1. This is an application for a certificate under Clauses (b) and (c) of Article 133(1) of the Constitution against a judgment of a Division Bench of this Court dated November 18, 1959 (reported in : AIR1961Cal152 ) affirming the judgment anddecree of the Subordinate Judge, 5th Court, Ali-pore. The petitioner before us is defendant No. 2. The suit out of which this application arises was one for a declaration that the plaintiffs respondents, who may be collectively called the Hazras, were entitled to pre-emption and that defendantNo. 2 was bound to convey the disputed property to the plaintiffs on payment of actual consideration and for a decree for pre-emption against the defendant calling upon him to execute a conveyance in favour of the plaintiffs on payment of consideration. The suit was decreed by the Court of first instance and an appeal to this Court against that decree has failed. The defendant No. 2 now intends to take a further appeal to the SupremeCourt against the judgment of the Division Bench of this Court. The facts which are material forthe purpose of the present application are these. The property in dispute which consists of 4 cottas, 11 chhitaks and 2 sq. ft. of land with a partly one storeyed and partly two storeyed building standing thereon belonged to two brothers named Kishori and Tulsi. As a result of a suit for partition between the two brothers, there was a decree on an award and the date of that decree is March 15, 1941. The Arbitrators divided the subject-matter of dispute between the two brothers into four allotments and they awarded lots B and D to Kishori and A and C to Tulsi. In the award there is a clause for pre-emption in the following terms:
'We further find and report with the consentof and approval of the parties that any party incase of disposing or transferring any portion of his share, shall offer preference to the other party, that is each party shall have the right of pre-emption between each other.'
It has been found by the trial Court and also by the Division Bench of this Court that on August 26, 1941, Tulsi sold lot A to one Nagendra for Rs. 6,000/-. It has also been found that before this sale Tulsi made a prior offer to Kishori, but Kishori refused to purchase and thereupon Tulsi sold the property to Nagendra. On September 20, 1952, Nagendra sold lot A to one Hamid tor Rs. 14,000/-. On April 7, 1953 Hamid sold lot A to the present petitioner for a sum of Rs. 15,000/-. The suit out of which this application arises was filed by the plaintiffs in the Court of the 5th Subordinate Judge on December 2, 1952, about four months before the sale to the petitioner. This is the chain of transfers by which the property came to be acquired by the present petitioner. On the side of the plaintiffs also there was a similar chain of transfers. On April 22, 1942 Kistori sold lots B and D to certain persons who are collectively described as the Mukherjees for a sum ot Rs. 10,000/- and on June 21, 1946, the Mukherjees sold lots B and D to the present plaintiffs for a sum of Rs. 16,250/-. The plaintiffs thereafter stepped into the shoes of one of the cosharers, Kishori, and the defendants stepped into the shoes of Tulsi. As I have already said, on December 2, 1952, the plaintiffs instituted the suit out of which this application arises for enforcing the pre-emption clause incorporated in the decree for partition upon award.
2. As the judgment sought to be appealed from is one of affirmance, the three questions which arise for our consideration are : (a) whether the case satisfies the valuation test, (b) whether the case involves a substantial question of law and (c) if the case does not come under Article 133(1)(b) whether we can certify it to be a fit case under Clause (c) of Article 133(1). I shall take these questions one by one.
3. The question of valuation was raised before this Court on June 10, 1960. On that date the petitioner conceded before us that he did not press his claim under Article 133(1)(a) of the Constitution, but pressed his claim under Clauses (b) and (o) of Article 133(1). Under Clause (b) the contention that was put forward on behalf of the petitioner on that date was that in order to come under Clause (b) all that was necessary was to satisfy us that the case satisfied the valuation test on the date on which this Court delivered its judgment. The Division Bench of this Court which decided the appeal delivered its judgment on November 18, 1959. The petitioner contended that the material date for determining the value of the 'property' under Clause (b) of Article 133(1) was the date of the decree sought to be appealed from. In support of that proposition the petitioner relied upon a judgment of a Division Bench of this Court in the case of Surendra Nath Roy v. Dwarka Nath Chakravarti, ILR 44 Cal 119 : (AIR 1917 Cal 496), Relying upon that decision this Court by a judgment dated June 10, 1960, directed the trial Court to hold an enquiry under Order XLV, Rule 5 of the Code of Civil Procedure as to the value of the subject-matter in dispute on November 18, 1959, that is the date on which this Court pronounced its judgment in the appeal filed by the petitioner. The question whether the petitioner was entitled to a certificate under Clause (b) or Clause (c) of Article 133(1) was left open for further consideration after the receipt of the valuation report by the trial Court. In pursuance of the aforesaid order, the trial Court has sent a valuation report according to which the value of the subject-matter in dispute on November 18, 1959 was Rs. 18,000/-. Both sides have filed objections to the valuation report made by the trial Court. According to the petitioner the valuation is in excess of Rs. 20,000/- whereas according to the respondents the valuation is less than Rs. 18,000/-. (After discussing the evidence, His Lordship concluded:) Adding the value of the land to the value of the structures, I hold that the true value of the subject-matter of dispute on November 18, 1959 exceeds Rs. 40,000/-.
