- Bookmark
- Share
- CaseIQ
Jagad Bandhu Chatterjee v. Smt Nilima Rani And Others
Factual and Procedural Background
On 23 July 1950 the appellant purchased portions of land in C.A Dag No. 3605, Mouza Kasba, from the occupancy raiyats (Respondents 2 and 3) and one Bhabesh Chandra Kundu. He subsequently acquired another 3½ acres from the same vendors.
On 8 October 1950 the vendors sold 10 acres in the same dag number to Respondent 1 for Rs 2,700. Invoking Section 26-F of the Bengal Tenancy Act, 1885, the appellant applied before the Second Subordinate Judge, Alipore (District 24-Parganas), claiming a right of pre-emption over this land.
The trial court allowed the application, rejecting Respondent 1’s assertion that the appellant had acted as a broker and therefore waived any right of pre-emption. The Additional District Judge reversed that decision on appeal, finding that the appellant had indeed waived his right. A revision petition to the Calcutta High Court was dismissed on the same ground. The present appeal has been preferred before the Supreme Court on a certificate granted by the High Court.
Legal Issues Presented
- Whether a co-sharer’s statutory right of pre-emption under Section 26-F of the Bengal Tenancy Act can be waived purely by conduct, without a contract supported by consideration.
- Whether the factual findings of the courts below sufficiently establish that the appellant waived his right of pre-emption.
Arguments of the Parties
Appellant's Arguments
- Waiver must be contractual; consideration is therefore required.
- Waiver cannot be inferred merely from estoppel or conduct.
- Relied on Lord Russell’s observations in Damsons Bank Limited v. Nippon Menkwa Kabushiki Kaisha distinguishing waiver from estoppel.
Respondent 1's Position
- The appellant acted as a broker in the impugned sale, accepted brokerage, and thereby consciously relinquished his right of pre-emption.
- No separate consideration is necessary; the waiver is complete by the appellant’s voluntary conduct.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Damsons Bank Limited v. Nippon Menkwa Kabushiki Kaisha | Waiver is contractual and distinct from estoppel, requiring consideration. | Cited by the appellant; the Court declined to apply this principle in the Indian context. |
| Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., 1959 Supp 2 SCR 217 | Waiver is an abandonment of a right; no consideration or agreement is required under Indian law. | Relied on by the Court to reject the appellant’s argument that a contract or consideration is necessary for waiver. |
Court's Reasoning and Analysis
The Court examined the appellant’s claim that waiver must be contractual. It first noted the statement in Anson’s Law of Contract that under common law, waiver of existing obligations does not necessarily require detriment or consideration. More importantly, it turned to Indian law, highlighting Section 63 of the Indian Contract Act, which allows a promisee to dispense with or remit performance without consideration or formal agreement.
Drawing on its prior decision in Waman Shriniwas Kini, the Court reiterated that waiver merely signifies an intention not to insist upon a right and that everyone is free to waive such rights. In matters of pre-emption, Indian courts uniformly hold that any affirmative act of acquiescence in a sale amounts to forfeiture of the pre-emptive right.
Applying these principles, the Supreme Court upheld the High Court’s finding that the appellant’s conduct—acting as a broker and receiving brokerage—constituted a clear waiver. The Court found no reason to disturb the concurrent factual finding of waiver.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
The Supreme Court affirmed that a right of pre-emption under Section 26-F of the Bengal Tenancy Act can be waived by conduct alone, without the need for contractual consideration. The decision leaves the parties bound by the lower court’s finding that the appellant forfeited his pre-emptive right and underscores that, under Indian law, waiver does not depend on a contractual foundation. No broader precedent was established beyond clarifying this principle.
A.N 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 Section 26-F of the Bengal Tenancy Act, 1885 claiming a right of pre-emption over certain lands purchased by Respondent 1.
2. The facts may be briefly stated. On July 23, 1950, the appellant purchased certain portion of land in C.A Dag No. 3605 of Mouza Kasba from the occupancy raiyats Respondents 2 and 3 and one Bhabesh Chandra Kundu, deceased. By another deed the appellant purchased from the said vendors another plot of land measuring 3½ acres. By a Kabala, dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to Respondent 1 for Rs 2700. The appellant filed an application before the Second Subordinate Judge, Alipore District 24 parganas under Section 26-F of the Bengal Tenancy Act claiming the right of pre-emption over the land purchased by Respondent 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 pre-emption. The learned trial Judge disbelieved the case set up by Respondent 1 and allowed the application of the appellant for pre-emption. Respondent 1 filed an appeal in the Court of the Additional District Judge, Alipore. He held that the appellant's claim for pre-emption 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.
3. 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 estoppel. Learned Counsel for the appellant relied on the observations of Lord Russell of Killowen in Damsons Bank Limited v. Nippon Menkwa Kabushiki Kaisha. While stating the distinction between estoppel 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 pre-emption. It was pointed out that there was no evidence for any consideration having moved from Respondent 1 in the matter of abandonment of the appellant's right of pre-emption.
4. In the well-known work of Sir William P. Anson Principles of the English Law of Contract, 22nd Edn., behalf 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.
5. In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Indian Contract Act. Under that section it is open to a promisee 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. 1959 Supp 2 SCR 217 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 pre-emption 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 pre-emptive right has the effect of the forfeiture of such a right. So far as the law of pre-emption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under Section 26-F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected.
6. 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.
7. The appeal fails and it is dismissed with costs.
Alert