Judgement BINDRA, J. :- The appellants Hirendra Nath Datta Roy and Dhirendra Nath Dutta Roy, real brothers, are plaintiffs of the suit out of which this Letters Patent Appeal has arisen, and they were joint owners of a parcel of land in the town of Silchar along with Kshitlsh Chandra Datta Roy, and Surjya Kanta Datta Roy, who were cited respectively as defendants Nos. 2 and 3, and one Akhil Chandra Datta Roy, who having died by the date of the suit his heirs were im-pleaded as defendants Nos. 4 to 8. The joint parcel of land was divided between the co-owners by the registered deed Ext. 1 dated 4-3-1936. Clause Ja of that deed, which alone is relevant for our purposes, was translated by the learned Single Judge as under :- "If in future any of the co-sharers intends to sell his share then he would intimate his intention by a registered notice giving one months time to the other co-sharers to purchase the land offered for sale at the prevailing market price and if within the time the other co-sharers intimate their intention to purchase the land from the proposed seller, then the land would be sold to the intending co-sharer. Without such a notice if the land is sold to others the sale would be invalid or void. If on receipt of such notice none of the co-sharers intimate their intention within the time the proposed seller can sell the land to others." 2. By the sale-deed Ex. A, dated 21-8-1961, the defendant No. 2 Kshitish Chandra Datta Roy sold that part of the joint land to defendant No. 1 Rajendra Chandra Roy for a sum of Rs. 2,000.00 which had fallen to his share under the partition deed Ex. 1. It appears that before the partition the defendant No. 1 had taken that part of land on rent from all the co-sharers and had built a house thereon at his own expense. Soon after the partition in 1936 the defendant No. 1 attorned to the defendant No. 2 and began paying rent to him. 3. The two plaintiffs filed suit for possession by pre-emption of the land sold by defendant No. 2 to defendant No. 1 on the authority of Clause Ja of the partition deed. They offered to pay the sum of Rs. 2,000.00 for which the defendant No. 1 bad purchased the land. 4. 3. The two plaintiffs filed suit for possession by pre-emption of the land sold by defendant No. 2 to defendant No. 1 on the authority of Clause Ja of the partition deed. They offered to pay the sum of Rs. 2,000.00 for which the defendant No. 1 bad purchased the land. 4. The suit was resisted by the vendee on divers grounds including the two that he had no knowledge about the partition deed between the parties or that the partition deed contained a pre-emption clause. He also happened to plead that he was a bona fide purchaser for value without notice of the pre-emption clause and as such the suit of the plaintiffs was mis-conceived. 5. The suit was dismissed by the trial Court and that dismissal was upheld on appeal by the District Judge. Those Courts were of the view that Clause Ja of Ext. 1 confers no right of pre-emption on the plaintiffs but only imposes restriction on the rights of the ex-co-sharers in the matter of selling parts of the joint land that fell to their respective shares under the partition deed. 6. The plaintiffs having felt aggrieved with the decree of the District Judge filed a second appeal in the High Court which came up for hearing before K.C. Sen, J., who by his judgement dated 2nd April, 1969, disagreed with the concurrent finding of the two Courts below that Clause Ja does not give right of pre-emption but still rejected the appeal on holding, firstly, that the plaintiffs bad failed to prove that the vendee had notice of the pre-emption clause contained in Ex. 1 and, secondly, that the vendee happened to be a bona fide transferee for consideration without notice. In the Letters Patent appeal filed by the plaintiffs primarily these two findings of the learned Single Judge require scrutiny. 7. Though in the initial stages of the arguments Sri S.K. Ghose, representing the appellants, urged that the vendee had factual notice of the terms of Ext. 1 by the time he purchased the land besides the constructive notive provided for in Explanation 1 to the definition of the expression "a person is said to have notice" given in Section 3 of the Transfer of Property Act, hereinafter called the Act, but towards the close of his arguments he confined himself to this last mentioned constructive notice. 1 by the time he purchased the land besides the constructive notive provided for in Explanation 1 to the definition of the expression "a person is said to have notice" given in Section 3 of the Transfer of Property Act, hereinafter called the Act, but towards the close of his arguments he confined himself to this last mentioned constructive notice. We believe Sri Ghose exhibited practical wisdom in dropping the contention that the vendee is proved to have had factual notice about the deed Ext. 1 and its contents. There is not a little of evidence to sustain such a contention. 