Gogur Chandra Dholley vs Abdul Jabbar Molla

Arun K. Mukherjea, J.—This reference arises in connection with a Letters Patent Appeal.

The reference was made by a Bench consisting of P.N. Mookerjee and Amiya Kumar Mookerji JJ. Two questions which induced the learned Judges hearing the Letters Patent appeal to make this reference are as follows: (i) whether the Mohammedan law of pre-emption applies in the case of purchases by non-Mohammedan although the pre-emptor and the vendor may be Mohammedan and (ii) whether pre-emption on the ground of vicinage, as contemplated under the Mohammedan law, would be opposed to the Constitution and violative of its relevant Articles so as to make it ultra vires and whether this answer may be subject to any exception.

As this is a reference under Rule 2 of chap. VII of the Appellate Side Rules we have to dispose of the entire appeal after determining the two questions that have been formulated by the learned Judges of the Division Bench. For deciding this case it is not necessary for us to refer to the facts of the case except mentioning that a Hindu purchaser purchased certain lands belonging to a Mohammedan co-sharer whereupon the co-sharer of the vendor filed a suit for pre-emption under the Mohammedan law against the Hindu purchaser. The suit was dismissed by the learned Munsif at Howrah. The pre-emptor then made an appeal before the learned Subordinate Judge, Howrah, who dismissed the appeal and confirmed the decree of the learned Munsif. Thereafter, an appeal was preferred to this High Court and Niyogi J. heard the second appeal. His Lordship allowed the appeal and set aside the judgment and decree of the lower appellate Court and further remanded the case to the lower appellate Court for consideration of three questions, namely, (i) the question whether the Plaintiffs had made the demands (talabs) in due compliance with the forms prescribed by Mohammedan law, (ii) whether the Defendant No. 2, that is, the Hindu purchaser made the purchase with notice of such demands made by the Plaintiffs and if so, how far he would be affected by such talabs and (iii) whether the Plaintiffs would be entitled to pre-empt the portion of the property in the hands of the Defendant No. 3 who was subsequent transferee during the pendency of the suit. His Lordship gave leave to appeal under Clause 15 of the Letters Patent. The Letters Patent appeal came up for hearing before P.N. Mookerjee and Amiya Kumar Mookerji JJ. who, as aforesaid, made this reference under 1 Rule 2, chap. VII of the Appellate Side Rules.

On the first question, as to whether a Hindu purchaser would be bound by the Mohammedan law of pre-emption there is an old decision of a Full Bench of this High Court in the case of Sheikh Kudratulla v. Mohini Mohan Shaha 4 B.L.R. 134 where also the question arose as to whether when a Mohammedan sells his property to a Hindu purchaser, the co-sharer of the vendor would be entitled to enforce a right of preemption against the Hindu vendee under the Mohammedan law. The majority of the Full Bench answered the question in the negative. Ordinarily, this Full Bench decision would bind us. But Niyogi J. was of the opinion that this Full Bench decision has been overruled by the Supreme Court in their decision in Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, of the Supreme Court decision a Sunni Mohammedan pre-emptor could exercise his right of pre-emption against a Hindu purchaser from a Sunni Mohammedan vendor. After having carefully considered the Supreme Court decision, we are afraid, we cannot agree with Niyogi J. insofar as his Lordship construed that decision as overruling the effect of the Calcutta Full Bench decision in all aspects. It is true that certain conclusions and certain reasonings in the Calcutta Full Bench decision have been rejected by the Supreme Court, but we do not think that the Supreme Court has said anything which makes a Hindu purchaser automatically subject to the Mohammedan law of pre-emption. The substance of the Supreme Court decision seems to us to be this that when a right of pre-emption rests upon a custom it becomes the lex loci and affects all lands situated in that place irrespective of the religion, nationality or domicile of the owners of the land except where such incidents are proved to be a part of the custom itself. The Supreme Court decision does not say that a Mohammedan co-sharer will always have the right of pre-emption against a non-Mohammedan purchaser. In the instant case, there has been no attempt either to plead or to prove that the law of pre-emption was customary in the territory in which the land in question is situate. In this view of the matter, we have accepted the contention of Mr. Mukherjee who appears for the Appellant that the right of preemption under the Mohammedan law cannot be exercised against 4 a Hindu purchaser in the instant case.

