WANCHOO, C. J.—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 sec. 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 sec. 3 is as follows: —

"The right of pre-emption in respect of a house or a building plot shall belong to the undermentioned in the following order :—

1st............................

2nd..........................

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 Arts. 13 and 19 of the Constitution. The matter was considered in a Full Bench Decision of this Court in Panch Gujar Gaur Brahmans vs. Amarsingh (1) (1954 RLW, 204.). The question there arose with respect to Shafi-i-jar in the Mohammedan Law of pre-emption which prevailed in the town of Bundi as customary law. The Full Bench came to the conclusion that the custom of preemption, 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 Art.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 the sec.3 of the Law of Pre-emption in Marwar obviously is. Following, therefore, the decision of the Full Bench, we hold that the third clause of sec. 3 of the Law of Pre-emption in Marwar has become invalid from the 26th of January, 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 the 26th of January, 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 the 24th of September, 1946. The suit was filed on 12th of September, 1947, while the decree was passed on the 16th of July, 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 the 26th of January, 1950, and there was no right in any one to claim pre-emption of this kind after the 26th of January, 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) date of the decree. In Ram Gopal vs. Piari Lal (1) (I.L.R. IV All. 441), 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 Full Bench of the Allahabad High Court in Janki Prasad vs. Ishar Das (2) ((1899 A.W.N. 127.)) where

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