8. Let us now examine whether it is possible for this Court to hold that the defendant No. 1 had constructive notice of the partition deed Ex. 1 and its contents. According to Section 3 of the Act a person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an injury or search which he ought to have made, or gross negligence, he would have known it. Explanation 1 to this part of Section 3 reads as under :- "Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under Sub-Section (2) of Section 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated : Provided that - (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act." 9. The opening words of the Explanation alone were the subject of controversy between the parties counsel during the course of protracted arguments. Sri Choudhury urged for the vendee that Explanation 1 operates only when the "transaction" relating to immovable property is required by taw to be effected by "registered instrument" and that since no law provides that partition of immovable property can be effected only by registered instrument, the applicability of Explanation 1 is not attracted in respect of partition deeds. 10. The opening words of the Explanation may be re-read to assess the worth of the argument raised by Sri Choudhury. They are : "Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument." It looks clear that the transaction to fall within the scope of the Explanation must relate to immovable property, it must be required by law to be effected by a registered instrument, and again such transaction should have been effected by a registered instrument. Shri Choudhury invited our attention to various provisions of the Act, such as Sections 54, 58 and 123, which require certain transactions to be made by registered instruments to fortify his submission. Section 54 defines "sale" and provides further that sale respecting tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. Section 107 of the Act likewise enacts that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument. S.123 of the Act states that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. It is a direction of law like the one contained in Section 54, Section 107 and Section 123, Sri Choudhury urged, which is contemplated by Explanation 1 under debate. He stated further that since no law provides that partition of immovable property, whatever its value, should be or can be effected only by a registered instrument, any transaction of partition though made by a registered instrument would fall outside she purview of explanation 1. There appears to be considerable force in the submissions made by Sri Choudhury. 11. He stated further that since no law provides that partition of immovable property, whatever its value, should be or can be effected only by a registered instrument, any transaction of partition though made by a registered instrument would fall outside she purview of explanation 1. There appears to be considerable force in the submissions made by Sri Choudhury. 11. Sri Ghose canvassed on the contrary that once a transaction-in the nature of partition relating to immovable property of the value of rupees one hundred or more is incorporated in an instrument then it shall require compulsory registration as ordained by Section 17(1)(b) of the Indian Registration Act, and if so registered it shall fall within the ambit of Explanation 1. Section 17(1)(b) provides that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, shall be registered. It is manifest that what Section 19(1)(b) provides is that if the transaction of the nature mentioned therein is made by a non-testamentary instrument, such instrument shall require registration. That provision does not however enjoin that the transactions of the nature envisaged by clause (b) must be made by registered instruments unlike what is-stated in Sections 54, 107 and 123 of the Act. Therefore, we cannot read Section 17(1)(b) as providing, expressly or impliedly, that transactions in the nature of partition of immovable properties of the value of rupees one hundred or upwards must necessarily be made by an instrument though we agree that once such a transaction is incorporated in an instrument that instrument shall require compulsory registration. It follows unmistakably that there is no provision of law enjoining that transactions in the nature of partition of immovable properties must be effected by registered instruments and as such the deed Ext. 1, on which alone reliance was placed by Sri Ghose as giving constructive notice to defendant No. 1, falls outside the apparently wide scope of Explanation 1. Before proceeding further we would like to mention that Sri Ghose referred to AIR 1968 SC 1299 , Siromani v. Hemkumar, to establish that a deed of partition respecting immovable property of the value of rupees one hundred and upwards does require compulsory registration. Before proceeding further we would like to mention that Sri Ghose referred to AIR 1968 SC 1299 , Siromani v. Hemkumar, to establish that a deed of partition respecting immovable property of the value of rupees one hundred and upwards does require compulsory registration. We have no fight with this proposition of law. However, that proposition by itself does not help advance the contention that there is some provision of law enjoining that the partition of immovable property must be effected by a registered instrument, and unless there is such a provision the transaction in the nature of partition would not be covered by Explanation 1. 