GHUDIYA Vs. GORDHAN
LAWS(RAJ)-1955-11-12
HIGH COURT OF RAJASTHAN
Decided on November 18,1955

GHUDIYA Appellant
VERSUS
GORDHAN Respondents

JUDGEMENT

- (1.) This is the defendants second appeal against an appellate decree of the Additional Commissioner, Jaipur, dated 16 -5 -1955 upholding the decree of the trial court passed against the appellants in a suit for pre -emption.
(2.) We have heard the learned counsel appearing for the parties and have examined the record as well. The first contention raised on behalf of the appellant before us is that the law of Pre -emption as contained in sec.II of the Jaipur Tenancy Act, 1945 is void as it infringes the provisions of Art. 19 (1) (f) of the Constitution of India. It is provided therein that "all citizens shall have the right to acquire, hold and dispose of property."It has been argued that the right of pre -emption is a restriction upon the exercise of this right. Sub -clause (5)of this Article lays down that - - "nothing contained herein shall affect the operation of any existing law so far as it imposes reasonable restrictions on the exercise of any of the rights conferred by the above sub -clause either in the interest of the general public or for the protection of the interests of any scheduled tribe." The only question that is involved for determination is as to whether the restrictions contained in sec.II of the Jaipur Tenancy Act is a reasonable one or not in the interest of general public. This question was examined at considerable length in A.I.R. 1951 Allahabad 247. That was a case under the Agra Pre -emption Act. It was held therein that - - "the law of pre -emption did not impose any unreasonable restriction on the right of the property. The fundamental reason behind it is that a stranger should not be allowed to enter into the joint property as far as it is possible. It avoids litigation." This question was examined by the Punjab High Court in A.I.R. 1953 Punjab 21. It was held that "the Law of Pre -emption as contained in sec. 15 of the Punjab Pre -emption Act was saved by Art. 19(5) of the Constitution as the objects of the Law of Preemption were or follows - - (1) To preserve the integrity of the village and village community. (2) To implement the aginative theory of law. (3) To avoid) fragmentation of holdings. (4) To reduce chances of litigation and friction and to promote public order and domestic comfort, and (5) To meet the needs of a particular society at a particular stage of evolution.
(3.) This view was confirmed in a subsequent decision of the same High Court in a case reported in A.I.R. 1954 Punjab -55. These cases were examined by their Lordship of the Rajasthan High Court in 1956 RLW 336=A.I.R. 1955 Raj. 140. That case, however,related to residential house and their Lord -ships were pleased to observe above these cases that - - "These relate to agricultural land and are not by themselves helpful in the decision of the case before us, which relates to a residential house though some of the observations as may apply to residential houses are useful." Further it was observed that - - "a claim of pre -emption by a co -sharer as participator in immunities and appendages stands on a different ground than a claim by a person who is only and owner of the adjoining property, and the principles which underlie the upholding of the validity of a claim by a co -sharer in respect of agricultural holdings apply in a great measure to residential houses as well." The right of pre -emption by a shafa -i -sharik was held to be reasonable restriction on the right to acquire, hold and dispose of property. As laid down in sec. 11 of the Tenancy Act a pattedar tenant can transfer his interests provided that if the transfer is made in favour of a person other than a co -sharer or a sub -tenant of the holding transferred or a person who cultivate the land and resides in the village such co -sharer,sub -tenant, or person shall have a right of pre -emption in respect of the aforesaid sale in the order in which they have been mentioned. The reasons pointed out by their Lordships of the Punjab High Court for upholding the provisions of the Pre -emption Act as reasonable restrictions on the right to dispose of property apply with full force to this law as well. We, therefore, hold, that sec.II of the Jaipur Tenancy Act is not hit by Art. 19 of the Constitution.;


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