MEHROTRA, J. : 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. 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. 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 specific performance of the contract is also resisted on the ground that the defendant No. 2 had no knowledge of the con­tract, and that the land was offered to the plaintiff as well as other members of the community, but they all refused to purchase it. The validity of the contract is also challenged on the ground that it is vague and against public policy. It was lastly alleged in the written state­ment that the suit was barred by non-joinder of necessary parties. All the parties to the agreement or their heirs have not been impleaded, and in the absence of all the parties to the agreement, no de­cree for pre-emption could be granted in favour of the plaintiff alone. (5) Both the Courts below decreed the suit and repelled the contentions raised by the defendant 'No. 2. In the present appeal, Mr. Chaudhuri has contended that the agreement confers no right of pre-emption on the plaintiff; it is only a prohibitory contract and, if at all, it places a restriction on the right of the defendant No. 1 to alienate his share of the property to persons other than the contracting parties or members of the community, but it does not create any right in favour of the parties to the contract to pre-empt the sale. He then contends that if the agreement is interpreted to mean creating an estate in favour of the plaintiff, it is hit by S. 14j of the Transfer of Property Act. He has further urged that if the document res­tricts the right of the defendant No. 1 to alienate the property, it is void under S. 10 of the Transfer of Property Act. He has also urged that the contract is not enforceable as it is vague, and that the appel­lant is a bona fide purchaser for value without know­ledge of the contract. He has also urged that the contract is not enforceable as it is vague, and that the appel­lant is a bona fide purchaser for value without know­ledge of the contract. According to the defendant] appellant, defendant No. 1 offered to sell the land to the parties to the agreement and, failing them, to members of the community, but none of them came forward to purchase the land and, therefore, the defendant No. 1 was no longer obliged to offer it for sale to the plaintiff, and, the sale in favour of the defendant No. 2 could not be defeated. He has also urged that the suit is barred by non-joinder of neces­sary parties. (6) The main question to be considered is - whether the agreement of 20-7-1949 contains a clause conferring a right of pre-emption on the par­ties to the agreement. The relevant clause of the document - which is in Bengali - has been trans­lated for our benefit by the counsel for the appellants as follows : ".....(2) If we tile parties sell any portion of the lands purchased by us, then we shall sell the same amongst the parties at the prevailing market rate. If any one amongst the parties does not pur­chase the same, we shall sell it to one belonging to our community. Otherwise the sale will be invalid." |n this clause, it would be better to translate the portion "If any one amongst the parties does not purchase" as "If none of the parties purchased". The translation is admitted to be substantially correct by the counsel for the respondents. (7) The land in specific areas was purchased under separate sale deeds by ten persons. Each of the vendees had no tide to any specific piece of the land. The land, therefore, had to be partitioned and the rights of the purchasers had to be declared In respect of specific areas by demarcation. The agreement in* question was executed with a view to partition the land, and the defendant No. 1 was given a choice to get 3 B. 12 K. 12 Ch. of the land. Under that background, the agreement of 20-7-1949, was executed. The agreement in* question was executed with a view to partition the land, and the defendant No. 1 was given a choice to get 3 B. 12 K. 12 Ch. of the land. Under that background, the agreement of 20-7-1949, was executed. The counsel for the respondents has emphasised the first part of clause (2) of the agreement, and has contended that there was an obligation on the part of the parties to offer their shares of the property for sale, to the other contracting parties, if they ever intended to dispose of the same, and in case the contracting parties declined to purchase the property, it could be sold to a member or members of the community. The agreement, therefore, according to the counsel for the respondents, made it obligatory to either of the contracting parties to offer the land for sale to a co-purchaser, and there was a corres­ponding right in the parties to the agreement to en­force their right of purchase jointly or severally, and such an obligation was enforceable against a pur­chaser with notice of the contract. The appellant has, however, contended that the clause has got to be read as a whole. It only places a restriction on the right of the contracting parties to alienate their shares of the property. There