JUDGMENT : Abdul Hakim Khan, J. 1. This second appeal arises out of a suit for pre-emption brought by Naraindas, the plaintiff-appellant (hereinafter referred to as the pre-emptor) against Jagannath, defendant-respondent (hereinafter referred to as the purchaser) under a sale deed dated 18-09-1934. The purchaser opposed the claim, his main ground being, that before the purchase he had secured the consent of the pre-emptor and that in consequence the preemptor lost his right to pre-empt. 2. Both the lower Courts have found against the pre-emptor, holding that prior to the sale, the purchaser had obtained the consent of the preemptor and as such he cannot bring this suit now. 3. The learned counsel for the appellant has urged before us that the judgments of the lower Courts are wrong both in law as well as on facts. The learned counsel for the respondent has preferred a preliminary objection that we cannot hear the case on facts as it is contrary to S.100, Civil Procedure Code, this being a second appeal. We have heard full arguments of both the sides and we proceed to decide the preliminary objection first. 4. The Civil P. C. (Indian Union) came into force in the State of Madhya Bharat from 22-12-1949. Before that we had Majmooa Zabta Dewani, Gwalior, of Samvat 1966, according to which civil cases were decided. Section 525 of the Gawalior Zabta Dewani allowed questions of facts as well as law to be agitated in a second appeal, provided the value of the suit in the Court of first instance was over Rs.500. The valuation of this suit in the trial Court was Rs.1800. This procedure continued right up to 22-12-1949 and it goes without saying that after it ceased to be the law, its provisions would not apply to appeals in the future. But what about the pending appeals i. e. appeals that have been filed before the new Civil Procedure Code came into force? 5. It is admitted on all hands that according to S.100, Civil Procedure Code, a second appeal would lie on a point of law only and that no question of fact can be raised in it. 6. But what about the pending appeals i. e. appeals that have been filed before the new Civil Procedure Code came into force? 5. It is admitted on all hands that according to S.100, Civil Procedure Code, a second appeal would lie on a point of law only and that no question of fact can be raised in it. 6. It is a well-established principle of law (reference to which has been made in 2 Madhya Bharat Law Reporter 231) that no statute, unless it be a statute dealing with procedure only, should be construed to have a retrospective effect, unless the statute either expressly or impliedly so provides. It his been authoritatively settled that the right of appeal is not a mere matter of procedure, but is a vested right. In the judgment referred to above brother Dixit has noted a number of rulings on the point and notable among them is the Colonial Sugar Refining Co. Ltd. v. Irving, 1905 A.C. 369: (74 L.J.P.C. 77). This is a decision of the Privy Council and is a conclusive authority, which sets all controversy at rest. It is now a generally accepted view that a right of appeal is not a matter of procedure and that the right to enter the superior Court of appeal is deemed to arise to a litigant before any decision is given by the inferior Court. In other words, the right to appeal is regarded ael a substantive right, which remains unaffected by any change in the procedure 7. Mr. Mongre, the counsel for the respondent concedes that the right of appeal is a substantive right and yet he urges that we cannot, disturb the finding of facts in a second appeal, though it was open to us to do so according to Gwalior Civil Procedure Code. His argument in effect is that partly the old procedure must be applied, but the provisions of the new Civil Procedure Code should also be acted upon. It is difficult to appreciate his reasoning, but all doubts will resolve if we concentrate and find out what did right of appeal according to Gwalior Civil Procedure Code consists of. The right of seined appeal according to Gwalior Civil Procedure Code consists of the right of the appellant to challenge the findings of facts as well as law. It is difficult to appreciate his reasoning, but all doubts will resolve if we concentrate and find out what did right of appeal according to Gwalior Civil Procedure Code consists of. The right of seined appeal according to Gwalior Civil Procedure Code consists of the right of the appellant to challenge the findings of facts as well as law. Now if the right of appeal is a substantive right and it continues even after the law that gave it has been repealed, then the right to appeal survives as a whole i.e., just as an appeal could he heard formerly so could it be heard now. If it would be otherwise, then the right of appeal shall suffer a diminution, which will be inconsistent with its position as a substantive right. But once it is held that the right of appeal is a substantive right and that subsequent changes in the procedure do not affect it, then as ttie night follows the day, it is but logical to assume that the right to appeal continues untrammelled by any limitations. 