JUDGMENT : 1. Sri W.H.Khan, Senior Advocate, assisted by Sri J.H.Khan, learned counsel for appellants is present. None has appeared on behalf of respondents though this appeal has been called in revise. Since appeal is old one, relates to the year 1978, hence I proceed to hear and decide the same ex parte. 2. This is defendants' appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as “C.P.C.”) arising from judgment and decree dated 01.6.1978 passed by Sri I.P.Singh, Vth Additional District and Sessions Judge, Saharanpur, in Civil Appeal No.337 of 1976 dismissing the same and confirming judgment and decree dated 18.9.1976 passed by Sri R.C.Pandey, Civil Judge, Saharanpur decreeing Original Suit No.42 of 1972. 3. Appeal was admitted vide order dated 17.7.1978 on the substantial questions (A) and (D), which read as under : “A. Whether right of pre-emption is barred by the Constitution of India as it imposes an unreasonable restriction to hold the property? D. Whether plaintiff was entitled to pre-emption even when he did not perform the necessary Talabs according to law.” (emphasis added) 4. The facts giving rise to present appeal are that Original Suit No.42 of 1972 was filed by Tahir Husain, sole plaintiff-respondent (hereinafter referred to as “plaintiff”) against Mohammad Alim and Mohammad Arif, sons of Zinda Hasan, impleaded as defendants 1 and 2 and Mst. Naimat (Niyamat) Ilahi, widow of Sheikh Habib Ahmad, (defendant 3), in the Court of Civil Judge (Senior Division), Saharanpur. 5. As per plaint dated 03.03.1972, suit property detailed at the bottom of plaint is described as under : “One Daribast Arazi Tal untilled in the east direction, and in the west direction, towards the north side, a balcony of Shakasti is built in the remaining part of the property, and some other constructions are also there. Remaining part of the land is untilled, and is situated in Mohalla Mala Gate, Saharanpur as defined below. East: Public Drainage and public road. West: Haweligada. Boarding House South: Deewan of the Haweligada Boarding House North: Wall of the house Jagan Nath Panjabi, and in the middle joint in north-south direction. And wall of the related Mahal Khana, and shop in the ownership of Abrar Ahmad, and heirs of Late Abdul Hakeem. North: Public drainage and road.” 6. The plaint case set up by plaintiff Tahir Husain is that Darogha Mohd. And wall of the related Mahal Khana, and shop in the ownership of Abrar Ahmad, and heirs of Late Abdul Hakeem. North: Public drainage and road.” 6. The plaint case set up by plaintiff Tahir Husain is that Darogha Mohd. Ibraheem was first owner in possession of suit property. When Darogha Mohd. Ibraheem expired, he left behind two heirs i.e. two daughters viz. Mrs. Amtul and Mrs. Amna Khatoon. Thereafter, Mst. Amtul died without leaving any issue. She left her sister Mrs. Amna Khatoon as her heir, who became sole owner in possession of property mentioned in the plaint. Later on, Amna Khatoon also died. She left two sons viz. Shabbeer Ahmad and Reyaz Ahmad and daughter Niyamat Ilahi, as heirs, who became joint-owners in possession of property mentioned in the plaint. Subsequently, Shabbeer Ahmad S/o (Late) Amna Khatoon also died. He left plaintiff, Zahid Husain, Tauheed Hasan and Mohd. Mobeen, (his sons); Mrs. Tahira Begum, Raeesa Begum, Mansoor Fatima and Shahida and Nadira (his daughters); and widow Khushnuma Begum as heirs. 7. Plaintiff is joint-owner in possession of property as described in the plaint in accordance with Shariyat, along with his brothers, sisters, Mrs. Khushnuma Begum (step-mother) and Reyaz Ahmad and Mrs. Niyamat Ilahi. Suit property is located at a very prime locality near Makan Ram Leela, at Madarsa Mazahirul Uloom, at a crossing inside the city, Saharanpur. It was around twenty years ago that the rent used to be very nominal in city Saharanpur. Zinda Hasan S/o Abdul rented suit property at the rate of Rs.30/-. He started business of Taal Sokhta. Plaintiff is engaged in sale and purchase of trees. He owns no shop. He felt dire need of a shop for the purpose of keeping wood-log. Hence, in 1971, he asked Zinda Hasan to vacate suit property. However, he plotted a conspiracy in collusion with others who were his relatives and refused to vacate the premises. 