As regards the second point regarding the constitutionality of the law of pre-emption on the ground of vicinage on the ground that it is repugnant to the Constitution of India, the question seems to be thoroughly covered by another decision of the Supreme Court, namely, Bhau Ram Vs. B. Baijnath Singh, . The Supreme Court held that the law of pre-emption based on vicinage can have no force in modern times since the main reason which sustained the law in ancient times, namely, the desirability of preventing strangers, that is, people belonging to different religion, race or caste, from acquiring a, property, must be held to impose an unreasonable restriction on the right to acquire and dispose of property which is now guaranteed under Article 19(1)(f) of the Constitution. The same view has been expressed by the Supreme Court in another case, namely, in Sant Ram and Others Vs. Labh Singh and Others, where their Lordships repeat the proposition enunciated in the case in Bhau Ram Vs. B. Baijnath Singh, which had stated that a statute law providing for a law of pre-emption on vicinage is void. The Supreme Court then observes that the reason given by the Supreme Court to hold statute law void applies equally to a custom.

Mr. J.K. Sengupta appearing for the Respondents tried to distinguish the case of Bhau Ram Vs. B. Baijnath Singh, by saying that the observations of the Supreme Court in that case apply only to urban areas. This is not, however, correct. The principle has been enunciated by the Supreme Court in para. 7. The statement of law in that paragraph is absolutely in general terms. I can do no better than quote the actual words used by the Supreme Court:

In a society where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity or class of people and in those times a right of pre-emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable. But the Constitution now prohibits discrimination against any citizen on ground only of religion, race, caste, sex, place of birth or any of them under Article 15 and guarantees a right to every citizen, to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore the ostensible reason for pre-emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really meant to prevent strangers, i.e. people belonging to different, religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable and the main reason, therefore, which sustained the law of pre-emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guaranteed under Article 19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day.

The Supreme Court, in fact, refers to the application of this law in relation to urban lands only to meet the contention that was raised on behalf of the pre-emptor in that case. It was sought to be canvassed in that case that since pre-emption by vicinage results in consolidation of agricultural lands it is an advantage. To this the Supreme Court points out that the argument of consolidation cannot be availed of in view of the fact that in most states laws are being passed which are putting ceilings on agricultural holdings. After pointing this out their Lordships say that in the case before them the Rewa Act applies not only to agricultural holdings but also to urban and house properties. Therefore, in any case, there can be no question of any advantage arising out of consolidation when one is dealing with urban properties. It remains clear, however, that their Lordships did not put any limitation upon the law that has been enunciated. Their Lordships in fact observe:

There is no way of severing the application of law so far as it relates to agricultural holdings from its application to urban or house property and therefore, the entire provision as to vicinage must fail, even if something could be said in its favour with respect to agricultural holdings on the ground of consolidation.

We must pause, however and say that it is possible to contemplate certain statutes vis-a-vis the law of pre-emption based on vicinage which may be sustained on the ground that such a law enures to public benefit. But we are not concerned with such contingencies in the instant case.

In view of our findings on the two questions which have been described by P.N. Mookerjee and Amiya Kumar Mookerji JJ. as question of paramount importance, it is clear that the Plaintiffs would have no right to pre-empt against the Appellants in the instant case.

In the result, we must allow the Letters Patent Appeal and set aside the order of S.K. Niyogi J. and confirm the order of the lower appellate Court. In view of the importance of the question that has been referred to us we do not make any order as to costs.

Sabyasachi Mukharji J.

I agree.

M.M. Dutt J.

I agree.