8. Mr. Mongre has tried to convince us by saying that the new Civil Procedure Code has deprived us of the jurisdiction to hear second appeals on facts. Now this is his former argument presented in a new garb. He has put the same thing in different words. Instead of saying that partly the right of appeal has been taken away, be says that the jurisdiction does not exist. But if it is once conceded that the right of appeal survives, then the jurisdiction for the hearing of the appeal also remains in tact. The preliminary objection in consequence is ruled out and I think the appellant is within his right to press his objections both with regard to facts as well as law. 9. We have carefully listened to the discussion of evidence regarding the finding of facts. We, however, feel that in second appeal we should not disturb the finding unless it is manifestly wrong or the conclusions arrived at by the lower Court are palpably unjust or the finding is otherwise perverse. On a question of the appreciation of evidence, it would be difficult to justify our action if we acted like a trial Court. We, however, feel that in second appeal we should not disturb the finding unless it is manifestly wrong or the conclusions arrived at by the lower Court are palpably unjust or the finding is otherwise perverse. On a question of the appreciation of evidence, it would be difficult to justify our action if we acted like a trial Court. The mere fact that we in some way might have come to a somewhat different conclusion does not warrant the upsetting of the concurrent finding of fact. We have given the evidence our careful attention, but we do not feel inclined to disturb the finding of facts, because it is not perverse. 10. For the disposal of this appeal, there is only one question of law which requires determination. It is this: what is the effect if prior to the sale, the pre-emptor has given his consent to the purchaser to buy the property? 11. The woros used by the pre-emptor in this case to signify his consent to the sale are said to be. It is not disputed that these words do not constitute consent and therefore it is needless to emphasise that the pre-emptor, for reasons given by him, did not care to buy the property in question. We are now concerned with the effect of these words when uttered prior to the sale. 12. The law of pre-emption as applied in India has its origin in Muhammadan Law Digambar Singh v. Mohd. Sayeed Khan, 37 ALL. 129 (AIR (1) 1914 P.C. 11) and it will not be out of place to refer briefly to the position it occupies in the State of Madhya Bharat As is well known, there is no statutory basis for enforcing the Muhammadan Law of Pre-emption in India, but all the same with the exception of Madras, it has been the practice to apply the rules of this branch of law if they were not opposed to justice, equity and good conscience. Thouoh it is a personal law, yet for reasons of convenience, it came to be adopted in India as a part of customary law, Chakauri Devi v. Sundari Devi, 28 ALL 590: (3 A.L.J. 338). Here in the territory known as the former Gwalior State, this law was firmly established by two judicial pronouncements.Risala Qanooni, vol. I.P. 89 and Risala Qanooni vol. II P. 116. Here in the territory known as the former Gwalior State, this law was firmly established by two judicial pronouncements.Risala Qanooni, vol. I.P. 89 and Risala Qanooni vol. II P. 116. They laid down that it is not necessary for the pre-emptor to make the demands of Talab-i-Moasbat and Tatzh-i-Istishhaad, because a suit of pre-emption in Gwalior is filed on the basis of custom and that the rules of justice and equity are applicable. 