12. If registration of an instrument is not constructive notice within the meaning of Explanation 1, then there would be no obligation on a person who may be affected by a registered partition deed to search the registers maintained in the Sub-Registrars Office. Since the instrument of partition Ex. 1 does not answer the description of instruments the Explanation 1 refers to, we are left with no option but to hold that it remains unproved that the defendant No. 1 had the notice about the contents of Ex. 1. If so, then he being a purchaser for consideration the plaintiffs cannot successfully pre-empt the sale in his favour. 13. We would like to notice briefly another two submissions made by Sri P. Choudhury. In the first place he urged that the present suit being a suit for specific performance of contract it must fail on the short ground that the plaintiffs never pleaded that they had been willing to perform their part of the agreement and are still ready to do so. Sri Choudhury cited (1969) 2 SCC 539 , Ouseph Varghese v. Joseph Aley, to fortify his contention. I think this argument has to be rejected summarily. Clause Ja of the partition deed Ex. 1 in our opinion is not a contract for sale of immovable property, nor the suit for specific performance of such a contract. In substance, clause "Ja" is a clause making it obligatory on each one of the quondam joint owners to offer first choice of purchase to the others if he or they want to sell the part or parts of the joint land allotted to him or them by the transaction of partition evidenced by Ex. 1. In substance, clause "Ja" is a clause making it obligatory on each one of the quondam joint owners to offer first choice of purchase to the others if he or they want to sell the part or parts of the joint land allotted to him or them by the transaction of partition evidenced by Ex. 1. It is only a contract for sale of immovable property which can be specifically enforced and not the agreement of the nature mentioned in clause Ja. Further, a contract for sale of an immovable property falls in the category of mutual contracts, entitling each party to compel the other to perform the same specifically. However, on the authority of clause Ja of Ex. 1 the quondam joint owner anxious to sell the plot of laud which fell to his share at the time of partition cannot compel any of his erstwhile joint owners to purchase the same. He can at best give them the first choice to purchase. Nor can any of his co-sharers force him to sell his plot to them. The right under clause Ja arises only after the sale has been effected by one or more of their co-sharers. Therefore, we reject the argument raised by Sri Choudhury. 14. Sri Choudhurys other point was that all the erstwhile joint owners were necessary parties to the present suit and that since none other than the vendor had been impleaded, the suit cannot be said to be properly constituted. We believe this argument was adopted without looking into the plaint which shows at its face that all the joint owners or their successors-in-interest had been impleaded. 15. In view of the finding that the plaintiffs have failed to prove that the vendee had direct or constructive notice of the contents of the partition deed Ex. 1, the appeal must fail because the vendee is proved to have purchased the land for consideration without notice of the obligation that rested on his vendor in terms of clause Ja of Ex. 1. This conclusion follows from Section 40 of the Act. 1, the appeal must fail because the vendee is proved to have purchased the land for consideration without notice of the obligation that rested on his vendor in terms of clause Ja of Ex. 1. This conclusion follows from Section 40 of the Act. It provides inter alia that where a third person is entitled to the benefit of an obligation arising out of a contract, and annexed to the ownership of the immovable property, but not amounting to interest therein, such obligation can 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 obligation nor against such property in ids hands. Reference in this respect is invited to AIR 1967 SC 744 , Ram Baran v. Ram Mohit, where the matter was examined threadbare. 16. Consequently the appeal fails and is dismissed but we make no order as to costs of this appeal. BAHARUL ISLAM, J. :- I agree. Appeal dismissed.