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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