Gurtu, J.:— This is an appeal by defendant no. 1 in the suit, the vendee.
2. The plaintiff sought to pre-empt a sale deed executed by Smt. Shyama, defendant no. 2, in favour of Sobhnath, vendee defendant no. 1, on 21-6-1949. The suit for pre-emption was resisted upon various grounds.
3. The trial court found in favour of the plaintiff on all issues but dismissed the suit on the ground that the talabs had not been duly performed according to Mohammedan law.
4. Upon appeal, the court below held that the talabs were duly performed and, having recorded the other findings also in favour of the plaintiff, allowed the appeal preferred before it by the plaintiff, he being directed to deposit Rs. 1,940/- to the credit of defendant no. 1 and Rs. 660/- to the credit of defendant no. 2 within a period of three months from the date of the decree. The court below also ordered that in the event of the deposit being made, the suit would stand decreed with costs throughout and on failure to deposit the same, it would stand dismissed with costs throughout.
5. In this second appeal by the defendant vendee, two contentions were raised before us. Firstly, it was urged that because of the coming into force of the Constitution of India, the law of pre-emption had become void and that the suit should have been dismissed. Secondly, it was contended that the plaintiff should have been directed to deposit the entire amount to the credit of the vendee, defen. no. 1, and not to the credit partly of defendant no. 1, the vendee, and partly to the credit of the vendor, defen. no. 2.
6. In regard to the second point, it was conceded by learned counsel for the respondent that the deposit should be to the credit of defendant no. 1 alone, of the entire amount, namely, Rs. 2,600/-.
7. The first point urged involves a determination of the question as to whether the right of the plaintiff to claim pre-emption, which accrued to him under the custom which he had set up and which custom conformed to the Mohammedan law of pre-emption had been lost to him by virtue of she coming into force of the Constitution. It was urged that the right of preemption, in effect, restricts the power to acquire, hold and dispose of property in derogation of the fundamental right guaranteed by the Constitution of India under Art. 19(1)(f). It was conceded that although Art. 13 of the Constitution was not retrospective in operation, yet it was contended that inasmuch as under the Mohammedan law of pre-emption the pre-emptor had to establish that he had a subsisting right to pre-empt at the time when the decree was passed against him, therefore, inasmuch as the Constitution of India had come into force prior to the passing of the decree, the rights was lost because the right of pre-emption offended against Art. 19(1)(f) of the Constitution.
8. In support of the contention that no decree could be passed to enforce pre-emption after the passing of the Constitution, if the law of pre-emption was held to be void because of Art. 19(1)(f) of the Constitution of India, two authorities were cited before us, namely Shankerlal v. Poonam Chand,1 and Rangnath v. Babu Rao A.I.R 1956 Hyderabad 120.. In these two cases,- it has been held that inasmuch as the law of pre-emption was void in view of Art. 19(1)(f) of the Constitution, the right of pre-emption could not be enforced by means of a decree after the coming into force of the Constitution because the law of pre-emption required that the right of pre-emption should be subsisting not merely on the date of the sale but on the date of the institution of the suit as well as on the date of the decree.
9. In this case, as already pointed out by us, the sale deed sought to be pre-empted is dated 21-6-1949. The talabs were performed two days after the sale deed was executed. The suit was filed on the 5th day of September, 1949 and the decree of the trial court was passed on the 27th of September, 1951. The Constitution of India came into force after the talabs had been performed and the suit had been filed but before the decree had been passed. It being admitted that the Constitution has no retrospective effect, the question to be determined is whether the rights, which the plaintiff had acquired prior to the coming into force of the Constitution and which he had put into suit could be affected by the Constitution having come into force before the passing of the trial court's decree. The view of the Rajasthan and the Hyderabad High Courts, as indicated in the above two cases, is that since the law of pre-emption requires that the plaintiff should have a subsisting right on the date of the decree of the trial court (the Rajasthan Court also thinks that there should be a subsisting right at the date of the appellate decree also if the trial court has dismissed the suit), therefore, if on that date the law of pre-emption became void because of the Constitution, a decree could not be passed in favour of the pre-emptor.