is no obligation on the part of the contracting par­ties to offer their shares of the property for sale to the other contracting parties, which is enforceable by them. Particular emphasis is laid on the concluding words of tie paragraph "Otherwise the sale will be invalid". According to the appellant, the only con­sequence which results from a violation of the terms of the contract, namely, selling the land to a person who is neither a contracting party nor a member of the community, is that the deed of agreement be­comes void. The whole scheme of the agreement, according' to the appellant, is that the land which falls to the share of a particular party after partition, is subject to the condition that the right to alienate it is res­tricted, and if such a clause is not hit by any of the provisions of the Transfer of Property Act, the agree­ment is a valid one. The effect of the clause being valid will be that any person who is entitled to the property as an heir, may be entitled to challenge the validity of the transfer; but in the absence of any express provision giving a right of pre-emption, the present suit is not maintainable. We have carefully considered Cl. (2) of the deed, and we are inclined to accept the interpretation put by the appellant on the aforesaid clause. The agreement has to be read as a whole. By this deed of partition, the purchasers got specific properties. They became owners of specific proper­ties in place of certain shares in the entire land. Their right of ownership has however been, by the agreement, curtailed to the extent that they could not alienate the property to any person outside the community; but there are no words in Cl. (2) of the document to the effect that there was any obligation on the parties to the agreement, if and when they intended to sell their shares, to offer them for sale to the other contracting parties, jointly or severally. Each document will have to be interpreted on its own language. It was contended by the counsel for the respon­dents that there is no bar to the execution of a con­tract of sale in favour of a number of persons jointly, and further that a right of pre-emption can be avail­able to a number of persons jointly or severally. The fact, therefore, that under this agreement, there was an obligation to sell the land to any of the par­ties to the agreement or to all of them, cannot be said to be illegal, and it cannot be argued from that that the contract was vague. As we have already pointed out, when the ag­reement is read as a whole, it only creates a restric­tion on the right of the parties to the agreement in respect of the land allotted to them and does not impose any obligation on them to offer their shares of the land to the other contracting parties for sale. I Whether such a restriction i» valid or not, is a question which can be determined only when a person entitled to the property claims it and asserts that the transfer does not affect his right. I Whether such a restriction i» valid or not, is a question which can be determined only when a person entitled to the property claims it and asserts that the transfer does not affect his right. In the present suit, unless the plaintiff succeeds in showing that the contract gives him a right of pre-emption, he cannot succeed, and on the finding' that the disputed agreement gives no such right to the plaintiff, it may not be necessary to go into the broader question - whether a covenant of pre-emp­tion is hit by a rule of perpetuity or not, and whe­ther the present restriction imposed on the rights of the contracting parties is repugnant to S. 10 of the Transfer of Property Act, or not. In our opinion, however, the agreement, if it can be taken to mean conferring a right of pre-emption to the plaintiff, is not hit by S. 14 or S. 10 of the Transfer of Property I Act. The rule of perpetuity is now embodied in S. 14 of the Transfer of Property Act. Prior to the com­ing in force of the said Act, there was divergence of opinion in various High Courts. It was contend­ed that the principles governing a contract of sale in English law were equally applicable to India, and the contract of sale created an interest in favour of the prospective purchaser, and thus such an agree­ment was hit by the rule of perpetuity. After the coming into force of the Transfer of Property Act and after S. 54 of the said Act, this contention has not force. Section 54 of the Transfer of Property Act provides that "a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." Sec. 14 of the Transfer of Property Act provides that "no transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong." This section embodies the rule of perpetuity. Ac­cording to Jarman, "A perpetuity, in the primary sense of the word, is a disposition which makes property inalienable for an indefinite period." "Lewis on Perpetuities" has defined 'perpetuity' thus : "A perpetuity is a future limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within the period fixed and prescribed by law for the creation of future estates and interests." It is thus a branch of the law of