8. Zinda Hasan, under the apprehension of being vacated, in collusion with Mrs. Niyamat Ilahi, who was his relative, agreed secretly to sell her 1/5th part of suit property to appellants-defendants-1 and 2 on a consideration of Rs.8,500/-, without knowledge of or information to plaintiff. Defendant-3, Mst. Niyamat Ilahi, sold out her 1/5th part of suit property through sale deed dated 24.09.1971, for consideration of Rs.8,500/-secretly, without knowledge of and information to plaintiff. Niyamat Ilahi, who was his relative, agreed secretly to sell her 1/5th part of suit property to appellants-defendants-1 and 2 on a consideration of Rs.8,500/-, without knowledge of or information to plaintiff. Defendant-3, Mst. Niyamat Ilahi, sold out her 1/5th part of suit property through sale deed dated 24.09.1971, for consideration of Rs.8,500/-secretly, without knowledge of and information to plaintiff. As soon as plaintiff came to know about sale deed executed between Mrs. Niyamat Ilahi and defendants-1 and 2, first he performed duty of pre-emption and immediately went to the spot alongwith witnesses in the presence of defendants 1 and 2 and performed duty of preemption. On 27.10.1971, he gave an application for copy of sale deed in the office of Sub-Registrar, Saharanpur. He received copy on 12.11.1971. Parties are Sunni Muslims and Mohammadan Law is applicable to them. Plaintiff has been a co-sharer in the property mentioned even before sale deed dated 24.09.1971 was executed between defendant 3 and defendants-1 and 2. Defendants -1 and 2 had no share or right in suit property before said sale deed. Hence, plaintiff, in preference to defendants-1 and 2, has got a right to purchase, on the basis of pre-emption, as provided in Shariyat. Defendants-1 and 2, in spite of knowledge of right of preemption, bought part of suit property for consideration of Rs.8,500/-, hence the suit. Cause of action arose when sale deed dated 24.09.1971 was executed and on 27.10.1971 when plaintiff got knowledge of sale deed for the first time. 9. Defendants-1 and 2, in spite of knowledge of right of preemption, bought part of suit property for consideration of Rs.8,500/-, hence the suit. Cause of action arose when sale deed dated 24.09.1971 was executed and on 27.10.1971 when plaintiff got knowledge of sale deed for the first time. 9. Plaintiff claimed following reliefs : ^^v- c:;s fMxzh 'kqQk 'kjbZ izfroknhx.k ua0 1 o 2 dks gqDe fn;k tkos fd og oknh ds lQkZ ls tk;nkn eqQLlyk tsy ds 1@5 fgLls dh ckcr vUnj fe;kn eksb;uk vnkyr oknh ds gd esa c;ukek rgjhj o rdehy dj ds jftLV~h djk nsA vkSj eqcfyx 8500 :i;s jftLV~h ij olwy dj ysA vkSj vxj izfroknhx.k ua0 1 o 2 ,slk djus esa dkflj jgs rks vnkyr mudh rjQ ls c;ukek o tjs leu eqcfyx 8500 :i;s oknh ds gd esa rgjhj o rdyhe dj ns vkSj eqcfyd 8500 :i;s vnkyr esa tek djus dk oknh dks ekSdk fn;k tkosA c- oknh dks [kpkZ eqdnek izfroknhx.k ua0 1 o 2 us fnyk;k tkosA** A. That as pre-emption, defendants no-1 & 2 be directed to get the registry executed of the 1/5 part of the property mentioned, in favour of the plaintiff within the stipulated time and recover the amount of Rs. 8500/-, and if the defendants 1 and 2 fail to do so, the Court may kindly receive an amount of Rs. 8500/-for the purpose of sale deed and get the sale deed executed. The plaintiff may be allowed to deposit the amount of Rs. 8500/-in the court. B. The expenses of the case be awarded to the plaintiff from the defendants no-1 and 2. (English Translation by Court) 10. Suit was contested by defendants 1 and 2 by filing a combined written statement dated 02.8.1972. Contents of paras 1 to 4 of plaint were admitted. Contents of para 5 were admitted to the extent of death of Shabeer Ahmad and rest was denied. Contents of para 7 of plaint to the extent property is situated in Saharanpur city, adjacent to the house of Ram Leela was admitted. In para 8 of plaint, tenancy of Zinda Hasan was admitted. In paras 10 and 11 of plaint, purchase of 1/5th portion of suit property by defendant Mujeeb from defendant Niyamat Ilahi for consideration of Rs.8,500/-was admitted. Rest part of plaint is not admitted. In para 8 of plaint, tenancy of Zinda Hasan was admitted. In paras 10 and 11 of plaint, purchase of 1/5th portion of suit property by defendant Mujeeb from defendant Niyamat Ilahi for consideration of Rs.8,500/-was admitted. Rest part of plaint is not admitted. In