share without the consent of the other and further that if either of them sells his share without the consent of the other, the latter will have the right of re-purchase from the vendee on payment of the stipulated price. Assume further that one of the co-partners sells his share without the consent of the other and a stranger purchases it with notice of the covenant. In such a case, the other co-partner will be enticed in law to force the purchaser to re-convey the property to him on acceptance of the price agreed upon, for the simple reason that he had, with his eyes open, purchased the property subject to the liability attaching to it. In fact, there is a provision for such a contingent contract in the Indian Contract Act (see Chapter III).

40. I see no difference between an obligation arising out of contract and an obligation created by operation of law. It can not be reasonably argued that the law which provides for such a contract is invalid, because it imposes restriction on the absolute power to sell or purchase property and thereby contravenes the provisions of Article 19(1)(f) of the Constitution. On this analogy also, the law of pre-emption which operates as an incident to the property cannot be regarded as violative of the provisions of Article 19(1)(f) of the Constitution.

41. Assuming, though not admitting, that the law of pre-emption creates a limitation on the right of a citizen freely to hold, acquire and dispose of property, such a limitation, in my opinion, is protected by clause (5) of Article 19 of the Constitution, because it is in the interest of the general public, namely, the neighbours and the co-partners in the property. The foundation of the rule of preemption is “apprehended inconveniences.” The main object is to prevent the instruction (intrusion?) of a stranger under a sale. The intrusion of an unwanted stranger is most likely to give rise to inconvenience and disturb domestic peace and tranquillity, “if not, as in some cases, lead to breach of the peace”. The Supreme Court has also’ observed in the case of Audh Behari, referred to above, that the foundation of the right of pre-emption is the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. It is undeniable that because of the presence of a stranger with a different temperament, disposition, habits of life and religious persuasion, the life of a neighbour or a co-partner may be rendered wholly uncomfortable and in convenient. In order to ensure a peaceful life, it is essential that the persons who are neighbours or co-partners must have some common standard of life, and in order to ensure harmonious life and homogeneous society, it is necessary to prevent as far as possible a stranger, who is likely to be offencive and injurious to the neighbour or co-partner.

42. The authorities cited by the learned Government Advocate lay down the following principal objects of the law of pre-emption: (1) to preserve the integrity of the village and the village community; (2) to implement the agnatic theory of law; (3) to avoid fragmentation of holdings (4) to reduce the chances of litigation and friction and to promote public order and domestic comfort; (5) to meet the needs of a particular society at a particular stage of evolution. From this point of view, the limitation imposed by the law of pre-emption may be regarded as reasonable in the interest of the general public.

43. Mr. Ras Bihari Singh, however, contended that the law of pre-emption was the characteristic of an archaic society and that in a progressive and advancing society like the Indian society, there is no longer any rational basis and justification for such a rule of law. He contended that such a law tends to create stagnation of the society and prevents free movement and improvement in agriculture, whereas the object of our Constitution is to establish a Welfare State, wherein all persons will have equal rights and privileges. This contention is no doubt prima facie plausible, but, on a closer examination, it is wholly unsound.

44. Our Constitution is no doubt designed to bring into existence a welfare society, and the society is no doubt progressing and advancing from day to day, casting away some of the past prejudices and assumed privileges. Nevertheless, the social pattern in essential aspects is the same. The fundamental thing which this contention overlooks is that the advancement of the society is not in the direction of promiscuous mixing. The rule of law is Still the foundation of our Constitution, which implies peaceful enjoyment of property and reasonable amount of privacy. The very individual liberty which is enshrined in the Constitution, and which we prize so much, includes the right to privacy, and consequently a law which enjoins privacy cats not be regarded as incompatible with a society the advance. It cannot be regarded as an ??? in a developing society like ours, as contended for by the learned counsel, because only recently the Parliament which is presumed to kaow the nature and the needs of the society, has ??? the rule of preemption in section 22 of the Hindu Succession Act 1956.

45. The law of pre-emption has been in existence in this country for more than a century, and the society has not developed so as to render it wholly useless. In my opinion, such a law secures to a neighbour or co-partner a peaceful and comfortable life and avoids litigation and ensures homogeacras society, and, therefore, such a limitation imposed by the law of pre-emption cannot but be regarded as reasonable in the interest of the general public.

46. I am fortified in this view by the decision of the Full Bench of the Punjab High Court in the case of Sardha Ram, AIR 1960 Punj 196 (FB), above-mentioned, which, on a review of various authorities has laid down that the restrictions imposed by the law of pre-emption are reasonable in the inter-tests of the general public. From this point of view, also, there is no infringement of Article 19(1)(f) of the Constitution. In sum, it must be held that the customary law of pre-emption as constitutional and valid. Accordingly, I would answer the question in the negative and dismiss the appeal. In the circumstances of the case, there will be no order for costs.

Ramaswami, C.J:— I agree.

Choudhary, J.:— I agree.

LE/R.G.D

47. Appeal dismissal.