A covenant for pre-emption is enforceable against subsequent transferees of the original transferee only if the first transfer was invalid.

( 1 ) THIS is an application for a certificate under Clauses (b) and (c) of Article 133 (1) of the Constitution against a judgment of a Division Bench of this Court dated November 18, 1959 (reported in MANU/wb/0030/1961) affirming the judgment and decree of the Subordinate Judge, 5th Court, Ali-pore. The petitioner before us is defendant No. 2. The suit out of which this application arises was one for a declaration that the plaintiffs respondents, who may be collectively called the Hazras, were entitled to pre-emption and that defendant No. 2 was bound to convey the disputed property to the plaintiffs on payment of actual consideration and for a decree for pre-emption against the defendant calling upon him to execute a conveyance in favour of the plaintiffs on payment of consideration. The suit was decreed by the Court of first instance and an appeal to this Court against that decree has failed. The defendant No. 2 now intends to take a further appeal to the Supreme Court against the judgment of the Division Bench of this Court. The facts which are material for the purpose of the present application are these. The property in dispute which consists of 4 cottas, 11 chhitaks and 2 sq. ft. of land with a partly one storeyed and partly two storeyed building standing thereon belonged to two brothers named Kishori and Tulsi. As a result of a suit for partition between the two brothers, there was a decree on an award and the date of that decree is March 15, 1941. The Arbitrators divided the subject-matter of dispute between the two brothers into four allotments and they awarded lots B and D to Kishori and A and C to Tulsi. In the award there is a clause for pre-emption in the following terms:"we further find and report with the consent of and approval of the parties that any party in case of disposing or transferring any portion of his share, shall offer preference to the other party, that is each party shall have the right of pre-emption between each other. "it has been found by the trial Court and also by the Division Bench of this Court that on August 26, 1941, Tulsi sold lot A to one Nagendra for Rs. 6,000/ -. It has also been found that before this sale Tulsi made a prior offer to Kishori, but Kishori refused to purchase and thereupon Tulsi sold the property to Nagendra. On September 20, 1952, Nagendra sold lot A to one Hamid tor Rs. 14,000/ -. On April 7, 1953 Hamid sold lot A to the present petitioner for a sum of Rs. 15,000/ -. The suit out of which this application arises was filed by the plaintiffs in the Court of the 5th Subordinate Judge on December 2, 1952, about four months before the sale to the petitioner. This is the chain of transfers by which the property came to be acquired by the

present petitioner. On the side of the plaintiffs also there was a similar chain of transfers. On April 22, 1942 Kistori sold lots B and D to certain persons who are collectively described as the Mukherjees for a sum ot Rs. 10,000/- and on June 21, 1946, the Mukherjees sold lots B and D to the present plaintiffs for a sum of Rs. 16,250/ -. The plaintiffs thereafter stepped into the shoes of one of the cosharers, Kishori, and the defendants stepped into the shoes of Tulsi. As I have already said, on December 2, 1952, the plaintiffs instituted the suit out of which this application arises for enforcing the pre-emption clause incorporated in the decree for partition upon award.

( 2 ) AS the judgment sought to be appealed from is one of affirmance, the three questions which arise for our consideration are : (a) whether the case satisfies the valuation test, (b) whether the case involves a substantial question of law and (c) if the case does not come under Article 133 (1) (b) whether we can certify it to be a fit case under Clause (c) of Article 133 (1 ). I shall take these questions one by one.

( 3 ) THE question of valuation was raised before this Court on June 10, 1960. On that date the petitioner conceded before us that h