Raj Kishore Prasad, J.:— This appeal by the purchaser, defendant 1, is against a decree for pre-emption passed in favour of the pre-emptors-plaintiffs-respondents 1 to 4.

2. In this case, all the parties — the pre-emptors, the vendors and the vendee — are all Hindus. It is not disputed that the Mohammadan Law of Pre-emption applies to Hindus also.

3. Defendants 2 to 5, the vendors, had a house situated in Mahalla Dhami Tola in the town of Gaya. They sold the house to defendant 1, the appellant, under a registered deed of sale dated 31-1-1946, for Rs. 2,000/-. It is admitted that the sale deed was executed and registered on one and the same day, that is, on 31-1-1946. The consideration money of the sale was paid, and, the exchange of equivalents, that is, the handing over of the registration receipt to the vendee, took place on 7-2-1946. The sale deed was copied in the register of the Registration Department, and, the registration was complete on 9-2-1948. The plaintiffs' case was that they had their residential house contiguous west of the house of defendants 2 to 5, which was sold by them to the appellant. They learnt about the sale for the first time on 2-2-1946, on which date they performed the two ceremonies of talab-i-mowasibat and talab-i-ishad. They, thereafter, brought the suit, out of which the present appeal arises, for pre-emption in respect of the vended house.

4. The suit was contested by defendant 1, the vendee, who was supported by defendants 2 and 3, the vendors. One of the defences taken was that even if the formalities of pre-emption were performed by the plaintiffs on 2-2-1946, they were premature, because the sale was complete later.

5. Mr. Lal Narayan Sinha, appearing for the purchaser-appellant, has put forward the following four contentions:

(1) The law of pre-emption has become void, because it contravenes Article 19(1)(f) of the Constitution;

(2) The right of pre-emption continues till the date of the decree for pre-emption, and, as such, the Constitution, although it has no retrospective effect, will operate on the right of the plaintiffs;

(3) The right of the plaintiffs in the existing holding is that of a tenant, and, therefore, the subject matter of the sale is a tenancy right, and, as such, the law of pre-emption will not apply to such a case; and,

(4) The ceremonies of pre-emption required to be performed in order to enable the pre-emptors to claim pre-emption were prematurely performed, because the proper time for performance was certainly not earlier than the 7th of February, 1946, when the consideration money was paid, and, there was an exchange of equivalents (Taqabazul-badlain), and admittedly, no ceremonies having been performed after the 7th February, 1946, the suit was not maintainable.

6. I propose to deal with the last contention first; because if I hold that the ceremonies alleged to have been performed by the plaintiffs on the 2nd February, 1946, were prematurely performed, as the proper time for performance of those ceremonies was not earlier than the 7th February, 1946, as contended for the appellant, then in that case on this ground alone, the plaintiffs' suit will have to be dismissed, and in such an event the other points raised need not be decided in the present appeal.

7. In order to decide the last contention of Mr. Sinha, it is necessary at first to know what is meant by “pre-emption”, and, when the right of pre-emption arises.

8. The right of pre-emption is not a right of “repurchase” either from the vendor or from the vendee, involving any new contract of sale but it lis simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title; Gobind Dayal v. Inayatullah, ILR 7 All 775 (FB) (A), per Mahmood, J.

9. The right of pre-emption arises only out of a valid, complete, and bona fide sale. The right becomes enforceable only when there is a sale, but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The sale is a condition precedent net to the existence of the right, but to its enforcibility. The law of preemption creates a right which attaches to the property, and on that footing only it can be enforced against the purchaser.

10. The above view is now settled by the decision of the Supreme Court in Audh Behar Singh v. Gajadhar Jaipuria, AIR 1954 SC 417 (B), in which the decision of Mr. Justice Mahmood in the Full Bench case of the Allahabad High Court, above mentioned, was approved. Mukherjee, J., as he then was, in delivering the judgment of the Supreme Court, observed as follows:

“The crux of the whole thing is that the benefit as well as burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee aid there was, no infirmity in the title of the owner restricting his right of sale in a certain manner, a ‘bona fide’ purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of preemption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.”

