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TMI Blog1961 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ich forms the subject-matter of the present litigation. 2. 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 pre-emption 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 pre-emption, 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 pre-emption. 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 pre-emption the suit was liable to be dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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 5s by reason of this custom that the plaintiff sought to enforce the right of pre-emption. 8. Further, it must be made clear that even customary law conies 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all Or in particular areas . 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. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, 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. 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. There 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. He further argued that such a right is not protected by clause (5) of Article 19 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dan law. 11. 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 Mohan Shaha 13 Suth WR 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., how-ever, differed from the majority view and held that it was an incident to the ownership of the property and the vendor possessed the property not 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. 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 All 775 that the right to claim pre-emption is not a personal right but a right which attaches to the land. Mahmood J., who delivered the leading judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut to its enforceability ........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. 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. 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 title 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in-evitable 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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 properly 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 with out 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''. The Supreme Court, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 entitled 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). 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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