property, and not of the law of contract. The opening words of S. 14 of the Transfer of Property Act prohibit the creation of an interest which is to take effect after the life-time of one or more persons living at the date of such transfer. If a contract does not create any interest in favour of an individual or any party, such a contract does not come within the purview of S. 14 . Ordinarily, as we have pointed out, a contract for sale does not create any interest in favour of the prospective pur­chaser. Any contract, therefore, which embodies a right of pre-emption, is nothing more than a contingent contract for sale which becomes enforceable J when the party- to the contract intends to dispose of certain property. It does not create any estate in favour of the party to whom the property is to be offered for sale in future. Such a contract, therefore, does not come within the purview of S. 14 of the Transfer of Property Act. The point has been dealt with elaborate­ly by the Full Bench decisions in Ali Hossain Mian v. Rajkumar Haldar, AIR 1943 Gal 417, and the Full Bench decision of the Allahabad High Court in Aulad Ali v. Ali Athar, AIR 1927 All 170. We are in complete agreement with the views expressed in the aforesaid decisions. Reliance was placed on the case of Dinkerrao Ganpatrao v. Narayan Vish-wanath Mandalik, AIR 1922 Bom 84. In that case, the learned Chief Justice no doubt laid down that "in respect of contract of the transfer of property by way of sale or pre-emption, it must be held on general principles of jurisprudence, thafi there should be some time limit beyond which the performance of contract must not be allowed to be held in suspense or postponed. In that case, the learned Chief Justice no doubt laid down that "in respect of contract of the transfer of property by way of sale or pre-emption, it must be held on general principles of jurisprudence, thafi there should be some time limit beyond which the performance of contract must not be allowed to be held in suspense or postponed. Although S. 14 of the Transfer of Property Act deals only with trans­fer, the provisions of that section could in some cases be practically defeated if covenants are not held to be void for remoteness on the ground that, by them­selves, they create no interest in property. The same rule should be applied to a case, not of specific performance^ but of declaration of right. The law in England and India is substantially the same with regard to the enforcement of the contract. If such a contract purports to do, by indirect means, what the law forbids to be done directly, it is void." But the contract with which they were dealing in that case was one of 1878 prior to the coming into force of the Transfer of Property Act. Even if this case could be said to have laid down the law that such a contract is void, we do not think that it lays down a correct law. In our opinion, the correctness of the reasoning is open to question. The covenant is either a personal covenant or a covenant creating an interest in land. If it creates an interest in land, it will certainly offend the rule against perpetuity. But, as in view of the provisions of S. 54 of the Transfer of Property Act, such a contract creates no interest in land, there is no warranty to hold that such a contract will be hit by S. 14, or that there is any rule of law which makes such a contract against public policy. If the rule of perpetuity does not apply to personal con­tracts, there is no rule of law against perpetuity ap­plicable to such contracts. If the rule of perpetuity does not apply to personal con­tracts, there is no rule of law against perpetuity ap­plicable to such contracts. In a later Full Bench decision in "Harkisandas Bhagvandas v. Bai Dhanu" AIR 1926 Bom 497, their Lordships of the Bombay High Court have preferr­ed to follow the view of the Allahabad High Court and have laid down that the observations in the ear­lier Case to the effect that the principle laid down therein applies to cases of contract after the Trans­fer of Property Act, were obiter dicta. It was held that S. 14 of the Transfer of Property Act cannot be held to cover a case of a contract for sale, which, under S. 54 does not create an interest in the land. The Madras High Court had also taken the view in the case of "Kolathu Ayyar v. Ranga Vidhyar", ILR 38 Mad 114: (AIR 1916 Mad 856), that there was no substantial difference as regards the agree­ment of sale between the English and the Indian Law, but subsequently they treated such cove­nants as personal covenants not affected by the rule against perpetuity (see Rajammal v. R. Gopa-laswami Naidu, AIR 1951 Mad 767 ). There is, therefore, a consensus of authorities, and we ourselves are inclined to agree with those authorities which hold that a contract for sale or a contract giving a right of pre-emption does not vio­late the ride against perpetuity. It is, in our opinion covered by the second clause of S. 40 of the Transfer of Property Act, which provides that "where a third person is entitled to the bene­fit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or