JAGAD BANDHU CHATTERJEE Vs. NILIMA RANI

JUDGEMENT

(1.) This is an appeal by certificate from a judgment of the Calcutta High Court arising out of a petition filed by the appellant under Section 26F of the Bengal Tenancy Act, 1885 claiming a right of pre-emption over certain lands purchased by respondent No. 1.

(2.) The facts may be briefly stated. On July 23, 1950, the appellant purchased certain portion of land in C.S. Dag No. 3605 of Mouza Kasba from the occupancy raiyats respondents Nos. 2 and 3 and one Bhabesh Chandra Kundu deceased. By another deed the appellant purchased from the said vendors another plot of land measuring 31/2 acres. By a Kabala dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to respondent No. 1 for Rs. 2,700. The appellant filed an application before the Second Subordinate Judge, Alipore district 24 Parganas wider Section 26F of the Bengal Tenancy Act claiming the right of pre-emption over the land purchased by respondent No. 1. The latter took up the position that the appellant was not a co-sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs. 300 as brokerage; the appellant had thus waived his right of pre-emption. The learned trial Judge disbelieved the case set up by respondent No. 1 and allowed the application of the appellant for pre-emption. Respondent No. 1 filed an appeal in the court of the Additional District Judge, Alipore. He held that the appellants claim for pre-emption was barred owing to waiver on his part. The appellant filed a petition for revision in the High Court but the same: was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver.

(3.) The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case. Moreover waiver could not be proved by estoppel. learned Counsel for the appellant relied on the observations of Lord Russel of Killowen in Dawsons Bank Limited v. Nippon Menkwa Kabushiki Kaisha 62 I.A.100 While stating the distinction between estoppel and waiver, it was said, that "waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right." According to the appellant all that had been found was that by his act and conduct he had waived his right of pre-emption. It was pointed out that there was no evidence for any consideration having moved from respondent No. 1 in the matter of abandonment of the appellants right of pre-emption.