JUDGMENT Deoki Nandan, J. - This is a defendants second appeal in a suit for pre-emption of the sale of a house situate in Mohalla Ali Nagar patti Zanoobi at Gorakhpur made by a deed dated 29th April, 1953 of which registration was completed on 8th May, 1953. 2. The un-disputed facts are that one Narain Dass died leaving him surviving three sons, namely, the plaintiff Ram Chandra Agarwal, defendant No. 2 Mahadeo Das and defendant No. 3 Radhey Shyam, as also widow Smt. Lakhpat Bibi, who was originally impleaded as defendant No. 4 but whose name was struck off on her death during the pendency of the suit; and that the family held ancestral property in the nature of houses and Zamindari etc., including the house in suit. The plaintiff pleaded that there was a partition in the joint family of the parties after the death of Narain Dass that Smt. Lakhpat Bibi surrendered l/4th share and relinquished it in favour of sons with the result that the plaintiff and defendant Nos. 2 and 3 became owners of a l/3rd share each in the ancestral property; that there was an ancient custom of pre-emption in Mohalla Ali Nagar according to which a co-sharer had a right to preempt the sale of property by the other cosharers to strangers, that defendants Nos. 2, 3 and 4 executed a sale-deed dated 29th April, 1953 in favour of the first defendant Smt. Laxmi Devi, the appellant who has since died during the pendency of the appeal in this Court, and is now represented by her heirs and legal representatives; that she was the wife of defendant No. 3 and th share of the house in suit was transferred to her by defendants Nos. 2, 3 and 4 although defendants Nos. 2 and 3 alone had together a ?rd share only in the house, Smt. Lpkhpat Bibi, the fourth defendant having had no share; that though the consideration for the sale shown in the sale-deed was Rs. 4,854/-, it was fictitious, the real consideration being only Rs. 2000/-. It was also pleaded that Smt. Lakhpat Bibi, who was old and infirm and did not execute the sale-deed intelligently but was defrauded into doing so by defendants Nos. 4,854/-, it was fictitious, the real consideration being only Rs. 2000/-. It was also pleaded that Smt. Lakhpat Bibi, who was old and infirm and did not execute the sale-deed intelligently but was defrauded into doing so by defendants Nos. 2 and 3, and that the property had not been divided by metes and bounds and, therefore, the plaintiff was a co-sharer and had a right to pre-empt the sale on payment of the real consideration. It was then pleaded that the plaintiff asserted the right of the pre-emption as soon as he came to know that the property was going to be sold. The first relief claimed was a decree for possession and pre-emption of the sale of ?rd portion of the house on payment of Rs. 2000/- which was the real consideration for ' the sale or such amount as may be found by the court to be the real consideration for the same. The second relief claimed was that the sale-deed dated 29th April, 1953, registered on 8th May, 1953 executed by defendants Nos. 2 and 3 and Smt. Lakhpat Bibi in favour of defendant No. 1, in respect of l/12th share in the house in suit be cancelled. The third relief claimed was that if for any reason it was found that the first defendant was the owner of a th share in the house in suit and the plaintiff was not entitled to the whole of reliefs Nos. 1 and 2, then in that case a decree for pre-emption of the said sale of th share in the house in suit may be passed on payment of Rs. 2000/- which was the real consideration for the sale or on payment of such amount as may be found to have been paid as the real consideration, for the sale. 3. The defendants contested the suit by denying the alleged custom of preemption in Mohalla Ali Nagar at Gorakhpur. They pleaded that the 4th defendant had not relinquished her share in the property and defendants Nos. 2, 3 and 4 were thus entitled to a th share in the house which they had the right to transfer as the brothers were living separately and the family was no longer joint although the house had not been divided by metes and bounds. 2, 3 and 4 were thus entitled to a th share in the house which they had the right to transfer as the brothers were living separately and the family was no longer joint although the house had not been divided by metes and bounds. It was further pleaded that th share in the house had been sold to the wife of the third defendant; that she was not a stranger, rather she was a member of the joint family and, therefore, there was no right to pre-empt the sale in her favour. As many as 18 issues were framed by the trial Court. It is not necessary for the purpose of the case to set out all the issues or the findings thereon. The material findings arrived at by the trial court were on issues Nos. 1 and 7, that Smt. Lakhpat Bibi had surrendered her share in the joint family properties in favour of the three sons and that, therefore, the plaintiffs share in the house in suit at the time of the execution of the sale-deed in question was 1/3; on issue No. 2 that the custom of pre-emption has existed in Mohalla Alinagar at Gorakhpur under which a co-sharer has the right to pre-empt a sale to a stranger but the making of demands