A pre-emption clause in a partition award, in the absence of a contrary intention, express or implied, will be enforceable by and against the parties and/or their heirs and legal representatives including assignees or transferees.

( 1 ) THE only point which arises for consideration in this appeal relates to the construction of what may be roughly called a pre-emption clause in a partition award and the determination of its scope and of its effect on the rights of the contending parties. The relevant facts are no longer in dispute and they may be shortly stated as follows:

( 2 ) TWO brothers, Tulshidas Chatterjee and Kishori Lal Chatterjee, owned certain properties (land and building) on Paharpur Road, mouza Garden Reach, Kidderpore, in the suburbs of Calcutta. In or about the year 1938, Kishori sued for partition of the said properties and, eventually, the matter was referred to arbitration. On 16th December, 1940, the arbitrators filed their award, on which a decree was passed on March 15, 1941. Under the award, which formed part of the aforesaid decree, two of the four blocks A, B, G, D into which the disputed properties were divided by the arbitrators, were allotted to Kishori and the remaining two to Tulshi, Kishori's blocks being B and D and Tulshi's A and C. Two common passages X. and Y and a common drain Z were kept joint or ejmali between the parties for their use. In the award there was a term or clause to the following effect:"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. "and it is the construction of this term of clause which is the immediate subject-matter of the present appeal.

( 3 ) THE dispute between the parties arose under the following circumstances :

( 4 ) ON August 20, 1941, Tulshi sold his A block to one Nagendra Nath Ghosh (vide Ext. A ). This was done after Kishori's refusal to pre-empt the same in spite of Tulshi's first offer to him in terms of the above pre-emption clause. Then, on April 22, 1942, Kishori, by the kobala Ext. I, Sold his two blocks B and D to certain persons whom, for convenience, we shall call the Mukherjees, and, on June 21, 1946, the latter, in their turn, sold the said properties to the present plaintiffs, who are the respondents before us, and who may, for the sake of brevity and convenience, be described as the Hazias. This latter sale was effected by the kobala Ext. 1 (a ). Then, on 20th September, 1952, Nagendra sold his block A to defendant No. 1 (vide kobala Ext. A-1), and, on 2nd December, 1952, the present suit was filed by the plaintiff against the said purchaser, defendant No. 1, for pre-empting his aforesaid purchase. On 7th April, 1953, while the suit was pending in the trial court, defendant No. 1 sold the disputed property (Block A) to defendant No 2 and the latter also resisted the plaintiffs' claim, along with his vendor defendant No. 1. Their defence, however, failed before the learned Subordinate Judge and, feeling aggrieved, they filed) the present appeal.

( 5 ) IT appears from the pleadings before us and the evidence in the case that, when the Mukherjees purchased from Kishori, there was a prior offer to Tulshi and Nagendra, but they declined to exercise their right of pre-emption under the aforesaid term or clause of the partition award. The further evidence, however, on the plaintiffs' side that a similar offer was made to the said persons when the Mukherjees sold to the plaintiffs is not very much acceptable, having regard to the nature of the said evidence, and the absence of any such statement in the plaint. That, however, is not very material for our present purpose, and we would rely primarily on the construction of the aforesaid clause and its-scope and effect in the light of the relevant provisions of law for determination of the rights of the parties in regard to the matter in dispute, remembering - and that is very material - that the defendants-appellants do not now and cannot claim to be transferees without notice of the above pre