JUDGMENT : DIXIT, J. 1. The common question raised in all these seven cases and which has been referred to us for determination is whether Sub-Ss. (1), (5) and (6) of S. 12. Gwalior Pre-emption Act, Samvat 1992 are repugnant to Arts. 19(1)(f) and 14 of the Constitution of India and are as such void, and whether for that reason the right of preemption can be enforced in the suits out of the six appeals and the revision petition arise. 2. The Gwalior Pre-emption Act was enacted in the former Gwalior State in 1936. On the formation of Madhya Bharat the Act was continued in those territories of Madhya Bharat which formerly comprised the Gwalior State, by virtue of the provisions of Madhya Bharat Regulation of Government Act, 1948 (Act I of 1948). Under Art. 372 of the Constitution, the Act is continuing in force in that part of Madhya Bharat which was formerly Gwalior State. The Act deals with the right of pre-emption accusing on sale of immovable property other than agricultural land. Section 12 of the Act specifies the classes of persons successively entitled to exercise the right of pre-emotion. Under Sub-S. (1) the first right of pre-emption is given to co-sharers in the property. Sub-S. (5) specifies the fifth class of persons who are entitled to exercise the right of pre-emption. They are the neighbours whose properties are dominant, the property alienated being servient and vice versa. Under Sub-S. (6) the right of pre-emption vests lastly in persons whose immovable properties are contiguous to the property sold. In five of the cases, namely, Civil S. A. No. 3 of 1949, Civil Revn. No. 145 of 1950, Civil S. A. No. 2 of 1953, Civil S. A. No. 171 of 1953 and Civil S. A. No. 52 of 1954, the sales in question took place prior to the Constitution and the suits to enforce the right of pre-emption were instituted before 26-1-1950. In Civil S. A. No. 3 of 1949 the appellant pre-emptor's claim has been dismissed by both the Courts below. In Civil Revn. No. 145 of 1950 the pre-emptors claim was decreed by the trial Court on 3-1-1950 and affirmed in appeal. In Civil S. A. No. 2 of 1953 the pre-emptor's claim was decreed by the trial Court on 30-5-1951 but was rejected in first appeal on 26-9-1952. In Civil Revn. No. 145 of 1950 the pre-emptors claim was decreed by the trial Court on 3-1-1950 and affirmed in appeal. In Civil S. A. No. 2 of 1953 the pre-emptor's claim was decreed by the trial Court on 30-5-1951 but was rejected in first appeal on 26-9-1952. In Civil S. A. No. 171 of 1953 the pre-emptor's claim was dismissed by the trial Court on 30-10-1950 but was allowed in first appeal on 10th August 1953. In Civil S. A. No. 52 of 1954 a decree in favour of the pre-emptor was passed on 27-8-1952 and this was affirmed in first appeal on 11-2-1952. In the remaining two appeals, namely, Civil S. A. No. 93 of 1954 and Civil S. A. No. 146 of 1954 the sales in question took place after the coming into force of the Constitution. In all these cases the right to pre-empt is claimed on the basis of vicinage. In Civil S. A. No. 171 of 1953, Civil S. A. No. 93 of 1954 and Civil S. A. No. 148 of 1954 the claim is also founded on the basis of co-ownership and easement. 3. The attack on the validity of Sub-Ss. (1), (5) and (6) of S. 12 of the Act is from the vendors and the vendees and it has been urged on their behalf that these Sub-Sections violate the fundamental right of the vendor to dispose of the property to whomsoever and for whatsoever consideration, he likes, and also the right of the vendee to hold the property which he has acquired by purchase; that these restrictions are not reasonable restrictions within the meaning of Art. 19(5) and cannot be allowed to stand. It is further said that the entire Act conferring on the persons mentioned in S. 12 the right of pre-emption in respect of sales of immovable property other than agricultural land is hit by Art. 14 inasmuch as it is in force only in one part of the State of Madhya Bharat, namely the former Gwalior State and that no law of preemption of any kind in respect of urban immovable property is prevalent in other parts of the State and that this differentiation is not based upon a reasonable classification. In reply learned counsel appearing on behalf of the pre-emptors contended that the right of pre-emption was not a personal right but was a right attached to the property and hence there could be no question of infringement of any right of an individual under Art. 19(1)(f) to acquire, hold and dispose of property. Reliance was placed on the decision of the Supreme Court in- Audh Behari v. Gajadhar', AIR 1954 SC 417 (A), to support the proposition that the right of preemption was a right attached to property and not a personal right. It was also submitted in the alternative that the right of pre-emption did not in any way affect the right of the vendor. He was at liberty to sell the property to any one he liked after giving an opportunity to the pre-emptor to purchase the property at the price named by him; that the impugned provisions only gave priority of acquisition to certain persons and did not prohibit any person from acquiring or holding property. It was further said that if the right of preemption fettered in any way the fundamental right of the vendor to dispose of property and the right of the vendee to acquire and hold it, the restrictions were reasonable inasmuch as their object was to preserve the homogeneity of the community, to exclude strangers from becoming owners of the property and thus prevent the possibility of disturbance from him in the enjoyment of the property by co-sharers or by neighbours whose properties are dominant or servient. Learned counsel for the pre-emptors relying on- 'Ramjilal v. Income-tax Officer, Mohindar Garh', AIR 1951 SC 97 (B), proceeded to argue that if the Gwalior Pre-emption Act was in force in a part of Madhya Bharat and if there was no similar law of pre-emption in other parts, the Act could not be declared to be void under Art. 14. In case in which the sale in question took place before 26-1-1950 and the suits were also filed before that date it was also argued that on the date of the sale the vendor or the vendee had not the fundamental right guaranteed by Art. 19(1)(f) or Art. 14; that the Constitution was prospective and not retrospective and the right to enforce a right of pre-emption which accrued by reason of a sale before the date of the Constitution, remained unaffected. 4. Mr. 4. Mr. Chitale, learned Advocate-General who appeared in response to a notice issued by this Court supported the contention of the vendors and the vendees that the right of pre-emption infringed the fundamental right of the vendors and the vendees under Art. 19(1)(f) and that the restrictions imposed by Cls. (5) and (6) of S. 12 of the Act on the power of disposition or holding could not be regarded as reasonable. The learned Advocate-General argued that the conditions and the society which gave birth to the right of pre-emption no longer existed; that the right of pre-emption based on contiguity or easement was altogether out of keeping with the needs, objects and aims of the present day dynamic society; that though there might be some justification for allowing a co-sharer to pre-empt the property, there could be none whatsoever for permitting a person to purchase a property in preference to others merely because he happened to be an owner of a property contiguous to the property sold or the owner of a property having a right of easement in relation to the property sold. It was further urged by the learned Advocate-General that the entire Gwalior Pre-emption Act was repugnant to Art. 14 of the Constitution, in that it was in force only in a part of Madhya Bharat; that there was no similar law in other parts of Madhya Bharat and that this differentiation was not based on any reasonable classification. In support of his contention the learned Advocate-General referred us to the- 'State of Rajasthan v. Rao Manohar Singhji', AIR 1954 SC 297 (C) and distinguished the case of ' AIR 1951 SC 97 (B)', by saying that in 'Ramjilal's case (B)', the Supreme Court considered the question of the validity of a law in force in a portion of a State at the commencement of the Constitution only in relation to pending proceedings, namely, whether the difference in rates of assessment of income-tax on account of pending proceedings being continued according to the law of intergrating States of the Pepsu State was an infringement of Art. 14. The learned Advocate-General maintained that the Gwalior law of pre-emption being repugnant to Art. 14 became void and inoperative from 26-1-1950 and the right of pre-emption given by that Act could not be enforced in respect of any sale taking place after 26-1-1850. The learned Advocate-General maintained that the Gwalior law of pre-emption being repugnant to Art. 14 became void and inoperative from 26-1-1950 and the right of pre-emption given by that Act could not be enforced in respect of any sale taking place after 26-1-1850. As to the sales before 26-1-1950 and the enforcement of the right of pre-emption accruing on those sales in suits instituted before 26-1-1950, the learned Advocate-General on the authority of- K.M. Menon v. State of Bombay', AIR 1951 SC 128 (D), and other decisions of the Supreme Court in the same line contended that Art. 13(1) of the Constitution could not affect those rights or their enforcement in suits filed before 26-1-1950. Mr. Chitale pointed out that the decision of the Rajasthan High Court in- 'Shankerlal v. Poonamchand', AIR 1354 Raj 231 (K), that in a suit instituted before 26-1-1950, no decree of preemption could be passed after 26-1-1850 ran counter to the Supreme Court's decision in ' AIR 1954 SC 417 (A)', where a claim of pre-emption was on certain facts being established allowed to be decreed after 26-1-1950 in a suit filed before that date. The learned Advocate-General submitted that the reasoning of the learned Judges of the Rajasthan High Court that in such a suit no decree could be passed after 26-3-1950 because on account of the invalidity of the law of pre-emption the right could not be said to exist on the date of the decree, really begged the question of the invalidity of the law of pre-emption. 