Mohd. Ahmed Ansari, J.:— The constitutional question raised in three cases pending in a lower Civil Court is whether the right of pre-emption, as enforced by Courts in this State prior to the Constitution is restrictive of the fundamental right of acquiring, holding and disposing of property and therefore void under Cl. (1) of Article 13 after 25-1-1950.

2. The land, which Tulsibai seeks to preempt, was sold on 9-2-1950 by one Hulliah, defendant No. 2, to Irya, who is defendant No. 1 in the case. Motibai has instituted a similar suit, because a house has been sold on 27-1-1951, by one Mohd. Sultan to Chittia, the two defendants to her suit. In the third case Govardhan Das has filed a plaint alleging that on 30-5-1951, one Kamala Bai, defendant No. 2, has conveyed for Rs. 3,000 the house which is immediately adjacent to his shops and he is entitled to purchase it for the amount. A common plea raised in all the three cases is that before the Constitution the Mohamedan Law of pre-emption was regarded in this State as the law of the land, but after the Constitution such Law cannot be made applicable to those who do not profess the religion; hence the suits should be dismissed.

3. The Court in which the three suits were filed has referred the question to this Court under Section 113 of the CPC. A Division Bench on 17-2-1953, took the view that the question was of sufficient importance and therefore referred the cases to a Full Bench. When they were being heard before the Full Bench, it was considered that the appropriate procedure for inviting decision by this Court on the constitutional question would be by way of an application under Article 228 of the Constitution. Accordingly, Chittia, defendant No. 1 to Motibai's suit filed an application which has been referred to the Full Bench. As the personal law of the pre-emptors in each case is not Mohamedan Law and the sale of property in each is after the Constitution, it is obvious that the question whether the right claimed is violative of the fundamental right given by Sub-Cl. (1)(f) of Article 19, is common to all the three cases. We have, therefore, preferred to decide the question without insisting on applications under Article 228 being made in each case. The decision in the case of Motibai will in these circumstances cover the other two cases. The first point to be decided is whether the right of pre-emption was enforced in this State before the Constitution on the basis of the Mohamedan Law being the law of the land. In — ‘Gangaram v. Hari Bhav’ 10 Deccan LR 159 (A), the point decided by the Full Bench of five Judges, was about the starting points of the period of limitation for pre-emption suits under Article 7 of Sen. 2 of the Limitation Act (No. 2 of 1322 F), and it was held that though the right of pre-emption was under the Mohamedan Law and according to the law, the right to enforce it arose on the knowledge of the sale yet under the aforesaid Article the possession of property or the registration of the deed was deemed as amounting to the knowledge of sale. At p. 184, it was observed that the Mohamedan Law was the common law of the State and would be followed in absence of statutory or other order to the contrary.

4. Then in — ‘Manik Chand v. Channappa’, 20 Deccan LR 581 (B), a Full Bench of three Judges decided that the right of a Hindu to pre-empt arose under the Mohamedan Law and not on custom, and therefore when the pre-emptor dies during the pendency of his suit the right to continue does not survive to his heirs. Another case reported in— ‘28 Deccan LR 107 (C)’, also decides the same principle. So far as I am aware there is no authority insisting on all parties to the suit or the pre-emptor and the vendor being Moha-medans to justify the conclusion that pre-emption was enforceable on grounds of religious usage or equity and conscience as has been done by some other High Courts in this country. There is therefore considerable force in the argument that the right as enforced by the Courts in this State prior to the inauguration of the Constitution was not on the basis of custom or religious usage or rules of equity and good conscience.

5. But the ceasing of the Mohamedan Law as the law of the State does not necessarily lead to the absolute elimination of the right. The recognition of the right for a long time may give rise to custom and where such a custom exists, persons other than Mohamedans have been held entitled to exercise the right. In — ‘Jadu Lal Sahu v. Janki Koer’, 39 Ind App 101 (PC)(D), it was held that in Bihar the Mohamedan Law of preemption on basis of custom was enforceable between non-Mohamedans. At p. 107, Mr. Ameer Ali says:

“In the case of — “Fakir Rawot v. Sheikh Emambaksh’, Beng LR Sup Vol. 35 (FB) (D1), a Full Bench of the High Court of Bengal gave judicial recognition to the existence of the right of pre-emption among the Hindus of Behar. In delivering the judgment the Chief Justice (Sir Barnes Peacock) reviewed the earlier cases bearing on the subject, and held that “……a right or custom of pre-emption is recognized as prevailing among Hindus in Behar, and some other provinces of Western India; that in districts where its existence has not been judicially noticed, the custom will be matter to be proved; that such custom when it exists, must be presumed to be founded on and co-extensive with the Mohamedan Law upon that subject, unless the contrary be shown; that the Court may, as between Hindus, administer a modification of that law as to the circumstances under which the right may be claimed, when it is shown that the custom in that respect does not go the whole length of the Mohamedan law of pre-emption, but that the assertion of the right by suit must always be preceded by an observance of the preliminary forms prescribed in the Mohamedan Law, which forms appear to have been invariably observed and insisted on through the whole of the cases from the earliest times of which we have record.

6. In their Lordships' judgment the decision in — ‘Fatar Rawot's case (D1)’, is conclusive on the point raised on behalf of the defendants.”

7. Then in the Full Bench case of — ‘Dashrathlal Chhaganlal v. Bai Dhondubai’. AIR 1941 Bom 262 (E), it has been held that the custom of pre-emption as adopted in a particular locality must be in accordance with the law as it originally was and therefore in places in which the law of pre-empt on exists by custom, it must be regarded as a right attached to the land and not as a mere personal right and consequently, the right can be exercised by others. In — ‘Sheobaran Singh v. Kulsum-Un-Nissa’, AIR 1927 PC 113 (F), it is said that it is easier to establish a custom which forms a well recognised adjunct to the ordinary law, such as pre-emption than a custom which varies the law, such as one as to succession. In — ‘Karim Ahmad v. Rahmat Elahi’, AIR 1946 Lah 432 (G), the custom of pre-emption was presumed in Delhi City because of its foundation by Moghuls.

8. Thus, it is clear that in order to sustain the plea raised in the cases the view that Mohamedan Law has ceased to be the law of the State would be insufficient to sustain it, and it has to be further ascertained whether the right is of such a nature as to make it restrictive of the fundamental right of disposing property. There are several authorities holding divergent views about its nature. Dwarka Nath Mitter, J., in — ‘Sheikh Kudratuliah v. Mohini Mohan Shah’, 4 Beng LR 134 (FB)(H), says:

“Now, so far as I can judge of the Muhammadan Law of pre-emption from the materials within my reach it appears to me perfectly clear that a right of pre-emption is nothing more than a mere right of repurchase, not from the vendor, but from the vendee, who is treated for all intents and purposes as the full legal owner of the property which is the subject matter of the right…….”

9. Mahmood, J. in — ‘Gobind Dayal v. Inayatullah’ 7 All. 775 (PB)(I), took the view that it was a right of substitution rather than of repurchase on the ground that if it were regarded as one of repurchase from the vendee who had derived an absolute title unhampered by the pre-emptive right the vendee could insist on terms other than those on which he had purchased the property & such new terms the vendee could not insist upon. This view has been followed by the Nagpur High Court in — ‘Nathu Singh Ganpat Singh v. Narain Singh’, AIR 1935 Nag 195 (J). The view of the right being one of substitution appears to be correct. But it may be either ‘jus in re aliena’ or ‘jus ad rem alienam acquierendam’.

10. Mahmood, J. in the aforesaid case at p. 7991 defines it as easement:

“I may, however, observe that the nature of the right, as appears from the definition, which I have given, partakes strongly of the nature of an easement the ‘dominant tenement’, and the ‘servient tenement’ of the law of easement being terms extremely analogous to what I may respectively call the ‘pre-emptive tenement, and ‘pre-emptional tenement’ of the Mahomedan Law of pre-emption. Indeed, the analogy goes further, for the right of pre-emption, like an easement, exists before the injury to that right can give birth to a cause of action for a suit. In short, I maintain that, under the Mahomedan Law, the rule of pre-emption, proceeding upon a principle analogous to the maxim ‘sic uteretuo ut alienum non leadas’, creates what I may call a legal servitude running with the land.”.

11. There are difficulties in accepting the view of the right in its entirety; for the definition of easement does not mean reciprocity of the burden. In every claim of easement there is a dominant and a servient tenement, whereas under pre-emption law each owner of adjacent lands has the right of being substituted for the stranger. For purposes of this case the distinction between ‘jusin re aliena’ and ‘jus ad rem alienam acquierendam’ is important. The former is a limited interest in land and the Constitution, in my opinion, has not enlarged every holder of a limited estate or interest in and into lull owner. There are, however, authorities holding that the pre-emption is a mere right of acquiring property which means restriction on the right of transfer and this view is borne out by Mahmood, J.'s own observations in the concluding part of his judgment in — ‘Gobind Dayal's case (I)’.

