JUDGMENT

1. These appeals have arisen out of a suit instituted by the plaintiff to enforce a right of pre-emption. The plaintiff and defendant 2 were cosharers in respect of a homestead, the plaintiff having a 12 annas share and defendant 2 the remaining 4 annas share. Then there was an agreement between the parties, the relevant terms whereof are set out below, and the substance thereof was that neither party would be competent to sell his share in the homestead but to the other. Thereafter defendant 2 mortgaged his 4 annas share in the homestead to the plaintiff and afterwards sold it to defendant 1. The plaintiff then instituted this suit for a declaration that the sale held as aforesaid in contravention of the agreement was ineffectual as against him, and for a sale-deed being executed in his favour on receipt of the value of the share minus the money due on the mortgage, and for other reliefs. The main defence of the defendants was that the agreement was void as being due to undue influence, and misrepresentation and that defendant 1 was a bona fide purchaser for value. The Courts below have decreed the suit in a modified form. The defendants as well as the plaintiff have then appealed to this Court, the appeal of the defendants being S.A. No. 556 of 1926 and that of the plaintiff, S.A. No. 624 of 1926. It will be convenient to deal with the appeals separately.

S.A. No. 556 o/1926.

2. Appeal No. 556 of 1926 was preferred by both the defendants; but defendant 1 died and his heirs have not come forward to be substituted in his place. The position therefore is that the part of the decree of the Court below which declared that the sale by defendant 2 to defendant 1 was invalid and inoperative as against the plaintiff stands unchallenged. The appeal in so far as it is at the instance of defendant 2 is directed against, and its scope is limited to, the part of the decree which runs in these words:

Defendant 2 is further directed to execute a deed of sale to the plaintiff in respect of his 4 anna share in the homestead in suit within a month of the deposit into Court by the plaintiff of Rs. 600 as the price of the sale to the credit of defendant 2. One month's time is allowed to the plaintiff for the deposit. On failure to make the deposit, so much of the decree as directs the sale-deed in favour of the plaintiff will be treated as cancelled.

3. The principal ground on which the decree is challenged on behalf of the appellant, namely, defendant 2, is:

that the agreement is void as it offends against the rule against perpetuity and is bad on the ground of remoteness.

4. The plaintiff respondent contends that this contention of the appellant as also his other contentions to which reference will be made hereafter, should not be entertained as his only defence in the trial Court was that the agreement was void as vitiated by undue influence and misrepresentation; but we think we must overrule this objection as, in our opinion defendant 1 being dead, defendant 2 is competent to rely on all such grounds upon which defendant 1 could have resisted and did resist the plaintiff's claim.

5. To deal with the aforesaid contention of the appellant it is necessary in the first instance to set out the relevant portion of the agreement. It runs thus:

This agreement shall be binding against us, our heirs and our representatives-in-interest. Any act done contrary to this agreement will be considered ineffectual and will not be acceptable to a Court of Justice....We settle the price of the entire property given in the schedule below to be Rs. 2,400. Any of our cosharers or any cosharers of our heirs willing to sell his or any portion of his share shall be bound to sell it, for a price proportionate to the price fixed above to the other cosharers and the other cosharer shall be bound to purchase the same. The intending seller shall on no account be competent to sell his share to a third party except as provided below. Any sale contrary to this proviso will b