1924 (1) TMI 3 - HC - Indian Laws

Summary

Issues Involved:
1. Enforceability of the contract for pre-emption.
2. Validity of the contract for pre-emption on grounds of uncertainty.
3. Validity of the contract for pre-emption on grounds of public policy.
4. Validity of the contract for pre-emption on grounds of remoteness and perpetuities.
5. Binding nature of the contract on the representatives of the original parties.
6. Enforceability of the contract against the purchaser from the vendor.

Issue-wise Detailed Analysis:

1. Enforceability of the Contract for Pre-emption:
The court analyzed whether the plaintiff could enforce his right of pre-emption arising out of a contract against the vendor and the purchaser. It was found that the contract for pre-emption was entered into in 1886, and the sale sought to be pre-empted was made within the contract period. The court concluded that the plaintiff could enforce his right of pre-emption.

2. Validity of the Contract for Pre-emption on Grounds of Uncertainty:
The argument that the contract was void for uncertainty was rejected. The court held that the contract was intended to last for the period of the settlement, which was a definite period ending on June 30, 1919. Therefore, no uncertainty attached to the contract.

3. Validity of the Contract for Pre-emption on Grounds of Public Policy:
The court dismissed the argument that the contract was against public policy. It was noted that in a province where pre-emption is recognized and encouraged, such a contract could not be considered opposed to public policy.

4. Validity of the Contract for Pre-emption on Grounds of Remoteness and Perpetuities:
The court addressed the contention that the contract was void for remoteness, or because it was obnoxious to the rule against perpetuities. It was clarified that the rule against perpetuities applies only where there is an attempt to create an interest in property. Since a contract for pre-emption does not create any interest in immovable property, the rule against perpetuities could not be invoked to argue that the contract was void for remoteness.

5. Binding Nature of the Contract on the Representatives of the Original Parties:
The court examined whether the contract could bind the representatives of the original parties. It was held that under Section 37 of the Indian Contract Act, promises bind the representatives of the promisors unless a contrary intention appears from the contract. The court found that the contract did not show any contrary intention and thus could bind the representatives.

6. Enforceability of the Contract Against the Purchaser from the Vendor:
The court considered whether the contract could be enforced against the purchaser from the vendor. It was determined that the liability under a contract cannot pass by an assignment, but may be transferred by operation of law. The court referred to Section 40 of the Transfer of Property Act, which allows for the enforcement of certain obligations against a transferee with notice or a gratuitous transferee. It was concluded that the contract of pre-emption could be enforced against the purchaser, who could not plead lack of notice of the contract contained in the wajib-ul-arz.

Separate Judgments:
Both judges delivered separate but concurring judgments. Lindsay, J. focused on the legal principles and statutory provisions, while Shah Mohammad Sulaiman, J. provided a detailed examination of the facts and previous case law, ultimately agreeing with the conclusions reached by Lindsay, J. Both judgments concluded that the appeal should be dismissed.