10. It becomes necessary, in the first instance, to determine what exactly are the rights which a pre-emptor had before the passing of the Constitution. In a case governed by the Mohammedan law, as this present case is, if the pre-emptor fell into one of the three categories i.e if he was a co-sharer in the property sold (shafi-i-sharik) or a participator in immunities and appendages, such as a right of way or a right to discharge water (shafi-i-khalit) or if he was an owner of adjoining immovable property (shafi-i-jar), then his right to preempt came into force upon a sale of property with respect to which he stood in the relationship indicated in one or other of the three categories enumerated above, but in order to enforce his rights, the pre-emptor had to make demands for pre-emption in accordance with the rules of Mohammadan law. Once he had done that, he could file a suit for pre-emption. The right to pre-empt, thus came into existence if the pre-emptor fell into one of the three aforesaid categories and a sale of property took place in regard to which property he had the right to claim pre-emption. The right to claim pre-emption perfected itself as soon as the demands were made in accordance with the Mohammedan law. Thereafter he could put his claim into suit, and, provided that on the date of the suit or on the date of the decree he had not lost the status in which he had sued or his right had not been defeated by the vendee acquiring a status which had the result of destroying the plaintiff's right, the plaintiff was entitled to a decree. These were the entire body of rights which before the passing of the Constitution a person entitled to preempt undoubtedly had. This right to obtain a decree he was liable to lose if before the passing of the decree, he ceased to fall into one or the other of the three categories herein above enumerated or if the vendee acquired a status which had the result of defeating the pre-emptor's right. In other words, the pre-emptor had not to establish on the date of the suit or on the date of the decree that he had acquired any fresh right on those dates but all that was required to be shown was that the right which had been acquired and which had been put into suit had not been lost under the law of pre-emption by virtue of the loss of status of the pre-emptor or by virtue of the vendee having acquired a status which had the result of defeating the pre-emptor's right. When a pre-emptor filed his suit, he put his cause of action into suit. So long as that cause of action remained unchanged and the bundle of facts which he had to establish in order to obtain his decree were not altered on the date of the decree, the plaintiff's right to a preemption decree remained. In other words, the rights of the plaintiff to obtain a decree accrued to him as soon as the talabs had been performed, if he fell within one of the three categories, but at the same time a right accrued to the vendee to defeat the pre-emptor's claim in the event of the pre-emptor ceasing to belong to one of the three categories or in the event of the defendant acquiring a status on the basis of which the pre-emptor's claim could be defeated. The cause of action upon which the plaintiff obtained his decree in a pre-emption suit was the same cause of action which had accrued to him prior to the suit and which cause of action he had put into suit. The rule that the right of the pre-emptor should not have been lost on the date of the decree was based upon a rule laid down in the Hedaya, Chapter IV, Book 38 that it is a condition that the property of the shafi remained firm until the decree of the Qazi be passed. For this reason, if the shafi, previous to the decree of the Qazi sold the house from which he derived his right of shafa (per-emption). The reasons of his right being thereby extinguished, the right itself is invalidated. The principle relating to sale was extended to a case where the pre-emptor, who had founded his right upon his being a cosharer in the Mahal, lost his said right by partition. See Tafazzul Husain v. Than Singh.3
11. It would be helpful in understanding the position to set out in extenso a passage from the case of Ram Gopal…(Defendant); v. Piari Lal…(Plaintiff).* I.L.R 21 All. 441 p. 443. which runs as follows:—
Mr. Justice Mahmood in his judgment referred to a passage in the Hedaya which he construed as showing that if by reason of a voluntary sale or other circumstance the pre-emptor before the passing of the decree of the first court ceases to be the owner of the tenement by virtue of which he calimed pre-emption, then the decree could not be given in his favour. He expressed some doubt as to whether that principle would apply to a compulsory sale, such as a sale in execution of a decree. It appears from Baillie's Digest of Moohummudan law (2nd edition, p. 505), that “the right of pre-emption is rendered void in two different ways after it has been established. One of these is termed ikhfiyaree, or voluntary, the other zurooree, or necessary. But no instance is given of the loss of the right of pre-emption in the latter way except the death of the pre-emptor, and the result is that we get no light from the Muhammadan law as to the effect upon the right of pre-emption of a pre-emptor parting