1961 (11) TMI 87 - HC - Indian Laws

Appellate Court Upholds Pre-emption Right Based on Customary Law

Sheo Kumar Dubey Versus Sudama Devi and Ors.

The appellate court upheld the plaintiff's right of pre-emption over a piece of land based on customary law prevailing in Bihar. It found that the ... - Issues Involved:1. Right of pre-emption under customary law.2. Compliance with formalities under Mahomedan law.3. Constitutional validity of the customary law of pre-emption under Article 19(1)(f) of the Constitution.Detailed Analysis:1. Right of Pre-emption Under Customary Law:The suit was initiated by the plaintiff to enforce a right of pre-emption over a piece of land she claimed under a custom prevailing in the State of Bihar. The plaintiff argued that she had purchased a portion of the disputed land orally from the original owner, leaving the remaining land over which she claimed the right of pre-emption. The trial court recognized the plaintiff's right of pre-emption but dismissed the suit due to non-compliance with the requisite demands under Mahomedan law. The appellate court, however, found that the plaintiff had complied with these demands and decreed the suit in her favor.2. Compliance with Formalities Under Mahomedan Law:The plaintiff asserted her right of pre-emption immediately upon learning of the sale and performed the necessary formalities, talabi Mowasibat and talab-i-ishhad, as required by Mahomedan law. The trial court found that these demands were not made properly, leading to the dismissal of the suit. However, the appellate court reversed this finding, concluding that the plaintiff had indeed complied with the formalities, thus entitling her to enforce her right of pre-emption.3. Constitutional Validity of the Customary Law of Pre-emption Under Article 19(1)(f) of the Constitution:The defendant challenged the customary law of pre-emption, arguing that it violated Article 19(1)(f) of the Constitution, which guarantees the right to acquire, hold, and dispose of property. The appellate court held that the law of pre-emption did not impose unreasonable restrictions and was protected by Clause (5) of Article 19. This matter was referred to a Full Bench due to divergent judicial opinions among different High Courts.The Full Bench examined whether the customary law of pre-emption was void under Article 13(1) read with Article 19(1)(f) of the Constitution. The court noted that the right of pre-emption is recognized by custom among Hindus in Bihar and is governed by Mahomedan law, except where modified by custom. The court further clarified that customary law falls within the definition of 'law' under Article 13(1) and can be struck down if it conflicts with Part III of the Constitution.The court discussed the nature of the right of pre-emption, noting that it is not a personal right but an incident attached to the land. This right becomes enforceable upon the sale of the property, and the purchaser takes the property subject to this right. The court held that the right of pre-emption does not violate Article 19(1)(f) as it does not impose a restriction on the right to acquire, hold, and dispose of property but is inherent in the property itself.The court cited various judgments to support its view, including the Supreme Court's decision in Audh Behari v. Gajadhar, which affirmed that the right of pre-emption is an incident annexed to the land. The court also referenced the Supreme Court's decision in Bishan Singh v. Khazan Singh, which summarized the law of pre-emption and reinforced that it is a right of substitution rather than repurchase.In conclusion, the court held that the customary law of pre-emption is constitutional and valid, as it does not violate Article 19(1)(f) of the Constitution. The appeal was dismissed, and the plaintiff's right of pre-emption was upheld.