This appeal has been filed by Mahamud Ali Majumdar who was defendant No. 2 in the Courts' below, and arises out of a suit for directing the de­fendants to execute a kabala in respect of the lands set out in schedule I of the plaint in favour of the plaintiff, for a consideration of Rs. 2625/-. It was further prayed in the suit that in case the defendants failed to execute the kabala within the time allowed by Court, the Court would get the kabala executed. The plaintiff further prayed for delivery of khas pos­session of the lands.

(2) The facts are not much disputed in the case. Briefly, the facts are that the land measuring 12 B. 2 K. 8 Ch. within dags Nos. 174, 176, 177^ 178, 179 and 180 pertaining to R. S. Patta No. 55 of Mauza Dudhpatli, Part V, District: Cachar, set out in Schedule II of the plaint, was owned by the ancestors of Rajkishore Nath, Ratan Moni Nath, Joymoni Nath and Haridhan Nath, four sons of Ram-dhon Nath of Dudhpatli. This land was purchased by the plaintiff and nine other persons mentioned in the margin of paragraph 2 of the plaint, including the defendant No. 1 Churamoni Nath and Baikuntha Nath by different sale deeds, with the intention of putting up houses in their respective plots. The sale deeds did not specify any boundaries iii the said dags, but specific areas were sold to the diffe­rent purchasers.

The share purchased by the defendant No. 1 was 3 B. 12 K. 12 Ch. After the sale deeds had been executed, an agreement was entered into by the different purchasers to partition their respective shares amicably amongst them, and under the agree­ment, Churamoni Nath (defendant No. 1) was allotted 8 B. 12 K. and 12 Ch. out of the entire area, accord­ing to his choice. The rest of the land was parti­tioned by certain respectable elder men of the village amongst the remaining purchasers. 3 B. 12 K. 12 Ch. of land allotted to defendant No. 1 was demarcated according to his choice, and the remain­ing land was partitioned as under the agreement, by members of the village. The various purchasers were put in possession of the shares allotted to them under the partition. Subsequently Churamoni Nath purchased 12 K. 2 Ch. of land in all the dags from another purchaser, Surendra Chandra Nath, and thus his share came to 4 B. 4 K. 14 Ch. Defendant No. 1 Churamoni Nath sold his plot of 4 B. 4 K. 14 Ch. to defendant No. 2, Mahamud Ali Majumdar.

(3) The contention raised by the plaintiff in the present suit is that the agreement by which the various purchasers had agreed to partition the land, contained a covenant to the effect that in the event of any of the parties to the agreement desiring to alienate the land allotted to him under the partition, he would first make an offer of the said land to all or any of the remaining purchasers, and in case they declined to purchase, the land would be sold to a member of the community, and under no event the land could be sold to a stranger or to a member of any other community.

This agreement created an obligation in favour of the plaintiff, and the plaintiff being a party to the contract could specifically enforce that obliga­tion as against the defendant No. 1, who was a party to the agreement, and also against his transferee who had notice of such an agreement. In effect, there­fore, it is a suit for specific performance of the con­tract of sale as against the transferee, with notice of the contract, or, in other words, the plaintiff claims a right of pre-emption under the said agree­ment.

(4) The defence taken is that the agreement does not confer any right of pre-emption on the plaintiff. It was further contended that the agree­ment is hit by the rule of perpetuity as embodied in S. 14 of the Transfer of Property Act. It was also contended that the covenant creates a restric­tion on the right of the parties to the partition deed to dispose of their properties, and thus is hit by S. 10 of the Transfer of Property Act. The right of the plaintiff to get a decree for sp