12. Sir Meredith Flowden, J. in — ‘Dhani Nath v. Budhu’, 136 Pun Re 1894 (K), observes:

“A preferential right to acquire land, belonging to another, upon the occasion of a transfer by the latter, does not appear to me to be either a right to or a right in that land. It is a ‘jus ad rem alienam acquierendam’, and not a ‘jus in re aliena’. The right, title, and interest of the owner of land, which is subject to rights of pre-emption, is not qualified or affected by the circumstance that it is so subject. The right, title and interest which passes upon a transfer is precisely the same, whether the transfer be to a pre-emptor, or non-pre-empt or, the only difference being that in the latter case the transfer is avoidable at the instance of any pre-emptor. What is really affected by the existence of the right of pre-emption is not the right, title or interest of the owner but the exercise of the owner's power of transfer…. He is not at full liberty to transfer to whomsoever he pleases …. until he has given the pre-emptor the opportunity prescribed by law to exercise the preferential right of acquisition. If he exercises the pre-emptor's right between him and the owner, I think it becomes still more apparent that it is not a right to the land fold. A right to the offer of a thing about to be sold, is not identical with a right, to the thing itself, and that, is the primary right of the pre-emptor. The secondary right is to follow the thing sold, when sold without a proper offer to the pre-emptor and to acquire it if he thinks fit, in spite of the sale made in disregard of his preferential right but even a decree in a suit brought for the purpose of enforcing this secondary right does not give the pre-emptor a right to the thing sold. He does not acquire that right until he has paid the price fixed in the decree within the prescribed period; and this he need not do unless he chooses. If he does so the right, title and interest of the vendor which had in the meantime vested in the vendee is divested and vests in the pre-emptor and then, and not till then, he has a right to the land itself…… Briefly, the subjection of village land to rights of preemption is a burden on the land in the hands of every holder of the land, and restricts his freedom of transfer, but from this burden, as it seems to me, no right to or interest in the land so subject arises in any other person.”

13. The right being restrictive of the power of transfer is admitted by Mahmood J., at p. 314 of — ‘Govind Dayal's case (D):

“Moreover, the right, though it no doubt operates as a restriction of the principle of free sale, and thus tends to diminish the market value of property, must have enough to recommend itself, tr even in some of the most civilized parts of Germany, a similar right (‘retractrech’) is still maintained, either as a custom or as a rule of law.”

14. In — ‘Mahomed Azim v. Slier Ali Khan’. AIR 1933 Pesh 74 (L), it is said:

“It is scarcely necessary for us to remark that the right of pre-emption is a special and peculiar one based on custom and tending to limit freedom of alienation and to deprive parties to a contract of the fruits of their contract and that therefore all Courts are agreed that its exercise should be limited strictly to that recognised by law and not be extended so as to encroach on the rights of contract further than is unavoidable….”.

15. It seems to me that the weight of the authorities is in support of the view that the right of pre-emption is a right to acquire by compulsory purchase in certain cases the immoveable property of another in preference to other persons, and as such it is a clog on the right to dispose property. This clog on the fundamental right of disposing property as given by Sub-Cl. (1)(f) of Article 19 is void after the inauguration of the Constitution unless it be covered by Cl. (5) of Article 19, whereby the operation of any existing law in so far as it imposes reasonable restriction on the exercise of any of the rights conferred by the Sub-Cl. (f) either in the interest of the general public or for the protection of the interest of any scheduled tribe is saved. But to make the aforesaid Clause applicable, it is necessary that there should first be an existing law, and what is an ‘existing law’ has been defined by Cl. (10) of Article 366, which reads as follows:

“existing jaw” means any law, Ordinance, order, by-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such law. Ordinance, order, bye-law, rule or regulation.”

16. The right of pre-emption as claimed by Motibai in her case can only exist on the basis of custom and such a law is not covered by the definition of “existing law”. Therefore, the right is not saved by Cl. (5) of Article 19. The result is that the restraint on the disposal of the property is void under Cl. (1) of Article 13, and her suit should be dismissed.

