- (1.) THIS a petition under Artical 228 of the Constitution of India.
(2.) THE petitioner, Ram Rakha, instituted a suit for possession by pre-emption of a certain house situated in Mohalla Tikkiwalan Jaipur, which had been sold by Bijay Singh, respondent No. 2, to Mst. Gulab, respondent No. 1, by a deed dated 30th of March, 1951. THE pre-emption was claimed on the ground that the plaintiff was Shafi-i-sharik, that is, a partner in the substance of the thing sold, while the vendee was a stranger. Various pleas were raised in defence by the vendee, one of which was that the claim of preemption, which, in the present case, was, based on custom, was inconsistent with the fundamental right conferred by Article 19 (1) (f) of the Constitution of India, and was, therefore, rendered void by Article 13 of the Constitution. THE learned Munsif, in whose court the suit was instituted, framed certain issues, of which issue No. 4 was: - "whether the claim on the ground of pre-emption was inconsistent with the provisions of the Constitution of India, and therefore, void?" THE plaintiff made an application for withdrawing the case to this Court as in involved a substantial question of law as to the interpretation of the Constitution. THE case was withdrawn by an order of this Court dated 25th of November, 1954, for determining the question of law involved in issue No. 4 framed by the trial court. The claim of pre-emption among the Hindus in the former Jaipur State, in which area this case has arisen, was recognised on the basis of custom, the said right being co-extensive with Mahomedan Law, unless modified by custom. There is no doubt that the claim of pre-emption, whether permitted by law or custom, is a restriction on the right to acquire and hold property, which is a right guaranteed by Article 19 (1) (f) of the Constitution, and it only remains to be seen whether the restriction is reasonable. It need not be added that the words "existing law" occurring in clause (5) of Article 19 of the Constitution include not only the law made by a statute but also any personal law, custom or usage having the force of law. Learned counsel for the plaintiff petitioner relied upon Abdul Hakim vs. Jan Mohammad (1 ). Punjab State vs. Inder Singh (2) and Uttam Singh vs. Kartar Singh (3) which, approved of the decision in Inder Singh's case. 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, as will be seen later. Learned counsel for the respondent relied upon Moti Bai vs. Kand Kari Channaya (4 ). The case of pre-emption on the ground of vicinage was canvassed before us in Panch Gujar Gour Brahmans vs. Amar Singh (5) where it was held that the claim of pre-emption on the ground of vicinage was not a reasonable restriction, and was invailed and unenforceable as being country to the provisions of Art. 19 (1) (f) of the Constitution. No opinion was, however, expressed in that case in respect of a claim of pre-emption by shafi-i-Sharik and Shafi-i-khaleet, beyond stating that there may be certain reasons of convenience behind the principle on which the claims of these two kinds of pre-emptors were based. The Allahabad case related to the Agra Preemption Act, while the Punjab cases related to the Punjab Pre-emption Act, and while the general observations are with respect to the validity of the claim of pre-emption as permitted by the respective Acts, the cases really turn on the right of pre-emption of a co-sharer,and were for that reason distinguished in Panch Gujar Gour Brahmans vs. Amar Singh (5 ). The present is a case of pre-emption by co-sharer and the reasons of convenience, better enjoyment of property, reducing chance of litigation, under-lying the decision in the above cases are, therefore, applicable. In Moti Bai vs. Kand Kari Channaya (4) it has been broadly held that the restriction imposed by the law of pre-emption on the right of a citizen conferred by Art. 19 (1) (f)of the Constitution was not a reasonable restriction, and was, therefore, void. While the observations are no doubt general, the facts mentioned in paragraph 2 of the judgment indicate that in the case of Goverdhan Das the claim was on the ground of ownership of the adjoining property. The nature of the claim in respect of two other cases which have been decided by a common judgment does not appear from the facts stated in the judgment. But in paragraph 10 it is mentioned that in all the three cases similar rights had been claimed. The decision in the case will therefore, be deemed to be restricted to a claim of pre-emption on the ground of vicinage and is in accordance with the view taken by this Court in Panch Gujar Gour Brahmans' case. A claim of pre-emption by a co-sharer or participator in immunities and appendages stands on a different ground than a claim by a person who is only an 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 acquisition of the various parts of a house by a single owner would certainly lead to harmony, avoid chances of litigation, and in many cases lead to a better and fuller enjoyment of the property. The manners and customs of the society in which we live would welcome the privacy available by the enjoyment of the house by a single owner, and the enforcement of the right by a co-sharer would thus promote decency and convenience, and reduce chances of litigation. We are of opinion that the operation of the existing law of pre-emption (which, in the present case, is by custom) conferring a right upon shafi-i-sharik to claim the property sold in preference to a stranger, is a reasonable restriction on the right to acquire, hold and dispose of property, and is valid even after the commencement of the Constitution of India. We do not express any opinion in respect of the claim by shatl-i-khaleet, the reasonableness whereof would depend upon the nature of the right on which the pre-emption is claimed. . ;