AMBALAL SHANKARLAL Vs. BALDEODAS CHHAGANLAL

JUDGEMENT

(1.) THIS second appeal raises a question of the rules against restraints on alienation and against perpetuities in their applicability to contracts of pre-emption entered upon before the Transfer of Property Act was applied to the Presidency of Bombay. In 1889 one Keshavlal sold the tipper floor of his house to his son Madhavlal, the husband of defendant No.3 in this case; and in 1891 he sold the ground-floor to his other son Shankarlal, who is the father of the plaintiff. The second of the deeds of sale contained a direction that in the event of Shankarlal desiring to sell the ground-floor, he should sell it to defendant No.2's father Madhavlal and should not sell it to an outsider unless Madhavlal were unwilling to buy it at a price fixed in the deed; and Madhavlal was similarly restrained from selling the upper part of the house acquired under the purchase of 1889 to any one other than the plaintiff's father Shankarlal. Madhavlal signed the deed along with the vendor Keshavlal. The plaintiff now seeks to enforce the right of pre-emption created in this deed.

(2.) IT is to be noted that this transaction took place before the Transfer of Property Act was applied to the Presidency of Bombay, and it was therefore raised in defence of it that the prohibition against restraint on alienation and the prohibition against perpetuities contained in Sections 10 and 14 of the Transfer of Property Act are inapplicable to the present case, Assuming that in the present case the contract does offend against these rules, it must be accepted that any legal objection to the validity of the contract cannot arise from the Transfer of Property Act. But the second line of defence is that the English doctrine of an equitable interest being created in property which is the subject of an agreement of sale-and the contract for pre-emption is an agreement of that class-applied in India before the introduction of the Transfer of Property Act and would therefore create an interest running with the land and as such subject it to the English common law rule against restraints on alienation and perpetuities. The plaintiff's learned advocate has argued before us that what applies before the introduction of the Transfer of Property Act was not the English, rules of equity but the ordinary Hindu law. He argues that the Hindu law contains no prohibition against restraints or perpetuities and he further argues that, assuming it to contain any prohibition of this kind, the law of pre-emption is an exception to the ordinary rule. And lastly he says that the contract in the present case represented a family arrangement in settlement of a family dispute and as such was outside the ordinary rules.

(3.) WE agree with the decision of the lower appellate Court that the plaintiff's suit was rightly dismissed, and we dismiss this appeal with costs. .