13. Although the law of pre-emption is administered on the basis of custom, which has received judicial recognition, yet because of its former association with Muhammadan law, it is a practice generally followed by Indian Courts to turn to Muhammadan law, to find out how it was administered by Muhammadan jurists, and if that which they discovered was in consonance with justice, equity and good conscience, to adopt it. Let us therefore turn to Muhammadan law to find out what the effect of consent, given before sale, is on the subsequent claim of the pre-emptor. 14. The primary source of Muhammadan law is the Koran and it must be clearly stated that no rules about the pre-emption are laid down in it. In its absence, we now look to Hadis, which is the second important source of the Muhammadan law. There is a case in the life-time of the prophet Mohammad, which inclines me to the view that the rule of law, as stated in modern law books, to the effect that renunciation of the right before the sale is ineffective, was not in force then. It is the case of Abu Rafi (the vendor), who went to Sad bin Abu Weqqas to offer the two rooms, which he had in his house, before concluding the bargain of sale with a stranger. This is an instance which shows that the vendor proposed the sale to the pre-emptor and the corresponding liability of the pre-emptor if he refuses to purchase at the time. Al Hakam has observed: "If he has been informed before the sale, he has no right of pre-emption". See Andre Marneur's La Chefa, p.106 and Kathatay's Law of Pre-emption, p.154. This is an instance which shows that the vendor proposed the sale to the pre-emptor and the corresponding liability of the pre-emptor if he refuses to purchase at the time. Al Hakam has observed: "If he has been informed before the sale, he has no right of pre-emption". See Andre Marneur's La Chefa, p.106 and Kathatay's Law of Pre-emption, p.154. Perhaps the Maliki law derives its authority from this tradition and that is why according to Maliki school of Muhammadan law, the purchaser had even the power to ask the Court to call upon the pre-emptor to state whether he objects to the transfer or not. 15. But it seems that in the thirteenth century the law developed on different lines and the tendency was to hold the renunciation of no effect, if the pre-emptor renounced his right before the sale, it is indeed surprising how a Hadis like this came to be overlooked by Muslim jurists. Whatever the weight of the writings of Muhammadan jurists be, it cannot be gainsaid that no number of books by any jurist can override the text of Hadis. Apart from the respect and sanctity due to Hadis, if we examine the proposition from the point of view of reason and common sense, we come to the irresistible conclusion that this Hadis lays down a rule, which is in perfect accord with justice, equity and good consience. For to hold it otherwise, would tantamount to setting a premium upon the dishonesty of the pre-emptor. Whatever the later developments of the law may have been by the Muhammadan jurists, the Courts in India are not bound to enforce them, if they run counter to the ideas of justice, equity and good conscience. 16. I, therefore, hold that both as a proposition of Muhammadan law as well as a principle of equity, if a pre-empior has given his consent before the sale, he should not be allowed to assert his claim after the sale. 17. It has been urged by the learned counsel of the respondent that the consent of the preemptor before the sale comes within the purview of the doctrine of estoppel and in support of his contention he relies on 1998 Gwalior Law Reporter, p.91 (Risala Qanooni, vol.18, p.2), which is a Division Bench case. Let us see how far the principle of estoppel can be applied to this case. 18. Let us see how far the principle of estoppel can be applied to this case. 18. The doctrine of estoppel is generally construed to be a rale of evidence but as pointed out by Garth C.J. in Ganges Manufacturing Co. V. Sourujmull, 5 Cal. 669: (5 C.L.R. 533): "Estoppel in the sense in which the term is used in English legal phraseology are matters of infinite variety. All rules of estoppel are not rules of evidence. Thus a man may be estopped not only from giving particular evidence but from doing any act or relying on any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponents." 