with the property, by “virtue of which, he claims the right, by a partition or any mode other than a voluntary sale. In the absence of authority on the subject, and in dealing with claims for pre-emption arising under the wajib-ul-arz, it seems to me that the only safe course is to see what mode of deciding the question would be most in furtherance of the contract or custom of pre-emption, and the principles upon which such a contract or custom is based. There can be no question that the effect of a decree in the plaintiff's favour in this suit would be to enforce the right of pre-emption in favour of a person who does not now form one of the class to whom alone the right of pre-emption is given by the wajib-ul-arz. The custom is one in favour of co-sharers of the undivided mahal, and no others. The object was to give such persons a preference over strangers, that is, over persons not co-sharers of the undivided mahal, and to exclude such strangers as much as possible. The plaintiff is not a cosharer in the undivided mahal any longer. He is not even a co-sharer with the vendor in the new mahal in which the property sold is situate. He is just as much a stranger in the sense of the wajib-ul-arz as the defendant to whom the property was sold. That seems to be a strong reason for dismissing the suit, unless it can be shown that there is some general principle of law or procedure which compels us in disregard of the custom, and which would compel us in disregard of a contract, if this were a case of contract, to look exclusively to the state of things that existed at the date of the institution of the suit, and to say that because on that date the plaintiff was entitled to pre-emption he is to have a decree for pre-emption, although since that date, his right has ceased to exist. It appears to me impossible to maintain that there is any such general principle of law.”
12. The rule of law that there should be a subsisting right of pre-emption has been made applicable even to cases where the law of pre-emption was exercised under a statutory enactment.
13. It will, therefore, appear that a pre-emptor may lose his right on the happening of an event subsequent which has the result of depriving him of the status in which he sues or putting the defendant-vendee in a status in which the pre-emptor can no longer get pre-emption, as for instance where the vendee also by inheritance or otherwise becomes a co-sharer but if there is no change in the position, the right of the pre-emptor is the same which it was on the date of the talabs. The cause of action on which the pre-emptor founded his suit came into existence on the date of the talabs and that is the very cause of action which was put into suit and upon which the decree would eventually be obtained, unless the suit was dismissed because of the change in position. Our view is that no fresh right has got to be established by a plaintiff pre-emptor on the date of the suit. All that he has got to show is that his right has not been extinguished or defeated and the right to a preemption decree, unless that right is defeated or extinguished by facts subsequent, is a right which vested in the pre-emptor immediately the sale, which he was seeking to pre-empt, took place and the talabs were made. It is a case where the suit may fail because of a change in the position of the pre-emptor or the vendee, but the pre-emptor is not required to assert or prove the existence of a new right at the time when the decree is passed. It seems to us that if the Constitution of India is not to be given a retrospective but prosecutive effect, all rights which have accrued before it came into force should be respected. In the case of pre-emption, there is a right in, the pre-emptor to obtain a decree, if there is no change in his position or in the position of the vendee. The decree merely embodies the right and does not create it. This is so far as the pre-emptor is concerned. So far as the vendee is concerned, there is a right in him to defeat the pre-emptor's suit, if the pre-emptor's status, changes or the vendee acquires a status which destroys the pre-emptor's right. These two sets of rights come into existence at the very time that the talab is made and the demand for pre-emption is effectively registered. Looking at the matter from the angle of the pre-emption his right to obtain a decree is limited, at the very moment that the right comes into existence, by a limitation that right would be lost in the event of the happening of certain facts subsequent which alter his position or that of the vendee. The entire body of rights come into existence at the time of the talabs so that, in essence, no rights, other than those which came into existence at the time of the talabs, have to be established for the first time at the time of the decree. When a plaintiff puts his cause of action into suit, he knows then that he may not get a decree, if his position or if the position of his vendee is changed. In our view, therefore, the pre-existing rights of both the plaintiff and the vendee cannot be touched by the coming into force of the Constitution in a case where the rights have come into existence prior to the coming into force of the Constitution and have even been put into suit before that date.