11. The crucial question, therefore, for determination is: when is a sale complete so as to entitle the pre-emptor to exercise his right of pre-emption?

12. This question has given rise to a divergence of opinions in the different High Courts, but, as far as this Court is concerned, the settled view is, which is consistent with the view taken by the Calcutta High Court, that a sale is not complete till legal ownership passes, no matter whether there has been (payment and delivery; and a pre-emptor's title, in the case of property worth more than Rs. 100/-, does not arise until after registration; Kheyali Prasad v. Mullick Nazarul Alum 1 Pat LJ 174 : (AIR 1916 Pat 364) (C). In the present case, it is admitted that the impugned sale dated the 31st January, 1946, was for Rs. 2,000/-, and as such, it was compulsorily registerable under Section 17(1)(b) of the Indian Registration Act, (Act XVI of 1908).

13. The contention put forward by Mr. Lal Narayan Sinha is that registration is complete only when the document has been copied into the margin of the Register-book, and not otherwise, as required by Section 61 of the Indian Registration Act. He has, therefore, contended that in the present case the registration was complete on the 9th February, 1948, when the document was copied in the Register-book as required by S. 61(1) of the Act, and, therefore, he contends that the sale must, in law, be deemed to be complete only on the 9th February, 1946, and, not earlier, and, admittedly the formalities, which are conditions precedent to the exercise of the right of pre-emption not having been performed on or after the 9th February, 1946, by the plaintiffs, their suit was not maintainable. In support of his contention, he has placed strong reliance on Naresh Chandra Dutta v. Girish Chandra Das, AIR 1936 Cal 17 (D), in which directly this question arose.

14. The question, therefore, is, when did the sale become complete so as to give the pre-emptors the right to enforce their right of pre-emption against the vendor and the vendee?

15. There may be three points of time at one or other, of which the sale can possibly be taken to have become complete; the first is the point of time at which a part of the consideration money having been paid, the vendor put the vendee in possession or, when the full consideration money was paid and the exchange of equivalents to place; the second when the transfer became operative under Section 54 of the Transfer of Property Act, and the third any other point of time at which the parries may have intended the sale to be effective.

16. I may at once mention that there is no indication in the pleadings of the third of the above mentioned contingencies. Therefore, upon the view favourable to the plaintiffs, it is either the first, or the second point of time aforesaid which should be regarded as the point of time when the sale became complete.

17. With regard to the first point of time, admittedly, the consideration was paid, and, there was an exchange of equivalents, and, the registration ticket was handed over to the vendee, on the 7th February, 1946. Even if this point of time be taken into consideration, then the plaintiffs having got knowledge of the same, according to their case on the 2nd of February, 1946, and having performed the ceremonies on the same day, which would mean before the 7th February, 1946, when the aqabazubadlain took place, the formalities performed on the 2nd February, 1946, must be considered to be premature. Admittedly, the plaintiffs did not perform the ceremonies on or after the 7th February, 1946, which is the first point of time when the side may be taken to be complete, and, as such the plaintiffs' suit considered from this point of time must fail.

18. The second point of time gives rise to the question: when was the deed “registered” within the meaning of section 3 of the Transfer of Property Act?

19. Section 3 defines “registered” as meaning registered in a Province under the law for the time being in force regulating the registration of documents. The scheme of the Indian Registration Act on this point can be gathered from sections 34, 35, 52, 58, 59, 60 and 61 of the Indian Registration Act. When a document is presented for registration by the person executing it, he or his representative, or authorised agent has to appear before the registration officer, and, thereupon the registration officer has to enquire whether the document has been executed by such a person, and after being satisfied as to the identity of the person appearing before him and alleging that he has executed it, or, in the case of any person appearing as a representative or agent of the executant of the right of such person so to appear, the document then is admitted as required by section 34 of the Act.

