1. This is an appeal by Shankerlal against the judgment and decree of the Civil Judge, Jodhpur, in a pre-emption suit.
2. The suit was brought by Poonam Chand for pre-emption with respect to the sale of a house in favour of Shankerlal. The right was based on vicinage as provided in the third clause of Section 3 of the Law of Pre-emption in Marwar. The trial Court decreed the suit, and therefore the defendant has come in appeal to this Court.
3. The relevant portion of Section 3 is as follows: 'The right of pre-emption in respect of a house or a building plot shall belong to the under mentioned in the following order:
3rd to a person owning immovable property touching the house or building plot in respect of which pre-emption is claimed...............'
A question was raised that the law of pre-emption has been invalidated in view of the provisions of Articles 13 and 19 of the Constitution. The matter was considered in a Pull Bench decision of this Court in -- 'Panch Gujar Gaur Brahmans v. Amarsingh', AIR 1954 Raj 100 (A). The question there arose with respect to Shafi-i-jar in the Muhammadan Law of pre-emption which prevailed in the town of Bundi as customary law. The Pull Bench came to the conclusion that the custom of pre-emption, which allows an owner of adjoining property to claim possession of a property sold only on the ground of being the owner of the adjoining property, is invalid as being contrary to the provisions of Article 19(1)(f) of the Constitution. That decision was with respect to a custom based on vicinage. The same considerations, in, our opinion, apply to the statute law of pre-emption based on vicinage as the third clause of Section 3 of the Law of Pre-emption in Marwar obviously is. Following, therefore, the decision of the Pull Bench, we hold that the third clause of Section 3 of the Law of Pre-emption in Marwar has become invalid from 26-1-1950.
4. The next question is whether the invalidity of the law, in any way, affects the decree which has been passed in this case. The contention on behalf of the respondent is that even if the law became invalid from 26-1-1950 the sale, out of which the right of pre-emption arose, took place long before, and the provisions of the Constitution cannot be given retrospective effect. The sale in this case took place on 24-9-1946. The suit was filed on 12-9-1947, while the decree was passed on 6-7-1951. It is urged on behalf of the appellant that the peculiar feature of pre-emption law is that the right of pre-emption must exist on all of the three following dates, namely, (i) the date of sale, (ii) the date of suit (iii) and the date of decree, and that if the right does not exist on any one of these dates, a decree for pre-emption cannot be passed. Learned counsel for the appellant, therefore, urges that as the law became invalid on 26-1-1950, and there was no right in any one to claim pre-emption of this-kind after 26-1-1950, no decree for pre-emption could be passed in favour of the respondent in July, 1951. It is further urged that by giving effect to this principle, the Court would not be applying the Constitution retrospectively.
5. We are of opinion that the contention of learned counsel for the appellant is correct. The law is well-settled that the pre-emptor must have a subsisting right of pre-emption on all of the three following dates, namely (i) the date of sale, (ii) the date of institution of the suit, and (iii) the date of the decree.
In -- 'Ram Gopal v. Piari Lal', 21 All 441 (B), it was held as far back as 1899 that the right to pre-empt must exist not only on the date of sale, and the date of the institution of the suit, but also on the date of the decree. Reference in this case was made to an earlier decision of the Pull Bench of the Allahabad High Court in --'Janki Prasad v. Ishar Das', 1899 All WN 126 (FB) (C), where that Court had already held that the right must subsist on the date of sale as well as on the date of the institution of the suit. In --'Ramgopal's case (B)', that principle was extended to the date of the decree also. The reason for this is, in our opinion, quite clear. Pre-emption is a very weak right, and therefore before a Court deprives a vendee of the property he has purchased, the pre-emptor must show that he has the right up to the time the decree is to be passed in his favour. If he loses that right in any way before the decree is passed in his favour his suit must be dismissed.
6. This view has been consistently held by the Allahabad High Court thereafter, and was recognised in Sections 19 and 20 of the Agra Pre-emption Act of 1922. In -- 'Baldeo Misir v. Ramlagan Shukul', AIR 1924 All 82 (D), the Allahabad High Court confirmed this view. It was, however, pointed out that the date of the decree means the date on which the case was disposed of by the first Court, and it mattered little whether the Court of first instance dismissed the suit or decreed the suit. We have a little hesitation in accepting this definition of the words 'date of the decree' To our mind, the date of the decree must be the date on which the decree is actually passed, and ii' the trial Court has dismissed the suit, and it; is the appellate Court which has given a decree! of pre-emption, the right must, in our opinion, exist up to the date of the appellate Court's' decree.