14. In the Hyderabad and the Raj as than Courts, the view taken by those Courts is that inasmuch as on the date of the decree the law of pre-emption was dead, a plaintiff could not get a decree because one of the requirements of the law of pre-emption; was that the rights should be subsisting on the date of the decree. In other words, the two Courts killed the plaintiff's suit for pre-emption on the basis of a requirement of the law of pre-emption while at the same time the judgments affairm that the law of pre-emption did not exist. To put it in another way, even though the law of preemption is dead, according to the judgments of the aforesaid two Courts, on the date of the decree, one of the requirements of the said law is resurrected namely, the requirement that there should be a subsisting right of pre-emption, under that very law of pre-emption, to kill the suit. If one part of the law can be brought to life again and can be applied, then there seems no logical reason why the whole of the law should not be brought to life and applied and if the whole law is applied, then the suit can only be defeated in accordance with that law, namely, if the pre-emptor has lost his status as shafi, or if the vendee has secured some status which, under the law of pre-emption, would defeat the plaintiff's case, the law cannot be dead wholly and then be brought to life partly for the purpose of killing a suit. In our view, therefore, with all respect, the basis on which the decision of the two Courts referred to above proceeded is erroneous. In our view, the entire body of the law of preemption is preserved in regard to cases where the cause of action had accrued prior to the coming into force of the Constitution and where the suit had already been filed before the coming into operation of the Constitution. The result of upholding otherwise would be that all suits which were pending at the date of the passing of the Constitution would fail and in a case where the suit had been dismissed and there was an appeal by the pre-emptor, they would equally fail according to the view of the Rajasthan High Court. This would amount to giving retrospective effect. We, therefore, respectfully disagree with the reasoning of Wanchoo, C.J in Shankerlal's case. The mere fact that the law of preemption became invalid from 26-1-1950 is no basis for holding that the right, which had accrued prior to that date and which had been put into suit prior to that date, is lost. Likewise, we disagree with all respect with the line of reasoning adopted by Kumarayya, J. in Rangnath's case. The peculiar feature of the pre-emption law cannot be made a ground for defeating a pre-emption suit after the passing of the Constitution. The peculiar feature of the law of pre-emption must be given effect to in accordance with the pre-emption law only and a claim which is lost by virtue of the pre-emption law, as it was, must fail, otherwise the claim must succeed. A rule of the Mohommedan law of pre-emption cannot be invoked to defeat a suit when the entire body of pre-emption law is said, to be dead. In view of the fact that we have held that the Mohommedan law of pre-emption, which is being applied in this case, is not affected by the Constitution of India, it is not necessary to consider whether under the Constitution of India that law is void. We have already pointed out that the respondent has no objection to the decree being varied and it being ordered that the plaintiff shall deposit Rs. 2,600/- to the credit of defendant no. 1 only.
15. No other point was urged in this appeal. Accordingly, we partly alow this appeal and vary the decree of the court below to the extent that the plaintiff shall deposit Rs. 2,600/- to the credit of defendant no. 1 only. The period of three months for depositing the amount granted under the decree of the court below is extended to a period of six months from today's date. Parties will bear their own costs of this appeal proportionately.
16. Appeal Partly Allowed.