JAGAD BANDHU CHATTERJEE versus NILIMA RANI & OTHERS

JAGAD BANDHU CHATIERJEE

NILIMA RANI & OTHERS

October 17, 1969

[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]

Waiver-Need not be found on contract or agreement,-Pre-emption-Bengal Tenancy Act, s. 26(/),

The appellant filed an application under s. 26(f) df the Bengal Tenancy Act claiming right of pre-emption over the land purchased by tne respondent. The respondent took up the position that the appellant was nC>t ce>-sharer in the land which had been purchased by her and that he along with his uncle bad acted as brokers in the transaction an~ receiv-ed brokerage; the appellant had thus waived bis right of pre-empt10n. The trial Judge allowed the application. The appeal . Court held t~~t the appeliant's claim was barred owing tc ·waiver on hts pa·rt. rev1s1on to the High Court was unsuccessful. . In appeal to this Court it was urged that waiver could be brought about only by contract and since no ~­sideration had passed it could not be said that there had been any waiver.

HELD: Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver. waiver signifies nothing more than· an intention not to insist upon the right. It is well known that in the law of pre-emptiori the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of pre-emptive -right has the effect of forfeiture of such right. So far as the law of pre-emption is concerned the principle Of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under s. 26F of the Bengal Tenancy Act must ·be founded on contract or agree!"ent cannot therefore be acceded to. [927 A-DJ

Waman Shrinwas Kini v. Ratilal Bhagwandas & Co., [195~] Supp. 2, S.C.R. 217, 226 and Dawson's Bank· Limited v. Nippon Menkwa Kabu-shikl Kaisha,. 62 I.A. 100, 108 referred to.

Civil Appeal No. 2170 of

CML APPELLATE iuRrSDICTION:

Appeal from the judgmf:lllt and order dated September 5, 1963 of the Calcutta High Court in Civil Rule No. 2864 of 1952.

Purshottam Chatterjee and G. S. Chatterjee, for the appellant.

D. B. Mukherjee and S. C. Majumdar, for respondent No. 1.

The .Judgment of the Court was delivered by

Grover, J. 'f!lis is an appeal by certificate from judgment of the Calcutta High Court arising out of petition filed by the ap~llant under s. ~6F of the Bengal Tenancy Act, 1885 claiming right of pre-emption over certain lands purchased by respondent No. 1. ·

The facts may be briefly stated. On ~uly 23, 1950, the ap-pellant purchased certain portion of land in C.S. Dag No. 3605 of Mouza Kasba from the occupancy ra1yats respondents Nos. 2 and 3 and one Bhabesh Chandra Kundu deceased. By another deed the appellant purchased from the said yendors another plot of land measuring 3± acres. By Kabala dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to respon-dent No. 1 for Rs. 2, 700. The appellant filed an application before the Second Subordinate Judge, Alipore district 24 Parganas Uillder s. 26F of the Bengal Tenancy Act claiming the right of pre-emp-tion over the land purchased by ;espondent No. 1. · The latter took up the position that the appellant was not co-sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs. 300 as brokerage; the appellant had thus waived his right of pre-emption. The learned trial Judge disbelieved the case set up by respondent No. 1 and allowed the application of the ap-pel l•mt for pre-emption. Respondent No. I filed an appeal in. the court of the Additional District Judge, Alipore. He held that the appellant's claim for pre-emption was barred owing to waiver on his part. The appellant filed petition for revision in the High Court but the sam,e'. was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver.

The main point which was sought to be raised before us was that waiver could be brought about only by contract an<! since no consideration had ~assed it could not be said that there had been any waiver in the present case. Moreover waiver C<'!lld not be proved by estoppel. Learned counsel for the. appellant relied on the observations of Lord Russel of Killowen in Dawson's Bank Limited v. Nippon Menkwa Kabushiki Kaisha('). While stating the distinction between estoppel and waiver, it was said, that "wai-ver is contractual, and may constitute cause of action; it is an agreement to release or not to assert right." According to the appellant all that had been found was that by his act and conduct he had waived his right of pre-emption. It was pointed out that there was no evidence for any consideration having moved from respondent No. 1 in the matter of abandonment of the appellant's right of pre-emption.

In the well-known work of Sir William P. Anson "Principles of the Enalish Law of Contract", 22nd Edti., it has been stated at p. I 07 that at Common Law the waiver, of existing obligations does not appear to require the presence of detriment in order to make it effective.

(t) 62 I.A. 100, 108.

In India the general principle with regard to waiver of contract-ual obliga.tions is to be found in s. 63 of the Indian Contract A<.. .. Under that section it is open to promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already . laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co.(') that waiver is the abandonment of right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to release. It signifies nothing more than an intention not to insist upon the right." It is well known that in the law of pre-emption the general principle which tan be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of pre-emptive right has the effect of the forfeiture of such right. So far as the law of pre-emption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under s. 26F of the Bengal Ten&ncy Act must be founded on contract· or agreement cannot be acceded to and must b.e rejected.

faint attempt was made to assail the finding of the High Court that on the facts which had been proved waiver had been estab-lished. We find no reason or justification for interfering with the conclusion of the_ High Court on the point.

The appeal fails and it is dismissed with costs.

R.K.P.S.

Appeal dismissed.