1. This appeal on behalf of Rangnath arises out of an action for preemption on ground of vicinage in respect of a portion of survey No. 188 sold by its owner Rama.

2. The claim was mainly resisted by the appellant on the basis that the plaintiff was not the owner of the adjoining land; that he did not comply with the essential formalities of Talab Muasibat and Talab Ishad; that far from doing so he acquiesced in the sale and that even assuming that he had a right to preempt he could not enforce the same by virtue of Section 5 of the Prevention of Land Alienation Act.

3. The trial Court repelled all these contentions and decreed the suit. This decree has been affirmed by the District Court. The defendant vendee has therefore come to this Court in appeal. All the above pleas taken in the trial Court have been raised in the memorandum of appeal filed in this Court. But no argument in support thereof has been advanced and on going through the record I find that the concurrent findings of facts of the Courts below are unimpeachable.

4. A constitutional plea has been raised by the learned advocate for the appellant in the course of argument. It was urged that the right of preemption being a clog on the right of free exercise of holding, acquiring and disposing of the property offends the provision of Article 19(1)(f) of the Indian Constitution and is therefore void under Article 13.

5. When a question of law or a constitutional issue is raised for the first time in the Court of last resort upon facts either admitted or proved beyond controversy, it is not only expedient but highly essential in the interests of justice to entertain the same. I have therefore given careful consideration to the arguments advanced by the learned advocates.

6. The first question that falls for determination is what is the nature of the right of preemption claimed and whether the law which gives such a right is hit by the provisions of Article 13 read with Article 19(1)(f) of the Indian Constitution. The law of preemption is purely a branch of Muhammadan Law which was introduced in India by the Muhammadan rulers. During the rule of the Moghul emperors it was administered as a rule of general law of the land in all the parts of the country brought under their domination and was applied alike both to the Muslims and non-Muslims. (Zimmies).

7. With the advent of the British rule in India, Muhammadan Law ceased to be the general law of the land with the result that even where the parties are Muslims the Courts in British India administered Muhammadan Law of preemption only on grounds of justice, equity and good conscience. But the age long practices and traditions had taken so firm a root that even the Hindus in some parts of the country like Bihar and Gujarat etc., came to adopt preemption as a custom for reasons of convenience.

8. In these parts the law of pre-emption was administered as the customary law. This customary law was ordinarily co-extensive with the Muhammadan Law. In some other provinces like Punjab, Agra etc. the rights of pre-emption according to the demands of time and needs of the public, came to be embodied in statutes passed by Indian legislature and this therefore became-applicable to one and all as the territorial law.

9. Thus the law of pre-emption even after the Muslim rule had come to an end, continued to be administered in various parts of India as the customary or territorial law or on principles of equity, justice and good conscience of the Court, though not necessarily in strict accordance with the principles of Muhammadan law.

10. In the State of Hyderabad which was never directly brought under the sway of the British rulers, the Muhammadan law of pre-emption prevailed. It was the general law of the land and was applicable to all alike, no distinction being made between persons of different races or creeds.

11. This position has been clarified in Madan Gopal v. Bhagwan Das, 3 Mokanin Deccan 134 (A); Gangaram v. Kari Bhay, 10 Deccan LR 159 (B); Lakshmi Narsu v. Gundu Ellappa, 19 Deccan LR 114 (C); Manick Chand v. Sharmappa, 20 Deccan LR 587 (D); and Lingappa v. Narain, 28 Deccan LR 37 (E). Side by side with this general law there was also the statutory law in relation to rights of pre-emption as embodied in paras 12 and 14 of Zabita Shikmidaran. One significant feature of this statute is that it dispensed with the formal demands so very essential according to Muslim law and recognised the right of shafa as indefeasible even it the event of the death of the pre-emptor.

12. The right of shafa in the case before me is not claimed under the statutory law but only under the Muhammadan law which was in this behalf recognised to be the general law of the State, upto the inauguration of the Indian Constitution. Shafa according to the Muhammandan law is the right possessed by the owner of certain immovable property to acquire by compulsory purchase certain other immovable property in preference to a third person.

13. It is a right attached to a particular status and becomes enforceable only when there is a sale or complete transfer for consideration. As observed by Mahmud J. in Gobind Dayal v. Inayatullah, 7 All 775 (776)(F):

“It is not a right of repurchase either from the vendor or vendee involving any new contract of sale; but it is 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 title.”

14. In short it is a right of substitution or a preferential right to purchase and is founded on the policy that a co-sharer or a participator in appendages or an adjacent owner may not be made to suffer inconveniences and disturbance which may arise from the introduction of a stranger on the land. Being a mere preferential right to purchase it does not postulate any rights of the pre-emptor in the land.