in accordance with Muslim Law of pre-emption was not an essential part of the custom; on issue No. 3 that the sia custom of pre-emption was not void for being unconstitutional; on issue No. 15 that although it was not an essential part of the custom of pre-emption as prevalent in Mohalla Alinagar at Gorakhpur, the plaintiff did perform the Talab-i-mowasibat and Ta-lab-i-ishhad in accordance with Muslim Law: on issues Nos. 4 and 14 that the plaintiff was entitled to pre-empt the sale in favour of the first defendant inasmuch as she had no interest in the property and was not a co-owner having equal right with the plaintiff and also because defendants Nos. 2 and 3 had sold their specific shares in the property which they could not have done if they had been the members of a joint Hindu family of which the first defendant may have been a member when the family was joint; and on issue No. 6 that the real consideration for the sale was Rs. 2 and 3 had sold their specific shares in the property which they could not have done if they had been the members of a joint Hindu family of which the first defendant may have been a member when the family was joint; and on issue No. 6 that the real consideration for the sale was Rs. 4,854 as mentioned in the sale-deed; and in the result the trial court decreed the suit for cancellation of the sale-deed in question in respect of the sale in excess of ?rd share in the house and for pre-emption of the sale of the ?rd share on payment of Rs. 4,854 to the first defendant within two months with the direction that if the amount was paid in the court within that period, the plaintiff shall be put into possession of the house failing which the suit for pre-emption of the sale shall stand dismissed. 4. Before the lower appellate court the question raised was whether the existence of the custom of pre-emption was proved and if so whether the plaintiff had any right to pre-empt the sale in question in view of the fact that the first defendant is admittedly the wife of defendant No. 3. The lower appellate court found, agreeing with the trial court, that there was a custom of preemption in the locality in question entitling a co-sharer to pre-empt a sale of property made by another co-sharer to a stranger and that the first defendant was 'almost a stranger. The lower appellate court also held that the defendants could not take advantage of the observations of the Supreme Court in the case of Bhau Ram v. Baij Nath Singh ( AIR 1962 SC 1476 ) inasmuch as although she was not an outsider on account of being the plaintiffs brothers wife her husband could not prefer her to his brother who was a co-sharer in transferring his share in the house and she would not be put to any discomfort even if she was not allowed to purchase the property as she lived with her husband. The finding of the trial court that the consideration for the sale was that shown in the sale-deed was also upheld by the lower appellate court as also the finding that Smt. Lakhpat Bibi had no share in the property and the sale of the excess of 1/12 share over the ?rd share of defendants Nos. 2 and 3 was illegal. In the result the lower appellate court dismissed the appeal and confirmed the decree of the trial court. 5. The present second appeal was filed by the first defendant alone - The plaintiff is the first respondent. The second defendant Mahadeo Das having died in the meanwhile, he is represented by his heirs and legal representatives who are respondents Nos. 2 to 10. Defendant No. 3 is the respondent No. 11. The first point urged in this second appeal is that Smt. Lakshmi Devi, the first defendant and the appellant in this second appeal, since deceased and now represented by her three sons and a daughter, was no stranger to the family and that at any rate having died before the decree of pre-emption could be executed, it cannot now be given effect to against her legal representatives who are undoubtedly co-sharers in the property along with respondents Nos. 2 to 11. It was also urged that the existence of the alleged custom of pre-emption in Mohalla Alinagar at Gorakhpur was not proved and the findings of the two courts below on that point are erroneous. 6. Learned counsel for the appellant urged that the defendant-appellant could not be said to be a stranger to the family to which the plaintiff belongs, having been the wife of his own brother, defendant-respondent No. 11. The right of pre-emption is a weak right and the vendee can defeat it by all lawful means. It has been held to be a fetter on a persons fundamental right to acquire, hold and dispose of the property. On the other hand the defendant-appellant was not a co-sharer, and the plaintiff-respondent being a co-sharer of the vendees, he had a preferential right to purchase the property under the Muslim Law of pre-emption. It has been held to be a fetter on a persons fundamental right to acquire, hold and dispose of the property. On the other hand the defendant-appellant was not a co-sharer, and the plaintiff-respondent being a co-sharer of the vendees, he had a preferential right to purchase the property under the Muslim Law of pre-emption. However, 1 am doubtful whether among the several instances of the exercise