7. The next case, to which reference may be made, is -- 'Hans Nath v. Ragho Prasad Singh', AIR 1932 PC 57 (E), in which it has been held that the decisive date is that of the decree.
8. The same view was held in -- 'Madho Singh v. Lt. James R. R. Skinner', AIR 1941 Lah 433 (FB) (F), where we find the following observations at page 437:
'It is well-settled that the plaintiff's preferential right must not only exist at the time of the sale but it should also be in existence at the time of the suit as well as at the date of the decree.'
9. The same view was taken in -- 'Gopichand v. Meenalal', AIR 1952 Raj 5 (G), where it was held that, in the absence of any statutory safe-guards, the general principle that the pre-emptor. in order to succeed in a suit, should prove his subsisting right against the vendee not only on the date of sale, but also on the date of suit, and the date of the first Court's decree, must prevail.
10. The next question, to which we have UK address ourselves, is whether the respondent could be given a decree for pre-emption in July, 1951, when the law of pre-emption based on vicinage had become invalid from 26-1-1950, after the coming into force of the Constitution. The argument! for the respondent is that we cannot apply the provisions of the Constitution retrospectively, and therefore the right of pre-emption having arisen before the Constitution came into force, and the suit having been filed also before 26-1-1950, the trial Court was right in giving a decree in July, 1951. It is urged that the principle that the right of pre-emption should subsist on the date of the decree also applies only to those cases where the pre-emptor is deprived of the right by his own act, namely, by voluntary sale by him, or by-sale in execution due to the pre-emptor's not paying up the money due from him. These however are not the only circumstances in which the pre-emptor may lose his right on the date of the decree.
'Ramgopal's case (B)' was of a third kind, namely, where the pre-emptor lost his right because of a perfect partition in the village. We, therefore, see no difficulty in holding that if the right is lost in any way on the date of the decree, the Court cannot grant a pre-emption decree. We feel that invalidity of the law is one of the modes in which the right may be lost. The general principle that a vested right will not be lost by a mere change of the law would not, in our opinion, apply to cases of pre-emption where the law is that the right must subsist not only on the date of sale, but also on the date of the institution of the suit, and the date of the decree. Learned counsel for the respondent referred to -- 'Sardar Mohinder Singh v. Arur Singh', AIR 1922 Lah 344 (H) in support of his submissions. In that case, there was a notification by the Punjab Government to the effect that no right of' pre-emption would exist in certain area from a certain date. Thereupon, suits for pre-emption relating to that area which were pending, were dismissed.
This was done relying on an earlier decision of the Punjab Chief Court, namely, -- 'Bishan Singh v. Ganda Singh', 16 Ind Gas 959 (Punj) (I), There was an appeal to the High Court, which was allowed, and the view taken in -- 'Bishan Singh v. Ganda Singh (I)' was not followed on the ground that the notification could not be given retrospective effect. We must, however, point but with all respect that in that case the learned Judges did not accept the principle that the right of pre-emption must subsist on the date of the decree also. Their attention was drawn to the observations of the learned Judges of the Punjab Chief Court in Full Benches to the effect that the. statutory qualifications of a pre-emptor must be retained until decree: see -- 'Sanwal Das v. Gur Parshad', 4 Ind Gas 179 (Punj) (PB) (J) and -- 'Dhanna Singh v. Gurbakhsh Singh'. 4 Ind Gas 337 (Punj) (PB) (K). These observations were, however, brushed aside as obiter. The view, therefore, that was taken in that case was on the basis that it was not necessary for a pre-emptor to have a subsisting right on the date of the decree. That view is not accepted even in the Punjab now in view of the Pull Bench decisions already quoted.
11. We are, therefore, of opinion that the law of pre-emption based on vicinage having become invalid from 26-1-1950, no decree could be passed for pre-emption from that date, as no pre-emptor would have a subsisting right of preemption from that date. In taking this view we are not giving retrospective operation' to the Constitution. The matter may be different where a decree for pre-emption has been passed before 26-1-1950. We need not express any view on a case of that nature; but we have no hesitation in holding that where no decree for pre-emption based on vicinage has been passed before 26-1-1950, no such decree can be passed from 26-1-1950, because the law having become invalid, the pre-emptor cannot have a subsisting right of preemption on the date of the decree. In holding this we are not giving retrospective operation to the Constitution, but are merely applying it from the date it has come into force because of the peculiar nature of the right of pre-emption. We are, therefore, of opinion that the trial Court could not pass a decree for pre-emption in July, 1951, in a case of this kind.
12. We, therefore, accept the appeal, set aside the decree of the Court below and dismiss the suit of the plaintiff respondent. In view, however, of the peculiar circumstances of this case, we order parties to bear their own costs throughout.