4. The question, however, still remains whether in spite of this finding on the question of valuation we can grant the certificate under Article 133(1)(b) of the Constitution. After hearing learned Advocates on both sides at some length, I have reached the conclusion that we cannot. Clause (a) of Article 133(1) of the Constitution requires that the value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal to the Supreme Court was and is not less than twenty thousand rupees, whereas according to Clause (b) the material date is the date of the decree sought to be appealed from. In a case under Clause (b) therefore all that the petitioner is required to prove is that the amount or value of the subject-matter of dispute still in dispute on appeal is not less than twenty thousand rupees. In the present case Clause (a) cannot evidently apply because the value of the subject-matter of the suit in the Court of first instance was Rs. 14,000/- according to the revised valuation made by the trial Court, and the petitioner does not, therefore, press his claim under Clause (a). In order to come under Clause (b), however, it is necessary for the petitioner to prove that the decision complained of affects directly or indirectly some claim or question respecting property which is not the subject-matter of the suit. Unless the decision affects a claim or property other than the claim or property in dispute, Clause (b) does not come into operation. Otherwise, the provisions of Clause (a) of Article 133(1) of the Constitution would be rendered altogether nugatory. This is the view which has been taken in the case of A. V. Subramania Ayyar v. Sellmmal, ILR 39 Mad 843 : (AIR 1916 Mad 985), which has been followed by a Division Bench of this Court in the case of Md. Nural Absar v. Haripada Biswas, 50 Cal WN 255. This view also receives some support from a decision of the Judicial Committee in the case of Udoychand Pannalal v P. E. Guzdar and Co. , where in construing the meaning of the word 'property' in the second paragraph of Section 110 of the Code of Civil Procedure Lord Dunedin made the following observations :
'Their Lordships are not inclined to attempt any precise definition of the word 'property'. The Civil Procedure Code has not done so, and any definition might not be found in the future precisely to fit the circumstances which the kaleidoscope of actual experience may produce. But they think that the present is not a case where the issue of this suit can be said directly or indirectly to involve other property.'
As the decision complained of in this case does not directly or indirectly affect any claim or property other than the subject-matter of the suit, I am unable to hold that the petitioner is entitled to a certificate under Article 133(1)(b) of the Constitution.
5. The next question which requires consideration is whether the petitioner is entitled to a certificate under Article 133(1)(c) of the Constitution. The point which the petitioner proposes to raise before the Supreme Court is this. The first transfer to Nagendra having been made after refusal by Kishori, the first tansfer remains a valid/ transfer. The covenant for pre-emption can no longer be enforced against Nagendra and since the covenant cannot be enforced against Nagendra, it cannot also be enforced against the subsequent transferees of Nagendra, namely, defts. Nos. 1 & 2. In other words, if Nagendra has acquired a title free from the claim for pre-emption, he can pass that title to his subsequent transferees. This point certainly raises a question of law and I am pre-pared to say that it is also a substantial question of law. But I am unable to hold that although it is a substantial question of law, it is a question of such public or private importance as to entitle us to grant a certificate under Clause (c) of Article 133(1) in the light of the decisions of the Judicial Committee in the case of Banarsi Prasad v. Kashi Krishna Narain, L. R. 28 Ind App 11 or of Radhakrishna Ayyar v. Swaminatha Ayyar, 48 Ind App 31 : (AIR 1921 PC 25).
6. Besides the question which I have formulated above, there are also other questions, involved in the appeal. But as they are not, in my opinion, of such a character as to make the case a fit case for a certificate under Article 133(1)(c), I need not refer to those points for the present purpose.
7. In the result, I am unable to grant the certificate asked for by the petitioner either under Clause (b) or under Clause (c) of Article 133(1) of the Constitution.
8. I would, accordingly, dismiss the application, but, in the circumstances of the case, I would make no order as to costs.
9. No separate orders are necessary on the applications objecting to the report regarding valuation.
10. I agree.