MOULVI ALI HOSSAIN MIAN Vs. RAJKUMAR HALDAR

JUDGEMENT

(1.) This appeal is on behalf of the defendants, and it arises out of a suit commenced by the plaintiffs to enforce a right of pre-emption in respect to certain lands which are described in Schedule (ga) to the plaint. The material facts lie within a short compass and are for the most part undisputed. The plaintiffs case is that the lands of Schedule (ka) to the plaint constituted a raiyati holding which belonged to the plaintiffs as occupancy raiyats. A one-fourth share of this holding, which is described in Schedule (kha) was let out to defendant 6 as an under raiyat, but the latter by unfair means succeeded in getting his name recorded as a cosharer with the plaintiffs in respect to that one. fourth share. The plaintiffs thereupon in-stituted a suit against defendant 6, and to this suit one Nawab Ali and his wife defendant 7, in whose favour defendant 6 was said to have executed a kobala were made parties. The suit culminated in a compromise to which the plaintiffs and defendants 6 and 7 were parties. Under the terms of the compromise, Plot No. 2 of Schedule (kha) land, which is specified in Schedule (ga) to the plaint, was given entirely to defendant 6, and it was agreed by and between the parties that in case defendant 6 wanted to sell that plot or borrow any money on the security of the same, he would be bound to offer it for sale or mortgage to the plaintiffs in the first instance; and unless the plaintiffs refused to. purchase or accept a mortgage of the said property at the then prevailing rate, the defendant would not be entitled to transfer it to any other person. The solenama further provided that the stipulation would be binding not only on the contracting parties but on their heirs and successors as well. Defendant 6, it is said, in violation of the terms of the solenama sold Schedule (ga) land to defendants 1 to 4 in the benami of defendant 5 for a consideration of Rs. 175 and the purchasers took the property with full notice of the aforesaid covenant. The plaintiffs therefore instituted the present suit to enforce their rights of pre-emption against the defendants on the basis of the solenama mentioned above.

(2.) The defence in substance was of a two-fold character: It was contended, in the first place, that the covenant giving the plaintiffs a right of pre-emption was illegal and unenforceable in law. The second contention was that the purchasers defendants having purchased the land for value without notice of the covenant, no right of pre-emption could be asserted against them. The trial Court overruled both these contentions and gave the plaintiffs a decree. On appeal this judgment was affirmed by the Additional District Judge of Tipperah. It is against this decision that the present second appeal has been preferred. Mr. Pakrasi, who appears in support of the appeal, has pressed only one point for our consideration, and his contention is, that the covenant for pre-emption is void altogether as offending the law against perpetuities, and it is not enforceable even between the original contracting parties. In support of his contention he has placed reliance upon a number of decisions of this Court. The point raised 4s of some nicety and importance, and it cannot be disputed that there is considerable divergence of judicial opinion regarding it. A perpetuity, as defined by Lewis in his well-known book on the subject, is a future limitation, whether executory or by way of remainder, and of either real or personal property which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests. (Lewis p. 164.)

(3.) It is well settled that an agreement, which does not create an estate or interest in land either in law or equity, would not come within the mischief of the perpetuity rule. This has been made clear in Section 14, T.P. Act, which codifies the Indian law on the subject, and which provides that no transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong.