1. This is a defendant's appeal arising out of a suit for the enforcement of a contract embodied in an unregistered agreement dated 5th March 1923. On that date the plaintiffs sold this house to defendant 1 for Rs. 175 and the latter agreed by that agreement to sell the house back to them for the same price Rs. 175 when he wanted to transfer it and that only if they declined to repurchase the house he would sell it to other persons. Abdul Ghafur defendant 1 sent notice to the plaintiffs and asked them to purchase the house for Rs. 300. They declined to purchase it on that price but offered to repurchase it for Rs. 175. Ignoring this offer Abdul Ghafur sold this house to the vendee appellant. The finding of the lower appellate Court is that before the appellant took the sale-deed he was warned by the plaintiffs of their right to take it back and he took the sale-deed with full knowledge of the agreement between the parties. The Court of first instance held that the agreement was void and dismissed the suit. The lower appellate Court has hold that it is in force and has decreed the claim but on payment of Rs. 300 and not Rs. 175. The purchaser Debi Dayal has appealed to this Court but the plaintiffs have not filed any cross-objections.
2. In our opinion the agreement in question cannot be deemed to be void on account of any ambiguity or on account of its offending against the rule of perpetuity. This was a special personal contract between the parties which was binding on them and could be enforced against the transferees with notice but not otherwise. The parties to the agreement are still alive and it is quite clear that defendant 1 was bound by the contract to re-transfer the house to the plaintiffs on the price mentioned therein and could not sell it to other persons unless they refused to take it. The appellant having purchased the house with notice of this agreement the contract can be enforced against him under Section 27, Sub-clause (b) Specific Relief Act.
3. It is next contended that the plaintiffs' claim is really one for pre-emption and such a claim on a private contract cannot be entertained in view of the provisions of Section 3, Agra Pre-emption Act. The right of pre-emption under Section 4, Sub-clause 9 is defined to be a right to be substituted in place of the transferee. The plaintiffs in this case did not want to be substituted in place of Debi Dayal. In fact they did not want to pay the price which Debi Dayal paid. Their whole claim was to enforce the contract to resell the house to them on the fixed price of Rs. 175. This is therefore not a suit for pre-emption governed by the Act but for the enforcement of a special contract between the parties.
4. The learned advocate for the appellant has contended that inasmuch as the plaintiffs have acquiesced in the decree for the payment of Rs. 300 by them,,they must be taken to have treated the suit as one for pre-emption. We think that no estoppel can arise on that account. The defendants suggested that there had been improvements made in the house and the plaintiffs might well have acquiesced in the decree for the payment of a large amount on account of these improvements. Under the agreement there was no absolute restraint on alienation and Section 10, T.P. Act, is obviously inapplicable. The respondents have not made good the deficiency in the amount of the court-fee paid by them in the Court below. In view of a previous order passed by a learned Judge of this Court we have not allowed their counsel to be heard. The appeal is accordingly dismissed without any order as to costs but no decree will be prepared by this Court's office unless the amount of the court-fee is made good.