5. The foregoing summary does not mention all the points which have been argued they would be dealt with in due course- but it is sufficient to indicate the nature and importance of the legal problem which is submitted to this Court. 6. On the arguments addressed to us by the learned Advocate-General and the learned counsel appearing for the parties, the first question that arises for consideration is whether the right of pre-emption enacted in Sub-Ss. (1), (5) and (6) of S. 12, Gwalior Pre-emption Act infringes the fundamental right of the vendor and the vendee under Art. 19(1)(f) of the Constitution. On the arguments addressed to us by the learned Advocate-General and the learned counsel appearing for the parties, the first question that arises for consideration is whether the right of pre-emption enacted in Sub-Ss. (1), (5) and (6) of S. 12, Gwalior Pre-emption Act infringes the fundamental right of the vendor and the vendee under Art. 19(1)(f) of the Constitution. I do not think it can be seriously maintained that the law of pre-emption does not fetter the right of the vendor to dispose of his property and the right of the vendee to acquire and hold the property, which he has acquired by purchase. A person has a right to sell his property to any one he likes for whatsoever amount he thinks fit. He may like to sell the property to a friend or a relation at a price much lower than the market price or the price offered by a stranger. When, therefore, he is obliged to sell the property to a pre-emptor in preference to the person whom he wishes to sell the property and for the same consideration which he would get from his friend or relation, his right to dispose of the property is clearly restricted. There is also very little doubt that the vendee's right to retain the property which he has purchased is also restricted. The contention advanced on behalf of the pre-emptors that the right of pre-emption was an incident of property and attached to the property itself and not a personal right on the part of the pre-emptor to get a retransfer of the property from the vendee and that, therefore, there could be no question of infringement of any right under Art. 15(1)(f) is in my opinion, not sound. The decision of the Supreme Court in ' AIR 1954 SC 417 (A)', has no doubt now settled the controversy whether the right of pre-emption is a personal right or an incident of property by! holding that the right of pre-emption is an Incident of property and attached to the property itself. But from the proposition that the right is an incident of property, it does not follow that no restriction is imposed by the law of pre-emption on the vendor's, right to dispose of the property or the vendee's right to acquire and hold it after purchase. But from the proposition that the right is an incident of property, it does not follow that no restriction is imposed by the law of pre-emption on the vendor's, right to dispose of the property or the vendee's right to acquire and hold it after purchase. This is plain from the observations of the Supreme Court in the case of 'Audh Behari (A), itself that "the correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be". There is, therefore, no force in the contention that as the right of pre-emption is not a personal right, it doss not impose any restriction on the rights of the vendors and the vendees under Art. 19(1)(f). The proposition that a right of; pre-emption is an incident of property and not al personal right only means that the right goes with the land as being annexed to it; it cannot be separated from the property and transferred or enforced without it. 7. It was then suggested by Mr. Bhagwandas Gupta on behalf of one of the pre-emptors that the vendors and the vendees could not rely on Art. 19(1)(f) as that article dealt only with the rights inherent in a citizen to acquire, hold and dispose of property in the abstract without reference to rights to any particular property. The suggestion is based on the observation of Patanjali Sastri, C.J., in- 'State of West Bengal v. Subodh Gopal Bose', AIR 1954 SC 92 (F). that Art. 19(1)(f) of the Constitution was concerned only with the abstract right and capacity to acquire, hold and dispose of property and that it had no relation to concrete property rights. This observation of the learned Chief Justice has net been regarded by the Supreme Court as the opinion of the Court. In the case of- 'Commr. that Art. 19(1)(f) of the Constitution was concerned only with the abstract right and capacity to acquire, hold and dispose of property and that it had no relation to concrete property rights. This observation of the learned Chief Justice has net been regarded by the Supreme Court as the opinion of the Court. In the case of- 'Commr. of Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar', AIR 1954 SC 282 (G), the Supreme Court said with regard to the above observation of Patanjali Sastri, C.J., that "it was an expression of opinion by the learned Chief Justice alone and it was not the decision of the Court; for out of the other four learned Judges, who together with the Chief Justice constituted the Bench, two did not definitely agree with this view while the remaining two did not express any opinion one way or the other .... In our opinion it would not be proper to express any final opinion upon the point in the present case when we had not the advantage of any arguments addressed to us upon it. We would prefer to proceed, as this Court has proceeded all along, in dealing with similar eases in the past on the footing that Art. 19(1)(f) applies equally to concrete as well as abstract rights of property". A similar contention was raised in- 'Ramchandra v. Janardan', AIR 1955 Nag 225 (FB) (H). Rejecting the contention R. Kaushalendra Rao, J. observed that it would not be right to take the pronouncement of the learned Chief Justice in 'AIR 1954 S. 92 (F)', without further consideration as the final opinion of the Court on Art. 19(1)(f). The point was not fully argued before us. I do not, therefore, propose to rush in where the Supreme Court would not tread, and express an opinion on the question whether Art. 19(1)(f) applies to abstract as well as concrete rights of property. I would, following the course adopted by the Supreme Court in ' AIR 1954 SC 282 (G)', proceed on the footing that Art. 19(1)(f) applies equally to concrete as well as abstract rights of property, and that the right of preemption enacted in Sub-Ss. (1), (5) and (6) of S. 12, Gwalior Pre-emption Act violates the fundamental lights of the vendor and the vendee. 8. Mr. (1), (5) and (6) of S. 12, Gwalior Pre-emption Act violates the fundamental lights of the vendor and the vendee. 8. Mr. Gupta further argued that Art. 19(1)(f) had no applicability here for that provision was not intended to prevent wrongful individual acts or to provide protection against merely private conduct. The contention may be disposed of by saying that in the instant cases there is no question of the validity of the act of any vendee in purchasing a property or of the validity of the sale in his favour. What is being challenged is the constitutionality of a statute, under Art. 13(1) which makes all laws in force immediately before the commencement of the Constitution in so far as they are inconsistent with Part III, void to the extent of such inconsistency. There is thus no force in the contention raised by the learned counsel. 9. The next question that requires consideration is whether the restrictions imposed by Sub-Ss. (1),(5) and (6) of S. 12 on the power of disposition or holding can be regarded as reasonable restrictions and in the interests of the general public and are saved by Art. 19(5). Now, it has been pointed out by the Supreme Court in several cases that the term "reasonable restriction" is not capable of any precise or exhaustive definition and the question whether the restrictions imposed by the impugned Act are reasonable must be determined on the nature of the right claimed, the object to be achieved, the means employed and the limitations imposed. In the case of the 'State of Madras v. V.G. Row', AIR 1952 SC 196 (1), it was said : "This Court had occasion in- 'Dr. N.B. Khare v. State of Delhi', AIR 1950 SC 211 (J), to define the scope of the judicial review under Cl. In the case of the 'State of Madras v. V.G. Row', AIR 1952 SC 196 (1), it was said : "This Court had occasion in- 'Dr. N.B. Khare v. State of Delhi', AIR 1950 SC 211 (J), to define the scope of the judicial review under Cl. (5) of Art. 19 where the phrase "imposing reasonable restrictions on the exercise of the right'' also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general, pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating, in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution, is meant not only for people of their way of thinking but for all and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." 