The right of pre-emption arises only out of a valid, complete, and bona fide sale, and the right becomes enforceable only when there is a sale.

Raj Kishore Prasad, J.

1. 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 9-2-1946.

4. 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.

5. 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.

6. 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, be-cause 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.

7. 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, 1940, 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.

8. 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.

9. 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 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 his title; Gobind Dayal V/s. Inayatullah, ILR 7 All 775 (FD) (A), per Mahmood, J.

10. The right of pre-emption arises only out of a valid,