15. The right, title and interest of the owner in the land is not at all qualified or affected by the fact that it is subject to a right of pre-emption for the tight, title and interest which passes upon transfer is precisely the same whether the transfer is in favour of the pre-emptor or a third person. If the sale takes place in favour of a person other than the pre-emptor, it is open to the latter to avoid the sale in exercise of his right and step in the shoes of the vendee for all the rights and obligations arising from the sale.

16. It is important to note that he does not acquire the rights in the land until, even in case of a decree in his favour, he pays the purchase amount within the time fixed. Thus, though the pre-emptor has no right and interest to any extent in the property, he enjoys an advantage or benefit, which in turn constitutes a burden to the corresponding extent on the power of the owner to transfer his property for consideration to any one he chooses.

17. This, indeed, tends to diminish the market value of the property. That is but one of the several inevitable evil consequences flowing from a system of law adopted merely to prevent the apprehended inconveniences of certain holders of immovable property or co-sharers. Alive to the inherent short-comings of such a system the Muslim law has sought to place various limitations on the enforceability of this right. It has recognised it as only a personal right, neither heritable nor alienable.

18. It is a feeble right which may be lost for any unreasonable or unnecessary delay in making the demands, or on doctrine of estoppel, waiver etc., or if there has been no strict compliance with the formalities. It has further laid down that the ground for such right should exist on three crucial dates viz. dates of sale, of suit and of decree. Its true characteristic nevertheless remains, that it is a right which in effect restricts the power of acquiring, holding and disposing of the property in derogation of the fundamental right guaranteed by the Constitution under Article 19(1)(f).

19. But the law of pre-emption does not become automatically unconstitutional merely because the right of pre-emption is a clog on the owner's right of transfer or compells the purchaser to part with the property he has acquired or virtually prevents persons from purchasing so long as there are three kinds of pre-emptors on the field.

20. There is no doubt that these are serious restrictions on the fundamental rights of disposing, holding and acquiring the property vouchsafed by the constitution. But, in order to render such law unconstitutional, it is further necessary that they should be unreasonable and not covered by cl. (5) of Article 19 of the Constitution.

21. On a careful examination it may be found that while there may be something to commend itself as to the reasonableness of the right of pre-emption of shafa Sharik (co-sharer) or shafi Sharik Khalit (participator in immunities and appendages) hardly anything can be said in favour of the right of a shafi Jar Mulasiq (the owner of the adjoining land).

22. Compulsory or involuntary association of a stranger with the co-sharer (shafa sharik) or shafi sharik khalit is as a rule fraught with much inconvenience and disturbance and is indeed a great drag on the beneficial enjoyment of the property. In certain cases it renders the enjoyment of the property impossible for the co-sharer. Some restrictions on transfer therefore cannot but be said to be necessary in the interest of the co-sharer and for beneficial enjoyment of the property.

23. But I am not called upon now to deal with the case of a shafi sharik or a shafi khalit and consider whether restrictions imposed by law in their favour are reasonable. Inasmuch as the question of reasonableness of restrictions is always a question of fact which should be decided on particular circumstances of the case, I may not be understood to have pronounced in my above observation any opinion as regards the reasonableness of restrictions imposed by the Muslim law of pre-emption in so far as shafi sharik or shafi khalit is concerned.

24. What I intend to point out is that since shafi jar mulasiq, apart from the fact that he happens to be the owner of the adjoining property has nothing in common with the property sold, restrictions as the freedom of transfer or freedom of contract imposed by the law of pre-emption in such a case can in no manner be deemed to be necessary, reasonable or calculated to advance the cause of the general public or for the protection of the interest of the scheduled tribes to be covered by cl. (5) of Article 19 of the Constitution; even the Shiah school of law therefore does not recognise the right of pre-emption of an adjoining owner.

25. Certainly the law of pre-emption in this behalf existing at the time of commencement of the Constitution placing such restrictions is hit by the provision of Article 13 and is void from the date of the Constitution in so far as it is repugnant to the fundamental right guaranteed by Article 19 of the Constitution.

26. In Moti Bai v. Kandkari Channayya, 1954 Hyd 161 (AIR V 41)(G) a Full Bench of this Court has held Chat such a right of pre-emption being a restraint on the right to dispose of property is void under cl. (1) of Article 13 read with Article 19(1)(f) of the Constitution. It was a case in which a constitutional question of the like nature common to three different cases came up for consideration before their Lordships.

27. In all the three cases question of right of preemption on ground of vicinage was involved and their Lordships observed that such a right is in derogation of the fundamental right conferred upon by Article 19(1)(f) and is not covered by the saving cl. 5 of the said Article.

