# fl964} SANT RAM AND ORS v. LABH SINGH AND ORS

- **Citation:** [1964] 7 S.C.R. 756
- **Court:** Supreme Court of India
- **Decided:** 1961-09-26
- **Case number:** Civil Appeal No. 299 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayat-' Ullah, K. C. Das Gupta, N. Rajagopala Ayyan· Gar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fl964-sant-ram-and-ors-v-labh-singh-and-ors-3116
- **Pages:** 4

## Headnote

Pre-emption-Based on custom-Whether infringes Constitution 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 holding 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 distinguishable 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".

## Text

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 Constitution 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 holding 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 distinguishable 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 September 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 appellants 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 preempt 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 property 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 dismissed 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 question to a Division Bench: -
"Whether after coming into operation of the Constitution, 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-emption 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 appeal 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
v. B. Baijnath Singh ('). This Court held by majority that the
law of pre-emption on the ground of vicinage illlposed unreasonable restrictions on the right to acquire. hold and to
dispose of property guaranteed by Art. l 9(i)(fl of the Constitution and was void. It was pointed out that it placed restrictions both on the vendor and on the vendee and there was
no advantage to the general public and that the only reason
given in support of it, that it prevented person~ belonging to
different religions, races or castes from ucquiring property
in any area peopled by persons of other religions. races or
castes, could not be considered reasonable in view of Art. 15
of the Constitution.
If this ruling applies the present appeal must succeed.
Mr. B. C. Misra, who appears for Labh Singh attempts to
distinguish Bhau Ram's case('). He contends that the earlier
case was concerned with a legislative measure whereas the
( 1) [1962] Supp. 3 S.C.R 724.
1964
Sant Ram and
Olhe'8
v.
La/Jh Singh ani
Othm
Hiclayatullah, J
1964
Sant Ram and
Other1
v.
Lab! Si1UJh and
OtMrs
Hidayatu/bJh, J.
758
SUPREME COURT REPORTS
[1964)
present case of pre-emption arises from custom. He refers
to the decision in Digambar Singh v. Ahmad Said Khan(')
where the Judicial Committee of the Privy Council has given
the early history of the law of pre-emption in village communities in India and points out that the law of pre-emption
had its origin in the Mohammedan Law and was the result,
some times, of a contract between the sharers in a village.
Mr. Misra contends that Arts. 14 and 15 are addressed to
the "State as defined in Art. 12 and are not applicable to
custom or contract as neither. according to him, amounts to
law within the definition given in Art. 131J)(bl of the Constitution. He submits that the ruling of this Court does not
cover the present case and that it is necessary to consider the
question of the validity of the customary law of pre-emption
based on vicinage.
It is hardly necessary to go into ancient law to discover
the sources of the Jaw of pre-emption whether customary or
the result of contract or statute. In so far as statute law is
concerned Bhau Ram's case(') decides that a Jaw of pre-emption based on vicinage is void. The reasons given by this
Court to hold statute law void apply equally to a custom.
The only question thus is whether custom as such is affected
by Part III dealing with fundamental rights and particularly
Art. 19(i)(f). Mr. Misra ingeniously points out in this connection that Art. 13(1) deals with "all Jaws in force" and
custom is not included in the definition of the p:1rase "laws
in force" in clause (3)(b) of Art. 13. It is convenient to read
Art. 13 at this stage:
"13. (!) All laws in force in the territory of India
intmediately before the commencement of this
Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall. not make any law which takes
away or abridges the rights conferred by this Part
and any law made in cOntra vention of this clause
shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise rerequire&,-
(a) "Jaw" includes any Ordinance, order, bye-Jaw,
rule, regulation. notification, custom or usage
having in the territory of India the force of
Jaw;
(b) "law in force" includes laws passed or made
by a Legislative or other competent authority
in the territory of India before the commencement of this Constitution and not previously
(') L.R. 42 I.A. 10, 18.
(') [1962] Supp. 3 S.C.R. 724.
-
7 S.C.R.
SUPREME COURT REPORTS
759
repealed,
notwithstanding that any such law
or any part thereof may not be then in operation either at all or in particular areas."
The argument of Mr. Misra is that the definition of "law''. in
Art. 13(3)(a) cannot be used for purposes of the first cla~e.
because it is intended to define the word "law" in the second
clause. According to him. the phrase "laws in force" which
is used in clause (I) is defined in (3)(b\ and that definition
alone governs the first clause, and as that definition takes no
account of customs or usage, the law of pre-emption based
on custom is unaffected by Art. l 9(i)(f). In our judgment, the
definition of the term "law" must be read with the first clause.
If the definition of the phrase "laws in force" had not been
given. it is quite clear that the definition of the word "law"
would have been read with the first clause. The question is
whether by defining the composite phrase "laws in force"
the intention is to exclude the first definition. The definition
of the phrase "laws in force" is an inclusive definition and is
intended to include laws passed or made by a Legislature or
other competent authority before the commencement of the
Constitution irrespective of the fact that the law or any part
thereof was not in operation in particular areas or at all. In
other words, laws, which were not in operation, though on
the statute book, were included in the phrase "laws in force".
But the second definition does not in any way restrict the
ambit of the word "law" in the first clause as extended by
the definition of that word. It merely seeks to amplify it by
including something which, but for the
second definition,
would not be included by the first definition. There are two
compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to
ho!d otherwise, would restrict the operation of the first
clause in such ways that none of the things mentioned in the
first definition would be affected by the fundamental rights.
Secondly, it is to be seen that the second clause spea-ks of
"laws" made by the State and custom or usage is not made by
the State. If the first definition governs only cl. (2) then the
words "custom or usage", would apply neither to cl. (I) nor
to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the fits!
clause of the Article. The argument cannot, therefore, be accepted. It follows that respondent No. I cannot now sustain
the· decree in view of the prescriptions of the Constitution and
the determination of this Court in Bhau Ram's case('). The
appeal will be allowed but in the circumstances of the case
parties will bear their costs throughout.
Appeal allowed.
(') [1962] Supp. 3 S.C.R. '724.
1964
San/ Ram and
.. Others
v.
Lablt Sin.gh r,ind
Others
Hidaynluflail, .T.