10. Applying this test for determining the reasonableness of the restrictions and on a consideration of the object of the right of pre-emption enacted in the Gwalior Pre-emption Act, the State of society in which the right first arose and the present conditions of society, I am disposed to hold that the restriction imposed by S. 12(6) of the Act, which confers a right of preemption by vicinage, on an owner's right of free disposal of property and the purchaser's right to hold the property, is not a reasonable restriction. The Gwalior Pre-emption Act is a consolidating Act and gives statutory form to the customary law of pre-emption which prevailed in the Gwalior State. The right enacted in the Act is substantially the same as recognised in Muhammadan law and in parts of India which came under Muhammadan domination and influence. I do not propose to enter here into a lengthy discussion of the origin, object and nature of the right of pre-emption. An exhaustive discussion of all these matters is to be found in the judgment of Mahmood, J., in- 'Govind Dayal v. Inayat Ullah', 7 All 775 (FB) (K), and in Agarwal's Law of Pre-emption. It is sufficient to say that from the fact that the right is available to only certain classes of persons, namely, co-sharers, neighbours, owners of servient and dominant properties, it is plain that the object of the right is to protect, to serve and promote the interests of such persons and to exclude strangers from acquiring property within a very limited area in which the property sold is situate. The right originated when members of each community, clan or family lived together under the leadership of a chief and held property in common, when there was no settled and firm government, when the village community was a self-contained society,- a separate state in itself- having its group of cultivators, its field labourers, its village artisans, officials, with a bond of joint responsibility and curious customs about the common land and about the distribution of arable land, when the whole village in times of trouble, armed and fortified itself and presented a combined front of defence or attack, and when the introduction of a stranger was looked upon with suspicion and as not conducive to the preservation of the common bond or interest of the inhabitants of the village. According to Mahmood, J., "the Zenana system which the Muhammadans regards as based upon religious texts and which emphatically prohibits invasion of the privacy of a domestic habitation, lends an importance, to the pre-emptive right, even when claimed 'ex jure vicinitatis', which it would not perhaps have otherwise possessed", (see 7 All 775 at p. 783 (FB) (K)). The state of society which necessitated the introduction of a right of pre-emption as a part of law was thus archaic. That society no longer exists in our cities, towns, or urban areas. The isolated and the politically, economically, and socially independent village community has disappeared from our villages. The characteristic of the modern structure of society is not isolation but interdependence; not stagnation but movement. The rational basis and justification for the rule of pre-emption by vicinage has thus entirely disappeared at least so far as immovable property other than agricultural land is concerned. The right has outlived the conditions or things which gave it birth and in which it found a footing. It is an anachronism and the reason why it originally came to be recognised can hardly be any ground for the continuation of a law of pre-emption recognising the right with regard to immovable property other than agricultural land. There is nothing in the Gwalior Pre-emption Act to show the object with which it was thought necessary to continue the customary law of pre-emption after giving it a statutory form. There is nothing in the Act to indicate that the restrictions imposed on the vendor and the vendee are in the interests of general public and have some relation to any object. I am, therefore, clear in my mind that the restriction imposed by S. 12(6) is not a reasonable restriction and one in the interests of the general public, and is not saved by Art. 39(5). As to Sub-Ss. (1) and (5) of S. 32, which give to a co-sharer and to the owners of dominant and servient properties the right to pre-empt, I am inclined to take the view that they are reasonable provisions. The reasonableness is to be found in the fact that in the case of such persons the effect of the right is to place them in a favourable position for better and quite enjoyment of the immovable property they possess. The reasonableness is to be found in the fact that in the case of such persons the effect of the right is to place them in a favourable position for better and quite enjoyment of the immovable property they possess. This consideration, of beneficial enjoyment of the property is absent in the case of a pre-emptor by mere vicinage. 11. The question whether a statutory or customary law of pre-emption, which permits the owner of a contiguous property the right to preempt on the ground of mere vicinage, is invalid as being contrary to Art. 39(1)(f) was considered in- 'Panch Gujar v. Amar Singh', AIR 1954 Raj 100 (FB) (L); ' AIR 1954 Raj 231 (E)', and- 'Motibai v. Kand Kari Channaya', AIR 1954 Hyd 161 (FB) (M), and it was held in those cases that such a law was invalid from 26-1-1950. In all those cases the right of pre-emption claimed was in respect of house property in towns and on the basis of the ownership of adjoining property. In AIR 1954 Raj 100 (FB) (L)', while holding that the right of pre-emption based on ownership of adjoining property was not a reasonable restriction on the right to acquire and hold property, it was observed by the learned Judges that something could be said in favour of reasonableness of the restriction allowing a co-sharer or a participator in immunities and appendages to have a light of preferential purchase in respect of the property sold by another co-sharer or participator in immunities and appendages. Learned counsel for the pre-emptors cited- 'Abdul Hakim v. Jan Mohammad', AIR 1951 All 247 (N);- 'The Punjab Stats v. Inder Singh', AIR 1953 Punj 20 (O); and- Uttam Singh v. Kartar Singh'. AIR 1954 Punj 55 (FB) (F), where it has been held that the Agra Pre-emption Act 1922 and Ss. 35 and 16, Punjab Pre-emption Act, 1913 have not been abrogated by reason of Arts. 13(1) and 19(1)(f) of the Constitution. These cases have no applicability here. They related to agriculutral lands, and the law impugned there was held to be reasonable on the ground that it tended to preserve the integrity of the village and the village community and to avoid fragmentation of holdings. 13(1) and 19(1)(f) of the Constitution. These cases have no applicability here. They related to agriculutral lands, and the law impugned there was held to be reasonable on the ground that it tended to preserve the integrity of the village and the village community and to avoid fragmentation of holdings. To the same effect is the decision in 'AIR 1955 Nag 225 (FB) (H) where the validity of the right of preemption enacted in Berar Land Revenue Code, 1928, was upheld. The considerations of consolidation of holdings and of integrity of the village and village community have no bearing on the question whether the law of pre-emption based on vicinage in respect of immovable property other than agricultural land situate in towns and urban areas is reasonable. There is thus an effective distinction between the present cases and the cases relied on by the pre-emptors. 12. Coming now to the question whether the entire S. 32, Gwalior Pre-emption Act offends against Art. 14 of the Constitution, I think in the light of what has been said by the Supreme Court in AIR 1954 SC 297 (C) the question must be answered in the affirmative. The Gwalior Preemption Act is in force only in that part of the State of Madhya Bharat which was formerly Gwalior State. It is not disputed that in other parts of Madhya Bharat there is no law of pre-emption of any kind in respect of property other than agricultural land. There is thus discrimination as between the owners of property of the above type in one part of Madhya Bharat and owners in other parts. In some cases the discrimination works out between the owners of properties separated by a distance of even less than a mile. Learned counsel for the pre-emptors were not able to suggest any reasonable classification for the perpetuation of this discrimination. It was, however, said that the reason for the classification was that the law of pre-emption was in force for several years in the quondam Gwalior State and was continued in that part after the formation of Madhya Bharat. This cannot be regarded as a reasonable classification. It was, however, said that the reason for the classification was that the law of pre-emption was in force for several years in the quondam Gwalior State and was continued in that part after the formation of Madhya Bharat. This cannot be regarded as a reasonable classification. As was said by Das, J., in- 'State of West Bengal v. Anwar Ali Sarkar', AIR 1952 SC 75 (Q) "the classification must be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation". The fact of the existence for several years of the law of pre-emption in one part is clearly not a characteristic of any group of owners. Nor has it any relation to the object of the legislation. In the case of AIR 1954 SC 297 (C) the Supreme Court considered the validity