Case Note & Summary
The dispute arose from a suit for pre-emption initiated by the plaintiff regarding a property in Banaras, which was sold by the defendants, residents of Calcutta. The plaintiff claimed a right of pre-emption based on a local custom prevalent in Banaras, asserting that he was entitled to purchase the property due to its proximity to his own. The trial court dismissed the suit, ruling that while a custom of pre-emption existed, it could not be enforced as neither the vendor nor the vendee were natives or domiciled in Banaras. The High Court upheld this decision, leading the plaintiff to appeal to the Supreme Court. The Supreme Court examined the nature of the right of pre-emption under both Muhammadan Law and local custom, concluding that the right is an incident of property that should apply to all owners within the locality, regardless of their origin. The court found that the lower courts had incorrectly limited the custom's applicability and allowed the appeal, directing the High Court to consider unresolved issues regarding the plaintiff's compliance with legal demands for pre-emption.
Headnote
A) Property Law - Pre-emption - Existence of Custom - Indian Law - The Supreme Court recognized a local custom of pre-emption in Banaras applicable to all house properties, irrespective of the owner's nationality or domicile. The court held that the right of pre-emption is an incident of property and not merely a personal right, thus allowing the appeal and setting aside the lower court's judgments (Paras 85-86).
Issue of Consideration
Whether the right of pre-emption exists for non-natives in Banaras under local custom.
Final Decision
The Supreme Court allowed the appeal, recognizing the existence of a local custom of pre-emption in Banaras applicable to all house properties, and set aside the judgments of the lower courts. The case was remanded to the High Court for consideration of unresolved issues regarding the plaintiff's compliance with legal requirements for pre-emption.
Law Points
- pre-emption
- custom
- Muhammadan Law
- property rights
- vicinage