ease­ment thereon, such right or obligation may be en­forced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for conside­ration and without notice of the right or obliga­tion, nor against such property in his hands." A contact giving a right of pre-emption creates an obligation in favour of a third party, and though such contracts do not create" any interest in land, they are annexed to the ownership of immovable property and are enforceable under S. 40 of the Transfer of Property Act. The other line of argument is that the right which is conferred on the parties to the contract in respect of the share of property allotted to them, is restricted inasmuch as they could not sell it to a person outside the community, and to that ex­tent the agreement in question was hit by S. 10 of the Transfer of Property Act. Section 10 of the Act provides that "where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void....." There are two difficulties in the present case in ap­plying S. 10 to the present agreement. Firstly, it cannot be said that any property has been trans­ferred under this agreement. The properties had already been transferred under different kabalas. What this agreement has done is that it has only specified the properties which were sold to the par­ties to the agreement under the kabal'as. (The parties have mutually partitioned the property.) Secondly, it cannot be said that the condition im­posed or limitation placed is an absolute one. The agreement no doubt restricts the right of the con­tracting parties to alienate their shares of the pro­perty to persons other than the contracting par­ties or members of their community, but it can­not be regarded as absolutely restraining right of transfer. In the case of Mohammad Raza v. Mt, Abbas Bandi.Bibi, AIR 1932 PC 158, while con­sidering a deed of family arrangement, it was held by their Lordships of the Privy Council that "where a person has been allowed to take property upon the express agreement that it shall not be alienated outside the family," such a restriction was only a partial restriction and it was not repugnant to justice, equity and good conscience and was not hit by S. 10 of the Trans­fer of Property Act. In that case, on a suit for recovery of a certain property, a compromise had been arrived at and under the terms of the compro­mise, certain property was given to the defendant No. 6 of that suit, with a covenant that the defen­dant No. 6 had no right to sell the property out­side the family. In that case, on a suit for recovery of a certain property, a compromise had been arrived at and under the terms of the compro­mise, certain property was given to the defendant No. 6 of that suit, with a covenant that the defen­dant No. 6 had no right to sell the property out­side the family. The property was sold by the defendant and the heirs of the defendant brought, after her death, a suit for recovery of their share of the property. The contention was that the transfers by the lady were invalid, and the transferees contested the suit on the ground that the covenant restraining her right to sell the property was repugnant to S. 10 of the Transfer of Property Act and, as such, was void. It was held in that connection that the restriction being a limited one was not repug­nant to S. 10 of the Transfer of Property Act and was thus valid. This case is to our mind a com­plete answer to the contention of the appellant that the clause was invalid as being repugnant to S. 10 of the Act. (8) As regards the question of notice to the appellant, it is contended by the respondents that the question of notice is one of fact, and the Courts below having categorically found that the defendant had notice of the contract, this Court in Se­cond Appeal will not upset that finding It was also contended that the finding of the Courts be­low that the land was never offered to the plain­tiff, is also conclusive as it is based on evidence on the record. In the view which we have taken of the agreement, it is not necessary to go into this question. On the finding that the agreement gives no right of pre-emption to the plaintiff and it only restricts the right of the parties to the agree­ment to alienate their property, these questions do not arise for decision. (9) There is one short point which may also be considered. Even if we had held that the plain­tiff was entitled, under the agreement, to claim a right of pre-emption, he was not entitled to a de­cree for the entire land. Out of the land claimed, 12 K. 2 Ch. appertaining to all the disputed dags was purchased by the defendant No. 1 subsequent to the agreement. Even if we had held that the plain­tiff was entitled, under the agreement, to claim a right of pre-emption, he was not entitled to a de­cree for the entire land. Out of the land claimed, 12 K. 2 Ch. appertaining to all the disputed dags was purchased by the defendant No. 1 subsequent to the agreement. Clause (2) of the agreement, therefore, in terms would not apply to such a pro­perty. The agreement related only to the proper­ties which had been purchased and which were