JUDGMENT

Walsh, Ag. C.J.

1. We are of opinion that this is a clear case, and we agree with the judgment of our brother Mr. Justice Lindsay.

2. I propose to give my reasons as shortly as possible. The question arises out of a contract, which may be compendiously stated as one for exchange by the parties thereto of certain properties belonging respectively to each of them. It relates to a certain mauza, in respect of which Muhammad Razi transferred the whole of his interest, except one pie, and the parties entered into a mutual agreement as a fundamental condition of sale, that if either of them should wish to transfer the whole, or part, of his share in that mauza, that is to say as regards the transferee Nasir Uddin, what he was taking under the document, and as regards the transferrer Muhammad Razi, the single pie share which he was reserving to himself they might do so by transferring it from one to the other but if either of them desired, or in fact attempted to transfer to a third person, the other party was to have the right to pre-empt. That is a perfectly harmless and natural mutual arrangement, very common in India, quite intelligible, the object being that so long as the parties to the transaction preferred to keep out third parsons from the body of co-sharers, they should have a right of veto. In other words, it cannot be described better than creating an obligation, imposing a restriction on the use of the land by each of the parties to the contract respectively. To my mind there is no uncertainty about such a contract. It is as clear and definite as language can make a contract, and with all respect to my brother Sulaiman's view, it seems to me that is the fallacy underlying his opinion.

3. I, therefore, think that Section 32 of the Contract Act which deals with contingent contracts is a complete answer to the appellants' contentions. The right springs into existence upon the happening of a contingency. There is nothing in the contract which offends against law upon that subject. I am also clearly of opinion that Section 37 confers the benefit and imposes the obligation upon the representatives of the parties if the parties should die before the contingency occurs, and I do not understand my brother Sulaiman really to have denied that proposition.

4. Mr. O'Conor quite rightly, having regard to the state of the authorities on the point, relied upon the contention that this contract, and other similar contracts, offended against the rules against perpetuities. Having the advantage in India of having most of our law codified, it is always useful both at the beginning and end of a discussion, to look at what the Code says. The rule against perpetuity is codified in Section 14 of the Transfer of Property Act, which begins in these words "No transfer of property can operate." Documents, and mutual rights, and obligations, contained in contracts, such as that with which we are here dealing, are not a transfer of property at all. Therefore Section 14 clearly has no applicability. That would be a complete answer to the argument, were it not that two experienced Judges of this Court in dealing on two previous occasions with this precise matter, followed a decision of the Bombay High Court in Dinkarrao Ganpatrao v. Narayan Vishwanath AIR 1922 Bom. 84 and of the Madras High Court in Kolathu Iyer v. Manga Vadhyar [1912] 38 Mad. 114. As the matter has been expressly referred to us for the purpose, it is our duty to express our opinion about those two decisions. They do not appear to have been based on any independent reasoning of the two learned Judges themselves. They adopt the view which had been laid down after a very elaborate consideration and judgment in Bombay. With great respect to the Judges, who decided the Bombay case, it seems to me that they drifted into this fallacy. The learned Chief Judge's judgment complains that difficulty arises in India owing to the distinction that exists between the law in India and the law in E