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Jagad Bandhu Chatterjee Vs. Nilima Rani & Ors [1969] INSC 296 (17 October 1969)

17/10/1969

ACT:

Waiver-Need not be found on contract or agreement, Pre- emption Bengal Tenancy Act, s. 26(f).

HEADNOTE:

The appellant filed an application under s. 26(f) of the Bengal Tenancy Act claiming right of preemption over the land purchased by the respondent. The respondent took up the position that the appellant was not a co-sharer in the land which had been purchased by her and that he along with his uncle had acted as brokers in the transaction and received brokerage; the appellant had thus waived his right of preemption. The trial Judge allowed the application.

The appeal Court held that the appellant's claim was barred owing to waiver on his part. A revision to the High Court was unsuccessful. In appeal to this Court it was urged that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver.

HELD, : Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver. A waiver signifies nothing- more than an intention not to insist upon the right. It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of forfeiture of such a right. So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under s. 26F of the Bengal Tenancy Act must be founded on contrast or agreement cannot therefore be acceded to. [927 A-D] Wanman Shrinwas Kini v. Ratilal Bhagwandas & Co., [1959] Supp. 2, S.C.R. 217, 226 and Dawson's Bank Limited v. Nippon Menkwa Kabushiki Kaisha, 62 I.A. 100, 108 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2170 of 1967.

Appeal from the judgment and order dated September 5, 1963 of the Calcutta High Court in Civil Rule No. 2864 of 1952.

Purshottam Chatterjee and G. S. Chatterjee, for the appellant.

D. B. Mukherjee and S. C. Majumdar, for respondent No. 1.

The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Calcutta High Court arising, out of a petition filed by the appellant under s. 26F of the Bengal Tenancy Act, 1885 claiming a right of preemption over certain lands purchased by respondent No. 1.

926 The facts may be briefly stated. On July 23, 1950, the ap- pellant purchased certain portion of land in C.S. Dag No.

3605 of Monza Kasba from the occupancy raiyats respondents Nos. 2 and 3 and one Bhabesh Chandra Kundu deceased. By another deed the appellant purchased from the said vendors another plot of land measuring 31 acres. By a Kabala dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to respondent No. 1 for Rs. 2,700. The appellant filed an application before the Second Subordinate Judge, Alipore district 24 Parganas under s. 26F of the Bengal Tenancy Act claiming the right of preemption over the land purchased by respondent No. 1. The latter took up the position that the appellant was not a co-sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs. 300 as brokerage; the appellant had thus waived his right of preemption. The learned trial Judge disbelieved the case set up by respondent No. 1 and allowed the application of the appellant for preemption.

Respondent No. 1 filed an appeal in the court of,the Additional District Judge, Alipore. He held that the appellant's claim for preemption was barred owing to waiver on his part. The appellant filed a petition for revision in the High Court but the same was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver.

The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case. Moreover waiver could not be proved by estopped. Learned counsel for the appellant relied on the observations of Lord Russel of Killowen in Dawson's Bank Limited v. Nippon Menkwva Kabushiki Kaisha(1). While stating the distinction between estopped and waiver, it was said, that "waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right." According to the appellant all that had been found was that by his act and conduct he had waived his right of preemption. It was pointed out that there was no evidence for any consideration having moved from respondent No. 1 in the matter of abandonment of the appellant's right of preemption.

In the well-known work of Sir William P. Anson "Principles of the English Law of Contract", 22nd Edn., it has been stated at p. 107 that at Common Law the waiver of existing obligations does not appear to require the presence of detriment in order to make it effective.

(1) 62 I.A. 100, 108.

927 In India the general principle with regard to waiver of contractual obligations is to be found in s. 63 of the Indian Contract Act. Under that section it is open to a promise to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co.(1) that waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right." It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right. So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under s. 26F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected.

A faint attempt was made to assail the finding of the High Court that on the facts which had been proved waiver had been established. We find no reason or justification for interfering with the conclusion of the High Court on the point.

The appeal fails and it is dismissed with costs.

R.K.P.S. Appeal dismissed.

(1) [1959] Supp. 2 S.C.R. 217, 226.

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