17. Reference was made to — ‘Abdul Hakim v. Jan Mohammad’, AIR 1951 All 247 (M), wherein the right of pre-emption had been held as a reasonable restriction and upheld. But the case was covered by Cl. (5) of Article 19, there being this difference between the case and the one before us that in Uttar Pradesh the right of pre-emption is given by a statute whereas in the easel before us the plaintiff cannot claim any statutory right. I am, therefore, of the opinion that the right claimed by Motibai has ceased to be a legal right after the inauguration of the Constitution and is void. This decision will apply to the other two cases also because the plaintiffs in them have also claimed similar rights.

18. In conclusion, I would point out that the three cases before us have not raised any question relating to the constitutionality of the right of pre-emption being enforceable on grounds of equity and good conscience. It may be that when such a case arises, we may be called upon to adjudicate even on this basis of the right being directly violative of the fundamental right to dispose property, but any adjudication on it does not arise in these cases. Therefore, my judgment should not be taken to cover such cases. Having made the aforesaid reservation, I am of the view that the rights as claimed by the plaintiffs in all the three cases have become void and therefore their suits cannot be decreed. The court below be informed accordingly.

Palnitkar, J.:— I agree.

Srinivasa Chari, J.:— My learned brother Mohd. Ahmed Ansari J. has dealt in detail with the facts of this case and inasmuch as the question that has arisen in this case is coming up for consideration for the first time and as it involves an important question of law which affects a large class of persons, I desire to add a few words of my own in this judgment.

19. The City Civil Court made a reference stating as to whether a suit for pre-emption was competent after the coming into force of the Constitution. A plea was raised in a suit for pre-emption on behalf of the defendant that after the Constitution such a suit could not lie. Three such cases were referred to the High Court and the matter came before a Division Bench of this Court. The question that was canvassed before the Division Bench was that inasmuch as this right of pre-emption affected one of the fundamental rights conferred by the Constitution in that the right to sell property was restricted and subjected to the law of pre-emption, it was void in view of Article 13 of the Constitution. The Division Bench referred the case to a fuller Bench.

20. The principles of the law of pre-emption were introduced in this country by the Mohammedan conquerors and it is essentially a part of Mohammedan Jurisprudence. Under the Moghul administration it became and remained for centuries the common law of the country and was applied universally both to Mohammedans and Hindus, for, the Mohammedan law in this respect made no distinction of caste or creed. In course of time pre-emption came to be adopted as a custom. A right of pre-emption, as was observed in the case of —‘4 Beng LR 134 (FB)(H)’ is nothing more than a mere right of repurchase not from the vendor but from the vendee, who is treated for all intents and purposes as the full legal owner of the property which is the subject-matter of that right. It imposes an obligation upon a Mohammedan owner of a property in the neighbourhood of which other Mohammedans have property, or in respect of which other Mohammedans have a share, to offer it to his neighbours or his partners before he can sell it to a stranger.

21. The object of the right of pre-emption is stated to be the avoidance of disagreeable strangers. The application of the law of pre-emption with the object of preventing the admission of strangers into a community is, according to a learned author, at least as old as 468 A.D (Ratigan, Digest of Customary Law, Article 97, p. 121). The right to pre-empt is very special in its character. It is founded on the supposed necessities of a Mohammedan family, arising out of their minute sub-division and inter-division of ancestral property. It has to be observed that a custom of pre-emption must be presumed to exist in a town founded by the Moghuls. This is made clear by the observations of Sir Shadilal C.J in the case of —‘Imperial Oil Soap & General Mills Co. v. Misbahuddin’, AIR 1921 Lah 69 (N).

22. The principle that Indians should be governed by their own laws was accepted by the British and important guarantees were given to the people of India regarding the same. The Statutes passed by Parliament, Regulations made by the Governor-General and the Acts passed by the Imperial Council from time to time provided for the enforcement of the important branches of Hindu and Mohammedan Laws and it was provided that where in any suit it was necessary to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution, in cases where the parties were Mohammedans, the Mohammedan law should form the rule of decision and in cases where the parties were Hindus, Hindu Law should govern the decision. Pre-emption is not one of the matters specifically enumerated in the Civil Courts Act as one to be enforced by the courts.

23. The Allahabad High Court enforced the same on the footing that questions of gift, pre-emption etc., though not governed by the Mohammed in Law as expressed clearly in the Quran, were controlled by religious usages founded on or institutions enjoined by oral law or sayings of the Prophet and that, therefore, the suits giving rise to question of pre-emption should be determined by the principles of Mohammedan Law without reference to the principles of justice, equity and good conscience. This was the view which was first adumbrated by Mahmood J. in the Full Bench case of — ‘7 All 775 (I)’.