additional pleas, defendants pleaded that : (i) Plaintiff is not entitled for any relief as no cause of action has arisen and suit is liable to be dismissed with costs. (ii) Plaintiff’s contention that he had no knowledge and information about sale of 1/5th share of suit property to defendants Mujeeb was incorrect. (iii) Defendant 3 desired to sell her 1/5th share in suit property since long and made various efforts which ultimately settled with defendant Mujeeb. (iv) One of the broker Munshi Abrar Husain engaged by defendant-3 had also enquired from plaintiff about purchase of 1/5th share of defendant 3 but he did not care to purchase the same for consideration of Rs.8,000/-. (v) Ms. Tahra Begum, real sister of plaintiff married to Ahmad, real brother of Mujeeb and plaintiff used to visit defendant’s house time to time. (vi) Defendant Mujeeb himself disclosed to plaintiff that he is going to buy 1/5th share of suit property from Smt. Niyamat Ilahi for consideration of Rs.8,500/- and plaintiff told him that it was offered to him for Rs.8,000/-but he was not inclined to purchase the said share as it was fetching meagre rent. (vii) 1/5th share of Smt. Niyamat Ilahi has been purchased by Mujeeb after refusal by plaintiff. Hence has has no right to file suit allegedly exercising his right of pre-emption. (viii) Suit is barred by estoppel and acquiescence. (ix) Date of knowledge disclosed by plaintiff is false as he had prior knowledge of transaction. (x) Conditions precedent for exercising right of pre-emption are not fulfilled and claim set up by plaintiff is based on no factual foundation. (xi) The suit property was under tenancy of father of defendants 1 and 2 for the last 35 years. Plaintiff’s claim that he asked Zinda Hasan in the year 1971 to vacate suit property is false and it is also incorrect that sale deed was executed under the apprehension of eviction. (xii) Suit property is not situated in any locality of special significance. It is incorrect that defendant Mujeeb or his father had close relationship with Smt. Niyamat Ilahi. 11. (xii) Suit property is not situated in any locality of special significance. It is incorrect that defendant Mujeeb or his father had close relationship with Smt. Niyamat Ilahi. 11. Subsequently, there was amendment in the written statement. Paras 10a and 10b were inserted stating as under : ^^10 v- ;g fd nkSjku vihy ekSj[kk 30-4-77 bZ0 dks Jh jbZlk csxe ;ds vt~ 'kjhd lghe o fgLlsnkj us viuk dqy gd o fgLlk flgkt vt 260 flgk; izfroknhx.k ds gd esa ctfj;s fgcsukek ekSj[kk 23-4-1977 eq0 jftLV~h 'kqnk fgCcs djds eqRrfdy dj fn;k ftldks izfroknhx.k us dcwy o eatwj fd;k vkSj og crkSj 'kjhd o fgLlsnkj dkfct gks x;kA 10 c- ;g fd et+dqjk okyk dkj.k ls Hkh nkok 'kqQk oknh dkfcys i'kjQ~r ugha gSA** 10a. That on 30.4.77 during pendency of the appeal, the shareholder Smt. Raeesa Begum transferred her total rights and share of 260 units in favour of the defendants by way of a registered gift deed dated 23.4.77, which the defendants accepted and came in possession over the same as shareholder. 10b. That for the aforesaid reason as well, the suit of the plaintiff for preemption does not deserve to be proceeded with. (English Translation by Court) 12. Trial Court formulated following four issues : “1. Whether the plaintiff is entitled to seek pre-emption? 2. Whether the plaintiff performed necessary demands as alleged? 3. Whether the plaintiff had the knowledge of the impugned sale deed? If so, whether the suit is barred by estoppel? 4. To what relief, if any, is the plaintiff entitled?” 13. Issue-1 was answered in favour of plaintiff and thereafter issues 2 and 3 were taken together. Both these issues were answered in favour of plaintiff. As a result thereof issue-4 was answered holding that suit is liable to be decreed. Consequently, Trial Court decreed the suit and operative part of judgment reads as under : “The suit for pre-emption in respect of one-fifth share of the defendant No.3 in the property detailed at the foot of the plaint is decreed. The defendants 1 and 2 are directed to execute the sale deed in favour of the plaintiff after receiving Rs.8500/-from the plaintiff within three months failing which the plaintiff will have a right to get the sale deed executed through court at the expenses of the defendants. The parties shall bear their own costs of the suit.” 14. The defendants 1 and 2 are directed to execute the sale deed in favour of the plaintiff after receiving Rs.8500/-from the plaintiff within three months failing which the plaintiff will have a right to get the sale deed executed through court at the expenses of the defendants. The parties shall bear their own costs of the suit.” 14. Defendants 1 and 2 i.e. Mohammad Alim and Mohammad Arif assailed judgment of Trial Court filing Civil Appeal No.337 of 1976 in the Court of District Judge, Saharanpur vide memo of appeal dated 7.11.1976. 