of an Ordinance which was in force in some of the covenanting States of Rajasthan and which was continued in those parts after the formation of Rajasthan and the effect of which was to subject to a disability the Jagirdars of a part of the State of Rajasthan in the management of their Jagir. while leaving the Jagirdars of other parts wholly unaffected. The Supreme Court observed that, such an obvious discrimination, however undesirable, was not open to any exception until the Constitution came into force on 26-1-1950, but that after that date it could be supported only on the ground that it was based upon a reasonable classification and not on the ground that the discrimination was not due to any thing in the law itself but due to extraneous causes. In my view the decision of the Supreme Court in AIR 1954 SC 297 (C) concludes the question of the Gwalior Pre-emption Act being repugnant to Art. 14 and as such void. The inequality in the matter of right of pre-emption between the owners of property in one part of the State and the owners in other parts of the State no doubt arose on the formation of Madhya Bharat. It could not be objected to until 26-1-1950 when the Constitution of India came into force but thereafter it cannot be allowed to be continued as there is no reasonable classification to support it. It could not be objected to until 26-1-1950 when the Constitution of India came into force but thereafter it cannot be allowed to be continued as there is no reasonable classification to support it. A similar view has been taken in- 'Siremal v. Kantilal, AIR 1954 Raj 195 (R) where the Rajasthan High Court held that the law of pre-emption by mere relationship as put down in S. 3(2), Marwar Pre-emption Act was hit by Art. 14, as the law was in force only in the former State of Marwar and no such law was prevalent in other parts of Rajasthan, and that no special reason had been shown for distinction. 13. Mr. Patankar learned counsel for the respondent-pre-emptor in Civil S. A. No. 146 of 1954 relying on AIR 1951 SC 97 (B) argued that the impugned law could net be regarded as one offending against Art. 14 merely because it was in force in one part of the State and there was no similar law in other parts of the State. I do not think this case is of any assistance to the learned counsel. It was not decided on the proposition enunciated by learned counsel. As pointed out by the Supreme Court in AIR 1954 SC 297 (C), the 'case of Ramjilal (B)' proceeded upon the principle that : "pending proceedings should be concluded according to the law prevalent at the time when the rights or liabilities accrued and the proceedings commenced was a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause." 14. Here, holding that the Gwalior Preemption Act is repugnant to the provisions of Art. 14 and Is as such void and illegal from 26-1-1950 and that a right of pre-emption cannot, therefore, be enforced in respect of sales taking place after 26-1-1950, there can be no question of any pending proceedings. Mr. Here, holding that the Gwalior Preemption Act is repugnant to the provisions of Art. 14 and Is as such void and illegal from 26-1-1950 and that a right of pre-emption cannot, therefore, be enforced in respect of sales taking place after 26-1-1950, there can be no question of any pending proceedings. Mr. Patankar then referred to the observations quoted in AIR 1954 SC 297 (C) of Bradley, J., in- 'Bowman v. Edward Lewis', (1880) 101 US 22 (S), and pressed into service the observation of the Supreme Court that "this passage which was strongly relied on by the learned Attorney-General does not advance his case for in the present case there is no question of continuing unchanged the old laws and judicature in one portion and a different law in the other", to support his contention that the Gwalior Preemption Act did not violate Art. 14. I fail to see how the observations of Bradley, J., or of the Supreme Court support the contention of the learned counsel. Bradley, J., observed : "If a Mexican State should be acquired by treaty and added to an adjoining State or part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the 14th Amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction." 15. With regard to this passage the learned Judges of the Supreme Court said that it had no applicability to the facts and circumstances of the case before them. Mr. Patankar read the observation of the Supreme Court that "in the present case there is no question of continuing unchanged the old laws and judicature in one portion and a different law in the other" as meaning that the continuation of a law on a subject in a part of the State and the total absence of any law on the same matter in other parts of the State is not within the mischief of Art. 14. This reading of the observation of the Supreme Court altogether misses the significance of the words "continuing unchanged the old laws in one portion and a different law in the other." The observation must be read in the context of the judgment and so reading it has only one meaning, and that is, that Art. 14 does not require that the laws should be exactly the same; that discrimination cannot be said to arise if an old law is continued in one part and a different or a similar law prevails or no law prevails in other areas provided the differentiation is founded upon a reasonable classification. Mr. Patankar then said that the discrimination, if any, was not due to the continuation of Gwalior Pre-emption Act but was due to the Madhya Bharat Regulation of Government Act (Act 1 of 1948) which continued the Pre-emption Act in the territories of the former Gwalior State. In my view the fact that the Gwalior Preemption Act was continued first by Act 1 of 1948 and then under Art. 372 of the Constitution does not protect it in any way from being challenged as repugnant to Part III of the Constitution. Act 1 of 1948 itself is not discriminatory for it continued in the various covenanting States all laws and Ordinances, Acts, Rules, and Regulation which were in force there on the date of the formation of Madhya Bharat. I am, therefore, of the opinion that the Gwalior Pre-emption Act is repugnant to Art. 14 and is as such void and illegal from 26-1-1950. 16. From what has been said above, it is plain that the Gwalior Pre-emption Act being void from 26-1-1950, no right of pre-emption can be enforced in respect of sales taking place after 26-1-1950. It remains to be considered whether the right can be enforced in respect of sales which took place before the commencement of the Constitution and for the enforcement of which suits were filed before that date. I do not think that after the decision of the Supreme Court in AIR 1951 SC 128 (D), it requires much argument to say that Art. 13(1) cannot affect these rights and their enforcement in suits instituted before 26-1-1950. In 'Menon's case (D)' it was observed by Das, J. : "Before the Constitution came into force there was so such thing as fundamental right. In 'Menon's case (D)' it was observed by Das, J. : "Before the Constitution came into force there was so such thing as fundamental right. What Art. 13(1) provides is that all existing laws which clash with the exercise of the fundamental right (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the question of 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 Art. 13(1) can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that Art. 13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void at initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental, rights. In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. 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 liberties accrued before the date of the Constitution." 17. The principle laid down in 'Menon's case (D) was re-affirmed in- 'D.K. Nabhirajiah v. State of Mysore', AIR 1952 SC 339 (T), in- 'Quasim Razvi v. State of Hyderabad', AIR 1953 SC 156 (U) and in- 'Habeeb Mohamed v. State of Hyderabad', AIR 1953 SC 287 (V);- 'Behram Khurshid v. State of Bombay', AIR 1955 SC 123 (W). Article 13(1) so far as it seeks to affect substantive rights is, therefore, prospective and not retrospective. Article 13(1) so far as it seeks to affect substantive rights is, therefore, prospective and not retrospective. Section 12, Gwalior Pre-emption Act deals with substantive rights. Now, the right of pre-emption which exists antecedently to the sale, becomes enforceable only when there is a sale. (See AIR 1954 SC 417 (A).) Whether the right becomes a vested right on the sale itself, I need not determine. But there can be no doubt of its becoming a vested right at any rate, when an action for its enforcement is commenced. If this conclusion is right, as I think it is, it follows that Sub-Ss. (1), (5) and (6) of S. 12. Gwalior Pre-emption Act roust be held to be valid for the enforcement of the right of preemption on the basis of sales before 26-1-1950 and in suits before that date. 18. Mr. Kak learned counsel appearing for the applicant-vendee in Civil Revision No. 145 of 1950, however, urged that if the Gwalior Preemption Act was invalid from 26-1-1950 then even in suits filed before 26-1-1950 no decree for preemption could be passed by the original Court or by the appellate Court for the first time after 26-1-1950, and further that as an appeal was but a continuation of suit proceedings, the appellate Court could not after 26-1-1950 affirm a decree of pre-emption. The basis of the contention is the decision of the Rajasthan High Court in AIR 1954 Raj 231 (E), That decision no doubt