24. In Bengal and N.W.F.P it was thought that although Mohammedan Law as such was not strictly applicable to suits relating to pre-emption among the Mohammedans, it was equitable to apply that law in the same way as a court would have enforced a well established custom.

25. In the Presidency of Bombay, however, it was regarded that the right of pre-emption being special in its nature, founded upon the supposed necessities of Mohammedan families arising out of their minute sub-division and inter-division of ancestral property, it could not be applied on the principle of justice, equity and good conscience.

26. In the Punjab it was specially dealt with by the Punjab Laws Act which was subsequently repealed by the Punjab Pre-emption Act, Act 1 of 1913. According to this law, the provisions of the Act could be taken advantage of by anybody without reference to creed, colour or race.

27. In the Madras Presidency it was considered that questions about pre-emption were not questions regarding succession, inheritance, marriage or caste or any religious usage or institution, for which express provision had been made in Section 16 of the Madras Civil Courts Act, Act 3 of 1873. It was also held that the Mohammedan Rule of Preemption was not the law in the Presidency either by positive enactment or by customary law, assimilating the rule about the Mohammedan Law of Pre-emption and making it an existing rule of law as had happened in other places. The Hindus do not claim the benefit of Law of Preemption under their personal law. They adopted the Mohammedan Law of Pre-emption as part of their customary law in some parts of India, for example, in the Province of Bihar, in some districts of Bombay and some districts of Southern Bengal.

28. In Hyderabad it may be said that the judicial decisions are so many that a court may take notice of the custom existing in Hyderabad about pre-emption and such judicial records may be admitted as evidence of the existence of a local custom. I might advert to the decisions of this High Court in the case of — ‘20 Deccan LR 581 (FB)(B)’. in which a Full Bench of this Court declared that even if the party was a Hindu, in a suit relating to pre-emption he would be governed by Mohammedan Law. Likewise are the observations of the Judges in the case of — ‘Ramchander v. Surajkaran’. 28 Deccan LR 1071 (O)’. It has also been held in that case that in so far as the Hyderabad State is concerned, the right of pre-emption is governed by Mohammedan Law and it is not based upon custom These rulings must be considered to be laying down the law that the principles embodied in the Mohammedan Law of Pre-emption would govern the decision of cases relating to pre-emption. It may not be correct to say that pre-emption is not based on custom, because where the parties are Hindus it could not be said that they would be governed by Mohammedan Law. It could be applied only as customary law.

29. The ground of attack with regard to this existing custom of pre-emption is that it fetters the right of a person to hold and dispose of his property and as such it infringes Article 19(1)(f) of the Constitution and, therefore, the law must be regarded as being void under the pro vision of Article 13(1) of the Constitution. There can be no doubt that by the application of the law of preemption, the right of the vendee to possess the property is adversely affected because if the pre-emptor ‘shafi’ offers to purchase the property and pay the price that was paid by the vendee the latter would be obliged to surrender the property although he purchased the property to have the same for himself.

30. After the coming into force of the Constitution this question came up for consideration before the Allahabad High Court in a case reported in — ‘AIR 1951 All 247 (M)’. This was a Judgment of a Single Judge & the learned Judge considered as to whether this particular law imposed any unreasonable restriction on the right of holding property. The learned Judge was considering the provisions of the Agra pre-emption Act of 1922. In coming to the conclusion that the Agra Pre-emption Act had not become void by virtue of Arte. 13(1) & 19(1)(f) the learned Judge adverted to the fact that the enjoyment of the right of property mentioned in Article 19(1)(f) was limited by the power of the State to enact laws for the general welfare of the people. He held that the law of pre-emption was for the welfare of the people because it avoided litigation, consolidated property and tended to increase the production of wealth. On these grounds lie held that it could not be regarded as an unreasonable restriction on the right of acquiring, holding and disposing of property.

31. In another case, — ‘Sonabashi Kuer & Others v. Chaudhury Ramdeo Singh Resp.’, AIR 1951 Pat 521 (P). the learned Judges of the Patna High Court held that pre-emption between Hindus in Bihar applied as a matter of custom and they based this decision of theirs upon the observations of the Privy Council in the case of — ‘39 Ind App 101 (PC)(D)’, wherein their Lordships of the Privy Council observed:

“The law of pre-emption under which the plaintiff claims the right was introduced into India with the Mohammedan Government. The Province of Bihar to which the District of Champaran appertains, was an integral part of the Mohammedan Empire, and consequently it would not be surprising to find that in Bihar the right of pre-emption is enforceable irrespective of the persuasion of the parties concerned.”

