AULAD ALI Vs. SYED ALI ATHAR

JUDGEMENT

(1.) We are of opinion that this is a clear case, and we agree with the judgment of our brother Mr. Justice Lindsay.

(2.) I propose to give my reasons as shortly as possible. The question arises out of a contract, which may be compendiously stated as one for exchange by the parties thereto of certain properties belonging respectively to each of them. It relates to a certain mauza, in respect of which Muhammad Razi transferred the whole of his interest, except one pie, and the parties entered into a mutual agreement as a fundamental condition of sale, that if either of them should wish to transfer the whole, or part, of his share in that mauza, that is to say as regards the transferee Nasir Uddin, what he was taking under the document, and as regards the transferrer Muhammad Razi, the single pie share which he was reserving to himself they might do so by transferring it from one to the other but if either of them desired, or in fact attempted to transfer to a third person, the other party was to have the right to pre-empt. That is a perfectly harmless and natural mutual arrangement, very common in India, quite intelligible, the object being that so long as the parties to the transaction preferred to keep out third parsons from the body of co-sharers, they should have a right of veto. In other words, it cannot be described better than creating an obligation, imposing a restriction on the use of the land by each of the parties to the contract respectively. To my mind there is no uncertainty about such a contract. It is as clear and definite as language can make a contract, and with all respect to my brother Sulaiman's view, it seems to me that is the fallacy underlying his opinion.

(3.) I, therefore, think that Section 32 of the Contract Act which deals with contingent contracts is a complete answer to the appellants contentions. The right springs into existence upon the happening of a contingency. There is nothing in the contract which offends against law upon that subject. I am also clearly of opinion that Section 37 confers the benefit and imposes the obligation upon the representatives of the parties if the parties should die before the contingency occurs, and I do not understand my brother Sulaiman really to have denied that proposition.