1. This second appeal arises out of a suit brought by the plaintiff for the establishment of his howla right to the disputed land as well as for the declaration that the rent decree obtained by defendant No. 1 against the plaintiff's vendor, the defendant No. 13, and the proceedings taken but in execution thereof are fraudulent and collusive and inoperative so far as the plaintiff is concerned.
2. The defence appears to have been twofold. Although in the issues framed for trial it does not appear precisely what that defence was, nor in the written statement is there any indication of what the main point of defence taken before us and before the Subordinate Judge really is; but we gather from the judgment of the 1st Court that the first defence taken was that the land being admittedly debuttur land, the shebait ought to have been sued in his capacity as trustee for the idol and not in his personal capacity. This point was taken before us but had not been seriously argued. The learned Munsif has fully disposed of it in the 1st paragraph of his judgment and the appellant did not venture to raise it again in the lower Appellate Court. It cannot, therefore, be raised here; bat we may express our finding that there is nothing in, it.
3. The real point which has been argued at considerable length before us is that the plaintiff, who is the assignee of the tenant of the former shebait is bound by a certain covenant of pre-emption in favour of the then shebait which appears in the lease. The findings of the Munsif on the facts entirely dispose of the defendant's case. But unfortunately, the Subordinate Judge has seen fit to whittle away all the Munsif's well reasoned findings and has come to certain rather vague findings of his own, and in the end he has agreed with the Munsif in the final order passed by him and has dismissed the appeal.
4. The contention of the appellant is that if this were purely a case of transfer of a permanent tenure, the rulings of this Court would put him out of Court altogether as notice is presumed on the registration of the transfer of a permanent tenure. But he claims that the effect of the so called contract of preemption in the appellant's favour, he being in possession of the land, operates as a bar to the suit and can be raised by him as a valid defence to the plaintiffs' claim.
5. It is first of all contended that a contract not to assign is a covenant running with the land. But this of course is not a contract not to assign. It is a qualified personal contract, that although I, the lessee, have fall powers of transfer and full powers to erect buildings, dig tanks and make any permanent improvements and transfer the land by any means I choose, yet if I do so, I will give you the lessor, whose name is Tarini, the option of pre-emption. The words are clearly personal. The lessor says; 'if at any time you require to sell the tenure, then if I pay the proper price, you will sell the tenure to me.' Now the first point that we have to notice is that in addition to the fact which we have already pointed out that the written statement does not mention this claim of preemption and that it was not raised in the issues before the Munsif, there is no trace in the whole of the proceedings in any of the Courts that the lessor's successor, who is the present defendant-appellant, ever carried out, his part of the contract, that is to say, that he ever offered to pay the proper price, and he has not even taken the trouble to tell us what the proper price was, and it is clear that the lower Courts in this suit could not have passed any order directing the lessor to pay the proper price and redeem on that condition, when no issue had been raised and no evidence had been given of what the proper price was. That alone would render this defence nugatory. Bat the combined reasons, which the learned Munsif and the learned Subordinate Judge have both given for holding that the contract of pre-emption so called was a separate agreement and had, nothing to do with the right of transfer, which was absolute, is, in our opinion sufficient to dispose of the case. Without saying that in no such case can such a covenant be raised as a defence, we need only say in this case that the rulings with regard to Ottidar tenures in Madras, which have been, cited to us, have nothing to do with the matter, and that in this particular case, such a defence was not pleaded, and the contract, which we have had to find oat for ourselves in Court, inasmuch as it has not been printed in the paper book as it ought to have been, does not in this particular instance appear to be a covenant running with the land, or a covenant which was in any way a condition precedent to the transfer. Two things were required, an offer to purchase by the late lessor and an agreement to pay by him. It does not appear to us that such a stipulation would enure to the benefit of all the lessor's successors and to all the subsequent transferees. The successor of the shebait may very well say, as indeed the learned Vakil does say, I knew nothing about this stipulation. In the same breath, he argues I am privy to the contract because I am successor to the shebait. It was certainly open to him to say, I am not in any way bound by what any predecessor stipulated, I do not want to purchase it. As a matter of fact, as we have seen, ho never offered at any stage of the case to purchase it, and three years and a half after the transfer had been registered and he was saddled with notice thereof, he did not even mention it in his written statement.
6. We are, therefore, of opinion that the findings of the lower Courts are correct and that this appeal must be dismissed with costs.