32. The East Punjab High Court had to consider this question with reference to the Punjab Preemption Act, Act 1 of 1913, in the case of — ‘Punjab State v. Indersingh’, AIR 1953 Punj 20 (Q) In this case while the learned Judges held that the law of pre-emption was a clog or fetter upon the freedom of sale, they held that the terms of Section 15 of the Punjab Pre-emption Act did not go beyond the objects aimed at and the restrictions imposed were just sufficient to achieve the interest of the general public. Accordingly they said that Section 15 of the Punjab Pre-emption Act was not ultra vires the Constitution. The reasoning appears to have been that where for a particular purpose a certain legislation is passed it cannot be held to be ultra vires the Constitution, if the provisions of the Act did not go beyond the object aimed at in the legislation.

33. The illegality or voidability of any such law as affecting any of the fundamental rights conferred by the Constitution would arise only when such law could be brought within any one of the categories of ‘law’, or ‘laws in force’ mentioned in Article 13 of the Constitution. Article 13(1) says that

“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 this part, shall, to the extent of such inconsistency be void.”

34. That the law of pre-emption is inconsistent with the provisions of Article 19(1)(f) is clear. But the question is whether the law of pre-emption would come within the category of a law in force in the territory of India. The term ‘laws in force’ has been defined in Article 13(3)(b) as

“‘laws in force’ 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.”

35. This definition is not an exhaustive definition but only an inclusive definition. The expression ‘laws in force’ has also been, mentioned in Article 372 of the Constitution and in the Explanation 1 to the above Article ‘law in force’ has been given the same definition as in Article 13(3)(b) Obviously the law of pre-emption cannot be regarded as a law passed or made by a Legislature or other competent authority. The law of pre-emption cannot, therefore, be said to fall within the category of ‘law in force’ as defined in Article 13(1). Let us see if it could be regarded as a ‘law’ coming within Article 13(2) of the Constitution. In Article 13(3)(a) an inclusive definition of the term ‘law’ mentioned in Article 13(2) has been made. The term ‘law’ has been held to include among other things not merely enacted law but also custom or usage having the force of law. Therefore if the law of pre-emption could be regarded as a custom or usage having the force of law then necessarily it would be hit by Article 13(2) of the Constitution and such law would have to be held void after the Constitution. It may be argued that if the definition of the word ‘law’ in Article 13(3)(a) were read along with Article 13(2) it would lead to an absurdity. Article 13(2) forbids the State from making any law which takes away or abridges any of the rights conferred by Part 3 of the Constitution. If, therefore, the word law also includes custom or usage and we substitute the words ‘custom or usage having the force of law’ in place of the word ‘law’ the clause would read as under:

“The State shall not make ‘any custom or usage having the force of law’ which takes away or abridges the rights conferred by this Part ‘and any custom or usage having the force of law’ made in contravention of this clause shall, to the extent of the contravention, be void.”

36. It is a well accented principle relating to the interpretation of Statutes that the interpretation ought not to lead to absurdity and if two constructions are possible, one which renders the meaning absurd and the other reasonable, the latter should be preferred. The interpretation of the words can be reconciled only by holding that a custom or usage having the force of law is included in the term ‘laws in force’ occurring in Article 13(1) of the Constitution.

37. Having come to the conclusion that expression ‘custom or usage having the force of law’ is included in the term ‘laws in force’ it naturally follows that the customary law of preemption in Hyderabad can no longer stand, the law being in violation of Article 19(1)(f) of the Constitution. The law may have been advantageous and beneficial to village communities in that it ensured homogeneity, and prevented the coming in of an unwanted neighbour but decidedly the law is not suitable to conditions of life in a city. Further it would be difficult to reconcile such a law with the modem views regarding the desirability of a free disposition of immovable property. Therefore, it cannot be said that the restriction imposed on the acquiring and possession of property is a reasonable restriction in the interests of the general public so as to be saved by Article 19(5) of the Constitution.

38. My answer to the question involving constitutional law is that the law of pre-emption in Hyderabad is no longer good law and is void as it violates Article 19(1)(f) of the Constitution.

A./K.S.B

39. Answer in the affirmative.