Judgment 1. In the suit cut of which thus appeal arises the plaintiff claimed a sum of RS. 550.00 together with interest from all the defendants. The case of the plaintiff was that he was the proprietor of 16 annas interest of the bakashi land in tauzi No. 11093 of village Mohammadpur Kazi, and on the 28th June 1926, and the 1st July, 1927, the plaintiff executed registered leases in favour of the ancestors of defendants 2 to 5 with regard to a portion of the bakasht land. The Kabuliats were executed by the lessee Basanto Kumar Chatterji for the respective leases. In the lease of the 28th June, 1926, there is an express covenant that in case the lessee wishes to assign the demised property to anyone else he should first take the consent in writing of the lessor, and if the lessor does not wish to purchase then the lease may be assigned to a third person, who would be liable to pay Rs. 350.00 as chauth money in respect of salami etc. The relevant portion of the registered lease dated the 2am June, 1926, runs as follows : "It may also be noted that if the abovenamed person desire to sell the settled land he shall firstly consult in writing me, the executant. If I, the executant, would not purchase (the same) ho will sell it to some other person and in that case the person who purchase it, shall pay Rs, 350.00 as chauth money in respect of the salami of the settlement. If he (the purchaser) would not do so I, the executant, shall be competent to institute a suit in court for the award of Rs. 350.00 aforesaid and then the entry of the name will be made in respect of the land purchased." There is a similar covenant in the registered lease of the 1st July, 1927, which is to the following effect: "The above person has also declared that if he desires to sell the land let out in settlement, the abovenamed person and his heirs and representatives shall consult me, executant, or my heirs in writing. If I, the executant, do not purchase the same, thereafter the abovenamed person shall sell the said land to some other person. In such circumstances the purchaser shall pay Rs. If I, the executant, do not purchase the same, thereafter the abovenamed person shall sell the said land to some other person. In such circumstances the purchaser shall pay Rs. 200.00 as chauth on account of the salami of the said land let out in settlement to me, the executant, and my heirs and representatives. If he does not do so, I, the executant, am and shall be competent to institute a suit in Court for recovery of Rs. 200/-(rupees two hundred) aforesaid and then I shall record his name in respect of the property purchased by him." It is alleged by the plaintiff that there was an assignment of the leases by defendants 2 to 5 in favour of defendant No. 1 on three different dates, namely, the 24th February, 1946, 5th December, 1916 and 28th January, 1947 and though defendants 2 to 5 bad knowledge of the covenant in the original leases they did not pay the zare chauth money to the plaintiff. Accordingly the plaintiff has brought the present suit for the realisation of the zare chauth money from defendant No. 1 and also from defendants 2 to 5. The trial court granted a decree in favour of the plaintiff as against all the defendants and the liability of the defendants was made joint and several for the payment of the money claimed by the plaintiff. Defendant No. 1 took the matter in appeal before the lower appellate court, but the appeal was dismissed. Defendant No. 1 again took the matter in second appeal to the High Court, and the second appeal was also dismissed by the learned single Judge of the High Court. 2. Defendant No. 1 has presented this appeal Tinder the Letters Patent against the decision of the learned Single Judge, dated the 14th January,.. 1958. 3. The main argument put forward on behalf of the appellant is that the covenant entered into between the plaintiff and defendants 2 to 5 in the two pattas on the 28th June, 1926, and the 1st July, 1927, was a personal covenant and not a-covenant annexed to the ownership of any immoveable property, and so the plaintiff has no right to claim the amount in dispute from defendant No. 1. It was argued on behalf of the appellant that the case does not fall either within the first or the second paragraph of Sec. 40 of the Transfer of Property Act, which is to the following effect : "40. Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property, of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immoveable 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." In our opinion the argument put forward on behalf of the appellant is correct and must be accepted. The question presented for determination in the present case is whether the covenant between the plaintiff and defendants 2 to 5 for the payment of zare chauth is a covenant touching and concerning the land as distinguished from personal covenant which hinds only the parties contracting the lease. It is true that in the present case there is .1 covenant in the two leases giving the option to the plaintiff to take an assignment of the lease from defendants 2 to 5. It is not disputed that such a covenant is a covenant