19. In the case of Canada and Dominion Sugar Co. Ltd. v. Canadian National Steamship Ltd., AIR (34) 1947 P.C. 40: (228 I.C. 614), their Lordships of the Privy Council have observed that as between the parties to the representation, the rule of estoppel may affect or create substantive rights. It may enable a party as against another party to claim a right of property and in this sense it may more correctly be viewed as a substantive rule of law. 20. I venture to suggest that in pre-emption cases, the doctrine of estoppel as a substantive rule of law is to be invoked and as a result of it where a pre-emptor refuses to purchase. Rameshwar Prasad v. Ghisiawan, 51 ALL 820: (AIR (16) 1929 ALL. 531, or consents to a sale Ram Rawan v. Ram Surat, AIR (16) 1929 ALL. 589: (117 I.C. 345) or acquiesces, Jagannath Prasad v. Chandi Prasad, 1 Luck. 68: (AIR (14) 1927 Oudh 86), he is estopped from subsequently asserting his claim of pre-emption. 21. The learned counsel for the appellant has cited Govindsa v. Ismail, AIR (37) 1950 Nag. 22: (I.L.R. (1949) Nag. 933) in support of his contention that the pre-emptor, who assures the purchaser that he will not pre-empt but nevertheless subsequently seeks to exercise his right of pre-emption is not denying the truth of what he stated earlier, but has merely changed his intention. If the representation is false, an action for deceit in tort may well lie. But such representation cannot give rise to estoppel. The fallacy in the argument is apparent. There is no question involved in this case of any deceit for which an action would lie. If the representation is false, an action for deceit in tort may well lie. But such representation cannot give rise to estoppel. The fallacy in the argument is apparent. There is no question involved in this case of any deceit for which an action would lie. The learned counsel is thinking of estoppel as a rule of evidence, which precludes a man from averring anything contrary to what he has said before. I am afraid, I must repeat myself and say that I have employed the doctrine as creating a substantive right which has enabled the purchaser as against the pre-emptor to claim a right as decided in Canada and Dominion Sugar Co. Ltd. v. Canadian National Steamship Ltd., AIR (34) 1947 P.C. 40: (228 I.C. 614) referred to above. Consent or acquiesence according to the law of pre-emption has the effect of extinguishing the right to pre-empt and as soon as it is proved that consent was given, the right of pre-emption is annihilated. A person otherwise entitled to claim pre-emption loses that right if he acquiesces in the sale. See Muhammadan law by Faiz B. Tayabji. The right of pre-emption is rendered void by implication, when anything is found on the part of the pre-emptor that indicates acquiescence in the sale. See the Law of Pre-emption by Dr. Agarwala, 1931 Edition, page 170. 22. Although it might appear a digression, yet will not be without interest to note that Dr. Jolly, an eminent German Sanskrit Scholar in his fifth lecture delivered by him as Tagore Professor of Hindu Law at the University of Calcutta in the year 1883, says that there exists a trace of a right of pre-emption among the Hindus as well. He relies upon a text of Mitakshare, which declares that the assent of townsmen, of kinsmen, of neighbours and of heirs is necessary for transfer of landed property. But the commentators later on disregarded it and the text became divested of meaning. Another text of Mitakehara is that: "land passes by six formalities by consent of townsmen, kinsmen, neighbours, heirs and by gifts of gold and water." The above passages go to show that according to Hindu law consent by a neighbour confers a good title on the transferee. Another text of Mitakehara is that: "land passes by six formalities by consent of townsmen, kinsmen, neighbours, heirs and by gifts of gold and water." The above passages go to show that according to Hindu law consent by a neighbour confers a good title on the transferee. In this case, the consent of the neighbour, (who is the pre-emptor) has been proved and this, in conjunction with the principles of equity, which have gone a long way in developing the law of pre-emption, leaves no doubt that the pre-emptor (the neighbour) has lost his right. 23. I have given the ruling Govindsa v. Ismail, AIR (37) 1950 Nag. 22: (I.L.R. (1949) Nag. 933) my careful consideration and I think it is distinguishable from the present case in more ways than one. 24. First, it was a case of pre-emption under Berar Land Revenue Code (1928), where it was provided that consent should be given in writing and in view of the statutory provision, the real question was whether there could be any estoppel by oral consent. 