15. Subsequently, an amendment application was filed stating that after pronouncement of judgment by Trial Court, but before filing of appeal, defendant 3 in the suit i.e. Smt. Niyamat Ilahi, widow of Sheikh Habib Ahmad had died on 20.9.1976 and she was impleaded as defendant 1 in appeal, therefore against her name, 'deceased' be written and Haji Amir Hasan, Shamshad Hasan, Jamil Ahmad and Smt. Fazal Ilahi, legal heirs be impleaded as defendant/respondents 1/1 to 1/4. However, said amendment was rejected vide order dated 16.7.1977 passed by Sri Vikram Singh, District Judge, Saharanpur. 16. Lower Appellate Court (hereinafter referred to as “LAC”) considered following questions for deciding appeal: (i) Impugned decree is not made in terms of Order 20 Rule 14 C.P.C. (ii) Appellants having become co-sharerer in disputed property, no pre-emption can be enforced against them. (iii) Whether there was requisite demand for pre-emption? 17. While answering question (i), Court found that Trial Court has obviously ignored Order 20 Rule 14 C.P.C., but. that defect was curable therefore, that defect will not vitiate the judgment. Questions (ii) and (iii) were answered against appellants. Consequently, appeal was dismissed. 18. Before this Court, Appellants filed an application dated 21.4.2019 under Section 100(5) Second Proviso, C.P.C., proposing three more substantial questions of law, and formulated the same as under : “F. Whether the lower appellate court erred in law in converting a decree of specific performance of contract into a decree of pre-emption on an assumption that it was the mistake of the trial court without looking into the plaint which itself prayed a decree of specific performance. There was no amendment sought by the plaintiff to amend the prayer in the plaint nor the plaintiff filed any cross objection or cross appeal? There was no amendment sought by the plaintiff to amend the prayer in the plaint nor the plaintiff filed any cross objection or cross appeal? G. Whether the lower appellate court erred in law in importing his personal knowledge by observing that plaintiff committed a mistake in his statement that he came to know of the impugned sale deed dated 24.09.1971 on 27.09.1971 while he meant 27.10.1971 as the date on which he acquired knowledge of the said sale deed. In recording this finding lower appellate Judge imported his personal knowledge by observing that it was his mistake in recording the statement of plaintiff when he was presiding officer of trial court. No application for correction of statement was made by plaintiff at any stage that his statement was wrongly recorded. (H) Whether first appeal abated as a whole when the plaintiff failed to substitute legal representatives of defendant no.3 Smt. Niamat Ilahi and Lower Court erred in taking the contrary view.” 19. This application has been opposed by plaintiff-respondent by filing objection/counter affidavit sworn on 29.5.2019 stating that suit was for decree founded on pre-emption and not specific performance. Finding was already recorded by Courts below that sale deed dated 24.9.1971 came to the knowledge of plaintiff on 27.10.1971 and that defendant 3 was a proforma respondent against whom no relief was sought, hence, it is pleaded that additional questions sought to be raised have not arisen in this appeal and should not be allowed. 