running with the land and if the plaintiff had brought a suit for enforcement of such a covenant against the assignee, namely, defendant No. 1, such a suit would be maintainable. This view is borne out by a decision of the Supreme Court in Audh, Behari Singh V/s. Gajadhar Jaipuria, AIR 1954 SC 417 , where it was held that the right of pre-emption is an incident annexed to the land and the benefit as well as the burden of the right of pre-emption runs 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. But in the present case the question for determination is entirely different. The question is whether the plaintiff is entitled to enforce the suit for the recovery of the zare chauth from the assignee and whether the covenant for the payment of the zare chauth in the lease is a covenant which touches and concerns the land and, therefore is a covenant running with the land. We have no doubt that on a proper construction of the covenant in question in the present case there is only a personal covenant between the plaintiff and the ancestors of defendants 2 to 5 for payment of the zare chauth and that the covenant is not one which concerns and touches the property demised by the plaintiff to defendants 2 to 5- It is important to notice that in both the leases there is a stipulation that if the lessee makes an assignment of the leases to a third party then such third party shall pay the chauth monty to the plaintiff. There is a further stipulation that if the purchaser does not pay the chaulh money then the executant shall be competent to institute a suit in court for the recovery of the amount. It is, therefore, manifest that the payment of the zare chauth is not made a condition precedent for the passing of the title to the assignee. We, therefore, hold that the covenant for payment of the Zare Chauth in both these pattas is only a personal covenant between the plaintiff and the ancestors of defendants 2 to 5 and that the covenant is not one running with the land. It follows, therefore, that the plaintiff cannot sue the assignee, defendant No. 1 for the recovery of the chauth money even though there is a privity of estate as between the plaintiff and defendant No. 1. On behalf of the respondents learned counsel referred to a decision of the Calcutta High Court is Saradakripa Lala V/s. Bepin Chandra Pal, AIR 1923 Cal 679 where it was held that a covenant that an assignee of the lease would pay to the landlord out of the purchase money in his hands one-fourth as nazar was a covenant running with the land which will bind the transferee and the tenant as well. But that case must be distinguished because the covenant contained in the lease in that case was that if the Nazar money was not paid the transfer would be invalid and the lessor would continue to be liable for the rent. As the covenant stipulated that the payment of the one-fourth nazar money was a condition precedent For the passing of title, it was held by the learned Judges of the Calcutta High Court that the covenant for payment of money in that particular case was a covenant running with the land and the lessor was entitled to recover the amount from the assignee of the lease. Learned! Counsel on behalf of the respondents also referred to the decision of the Calcutta High Court in Kumar Chandra V/s. Narendra Nath, AIR 1930 Cal 357, but the decision in that case is also distinguishable for the same reason, and the covenant in the lease which was the subject matter of consideration in that case was similar to the covenant in AIR 1923 Cal 679. On behalf of the respondents reliance was also placed on a decision of the Allahabad High Court in Prabhu Narain Singh V/s. Ramzan, AIR 1919 All 235. But that decision is not of much authority because of a subsequent decision of the Allahabad High Court in Haji Abdul Shakur V/s. Nandlal, AIR 1931 All 552 where the decision of Walsh, J. in AIR 1919 All 235 was not approved and it was held that Section 40 of the Transfer of Property Act will not apply to an obligation arising out of a contract, such as an obligation to pay Zarichaharam. 4 For these reasons we hold that the contract for the payment of Zare Chauth in the two pattas, exhibits A and A (1) dated the 28th June, 1926 and the 1st July, 1927, is not a contract which touches and concerns the land demised, and, therefore, is not a Contract running with the land and the plaintiff is not entitled to a decree for the recovery of the amount of Zare Chauth from defendant No. 1, who is an assignee from defendants 2 to 5. We, therefore, hold that this appeal must be allowed and the decree granted by the lower courts in favour of the plaintiff as against defendant No. 1 must he set aside. We, therefore, hold that this appeal must be allowed and the decree granted by the lower courts in favour of the plaintiff as against defendant No. 1 must he set aside. The decree in favour of the plaintiff will, however, stand so far as defendants 2 to 5 are concerned. 5. We accordingly allow this appeal and set aside the decision of the learned Single Judge of this High Court, dated the 14th January, 1958. There will, however, be no Order as to costs of this Court.