supports the first part of the contention advanced by the learned counsel. But it does not go so far as to say that after 26-1-1350 an appellate Court cannot affirm and maintain a decree of pre-emption or that a decree obtained by a pre-emptor is not executable after 26-1-1950. But it does not go so far as to say that after 26-1-1350 an appellate Court cannot affirm and maintain a decree of pre-emption or that a decree obtained by a pre-emptor is not executable after 26-1-1950. The Rajasthan decision proceeded on the reasoning that the right of pre-emption, must subsist on the date of pale, the date of the institution, of the suit and the date of the decree; that the date of the decree must be the date on which the decree is actually passed and if that the trial Court has dismissed the suit and if the appellate Court has given a decree, the right must exist upto the date of the appellate Court's decree; that if the law of pre-emption is invalid from 16-1-1950, then the right of pre-emption cannot be said to subsist after 26-1-1950 and that, therefore, after that date no decree for pre-emption could be passed by the original Court or by the appellate Court. The learned Judges of the Rajasthan High Court observed that this reasoning did not involve giving retrospective operation to Art. 13(1) of the Constitution. With great respect to Wanchoo, C.J., who delivered the judgment of the Court in AIR 1954 Raj 231 (E), I do not take that view. The flaw in the reasoning lies in assuming, that, which is to be established. The question being whether the impugned law of preemption is valid for the enforcement of the right of pre-emption in respect of sales before 26-1-1950 and in suits instituted before that date, to say that as because of the invalidity of the statute the right of pre-emption does not subsist on the date of the decree and it cannot, therefore, be enforced, is, to my mind, to argue in a circle. It must be borne in mind that if s law of pre-emption is invalid from 26-1-1950 as being repugnant to Part III of the Constitution, then on the rule laid down by the Supreme Court in 'Menon's case (D)', what does not subsist is the right of pre-emption in respect of sales after 26-1-1950 and that it is only on giving retrospective operation to Art. 13(1) that one can resell the conclusion that the right does not subsist after 26-1-1950 in respect of sales which took place before that date. The reasoning adopted by the Rajasthan High Court in the case of Shankerlal (E). The reasoning adopted by the Rajasthan High Court in the case of Shankerlal (E). In effect gives retrospective operation to Art. 13(1) of the Constitution, contrary to the pronouncements of the Supreme Court in the cases referred to above. A further reason, in my opinion, why Mr. Kak's argument cannot be accepted is that the rule of the law of pre-emption that the right must subsist on the date of sale, the date of Institution of the suit and the date of the decree and that the pre-emptor cannot obtain a decree for pre-emption if his right does not subsist on all these dates, presupposes that the law conferring a right of pre-emption is valid and operative, and envisages the loss of right by a cause other than the invalidity of the law. The matter seems to me too plain for argument. When a statutory or customary law confers a right and also lays down the conditions under which the right is available. It would clearly be incongruous to read into those conditions, the condition of the law itself being value and operative. It is wholly unnecessary for such a law, or for that matter for any law, to provide expressly or impliedly for the contingency that may arise on its abrogation and to say that the rights given by the law will not be available if it is invalid or repealed or ceases to be operative. The point raised by Mr. Kak, namely, decree passed before 26-1-1950 in favour of a pre-emptor cannot be affirmed in an appeal after that date, does not present any difficulty to the cases before us. For, S. 23 of the Gwalior Preemption Act, after stating that no decree for preemption shall be passed in favour of any person if this right of pre-emption does not subsist until the date of the decree, proceeds to say think if after the passing of a decree for pre-emption : by the original or the appellate Court, the plaintiff pre-emptor transfers the property on the basis of which he claims the right of pre-emption or loses the right of pre-emption, then notwithstanding the transfer of the property or the loss of the right, the plaintiff-pre-emptor's right shall remain unaffected. It is noteworthy that in the case of AIR 1954 SC 417 (A) the plaintiff-pre-emptor instituted a suit in 1941 to enforce his right of pre-emption arising on the sale of a plot of land in the city of Banaras, which took place on 29-3-1941. The trial Judge dismissed the plaintiff's suit and the Allahabad High Court upheld the decision at the trial Court on 29-8-1944. When the case went up before the Supreme Court the constitutional validity of the customary law of pre-emption prevalent, in Bansras city for the enforcement of the plaintiff's right of pre-emption which accrued, to him before the coming into force of the Constitution and the plaintiff's right to get a decree of pre-emption after 16-1-1950 was not questioned or doubted. The decision in 'Audh Behari's case (A)', though not a direct authority, is yet an indirect authority in favour of the view that the plaintiff can be given a decree for pre-emption after 26-1-1950 in a suit instituted before that date to enforce a right of pre-emption arising on a sale before 26-1-1950. 19. The question whether the right can be enforced in an action commenced after 26-1-1850 on the basis of a sale taking place before that date, doss not arise in any of the cases before us. Strictly speaking, it is, therefore not necessary for me to express any opinion on the point. But I cannot refrain from adding- not as a concluded opinion- that if the right of pre-emption becomes a vested right not when it becomes enforceable when a sale is affected but on the institution of a suit to enforce it, then clearly the plaintiff cannot be granted a decree for pre-emption. If a pre-emptor on a sale taking place before 26-1-1950 has not availed, himself of the provisions of the Gwalior Pre-emption Act to enforce that right by filing a suit before the commencement of the Constitution, it cannot be said that there was a vested right in his favour which accrued to him before the Constitution came into force. If a pre-emptor on a sale taking place before 26-1-1950 has not availed, himself of the provisions of the Gwalior Pre-emption Act to enforce that right by filing a suit before the commencement of the Constitution, it cannot be said that there was a vested right in his favour which accrued to him before the Constitution came into force. This would be in accord with, the principle laid down by the Privy Council in- 'Abbott v. The Minister of Land', (1895) AC 425 (X) that "the mere right (assuming it to be properly so called) existing in the members of a community or any class of them to take advantage of an enactment without any act done by an individual towards availing himself of that right cannot be properly deemed a 'right accrued' within the meaning of the enactment." The came proposition is stated in Halsbury's Laws of England, Vol. 31 at page 517 thus : "A mere right existing at the date of a repealed statute to take advantage of the provisions of the statute repealed is not a right accrued within the meaning of the usual saving clause providing that all rights accrued by virtue of the statute repealed are to be unaffected by such repeal." It is not necessary for me to say anything more on this question. 20. For the foregoing reasons my answers to the question referred to us are (1) that Sub-Ss. (1), (5) and (6) of S. 12, Gwalior Pre-emption Act, Samvat 1992, infringe the fundamental rights of the vendor and the vendee under Art, 19(1) (f); (2) that the restrictions imposed by Sub-S. (6) of S. 12 are not reasonable, and that the restrictions, imposed by Sub-Sections (1) and (5) are- reasonable and saved by Art. 19(5); (3) that Sub-S. (8) of S. 12 is void from 26-1-1950 by reason of Arts. 13(1) and 19(1)(f); (4) that the entire S. 12 of the Act is repugnant to Art. 14 and is as such void and ineffectual from 26-1-1950; (5) that S. 12 is valid for the enforcement of the right of pre-emption arising on sales which took place before 26-1-1950 and in suits instituted before that date; and lastly that the right of pre-emption under the Gwalior Pre-emption Act cannot be enforced in respect of any sale taking place after 26-1-1950. 21. CHATURVEDI, J. :- I agree. 22. 21. CHATURVEDI, J. :- I agree. 22. NEWASKAR, J:- I have had the privilege of reading the judgment prepared by my learned brother Dixit, J. and I agree with most of his reasonings and conclusions. But there are certain points in his judgment such as (I) the applicability of Art. 14 of the Constitution for invalidating the material provisions of Gwalior Pre-emption. Act and (II) the justifiability of placing the rights acquired by vicinage and those acquired by easements on different footing as regards their invalidity by reason of Art. 19(1)(f) read with Art. 19(5) of the Constitution with which I am unable to-agree. 23. I have, therefore, decided to set forth, my opinion on the question referred separately particularly as the point involved is of some importance. In view of almost exhaustive decision on the contentions raised on the material topics I have refrained from dealing with all of them in detail separately. 