partitioned in accordance with the agreement, and not to the properties which would be purchased by any of the contracting parties subsequent to the deed. The suit of the plaintiff, therefore, in res­pect of those areas could not be decreed in any event of the matter. (30) The learned counsel for the respondents drew our attention to a number of cases of the Supreme Court on the question of the scope and the origin of the right of pre-emption. Particular reference may be made to the cases of Audh Behari Singh v. Gajadhar Jaipufia, AIR 1954 SC 417 , and Bishan Singh v. Khajan Singh. AIR 1958 SC 838 , In the first case, particular emphasis was laid on the following observations at p. 421 of the report: "In other words, the right of pre-emption is) a sort of legal servitude running with the land. The( right exists, as the learned Judge said, in the owner of the pre-emptive tenement for the time being which entitles him to have an offer of sale made to him, whenever the owner of the pre-emptional property desires to sell it. But the right could not be a right of re-purchase either from the vendor or the vendee involving a new contract of sale” At p. 422 it was further observed that "the crux of the whole thing is that the bene­fit as well as the burden of the right of pre-emp­tion run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restraining his right of sale in a certain manner, a 'bona fide' purchaser without notice would certainly obtain an absolute title to the pro­perty, unhampered by any right of the pre-emptor and in such circumstances, there could be no jus­tification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good conscience, on which grounds alone the right could be enforced at the present day. In our opinion, the law of pre-emption creates a right which attaches to the property and on that foot­ing only, it can be enforced against the purchaser." That was a case dealing with the right of pre-emp­tion under custom, and these observations are to be read in the light of the facts of that case. Once it is held that the right of pre-emption is available to the plaintiff, either under a custom, personal law or contract, such a right can be enforced not only as against the parties to the contract buff also against a transferee on the footing that though such a right does not create an interest in the land, it is a right in respect of the land, but that does not give any assistance in so far as the interpretation of the agreement is concerned. The second case was also a case under the Punjab Pre­emption Act (1 of 1913) and cannot be of much assistance in the interpretation of the agreement. It cannot be disputed that the right of pre-emp­tion had its origin in an agreement, but each agree­ment which is the foundation of the plaintiffs right in a case, has to be interpretated on its own lan­guage. As has been pointed out in this very case, "the right of pre-emption is not a right to the thing sold, but a right to the offer of a thing about to be sold." This right has been called a primary right or in­herent right. The pre-emptor also has a secondary right or a remedial right to follow the thing sold, and that right is a right of substitution, and not a right of re-purchase. The pre-emptor also has a secondary right or a remedial right to follow the thing sold, and that right is a right of substitution, and not a right of re-purchase. Unless, therefore, under the agreement, a right to the offer of the thing to be sold is conferred, it cannot be said that the parties to the agreement have acquired any right of pre­emption under the agreement. We have elabo­rately dealt with this point and1 have pointed out that the agreement related to the thing which was the subject-matter of the agreement, and not to the right to the offer of a thing. It restricted the right! of alienation of the parties to the agreement, but did not confer a corresponding right to the offer of the property when intended to be sold. There has been no conferment of the primary or inhe­rent right of pre-emption under this agreement. (11) The counsel for the respondents also re­ferred to cases reported in Oodey Chand Boodajr v. Bhaskar Jagannath, ILR 6 All 371, Jhanday Lal ' v. Sarinan Lal, ILR 21 AH 291 and Mohammad Wajid Ali Khan v. Puran Singh, AIR 1929 PC 58, For the proposition that the right of pre-emption can be available to a number of persons jointly ' and severally, and a suit cannot be defeated if a proper decree can be passed in favour of the plaintiff in respect of the right available to him, I severally as well as jointly with others. It is not necessary to examine those cases, as we have held that, on the interpretation of the agreement, no right of pre-emption has been conferred on the plaintiff. (12) In the result, therefore, the suit should have been dismissed. We accordingly allow this appeal, set aside the decision of the Courts be­low and dismiss the suit, but as the appellant suc­ceeds on a point not specifically raised before the Courts below, the parties will bear their own costs. (13) DEKA, Ag. C. J. : I agree. BD/D. H. Z. Appeal allowed.