# JAGAD BANDHU CHATIERJEE v. NILIMA RANI & OTHERS

- **Citation:** [1970] 2 S.C.R. 925
- **Court:** Supreme Court of India
- **Decided:** 1969-10-17
- **Case number:** Civil Appeal No. 2170 of 1967
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagad-bandhu-chatierjee-v-nilima-rani-others-4885
- **Pages:** 3

## Headnote

Waiver-Need not be found on contract or agreement,-Pre-emptionBengal Tenancy Act, s. 26(/),
The appellant filed an application under s.
26(f)
df the Bengal
Tenancy Act claiming right of pre-emption over the land purchased by
tne respondent. The respondent took up the position that the appellant
was nC>t a ce>-sharer in the land which had been purchased by her and that
he along with his uncle bad acted as brokers in the transaction an~ received brokerage; the appellant had thus waived bis right of pre-empt10n. The
trial Judge allowed the application. The appeal . Court
held t~~t the
appeliant's claim was barred owing tc ·waiver on hts pa·rt.
A rev1s1on 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 ~
sideration 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 pre-emptiori 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 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 s. 26F of the Bengal Tenancy Act must ·be founded on contract or
agree!"ent cannot therefore be acceded to.
[927 A-DJ
Waman Shrinwas Kini v. Ratilal Bhagwandas & Co., [195~] Supp. 2,
S.C.R. 217, 226 and Dawson's Bank· Limited v.
Nippon Menkwa Kabushikl Kaisha,. 62 I.A. 100, 108 referred to.
CML APPELLATE iuRrSDICTION:
Civil Appeal No. 2170 of
1967.
Appeal from the judgmf:lllt 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. 'f!lis is an appeal by certificate from a judgment
of the Calcutta High Court arising out of a petition filed by the
ap~llant under s. ~6F of the Bengal Tenancy Act, 1885 claiming
a right of pre-emption over certain lands purchased by respondent
No. 1.
·
9-26
SUPREME COURT REPORTS
[1970] 2 S.C.R.
The facts may be briefly stated. On ~uly 23, 1950, the appellant purchased certain portion of land in C.S. Dag No. 3605 of
Mouza Kasba from the occupancy ra1yats respondents Nos. 2 and
3 and one Bhabesh Chandra Kundu deceased. By another deed
the appellant purchased from the said yendors another plot of land
measuring 3± 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 Uillder
s. 26F of the Bengal Tenancy Act claiming the right of pre-emption over the land purchased by ;espondent 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 pre-emption. The learned trial Judge disbelieved the case
set up by respondent No. 1 and allowed the application of the appel l•mt for pre-emption. Respondent No. I 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 sam,e'. 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 wh

## Text

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JAGAD BANDHU CHATIERJEE
v.
NILIMA RANI & OTHERS
October 17, 1969
925
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
Waiver-Need not be found on contract or agreement,-Pre-emptionBengal Tenancy Act, s. 26(/),
The appellant filed an application under s.
26(f)
df the Bengal
Tenancy Act claiming right of pre-emption over the land purchased by
tne respondent. The respondent took up the position that the appellant
was nC>t a ce>-sharer in the land which had been purchased by her and that
he along with his uncle bad acted as brokers in the transaction an~ received brokerage; the appellant had thus waived bis right of pre-empt10n. The
trial Judge allowed the application. The appeal . Court
held t~~t the
appeliant's claim was barred owing tc ·waiver on hts pa·rt.
A rev1s1on 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 ~
sideration 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 pre-emptiori 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 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 s. 26F of the Bengal Tenancy Act must ·be founded on contract or
agree!"ent cannot therefore be acceded to.
[927 A-DJ
Waman Shrinwas Kini v. Ratilal Bhagwandas & Co., [195~] Supp. 2,
S.C.R. 217, 226 and Dawson's Bank· Limited v.
Nippon Menkwa Kabushikl Kaisha,. 62 I.A. 100, 108 referred to.
CML APPELLATE iuRrSDICTION:
Civil Appeal No. 2170 of
1967.
Appeal from the judgmf:lllt 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. 'f!lis is an appeal by certificate from a judgment
of the Calcutta High Court arising out of a petition filed by the
ap~llant under s. ~6F of the Bengal Tenancy Act, 1885 claiming
a right of pre-emption over certain lands purchased by respondent
No. 1.
·
9-26
SUPREME COURT REPORTS
[1970] 2 S.C.R.
The facts may be briefly stated. On ~uly 23, 1950, the appellant purchased certain portion of land in C.S. Dag No. 3605 of
Mouza Kasba from the occupancy ra1yats respondents Nos. 2 and
3 and one Bhabesh Chandra Kundu deceased. By another deed
the appellant purchased from the said yendors another plot of land
measuring 3± 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 Uillder
s. 26F of the Bengal Tenancy Act claiming the right of pre-emption over the land purchased by ;espondent 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 pre-emption. The learned trial Judge disbelieved the case
set up by respondent No. 1 and allowed the application of the appel l•mt for pre-emption. Respondent No. I 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 sam,e'. 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 an<! since
no consideration had ~assed it could not be said that there had
been any waiver in the present case. Moreover waiver C<'!lld not
be proved by estoppel.
Learned counsel for the. appellant relied
on the observations of Lord Russel of Killowen in Dawson's 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 No. 1 in the matter of abandonment of the appellant's
right of pre-emption.
In the well-known work of Sir William P. Anson "Principles
of the Enalish Law of Contract", 22nd Edti., it has been stated at
p. I 07 that at Common Law the waiver, of existing obligations
does not appear to require the presence of detriment in order to
make it effective.
(t) 62 I.A. 100, 108.
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JAGAD BANDHU v. NILIMA RANI (Grover, !.)
927
In India the general principle with regard to waiver of contractual obliga.tions is to be found in s. 63 of the Indian Contract A<.. ..
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.(') 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 tan 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 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 s. 26F of the Bengal
Ten&ncy Act must be founded on contract· or agreement cannot
be acceded to and must b.e 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.
(I) [1959] Supp. 2 S.C.R. 217, 226.