20. Section 35 provides the procedure on admission and denial of execution respectively. When the document is admitted to have been executed by the person concerned, the registering officer under section 35(1) proceeds to register the document as directed in sections 58 to 61 of the Act. Under section 52, the day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it, and, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission. Sections 58 to 63 deal with “the Procedure on admitting to Registration”.

21. Section 58 requires the particulars to be endorsed on documents admitted to registration, which particulars are mentioned in clauses (a) to (c) of section 58(1). Section 59 requires the registering officer to affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document, and made in his presence on the same day. Section 60 provides that after such of the provisions of sections 34, 35, 58 and 59, as apply to any document presented for registration, have been complied with the registering officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the document has been copied. Section 60(2) lays down that such certificate under section 60(1) by the registering officer shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned, Section 61 is important for our purpose. It reads thus:

61. (1) The endorsements and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No. 1.

(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52.”

22. From the above provisions of the Act, therefore, we gather that the registration of a document is deemed to be complete under section 61(2) of the Act, only when the document has been copied into the margin of the Register-book as required by section 61(1) of the Act. From the above scheme of the Act, therefore, there is no doubt that the registration of the document shall be deemed to be complete only when it is copied, and not otherwise.

23. The significant of the words “registered” in accordance with this Act occurring in section 49, and “duly registered” occurring in section 50 of the Act, was considered by a Division Bench of the Madras High Court in Veerappa Chetty v. Kadiresan Chetty, 24 Mad LJ 664 (E). Their Lordships observed thus:

“Now, first, what is the meaning of the word ‘registered’………Briefly then, registration includes the getting and the making of certain endorsements, making the certificate of registration and the copying of the documents in the register-book and the filing of the map or plan, if any, in Book No. 1. The substantial portion is apparently complete with the making of the certificate of registration. It is these that S. 49 prescribes should have taken place with reference to the document before it can affect any immoveable property to which it relates or be received in evidence. It will be noted that S. 60 lays down that the certificate of registration can be made only after the execution of the document has been proved. No other requisite is, laid down in that section beyond the making of the endorsements referred to in Ss. 58 and 59”.

24. In my judgment, therefore, the word ‘registered’ means registered in accordance with the provisions of the Indian Registration Act relating to procedure, on admitting to registration, which is mentioned in sections 58 to 61 of the Act and not to admission to registration. This case was followed by the Calcutta High Court in the case of Naresh Chandra Dutta v. Girish Chandra Das (D) (supra).

25. On a review, therefore, of the above-mentioned two decisions, and, the provisions of the Act, it is plain that a sale becomes complete at the point of time at which the transfer is to be effected, that is, when the deed of transfer can be said to be a registered deed.

26. It is this sale, on which the document can be said to be registered that the necessary formalities have to be performed, and, therefore, the performance of formalities before the sale is complete would not give a right to the pre-emptor to enforce his right of pre-emption, unless he performs those ceremonies also after the date when the registration is complete under section 61(2) of the Act.

27. For the reasons given above, the plaintiffs, admittedly not having performed the formalities, either on the 7th February, 1946, when the consideration was paid, and, the taqabazulbadlain took place, or, on or after the 9th February, 1946, when the registration of the document became complete but they having admittedly performed the ceremonies before these two relevant dates on 2-2-1946, when they say they got knowledge of the sale, they are not entitled, in law, to enforce their right of pre-emption, and, on this ground alone, therefore, their suit must fail.

28. In view of my decision on the last question raised by Mr. Sinha, it is not at all necessary to consider his other three contentions, which are not free from difficulty, and, which need not be answered in the present appeal.

29. For the reasons given above, the appeal of the purchaser, defendant No. 1, must succeed, and, the judgments and decrees of the courts below be set aside, and, the plaintiffs' suit be dismissed with costs.

30. In the result, the appeal succeeds, and, accordingly, allowed with costs.

31. Ramaswami, C.J:— I agree.

H.G.P

32. Appeal allowed.