1. This appeal has arisen in connexion with a suit for specific performance of a contract of pre-emption. Defendant 1 sold certain property to the mother of the plaintiffs on 30th September 1912. The kobala contained an agreement to the effect that if defendant 1 desired to sell a small adjoining property which originally formed part of the property transferred, she would sell it to the plaintiffs' mother for Rs. 200. As the Sub-Registrar refused to register the document, this clause was deleted. A separate agreement was subsequently executed on 1st November 1912. After the death of the plaintiffs' mother, defendant 1 sold the property to defendant 2. As the defendants refused to execute a conveyance in favour of the plaintiffs, this suit was instituted. Both Courts have come to a finding that defendant 2 was aware of the agreement. Defendant 1 died during the pendency of the appeal to this Court. The question therefore for our decision is whether the representatives of the covenantee can enforce the agreement against the representative of the covenantor. The first contention made by Mr. Bhattacharji on behalf of the appellants is that the covenant is one which runs with the land as it is a restrictive covenant. Neither of the Courts below took this view. Indeed, it does not even appear that it was put forward. We are quite satisfied that a covenant for pre-emption is not a restrictive covenant in that sense of the term and this contention has no force in it. The question therefore remains whether this covenant can be enforced by a representative against a representative. The question is a very difficult one and strong arguments can be advanced on either side. It is perhaps not unnatural that different views have been taken in different Courts.
2. The learned advocate for the appellants relied strongly upon the Pull Bench decision of the Allahabad High Court in Aulad Ali v. Ali Athar (1927) 14 A.I.R. All. 170. There is no doubt that this decision supports his argument. On the other hand, the learned advocate for the respondents relies strongly upon various decisions of this Court. In this connexion I would refer to the case in Kala Chand v. Jatindra Mohan : AIR1929Cal263 . The point that was actually decided in that case was that a contract of pre-emption which purports to bind the successors-in-interest of the covenantor is void and cannot be enforced even against the covenantor. There is no difficulty of that sort in the present case, because there is no doubt that the covenant could have been enforced against the covenantor by the covenantee. Mukerji J. however gave an elaborate discussion of the various decisions which throw any light upon this question. In particular, the case in Nobin Chandra v. Nabab Ali (1901) 5 C.W.N. 343 is a direct authority for the proposition that this contract could not be enforced against a representative of the covenantor. Though, as at present advised, I should be disposed to agree with the view enunciated in the decision of the, Allahabad Pull Bench, Aulad Ali v. Ali Athar : AIR1927All170 , I am' not prepared to dissent from what I conceive to be the consistent opinion of the learned Judges of this Court.
3. On behalf of the respondents it was contended that the case comes within the Proviso to Section 23(b), Specific Relief Act. It is said that the personality of the plaintiff's mother was a material ingredient in the contract. In my opinion, there is no real difficulty in the way of the appellants here. There is nothing to show that this is a case in which a specially low price was fixed in view of the friendly feelings entertained by the covenantor towards the covenantee. The learned Munsif referred to this aspect of the matter in these terms:
It is in the evidence of plaintiffs Charu Chandra Banerjee and Joy Gopal Chatterjee that the value of the entire homestead land with the structures thereon was assessed at Rupees 2000 and Jnanada retained the kha scheduled portion of the homestead and structures thereon and Rs. 200 was deducted from the entire consideration money on the agreement that she would sell the kha scheduled property for Rs. 200 to plaintiffs' mother if she sells the same at all. This is also partly corroborated by Jnanada's evidence because she speaks of a condition for her life-interest in the entire land. It is thus apparent that there was talk with regard to the entire land and I have no doubt to find that the terms settled between the parties ultimately took the shape as embodied in the kobala Ex. 1 and deed of agreement, Ex. 2.
4. From this it appears very doubtful whether the plaintiffs' mother would have purchased the property at all if it had not been for this agreement. The appeal is dismissed with costs.
Latifur Rahman J.
5. I agree.