SANT RAM AND ORS. versus LABH SINGH AND ORS.

Citation: [1964] 7 S.C.R. 756 · Decided: 15-04-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1961 
April IS 
756 
SUPREME COURT REPORTS 
fl964} 
SANT RAM AND ORS. 
v. 
LABH SINGH AND ORS. 
[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M. HIDAYAT-' 
ULLAH, K. C. DAS GUPTA AND N. RAJAGOPALA AYYAN· 
GAR, JJ.] 
Pre-emption-Based on custom-Whether infringes Consti-
tution of Jndia-"Laws in force"-W:hether includes custom and 
usage-Constitution of India, Arts. 13, 19. 
In a suit filed by the respondent, the Munsif though hold-
ing that there was a general custom of pre-emption in the 
locality and that the respondent had a right to pre-empt, under 
that custom, dismissed the suit because the sale did not include 
a strip of land 3 feet 6 inches wide between the respondent's 
h'.:use and the property sold. The respondent's appeal was 
allowed by the District Judge. The appellants appealed to the 
High Court which was unsuccessful because of the answer of 
the Division Bench to which the question was referred. The 
Division Bench held that the law relating to pre-emption on 
the ground of vicinage was saved by Art. 19(5) and was not 
void 1.1nder Art. 13 of the Constitution. The appellant relied on 
the decision of this Court in Bhau Ram v. Baijnath and claimed 
that pre-emption on the ground of vicinage could not be 
claimed. The respondents in reply contended (a) that Bhau 
Ram's case was concerned with a legislative measure whereas 
the present case arose from custom and was thus distinguish-
able and (b) that Art. 13(1) dealt with "all laws in force'~. and 
custom was not included in the definition of the phrase "laws 
in force" in cl. (3)(b) of Art. 13. 
Held: (i) In so far as statute law is concerned Bhau Ram's 
case decides that a law of pre-emption based on vicinage is 
void. The reasons given by this Court to hold statute law 
void apply equally to a custom. 
Bhau Ram v. B. Baijnath Singh, [1962] Supp. 3 S.C.R 724, 
followed. 
· 
Digambar Singh v. Ahmad Said Khan, L.R. 42 I.A. 10, 
referred to. 
(ii) Custom and usage having in the territory of India the 
'- force of law are included irt the expression "all laws in force". 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 299 
of 1964. Appeal from the judgment and order dated Septem-
ber 26, 1961 of the Allahabad High Court in Second Appeal 
No. 620 of I 957. 
J. P. Goyal, for the appellants. 
B. C. Misra. for the respondent No. I. 
April 15, 1964. The judgment of the C'.ourt was delivered 
by 
Hiilayatullah,J. 
HIDAYATULLAH, J.-In this appeal by certificate from the 
-
High Court of Judicature at Allahabad the appellants are 
the four original defendants in a suit for pre-emption filed by 
'>--
the first respondent. Kaiseri Begam (respondent No: 2) sold 
a plot and two houses in mohalla Gher Abdul Rahman Khan, 
-
7 S.C.R. 
SUPREME COURT REPORTS 
757 
Qasba Milak, Tehsil Milak, District Rampur, to the appel-
lants on December 4, 1953. The first respondent Labh Singh 
owned the adjacent house and he claimed pre-emption on 
the ground of vicinage after making the usual demands. The 
suit' was filed by Labh Singh in the court of Munsif, Rampur 
who by his judgment dated September 25, 1955 held that 
there was a general custom of pre·emption in the town of 
Milak. He also held that Labh Singh was entitled to pre-
empt and had performed the Talabs. He, however, dismissed 
the suit because the sale did not include a strip of land 3 
feet 6 inches wide between Labh Singh 's house and the pro-
perty sold. He made no order about costs. 'There was an 
appeal by Labh Singh and the present appellants objected. 
The District Judge, Rampur allowed the appeal and dismiss-
ed the cross-objections. The appellants then filed a second 
appeal in the High 'Court of Allahabad, Mr. Justice V. D. 
Bhargava, who heard the appeal, referred the following ques-
tion to a Division Bench: -
"Whether after coming into operation of the Consti-
tution, the right of pre-emption is contrary to the 
provisions of Art. l 9(l)(f) read with Art. 13 of 
the Constitution, or is it saved by clause (5) of 
Art. 19?" 
The Divisional Bench held that the law relating to pre-emp-
tion on the ground of vicinage was saved by clause (5) of 
Art. 19 and was not void under Art. 1:1 of the Constitution. 
In view of this answer, the second appeal was dismissed. The 
High Court, however, certified the case and the present ap-
peal has been filed. 
The question which was posed by Mr. Justice V. D. 
Bhargava was considered by this Court in connection with 
s. JO of the Rewa State Pre-emption Act. 1946 in Bhau Ram 

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