28. In a Full Bench case of Rajasthan High Court in Panch Guja v. Amar Singh, 1954 Raj 100 (AIR 41)(H), the question of right of pre-emption on the round of vicinage came up for consideration and it was held that such a custom or existing law of re-emption is void as being contrary to the provisions of Article 19(1)(f) of the Constitution.

29. The same view was followed in Shankerlal v. Poonamchand, 1954 Raj 231 (AIR V 41)(I). In Mahood Hassan Khan v. Bhikharilal, 1953 All 705 (AIR V 40)(J) which was also a case of pre-emption on ground of vicinage in which a decree was given, constitutional point no doubt was raised under Article 13(1) read with Article 19(1)(f) of the institution. But their Lordships did not think it necessary to express opinion as the right had accrued long before the commencement of the Constitution and Article 13(1) of the Constitution does not act retrospectively to affect the vested rights.

30. It is important to note that in that case not only the suit was instituted but also the decree was passed by the trial Court long before the date of the Constitution. In a Full Bench case of the Nagpur High Court in Ramchandra Krishnaji v. Janardan, 1955 Nag 225 ((S) AIR V 42)(K) which is relied on by the respondent, the point involved was somewhat different.

31. That was a case of right of pre-emption based on statutory law and was covered by cl. 5 of Article 19 of the Constitution inasmuch as the restrictions imposed by the statute were reasonable and were intended for the benefit of the occupants and cooccupants and were calculated to lead to consolidation of holdings and their retention in a manner as may strengthen the corporate life of the village. It was held that such a law is not hit by Article 13 of the Constitution.

32. It is clear to my mind that the law of preemption which allows the owner of the adjoining property to claim possession merely on the ground that he is the owner of the adjacent land is void under Article 13 of the Indian Constitution being contrary to the provisions of Article 19(1)(f) and not saved by cl. 5 of Article 19.

33. The learned advocate Shri Phulchand Gandhi argues that in as much the sale took place on 26th Khurdad 1358F (26-4-1949) and the two formal demands were made long before the advent of the Constitution, subsequent invalidity of law of pre-emption cannot stand in the way of enforcing the right which became vested prior to the Constitution.

34. It is urged that the provisions of Article 13 of the Constitution are prospective in their operation and not retrospective in their effect A number of rulings has been cited in support of this proposition. It cannot be disputed that Article 13 of the Constitution is prospective in operation and cannot therefore affect any right that had already accrued. His Lordship Das J., observed in Keshavan Madhava Menon v. State Of Bombay ., 1951 SC 128 (130) (AIR V 38)(L) to the following effect in this regard:

“As the fundamental rights became operative only on and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that Article 13(1) can have no retrospective effect but is wholly prospective in its operation.

35. After this point is noted it should further be seen that Article 13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes ……………. the voidness of the existing law is limited to the future exercise of the fundamental rights.

36. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws or to wipe them out altogether from the statute book for to do so will be to give them retrospective effect, which we have said they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.”

37. The view expressed in Keshawan Madhav Menon's case has been approved of and followed in later decisions of the Supreme Court. D.K Nabhirajiah v. State of Mysore, 1952 SC 339 (AIR V 39)(M); Lachaman Das Kewal Ram v. State of Bombay, 1952 SC 235 (AIR V 39)(N); Habeeb Mohd. v. State Of Hyderabad of Hyderabad, 1953 SC 287 (AIR V 40)(O) and Behram Khurshid Pesikaka v. State Of Bombay ., 1955 SC 123 ((S) AIR V 42)(P).

38. It is a common ground that the sale took place long before the advent of the Constitution, when fundamental rights guaranteed by Article 19 of the Constitution could not be invoked either by the vendor or the vendee. It is also evident that this sale according to the then existing law was subject to plaintiff's right of pre-emption.

39. It follows that an enforceable right had accrued to the plaintiff before the constitution which cannot be set at nought by the retrospective operation of the provision of Article 13(1) of the Constitution which renders the law that gave rise to this right void to the extent of inconsistency with the fundamental rights.

40. In the light of observations made by their Lordships of the Supreme Court it is clear that voidness of law is limited to the future exercise of the fundamental rights and such law does exist for all past transactions and for enforcing all rights and liabilities accrued before the Constition.

41. The question for consideration therefore is whether in accordance with the true principle of the law of pre-emption which gave rise to this right in favour of the plaintiff it can be enforced by passing a decree in his favour in the suit brought by him in April 1950, after the advent or Constitution. If the right at the time of sale alone could form a valid basis for passing a decree, there can be no doubt that the plaintiff must get the relief.

