Trivedi, J. - (1.) DEFENDANT -respond ent No. 2 Mohammad Husain was the owner of two shops. On 31-10-1955 he sold them to Jagdish Saran, appellant. The plaintiff-respondent, Brij Raj Kishore. who owned an adjoining shop filed the suit for pre-emption of the sale of the two shops on the basis of custo mary right of pre- emption on the grounds that the water of the roofs of the plain tiff's house and shop used to flow through the same spout along with the water of the shops sold, and that the beams of the plaintiff's shop rested on the wall inter vening between the plaintiff's shop and the shops sold. He alleged that he ap proached the defendant Jagdish Saran also for executing the sale deed of the two shops in his favour, but he paid no heed, hence the suit for pre-emption.
(2.) THE defendant-appellant coin tested the suit on numerous grounds in cluding the ground that the custom re lating to the right of pre-emption was ultra vires the Constitution. The trial court decreed the plaintiff's suit and the decree of the trial court was confirmed by the lower appellate court, hence this Second Civil Appeal. The main question raised in the Se cond Appeal was that the custom of pre emption set up by the plaintiff was void, as it violated Art. 19(1) (f) of the Con stitution. The learned Single Judge, be fore whom the appeal came up for hear ing, referred the same to a Bench. The Bench was of the opinion that the matter deserved consideration by a larger Bench and that is why this appeal has been laid before us. Mulla's Mohammedan Law specifies the classes of persons successive ly entitled to exercise the right of pre emption as under:- (1) A co-sharer In the property (Shafi-i-Sharik). (2) A participator in immunities and appendages, such as a right of way or a right to discharge water (Shafi-i-Khalit). (3) Owners_ of adjoining immoveable property (Shafi-i-Jar). The plaintiff sought pre-emption as a Shafi-i-Khalit. The appendages on the basis of which he claimed the right are: (i) Beams of the roof of the plain tiff's shop rest on the wall intervening between the shop of the plaintiff and the shops sold. (ii) Water of the roof of the plain tiff's shop flows through the same spoufl along with the water of the shops sold.
(3.) WHAT we have to decide is whe ther customary right of pre-emption on the ground set up by the plaintiff offends Art. 19(1) (f) or not. In Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476, laws of three different States came up for con sideration. The Supreme Court held that all laws of pre-emption impose restric tions on the fundamental rights of both the vendor and of the vendee to hold and dispose of property guaranteed by Arti cle 19(1) (f). The Supreme Court then considered the question whether the verious laws allowing pre-emption on dif ferent grounds were saved (sic) the Cl. (5)1 of Art. 19. i. e. whether they imposed rea sonable restriction in the interest of the general public. It held that the laws conferring a right of pre-emption upon a co-sharer (Shafi-i-Sharik) imposed reasonable restriction in the interest of the general public; and observed:- "If an outsider is introduced as a co-sharer in a property, it will make common management extremely difficult and destroy the benefits of ownership in common". The Supreme Court also upheld the vali dity of the laws giving right of pre emption to owners of properties, who had a common staircase with the pro perty sold and who had a common en trance from the street with the property sold. The Supreme Court was of the view that pre-emption on these two grounds stood on the same footing as pre-emption by co-sharer. The law pro viding for pre-emption on the basis of vicinage (Shafi-i-Jar) was struck down as imposing unreasonable restriction on the fundamental right, observing:- "We do not think that the restric tions placed by the law of pre-emption in a case based on vicinage have any effect on prices being reasonably fixed, and the main effect we can see is that the law may give rise to a crop of litiga tion. We cannot, therefore, see any ad vantage to the general public by such a law of pre-emption, and. in any case, the disadvantage certainly overweighs the ad vantage that may result to a small sec tion of the public". Under one of the laws, under considera tion, it was provided that the right of pre-emption in respect of urban immov-eable property shall vest also: "where the sale is of a servient property, in the owners of the dominant property, and vice versa". But since in that case the right was not claimed on this ground, the Supreme Court did not pronounce upon its validity. The principles laid down by the Supreme Court in this case apply also to the customary law of the pre-emption. ;