25. Secondly, the questions involved in the Nagpur case as stated by R.K. Rao J. were questions of frequent occurrence in cases of pre emption, arising under the Berar Land Revenue Code and so it was proposed to consider and examine the rulings thereunder. It is a well established principle that no estoppel can be pleaded against a statute.Kuber Das v. Gerkish Naoroji.AIR (29) 1942 Bom. 54. (198 I.C. 609), Chidambara Chettiar v. Vaidilinga, 38 mad. 519: (AIR (3) 1916 Mad. 821). But this case under consideration is not under any statute. 26. Thirdly, the learned Judges of the Nagpur High Court were in fact interpreting the statutory provisions of the Revenue Code and their reference to the Mohammedan Law of pre-emption or even to the doctrine of estoppel was in passing. 27. Fourthly, the learned Judges have discussed the doctrine of estoppel as a rule of evidence, whereas in the present case the doctrine has been applied as a substantive rule of law. 28. In the course of the judgment the learned judges of the Nagpur High Court, by referring to two cases, one of the Privy Council: Yorkshire Insurance Co. 27. Fourthly, the learned Judges have discussed the doctrine of estoppel as a rule of evidence, whereas in the present case the doctrine has been applied as a substantive rule of law. 28. In the course of the judgment the learned judges of the Nagpur High Court, by referring to two cases, one of the Privy Council: Yorkshire Insurance Co. v. Cram, 1922 2 A.C. 541 (91 L.J.P.C. 226) and the other of the House of Lords in Jorden v. Money, (1854) 10 .E.R. 868 (5 H.L.C. 185), have emphasised the fact that to support a plea of estoppel by representation, the representation must be a representation of an existing fact and that the assurance of the pre-emptor before the sale does not amount to any representation to an existing fact. With great deference to the Hon'ble Judges of the Nagpur High Court, I would like to submit that when a pre-emptor gives his assurance not to pre-empt it is a representation to an existing fact and to substantiate my point I would respectfully point out that a discussion of the right of pre-emption in Gobind Dayal v. Inayatullah, 7 ALL. 775: (1885 A.W.N 228 F.B.) establishes the fact that there is a primary right of pre-emption, which inheres in the preemptor antecedently to an actual sale.To quote Mahmood J. "It is perfectly clear that the very conception of pre-emption in Mohammedan law necessarily involves the existence of the right before the sale in respect of which it may be exercised." The assurance of the pre-emptor before the sale not to pre-empt is a representation with regard to the existing primary right, which the preemptor possesses and which exists even before sale. Thus it would appear that by the test of the above two rulings, the purchaser can successfully set up the plea of estoppel in a suit for pre-emption. 29. Appeal dismissed with costs. 30. Kaul, C.J. I have had the advantage of reading the judgment of A.H. Khan, J., and agree with the conclusion arrived at by him. 31. The same two questions of law which arise in this case arose in civil Second Appeal No.103 of 1949 which was disposed of by a Bench of which I was a member. 30. Kaul, C.J. I have had the advantage of reading the judgment of A.H. Khan, J., and agree with the conclusion arrived at by him. 31. The same two questions of law which arise in this case arose in civil Second Appeal No.103 of 1949 which was disposed of by a Bench of which I was a member. They were: (1) Whether an appellant who preferred a second appeal under the provisions of Majmua Zabta Diwani Gwalior Samvat 1966 but which came up for hearing after Act 5 of 1908 (Civil Procedure Code) came into force in Madhya Bharat is entitled to challenge findings of fact in the High Court and (2) If under the Gwalior Law a pre-emptor, who has previous to the execution of a sale deed in respect of the property relating to which he has a right of pre-emption, given his consent that it might be sold to another purchaser can after the execution of the deed of sale maintain a suit for pre-emption in spite of his previous consent thus given. 32. I have given in detail my reasons for answering the first of the above noted questions in the affirmative and the second in the negative. I have nothing to add to the reasons given by me in that judgment. On the question of fact which arises for consideration there is nothing which would incline me to differ from the view taken by the Courts below. 33. I agree that the appeal be dismissed with costs. 34. By the Court. The appeal is dismissed with costs.