20. I have gone through additional questions and find that entire case set up by plaintiff was founded on the right of 'pre-emption' and that is why appeal was admitted on two questions relating to alleged right of pre-emption, pleaded by plaintiff, and decided by Courts below. With regard to date of sale deed and knowledge, I find that date of sale deed is not in dispute and date of knowledge is also subsequent to the date of execution of sale deed. Therefore, it would make no material difference. Further non substitution of heirs of defendant 3 after her death would not result in abating entire proceedings as no relief was claimed against Smt. Niyamat Ilahi since she had already executed sale deed in favour of Mujeeb. Therefore, it would make no material difference. Further non substitution of heirs of defendant 3 after her death would not result in abating entire proceedings as no relief was claimed against Smt. Niyamat Ilahi since she had already executed sale deed in favour of Mujeeb. Therefore in my view, the three additional questions, sought to be formulated by appellants can neither be said to be substantial questions of law arising in this appeal nor need be allowed to be raised at this stage. Suffice it to state that two questions, already formulated by this Court while admitting appeal, only need be decided. Hence application requesting to allow additional substantial question of law is hereby rejected. 21. Now, I proceed to decide two substantial questions of law, as noticed above. 22. Right of ‘pre-emption’, also called right of ‘Shufaa’, is right which the owner of an immovable property, possesses, to acquire by purchase, another immovable property, which had been sold to another person in preference by paying a price equal to that settled, or paid by the latter. Now, it is settled that right of pre-emption based on vicinage is void and unconstitutional. It has been declared so by Supreme Court in Bhanu Ram vs. B. Baijnath Singh AIR 1961 SC 1327 ; Sant Ram vs. Labh Singh AIR 1965 SC 314 and A. Razzaque Sajansaheb Bagwan vs. Ibrahim Haji Mohd. Hussain AIR 1999 SC 2043 . 23. Pre-emption is not a right of ‘re-purchase’, either from vendor or vendee, involving any new contract of sale. It is simply a right of substitution, entitling pre-emptor, by reason of a legal incident to which the sale itself was subject to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which he has derived his title. 24. In Bishan Singh vs. Khazan Singh AIR 1958 SC 838 , Court said that right of pre-emption is a right of substitution but not of repurchase. Pre-emptor takes the entire bargain and steps into the shoes of original vendee. 25. Validity of right of pre-emption has been examined by Supreme Court in the cases noticed above in the light of Article 19(1)(f) of Constitution, which confered fundamental right to acquire, hold and dispose of property. Pre-emptor takes the entire bargain and steps into the shoes of original vendee. 25. Validity of right of pre-emption has been examined by Supreme Court in the cases noticed above in the light of Article 19(1)(f) of Constitution, which confered fundamental right to acquire, hold and dispose of property. The aforesaid right of property has now been ceased to be a fundamental right by virtue of 42nd amendment of Constitution and has become a constitutional right under Article 300A, which is drafted in a different language. Therefore, law as it was earlier need be examined afresh in the cases arising after amendment of Article 19(1)(f). 26. However, that is not material in the present case since right of pre-emption sought to be exercised in this case relates to the period when Article 19(1)(f) was on the statute book. Therefore, I have to decide the matter as the law as then was. 27. Right of pre-emption is an incident annexed to a property. Although it is essentially a right in rem but it its exercise, from the time it arises upto the time of decree, is restricted as a personal right, which is neither heritable nor transferable. Right of pre-emption by a co-sharer has been upheld by Supreme Court in Bhanu Ram (supra) with reference to Article 19(5) of Constitution treating it to be a reasonable restriction. 28. While considering validity of Section 15(1)(b) of Punjab Preemption Act, 1923, in Irishna vs. State of Haryana AIR 1994 SC 2536 Court held that right of pre-emption to co-sharers is valid and not violative of Articles 14, 15 and 16 of Constitution. 29. In the present case, admittedly plaintiff was a co-sharer with defendant-3 in respect of property in dispute, therefore, to this extent right of pre-emption of plaintiff is valid and constitutional. 