42. But the peculiar feature of the pre-emption law is that the ground for pre-emption must subsist up to the decree. So then, a person who seeks the assistance of the Court with a view to enforce a right of pre-emption is bound to establish that the right existed at the date of sale, at the date of institution of the suit and at the date of the original decree. There is preponderance of authority in support of this principle dating as far back as 1899.

43. The view that the right must exist and retain its enforceable character upto the time the decree is passed by the primary Court was adopted in Ram Gopal v. Piari Lal, 21 All 441 (Q) and followed in Tafazal Hussain v. Than Singh, 32 All 567 (R).

44. In Sanwal Das v. Gur Pershad, 10 Pun LR 561 (FE)(S), the Chief Court of Punjab preferred to follow the same view as against the view accepted in an earlier case, Faiz Baksh v. Ramjidas, 34 Pun Re 1875 (T). That was a case decided by a Full Bench of eight Judges. The nature of the right of the pre-emption was fully analysed by Clarke C.J and Chatterji J. According to Chatterji, J.

“A pre-emptor is bound to show that he was clothed with the right at the date of sale and also at that of suit and unto the time of the final decree or should have his claim dismissed……if the pre-emptor loses his right within the period mentioned above, whether by his own act or from causes beyond his control, his suit fails……. The pre-emptor cannot get a decree unless he maintains the right on which he sues to the end.”

45. In Nur Mian v. Ambica Singh, 1917 Cal 716 (AIR V 4)(U) the same view was taken by the learned Judges. Hans Nath v. Ragho Pershad Singh, 1932 PC 57 (AIR V 19)(V) and Madho Singh v. James R.R Skinner, 1941 Lah 433 (AIR V 28) (PB)(W) are further authorities which favour the same view.

46. In 1954 Raj 231 (AIR V 41)(I) where the point for determination was whether a decree for pre-emption could be passed in the suit, instituted long before the advent of the Constitution, their Lordships held that as the law of pre-emption based on vicinage had become invalid from 26-1-1950 after the coming into force of the Constitution, the plaintiff cannot be given a decree for pre-emption in July 1951.

47. A Divisional Bench of this Court in Govind Rao v. Erbhadrappa, 1956 Hyd 50 (AIR V 43)(X) held the same view and observed that the pre-emptor under the general law, which is the Muhammadan Law of pre-emption, should have a right on three crucial dates viz. the date of the sale, the date of the institution of the suit and the date of the decree, without which he cannot be entitled to a decree.

48. Thus both on principle and on authority unless the conditions necessary to give to the plaintiff right of pre-emption are present on all the three crucial dates, the Court of law will refuse to pass a decree. As observed above the law of pre-emption on the basis of vicinage has become unconstitutional and void from 26-1-1950. The result is that, by virtue of his status as an adjoining owner, plaintiff can claim no right of pre-emption from that date.

49. As the law which gives him right became invalid, the main basis for his right has become extinct. No doubt he had such a right on the date of sale, but that is not sufficient to warrant enforcement of such right under the law he claims. He can get a decree only if the ground for such right exists on the date of the suit and upto the date of the decree.

50. But as pointed out above with the invalidity of law the ground to pre-empt is lost. The general principle that accrued rights cannot be lost with the repeal or change of law can have no application to the right of pre-emption which is of a peculiar nature and cannot be legally enforced independently of or without reference to the subsequent supervening circumstances upto the date of the decree.

51. It is wrong to believe that by refusing to pass a decree for the right accrued at the time of sale the Court is virtually giving retrospective effect to the provisions of Article 13 of the Constitution even against the intendment of the said provision. It is the propective effect itself that renders the right unenforceable on the true principle of law which has given the right. It is strenuously urged by Shri Phoolchand that the right of shafa once accrued under the Muhammadan law can only be lost in one of the ways expressly stated in the said law and the invalidity of law is not one of them. It is argued that a shafee forfeits his right only by his voluntary acts or default such as waiver, acquiescence, non-performance of the formal demands etc. I do not agree with this. Loss of right may as well be the sequel of some causes beyond his control.

52. Such involuntary circumstances which are also referred to in Text books are only illustrative and I not exhaustive. Inasmuch as the right to pre-empt must exist on certain crucial dates invalidity on any such date of the law which gives this right stands in the way of its enforcement and thus virtually deprives the pre-emptor of his right as effectually as the voluntary acts or defaults of the statutory forfeiture or the statutory disability of the pre-emptor.

53. For the reasons shown above, I am of opinion that there is much force in this appeal and the decree passed by the trial Court cannot be upheld. The appeal is therefore allowed and the suit of the plaintiff is dismissed. Having regard to the circumstances of the case, parties should bear their own costs of all the Courts.

K.S.B

54. Appeal allowed.