of the right of pre-emption of which evidence was given in this case for establishing the existence of the customary right and its incidents, there was any instance of a sale to a co-sharers wife. Under the general law of the land a person has an absolute right to acquire, hold and dispose of property. Indeed it is a fundamental right guaranteed to the citizens of India under Article 19 (1) (f) of the Constitution. The customary law entitling a co-sharer to pre-empt the sale of an undivided share in the property by another co-sharer to a stranger may be a reasonable restriction on that right and, therefore, enforceable in derogation of the general law; but the existence of the custom and its incidents in order to be enforceable in derogation of the general law have to be strictly proved apart from the fact that the custom must also be proved to be ancient and continuing. The trial court firstly found on a consideration of the evidence of certain cases decided by the courts that the custom of pre-emption on the ground of vicinage and on account of being a participant in immunities and appendages with owners of adjoining immoveable properties was sufficiently proved. From this the trial court reasoned that it is difficult to imagine that a co-sharer would have no such right and proceeded to hold that the custom of pre-emption prevalent in the locality in question entitled a cosharer to pre-empt a sale. The trial Court then proceeded to consider the question about the incident of the custom of pre-emption prevalent in the locality and found that the performance of the talabs required by Muslim Law was not an essential part of the custom. The trial court does not appear to have applied its mind to the question whether there was any instance of preemption of a sale made by a co-sharer to his wife by another co-sharer as in the present case. The trial court does not appear to have applied its mind to the question whether there was any instance of preemption of a sale made by a co-sharer to his wife by another co-sharer as in the present case. One of the vendees in the sale sought to be pre-empted in the present case, is the husband of the vendee and the other vendor was the husbands brother. If the husband had gifted his share or bequeathed it to his wife, the transfer could not have been pre-empted by the plaintiff-respondent. The defendant-appellant was not a stranger to the family of the parties. She may not have been a coparcener or a co-sharer but she was a member of the family having a right of residence in the family residential house, if any. There is no mention in the judgments of either of the two courts below of any evidence of exercise of a customary right of pre-emption by a co-sharer against his brother co-sharers wife. Since it has been found that the customary right of pre-emption existing in the locality in question did not require the exercise of Talabs prescribed by the Muslim Law of pre-emption, it cannot be said that the incidents of the custom prevalent in the locality were the same as those prescribed by Muslim Law in the matter of the persons against whom the right of pre-emption may be exercised by a co-sharer. Muslim Law of pre-emption could not be applied to the present case at all because the pre-emptor and the vendor both are Hindus. There has been a deliberate erosion of law of pre-emption which was a legacy of the Muslim personal law, by the post independent legislative enactments and the decisions of the courts. The law of pre-emption is not looked upon favourably and the only case in which it has been held to be valid and enforceable is the case where the pre-emptor is likely to suffer such injury in the matter of enjoyment of his property as to entitle him to justly restrain the owner of the properly from selling it to any other person. In the present case the plaintiff-respondent did not have any such justifiable right to purchase the property sold in preference to the defendant-appellant. In the present case the plaintiff-respondent did not have any such justifiable right to purchase the property sold in preference to the defendant-appellant. Apart from the fact that there is no evidence to support any such customary right to pre-emption as may justify the decree of pre-emption in the plaintiffs favour, a custom has to be reasonable before it can be enforced in derogation of the general law. It has been demonstrated above that the plaintiff could not be said to be reasonably entitled to purchase the property in preference to the defendant-appellant, in the peculiar facts and circumstances of the present case. No contention was raised before me in respect of the decree declaring the sale in respect of 1/12th share in the house to be void and cancelling the sale deed to that extent. 7. In the result the appeal succeeds and is allowed in part. The judgments and decrees of the two courts below in so far as they have decreed the pre-emption of the sale in question are set aside. The declaration of the invalidity of l/12th share in the house in suit sold by the sale-deed in question and the decree can filing it to that extent is maintained. The parties shall receive and pay the costs throughout in proportion to their failure and success.