24. As there is no case among the cases referred which involves the case of a sale before 26-1-1950 and an action commenced after that date I propose to express no opinion about it. 25. These are several cases arising out of proceedings under Gwalior Pre-emption Act, Samvat Year 1992 wherein suits had been filed by the pre-emptors against the vendees for pre-emption. All the suits involve house properties in urban areas. 26. The points raised in these proceedings are that after the promulgation of the Constitution the material provisions of the Gwalior Preemption Act became void by reason of Art. 19(1)(f) of the Constitution and hence no decree can either be passed or confirmed by this Court and suits filed for the purpose ought to be dismissed. 27. In order to facilitate consideration of an appropriate point which will arise for consideration in each of these several suits it will be convenient at the outset to set forth material facts in each of them. Civil Revision No. 145 of 1950 : In this case-Narayan sold a house to Hukumsingh on 20-1-1948. Surajmal filed a suit for pre-emption on 18-12-1948. This suit was decreed by the trial Court on 3-1-1950. An appeal preferred against this decision was disallowed on 3-4-1950. The present petition for revision was filed against this decision. The suit is based on a right of preemption based on vicinage. Surajmal filed a suit for pre-emption on 18-12-1948. This suit was decreed by the trial Court on 3-1-1950. An appeal preferred against this decision was disallowed on 3-4-1950. The present petition for revision was filed against this decision. The suit is based on a right of preemption based on vicinage. The point raised is that inasmuch as when the appellate Court confirmed the decree of the trial Court for pre-emption on 3-4-1950 the Constitution had come into force. The decree of the appellate Court wherein the decree of the trial Court had merged became void by reason of Art. 19(1)(f) and Art. 14 of the Constitution read with Art. 13. Civil Second Appeal No. 3 of 1949 : In this case sale took place on 9-6-1942. Pre-emptor filed a suit for pre-emption on 3-5-1943. This suit was dismissed by the trial Court and the first appellate Court on 20-6-1946 and 18-10-1949 respectively. This is a second appeal against the last mentioned decision. The point involved in this appeal is that where the suit for pre-emption was filed before the Constitution but no decree had been passed therein by any Court before the Constitution came into force can a decree be passed for the first time after the Constitution. The point raised by the respondent is that no such decree can now be passed as the provisions of S. 12. Gwalior Pre-emption Act have become void by reason of Art. 19(1)(f) and Art. 14 of the Constitution read with Art. 13. The suit is based on the right of vicinage. Civil Second Appeal No. 2 of 1953 : In this case the sale took place on 19-12-1947. This was followed by a suit for pre-emption filed on 14-12-1948. A decree was passed for the first time by the trial Court on 30-5-1951. On appeal the decree was set aside on 29-6-1953 and the suit was dismissed. This is a second appeal against that decision and the decree passed on 30-5-1951 is sought to be restored. The point raised on behalf of the respondent is that inasmuch as no decree had been passed by any Court prior to the Constitution it is not competent to grant a decree restoring the decree dated 30-5-1951, that decree being illegal as the right of pre-emption had become non-existent by reason of Art. 19(1)(f) and Art. 14 of the Constitution read with Art. 13. The suit is based on the right of pre-emption based on vicinage. Civil Second Appeal No. 171 of 1953 : In this case sale took place on 26-4-1945. This was followed by a suit for pre-emption filed on 23-4-1946. The suit was dismissed on 31-10-1950. On appeal the appellate Court granted a decree on 10-8-1953. The appellant in this second appeal raised a contention similar to that in Civil Second Appeals Nos. 3 of 1949 and 2 of 1953, viz., that no decree for the first time can be passed in a suit for pre-emption filed before the Constitution after 26-1-1950 when the Constitution came into force as the provisions of the Gwalior Pre-emption Act had been rendered void by reason of Art. 19(1)(f) and Art. 14 of the Constitution read with Art. 13. The right claimed in this case is one based on that of easement of the adjoining owner and also on vicinage. Civil Second Appeal No. 52 of 1954 : In this case sale took place on 5-8-1943. This was followed by a suit for pre-emption filed on 22-8-1949. The suit was decreed for the first time on 27-8-1952. The point raised is similar to above. The suit is based on a right based on vicinage and existence of a common wall. Civil Second Appeal No. 146 of 1954 : In this case the sale took place on 29-4-1950 i.e. after the Constitution. Claim for pre-emption is based on vicinage and co-ownership. Civil Second Appeal No. 93 of 1954. In this case the sale took place on 17-4-1950 i.e. after the Constitution. Claim is based on vicinage, easement and co-ownership. 28. On analysis it appears that these cases may be classified in the following categories : First : Where the sale itself took before the Constitution came into force and where the right is based either on (a) vicinage, (b) easement or (c) co-ownership. Second : Where the sale took place before the Constitution, the suit for enforcement of right of pre-emption was also filed before the Constitution but before any decree is passed either by the trial Court or by the appellate Court the Constitution came into force. Third : Where the sale took place before the Constitution followed by a suit for pre-emption also before the Constitution and a decree was passed before the Constitution which is either set aside or confirmed later on. Third : Where the sale took place before the Constitution followed by a suit for pre-emption also before the Constitution and a decree was passed before the Constitution which is either set aside or confirmed later on. Besides these three categories there is one more category : Fourth : Where the sale took place before the Constitution but the suit was not filed before the Constitution came into force. 29. I propose to deal with only first three categories. There is no case before us involving circumstances obtaining in the last one. I : Civil Second Appeals Nos. 93 of 1954 and 146 of 1954 will fall in the first category. II : Civil Second Appeals Nos. 3 of 1949, 2 of 1953, 171 of 1953 and 52 of 1954 will fall in the second category. III : Civil Revision No. 145 of 1950 falls in the third category. 30. As regards the first category the question raised on behalf of the vendee is that the provision in the Gwalior Pre-emption Act which restricted the right of vendor to sell his house to whomsoever he likes and that of vendee to purchase a property any where in India offends against Art. 19(1)(f) of the Constitution. Restrictions thus placed by the law upon contractual freedom of the vendor and the purchaser are not reasonable and hence have become void. On the other hand it is contended on behalf of the pre-emptor that the provisions contained in S. 12, Gwalior Pre-emption Act which compel a vendee to sell his property acquired by him to the pre-emptor is not any way affected by Art. 19(1)(f) of the Constitution. 31. Mr. Patankar who appears for a pre-emptor in Civil Second Appeal No. 146 of 1954 contended, relying upon the decision of their Lordships of the Supreme Court reported in AIR 1954 SC 417 (A), that according to the view taken in that case right of pre-emption is not a personal right but is a right which is attached to the property itself. He tried to argue that where a property is subject to a right of pre-emption it is a defect in the property itself and where that defect exists in the property the Constitution has not the effect of amplifying the nature of the property so as to remove that defect therein nor has it the effect of granting new right of property which did not in fact exist before. It is a provision which guarantees the freedom to a citizen to acquire, hold and dispose of such property as exists on the date when the Constitution came into force or came into existence later on. If a vendor has a property subject to a right of pre-emption he can dispose of that property along with its defect and the per-son who purchases takes it subject to the defective nature of it, viz., that the property will be liable to be purchased by the pre-emptor. This defect being attached to the property the Constitution will not have the effect of removing that defect. In such a case there is no question of applicability of Art. 19(5) of the Constitution. 32. In my opinion this argument has hardly any substance. 