1. This is an appeal arising out of a suit brought for a declaration that a certain kabala in favour of defendant No. 7, who is the contesting defendant, and executed by defendants Nos. 1 to 6 in 1323 is invalid, and that the same should be set aside.
2. The First Court decreed the suit against defendants Nos. 1 to 7 and on appeal it was held that the appeal failed. We should also mention that, besides the prayer for a declaration, the plaint also asked for a specific performance of a contract for sale.
3. Before us, in appeal by defendant No. 7, three points have been urged. First of all, that the covenant is fraudulent as referred to in the judgment of the Subordinate Judge, namely, that if the lessee or any of his representatives intend to transfer the whole or any portion of the lease, the transfer would be made in favour of the lessors for proper price, that the lessee would not be able to transfer in favour; of a third party without lessor's permission or wishes, that in the case of transfer to a co-sharer of the lessee, lessor's permission would not be necessary, that in case of any act against the aforesaid conditions, the said act would be invalid.
4. It was contended that this covenant was bad as offending against the Rule regarding Perpetuity. Secondly, if the covenant were a good one, it is not a covenant running with the land, and thirdly, in any event, it could not be enforced against the appellant as he was an assignee of the lessee who entered into the covenant. It is unnecessary to consider the second and the third of these grounds, for, we think the appeal succeeds upon the first ground. We have been invited to consider in this connection certain cases which have been decided by the Allahabad High Court upon the law of pre-emption. It is not clear whether the cases are relevant but, in any event, as it is observed, these cases of pre-emption stand on their own peculiar law. In the present case we think it is clear that the covenant offends against the Rule of Perpetuity, and the appeal succeeds and the suit is dismissed with costs.
5. The defendant No. 7 will be entitled to his costs from the plaintiffs in the First Court, and in the lower Appellate Court and he is entitled to his costs in this Court, as against the plaintiffs respondents.