30. In view of above discussion, it cannot be said that right of preemption as a whole is unconstitutional. In a restricted way, right of pre-emption of co-sharers has been held to be constitutional, therefore, question (A) is answered against appellants. 31. Now, coming to question (D), it is also now well settled that right of pre-emption arise only out of a valid, complete and bona fide sale. A Full Bench of this Court in Begum vs. Muhammad Yakub (1894) IL 16 All 344 followed in Zamani Begum vs. Khan Muhammad (1924) 46 All. 31. Now, coming to question (D), it is also now well settled that right of pre-emption arise only out of a valid, complete and bona fide sale. A Full Bench of this Court in Begum vs. Muhammad Yakub (1894) IL 16 All 344 followed in Zamani Begum vs. Khan Muhammad (1924) 46 All. 142 has taken a view that right of preemption arises not only when an out-and-out sale has been completed, but also, when a complete contract of sale without any option to the vendor has been made. 32. This aspect has now been considered in Radhakisan Laxminarayan vs. Shridhar AIR 1960 SC 1368 and it has been held that transfer of property where Transfer of Property Act, 1882 (hereinafter referred to as “Act, 1882”) applies, has to be under the provisions of that Act only. Mohammedan Law or any other personal law of transfer of property cannot override the statute. Therefore, unless title has passed in accordance with Act, 1882, no right to enforce pre-emption arises. Supreme Court thus has made it clear that demand, exercising right of pre-emption, should be made after registration of sale deed. This view has been subsequently followed in Ram Saran Lall Vs. Mst. Domini Kuer AIR 1961 SC 1747 and also reiterated in S.K.Mohd. Rafiq vs. Khalilul Rehman AIR 1972 SC 2162 . 33. The above aspect stands further clarified from a subsequent judgment in Kumar Gonsusab vs. Sri Mohammed Miyan JT 2008 (9) SC 334 wherein it has been held that a contract for sale does not by itself create any interest in or charge on immovable property. Therefore, where parties enter into mere agreement to sell, it creates no interest in the suit property in favour of vendee. The proprietary title does not validly pass from vendor to vendee. Until that is completed, no right to enforce pre-emption arises. 34. This also reiterate the fact that right of pre-emption can be exercised only when sale is complete and not before thereto. When a plea is raised by defendant that right of pre-emption has been waived, onus lie upon defendant to prove it. 35. I may also add at this stage that right of pre-emption has not been looked upon with great favour by Courts since it is in derogation of right of owner to alienate his/her property. When a plea is raised by defendant that right of pre-emption has been waived, onus lie upon defendant to prove it. 35. I may also add at this stage that right of pre-emption has not been looked upon with great favour by Courts since it is in derogation of right of owner to alienate his/her property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for preemption by all legitimate means. It is a weak right and Courts would not go out of their way to help the pre-emptor. 36. In the present case, defence taken by defendants is that offer was made to plaintiff before execution of sale deed and since he did not agree, it amounts to waiver of his right of pre-emption. This plea goes contrary to law, as discussed above, since right of pre-emption has to be exercised only when transfer of property is complete. Therefore, it cannot be said that plaintiff did not exercise his right of pre-emption and waived such right before execution of sale deed since till transfer is completed, there is no occasion to exercise right of preemption. 37. Moreover, Question (D), which has been argued by learned counsel for appellants, based on defence taken by defendants that plaintiff was given offer to purchase suit property before execution of sale deed but he did not agree and thereafter sale deed was executed. This made it clear that there was no waiver on the part of plainitff and with regard to his subsequent exercise of right of pre-emption, nothing otherwise has been brought to the notice of this Court. Hence, I find no reason but to answer question (D) against appellants. 38. No other point has been argued. 39. Appeal lacks merit and is dismissed with costs throughout.