KALIMUDDIN BHUYA Vs. REAZUDDIN AHMED

JUDGEMENT

(1.) This is an appeal by the first defendant against a decree of the learned Subordinate Judge confirming with slight modification the decree of the Court of first instance. It appears that the plaintiff and the defendants Nos. 2 and 3 purchased a property at an auction sale for Rs. 560. For their own convenience, they partitioned the property and the ekrarnama contained the following stipulation: "Any of the parties desirous of selling the lands allotted to his share shall sell the same to the other party willing to buy the same at the proper sale price. Sale to any body else (shall be) invalid. But if the parties do not purchase at the proper sale price, the other party shall be entitled to sell to others. Let it be known that the value of the partitioned property is (will be) Rs. 600." In breach of that covenant, the second defendant has sold or purported to sell his share to the first defendant, the appellant in this case, for the sum of Its. 400. The plaintiff accordingly brought this suit to enforce his right of pre-emption and to have it declared that the conveyance in favour of the first defendant was invalid and inoperative as against him and that the second defendant should be compelled to sell the property to him. The first Court passed a decree in favour of the plaintiff. The lower appellate Court has also maintained that decree but has ordered the plaintiff to deposit in Court Rs. 186-10-13 gundas within a month of the date of its decree as the purchase money of the property on the footing of its being 1/3 of Rs. 560, the original sale price.

(2.) Two points are taken before us for the appellant. It is first argued that the covenant in the ekrarnama is void as offending against the rule of perpetuity. In support of his proposition, the learned pleader for the appellant has relied upon the case of Nobin Chandra Soot V/s. Nowab Ali Sarkar 5 C.W. N 343. That case, however, is distinguishable in its facts from the present case. In that case, there had been a devolution of interest of one of the parties by inheritance and it was the heir of one of the partitioning parties, the defendant No. 1, who sold the land. It was held, following the case of London and South Western Railway Company V/s. Gomm (1881) 20 Ch. D. 562; 51 L.J. Ch. 530; 46 L.T. 449; 30 W.R. 620, first, that the conveyance was purely of a personal character and so did not bind the representatives of the deceased covenantor, and secondly, that even if it. was intended to bind his representatives and persons deriving title under him, it was not binding in law. The case of Tripoora Soonduree V/s. Juggernath Dutt 24 W.R. 321 was also to the same effect. The present case, however, is very different inasmuch as it is sought here to enforce the covenant against the covenantor himself. It cannot, we think, be successfully argued that such a covenant is invalid in law against the covenantor. Even the case of an agreement by a mortgagor to give the mortgagee a preference of pre-emption in case of sale has been upheld and has been enforced against the covenantor. See Haris Paik V/s. Jahuruddi Gazi 2 C.W.N. 575 and Bimal Jati V/s. Biranja Kuar 22 A. 238. In this case it is distinctly found that the present appellant had notice of this covenant in the ekrarnama when he made his purchase from the second defendant. Under these circumstances, we think that the covenant is enforceable in this case and that the plaintiff has been rightly given a decree.

(3.) The second point urged is that the words in the covenant "proper sale price" must mean the market price and not one-third of the purchase money which the plaintiff and his co- owners paid for the land, when they bought it. We think that this contention must prevail. The sale to the first defendant is said to be for Rs. 400, that is the purchase money mentioned in the kobala, and we think that if the plaintiff desires to exercise his right of pre-emption in this case, he should be compelled to pay that sum. We accordingly vary the decree of the Subordinate Judge and in lieu of the sum of Rs. 186-10-13 gundas we direct that the plaintiff do deposit the sum of Rs. 400. We also direct that the plaintiff be given one month's time from the date of the receipt of the record by the lower appellate Court to deposit that amount. In default of such deposit being made within the time aforesaid, the suit will be dismissed with costs throughout. With regard to this appeal, we make no order as to costs.