33. There is absolutely no doubt that the law of pre-emption, whether customary or statutory, has the effect of curtailing the contractual freedom of a citizen in acquiring, holding and disposing of an immoveable property. If a vendee wishes to buy a property subject to a right of pre-emption say that of a neighbour he cannot acquire it. Even if he obtains the property temporarily he can be deprived of that property not by his own act or volition but by law whether cased on custom or statute. Thus, his freedom of acquiring property and holding the same is curtailed by reason of the Law of Pre-emption. As by Art. 19(1)(f) of the Constitution a citizen has been granted a fundamental right subject of course to the restrictions contained in that Article to acquire and hold any property, any law which curtails that fundamental right is rendered void by Art. 13 of the Constitution. Assuming, therefore, that the restrictions imposed on acquisition or holding of such property by the law of pre-emption on the ground either of vicinage, easement or co-ownership are not reasonable, the law becomes void to that extent. Vendor is the full owner of the property. Assuming, therefore, that the restrictions imposed on acquisition or holding of such property by the law of pre-emption on the ground either of vicinage, easement or co-ownership are not reasonable, the law becomes void to that extent. Vendor is the full owner of the property. He can sell the property to anybody for any consideration. Purchaser also becomes full owner after the purchase but is unable to retain the fruit of the transaction by reason of the Law of Pre-emption. There is no change in the content of the property. The property remains the same. It is the contractual freedom to acquire and hold the property which is affected. There is no doubt that in one sense the right of pre-emption is not personal but passes along with the property and arises on every sale. So that if on a certain transfer, if the neighbour claiming to pre-empt on the ground of vicinage does not exercise his right by taking lawful steps he cannot challenge that transfer and obtain the property. But his right is not gone for ever and as long as the circumstance of his being the owner of the neighbouring house exists the right will re-arise on a fresh sale. It is in this sense that the right is not personal but is attached to the property. 34. There is, therefore, no substance in the contention that the Law of Pre-emption does not affect fundamental right of a citizen as declared in Art. 19(1)(f) and that the decision of the Supreme Court in AIR 1954 SC 417 (A) supports that contention. 35. Next thing to be considered is whether the restriction imposed by the Law of Pre-emption on the right guaranteed under Art. 19(1)(f) is reasonable if the same is based on vicinage, easement or co-ownership. 36. As regards vicinage there is no doubt whatever that in the dynamic nature of society contemplated under the present Constitution it is difficult to justify restriction on the ground of vicinage. The right of pre-emption based on vicinage has the effect of amplifying the property owned by the neighbour and preventing an outsider from being introduced therein. 36. As regards vicinage there is no doubt whatever that in the dynamic nature of society contemplated under the present Constitution it is difficult to justify restriction on the ground of vicinage. The right of pre-emption based on vicinage has the effect of amplifying the property owned by the neighbour and preventing an outsider from being introduced therein. These restrictions might have served their purpose in the medieval times but in the modern age the advantages of contractual freedom and transfer of property are far greater than those arising by preventing a citizen other than one with whom a pre-emptor is accustomed to live from being introduced. As regards the advantages arising by reason of permitting consolidation it may be said that mere consolidation of property will only lead to a static condition and will not lead to an advantage greater than the one arising by reason of right guaranteed under Art. 19(1)(f) of the Constitution. 37. It, therefore, follows that the restrictions imposed on the right guaranteed under Art. 19(1)(f) by reason of right of pre-emption based on vicinage cannot be said to be reasonable. 38. The same argument will apply even where the right is based on the ground of easement. It is said that if a dominant tenement holder is allowed to acquire property by pre-emption it will enable him to enjoy his property fully without let or hinderance and will have the effect of avoiding litigation. I am unable to fall in line with this reasoning. Per example a person holding a dominant tenement will be entitled to enjoy the easement irrespective of consideration whether one or the other is the owner of the servient tenement. There is no special advantage in curtailing the freedom of a citizen guaranteed under Art. 19(1)(f) of the Constitution by allowing a dominant tenement holder to acquire that property. The property in the hands of a purchaser whosoever he be will be subject to the same obligation as it had when it was with the initial owner and the right of dominant heritage will not be diminished. 39. As regards co-ownership in my opinion even at the present stage of society the advantages in allowing a co-owner to acquire property from another co-owner in preference to a stranger are far greater than the possible harm that might ensue in case the contractual right of vendor is restricted any way. 39. As regards co-ownership in my opinion even at the present stage of society the advantages in allowing a co-owner to acquire property from another co-owner in preference to a stranger are far greater than the possible harm that might ensue in case the contractual right of vendor is restricted any way. In co-ownership feelings and associations are closer and generally it is possible for all co-owners to live amicably and happily near each other. If a stranger is introduced the same amount of understanding and cordiality cannot be expected for enjoying the property in common. Restrictions imposed by the Law of Pre-emption in those cases are reasonable and the law does not therefore, run contrary to Art. 19(1)(f) of the Constitution. 40. Bapna, J. in AIR 1954 Raj 100 (L) observed as follows : "Now so far as the reconveyance of the property to a pre-emptor claiming as a co-sharer or a participator in immunities and appendages is concerned, there were certain reasons of convenience behind this principle, the chief being to prevent any disturbance by a stranger to the enjoyment of the property by a co-sharer or participator in the immunities and appendages". From this it appears that the learned Judge is prepared to put both the case of easement and co-ownership on the same foting and the right is sought to be justified on the sole ground of avoidance of stranger as observed above. There is hardly any avoidance of stranger in the case of a right of easement. One stranger is substituted by another. 41. It is also contended on behalf of the vendees that after the promulgation of the Constitution the Law of Pre-emption becomes void as it conflicted with the fundamental right guaranteed under Art. 14 of the Constitution. It is said that the Law of Pre-emption is in force in some parts of Madhya Bharat and not so in the others. After the Constitution came into force there is no earthly reason why a citizen living in one part should be free to acquire and hold property unrestricted by any right of pre-emption vested in a neighbour or a co-owner while in places just nearby he should suffer disability due to the law being continued to be in force. This brought about a state of inequality which cannot persist after the Constitution. This brought about a state of inequality which cannot persist after the Constitution. The principle of Art. 14 is that as between Indian citizens placed in the same- circumstances law shall be equal. Absolute equality is net what is meant by Art. 14. Classification is permissible but such classification cannot be arbitrary but must bear a reasonable relation to the object sought to be achieved by the impugned legal provision. Applying this principle it is said that classification made between people of former Gwalior State territory where this law applied and those residing in parts of Madhya Bharat adjoining that territory cannot be said to be based on any reasonable basis. Reliance is placed on the decision reported in AIR 1954 SC 297 (C). On the other hand it is contended on behalf of the other side that Art. 14 cannot be applied for invalidating the Law of Pre-emption in those parts of Madhya Bharat where is continues under the pre-existing law and is continued by the Madhya Bharat Regulation of Government Act No. 1 of 1948 and by Art. 372 of the Constitution. 42. Mr. Patankar appearing for the pre-emptor contended that there is nothing objectionable by reason of Art. 14 to allow persons residing in one part of territory of Madhya Bharat to be governed by the Law of Pre-emption which was applicable since long to that part and not to those residing in other or neighbouring parts. This involves mere continuance of old laws in different parts of the same State. The classification in such a case is on regional basis and the Constitution has specifically sanctioned it under Art. 372 of the Constitution. This will involve nothing else except continuance of old laws unchanged in different parts of the same State. Reliance in this connection is placed on the observations of Bradley, J. in (1880) 101 U.S. 22 (S) which are as follows : 'If a Mexican State should be acquired by treaty, and added to an adjoining State or part of a State, in the United. States, and the two should, be erected into a new State, it cannot be doubted that such new State might allow the Mexican. Laws and Judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. States, and the two should, be erected into a new State, it cannot be doubted that such new State might allow the Mexican. Laws and Judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the 14th Amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone and a regard to the Welfare of all classes within the particular territory or jurisdiction". 