KARIMUDDIN Vs. MT. MEHERUNNISA BEGUM

JUDGEMENT

(1.) THE defendant Wahidunnisa Begum sold certain fields to the defendant Meherunnisa Begum, and as a result of this sale two suits for pre-emption were instituted, one by Zaheda Begum, who is the daughter of Wahidunnisa arid the sister-in-law of Meherunnisa, and the cliher by Kazi Karimuddin. It is admitted that Zaheda Begum has a prior claim to preempt, and that, if for any reason her claim fails, then Kazi Karimuddin is entitled to pre-empt. In each suit Kazi Karimuddin took the plea that Zehada Begum was estopped from claiming preemption. The lower Courts have decided the point in favour of Zehada Begum. This judgment will dispose of the appeals in both cases.

(2.) AS stated above, Zehada Begum is closely related to both the vendor and the vendee. Kazi Karimuddin alleged the the took paJripin bringing about the sale, that the property was sold partly in order to provide for the maintenance of Zaheda Begum and her husband, and that she and her husband having taken an active part in bringing about the sale and having full knowledge of the transaction had waived their" right of pre-emption, if any, by their conduct and acquiescence and were estopped from challenging the sale as it was brought about by them for their own benefit.

(3.) AND again in Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Krisha Ltd. 'estoppel' has been explained as follows: It is a rule of evidence which comes into operation if (a) a statement of the existence of a fact has been made by the defendant or an authorized agent of his to the plaintiff or some one on his behalf, (b) with the intention that the plaintiff should act upon the faith of the statement, and. (c) the plaintiff does act upon the faith of the statement. On the other hand, waiver is contractual; and may constitute a cause of action; it is an agreement to release or hot to assert a" right." Kazi Karimuddin relies upon a representation said to have been made by Zaheda Begum to Meherunnisa There is no suggestion that Kazi Karimuddin has been led by any such representation to change his position in any way, and it does not appear to me to be open to him to raise the plea of estoppel, for he is a stranger to the estoppel, and there was no privity between him and Zaheda Begum: see Caspersz on estoppel, Bdn. 4, at p. 72.