43. On anxious consideration of these respective points of view I am unable to hold that the Gwalior Pre-emption Act or the impugned provisions therein, material for consideration of these cases, can be held to be invalid on the ground that they run counter to Art. 14 of the Constitution. Having regard to the observations of Bradley, J. referred to above it seems to me that Art. 14 comes in where differentiation is made by reason of any respect for persons or classes. Where the classification is based on Municipal consideration and a regard to the welfare of all classes within the particular territory Art. 14 of the Constitution cannot be applied. The circumstance that the Law of Pre-emption is applicable in territory of former Gwalior State and not so, say in adjoining territory of former Holkar State does not arise by reason of differentiation between persons or classes but on Municipal considerations. The old law in the pre-existing States were allowed to continue both by the Madhya Bharat Regulation of Government Act No. 1 of 1948 and Also by Art. 372 of the Constitution. 44. In the case reported in AIR 1954 SC 297 (C) question was whether the provisions of law which permitted Jagirdars of certain parts of Rajasthan to collect rents of their Jagirs and not so to others, was discriminatory and hence repugnant to Art. 14 of the Constitution. Their Lordships of the Supreme Court held, that it was so. The question in that case pertained to Jagirdars as a class. Out of that class certain members of that class were allowed by law to enjoy the privilege of collecting rents of their Jagirs while the others were not. The provisions of law had nothing to do with the people as a whole of one particular territory. The question in that case pertained to Jagirdars as a class. Out of that class certain members of that class were allowed by law to enjoy the privilege of collecting rents of their Jagirs while the others were not. The provisions of law had nothing to do with the people as a whole of one particular territory. Regional or municipal considerations had hardly any substantial place in the classification. The classification involved more a differential treatment to some of the members of a group than not. This was held to be clearly contrary to Art. 14 of the Constitution. The circumstance that they belonged to particular part of the territory of Rajasthan is not so important. Their Lordships emphasised that there was no peculiarity or special feature in the Jagirs of former states of Rajasthan to justify differentiation from Jagirs comprised in the States which were subsequently integrated to form United State of Rajasthan. 45. In the present case the Law of Pre-emption is applicable by the Ordinance, Act and the Constitution to all the people of the territory of former Gwalior State where the law was in force before and the people were accustomed to be governed by it and to live under it, both by custom and statutory provisions which existed before. There is no class in the present case like the one of Jagirdars in the Supreme Court case and no discrimination between the members of that class for differentia treatment. The difference, in the manner of applicability of law, between people residing in former Gwalior State and former Holkar State or for the matter of that any other State of Madhya Bharat arises not by reason of any respect of persons or classes but of municipal considerations. 46. I am, therefore, disposed to hold that the provisions of Gwalior Pre-emption Act do not run counter to the previsions of Art. 14 of the Constitution and as such cannot be declared to be void on that basis. 47. That a provision such as this runs counter to some other provision of the Constitution such as e.g., Art. 19 is altogether a different matter. 48. It, therefore, follows that the provisions of Law of Pre-emption which compelled a vendee to sell his property to a pre-emptor who claims the same on the grounds of vicinage and easement have become void after the Constitution. 49. 48. It, therefore, follows that the provisions of Law of Pre-emption which compelled a vendee to sell his property to a pre-emptor who claims the same on the grounds of vicinage and easement have become void after the Constitution. 49. It is also clear from the decisions of the Supreme Court in AIR 1951 SC 128 (D), AIR 1952 SC 339 (T) and AIR 1953 SC 156 (U) that the Constitution has newly conferred rights known as fundamental rights. Before the Constitution there were no such rights as fundamental rights. The effect of this grant is that from the date of Constitution any law which was inconsistent with those rights became void. This grant, however, has not a retrospective operation and the rights and obligations which had already vested before 26-1-1950 are not affected by the Constitution which came into force on that day. 50. Applying the principle established in these cases it appears clear that in those transactions where the sale which is the most important and probably the first investitive fact in respect of a right of pre-emption, took place after the promulgation of the Constitution there is no right subsisting in the pre-emptor to claim preemption on the ground either to vicinage or of easement and the provisions of Gwalior Pre-emption Act are void to that extent. 51. Suits based on these facts cannot, therefore, be decreed in favour of the pre-emptor even if he is entitled to it on merits. Where the right is based on co-ownership that right is not affected. 52. As regards the third category viz., where the sale, suit and decree all precede the date of promulgation of the Constitution all investitive facts necessary for clothing the pre-emptor with un enforceable right have occurred before the Constitution. The right has become vested and the Constitutional provision contained in Chapter III of fundamental rights not having retrospective operation there is no legal or Constitutional impediment for granting a decree on the basis of right of pre-emption. 53. Large number of cases belong to the second category viz., where the sale and suit preceded the Constitution but not a decree by any Court either original or appellate. 53. Large number of cases belong to the second category viz., where the sale and suit preceded the Constitution but not a decree by any Court either original or appellate. It is contended on behalf of the pre-emptor in these cases relying upon the decision of Rajasthan High Court reported in AIR 1954 Raj 231 (E) that even where sale took place before the Constitution as also the suit was instituted before the Constitution yet where no decree had been passed before it the suit ought to be dismissed. The line of reasoning adopted in that case is that a right of pre-emption is a special kind of right and in order to enable a Court to grant a decree for pre-emption the right must exist right upto the date of decree. Reliance in this connection is placed by the Rajasthan High Court upon the decision of Allahabad High Court in- 'Rama Gopal v. Piaralel', 21 All 441 (Y). From this Rajasthan decision it appears that the learned Judges of that Court took the fact of decree to be an investitive fact. With great respect to that eminent Judge it is not possible for me to see eye to eye with that line of reasoning. 54. To my mind decree is a final judicial determination of the fact that all investitive facts had occurred at the time the action was brought (except of course in those cases where by reason of subsequent change of events relief is to be moulded). 55. A Court cannot decree a suit based on a right which has not vested in the plaintiff. The consideration which led the Allahabad and other High Courts in holding that the right of pre-emption must exist on the date of decree is based on the principle that before the pre-emptor can obtain a decree on the basis of the right which has become vested in him he must fulfil a further condition that he has not parted with, assigned or lost his interest. Prom this requirement it does not necessarily follow that the right had in fact not vested in him on the date of suit. 56. In my opinion, therefore, the view taken by the Rajasthan Full Bench does not deserve to be accepted and followed. 57. Prom this requirement it does not necessarily follow that the right had in fact not vested in him on the date of suit. 56. In my opinion, therefore, the view taken by the Rajasthan Full Bench does not deserve to be accepted and followed. 57. It is significant that the Supreme Court themselves in the case reported in AIR 1654 SC 417 (A) recognised the validity of such a right though no decree had been passed in that case till the decision of their Lordships, for, had they not so recognised there would not have been an occasion for remand for consideration of other points left undecided. 58. As in all the cases falling under the second category according to allegations of plaintiff all the investitive facts had occurred before the suit was filed and the suits themselves were filed before the Constitution the provisions of Gwalior Pre-emption Act will continue to apply to them and the suits cannot be dismissed on the ground that the provisions of Gwalior Pre-emption Act have become void after 26-1-1950 to any extent. 59. As there is no case which involves a consideration whether, where a right to file a suit accrued before the Constitution but no suit was filed till the Constitution came into force, the right of pre-emption could be enforced. I express no opinion on it. Answer accordingly.