JUDGMENT : P.K. Mohanty, J. - This Second Appeal is directed against the reversing judgment of the learned Second Addtional District Judge, Cuttack allowing the defendants' appeal against the order of the learned Subordinate Judge, Athagarh. 2. The plaintiff's case, in short, was that the suit property-Bari land of A. 0.01 decs, in plot No. 1690/2639 under Khata No. 273 by a deed of family arrangement, Ext. 1 dated 10.3.1956 was executed by the plaintiff and his father on one side and defendant No. 1 on the other incorporating a pre-emptory clause that if any of the aforesaid parties wants to sell the land allotted to his share, then the other party, if prepared to purchase the said property, the demised land cannot be sold to any third party. However, if the party is unable or not interested in purchasing the land on the market value, then it can be sold to any third party. It was alleged that defendant No. 1 violating the aforesaid stipulation in the deed, alienated the suit property to defendant No. 2 Krushna Chandra Bhokta by registered sale deed, Ext. A dated 11.1.1980 for a consideration of Rs. 500/-. The plaintiff, therefore, brought a suit for declaration that the sale deed, Ext. A is illegal and void and for a direction to the defendant No. 1 Nidhi Bhokta to execute the sale deed in respect of the suit property in favour of the plaintiff, failing which the Court may execute the suit sale deed and for permanent injunction. The defendant No. 1 however, took the plea that he has offered to sell the suit property to the plaintiff, but since the plaintiff declined to purchase, he had sold the same to defendant No. 2 under Ext. A and as such, there has been no breach of contract in terms of Ext. 1 by defendant No. 1. 3. Learned Subordinate Judge, Athagarh found that Ext. 1 is a valid document enforciable in law and that defendant No. 1 has violated the terms of the agreement, Ext. 1 dated 18.3.1956. He found Ext. A as illegal and a fraudulent transaction and, therefore, not binding on the plaintiff. The plaintiff was found to be entitled to the relief sought for, for declaring the sale deed, Ext. A as null and void and not binding on the plaintiff. 1 dated 18.3.1956. He found Ext. A as illegal and a fraudulent transaction and, therefore, not binding on the plaintiff. The plaintiff was found to be entitled to the relief sought for, for declaring the sale deed, Ext. A as null and void and not binding on the plaintiff. Defendants 1 and 2 were permitted to execute a sale deed in respect of the suit property for Rs. 500/- in favour of the plaintiff within three months, failing which the plaintiff was at liberty to get the sale deed executed through Court and deposit the aforesaid amount and get delivery of the possession. The defendants were permanently restrained from interfering with the possession and enjoyment of the plaintiff in respect of the suit property. 4. On appeal, being filed by the defendants, the Second Additional District Judge, Cuttack by his order dated 11.9.1985 in Title Appeal No. 64 of 1983 remanded the case to the trial Court after framing an additional issue for determination. The following issue was framed : "Had the defendant No. 2 any notice of the contract entered into between the plaintiff and defendant No. 1 prior to his purchase ?" The learned Subordinate Judge in his judgment dated 24.12.1985 on the aforesaid issue found that defendant No. 2 had notice of the contract entered into between the plaintiff and defendant No. 1 prior to his purchase. Defendant No. 2 filed Civil Revision No. 262 of 1983 in this Court challenging the admissibility of the agreement. Ext. 1, but however, this Court by order dated 8.4.1983 dismised the Civil Revision with an observation that "if the Stamp Duty and penalty are not paid by the plaintiff, it shall be open to the defendants to move the Court for exclusion of Ext. 1. The Stamp Duty and penalty levied on Ext.-l were paid by the plaintiff. The appeal was finally heard and by judgment dated 20.10.1986, the judgment decree of the trial Court was reversed mainly on the ground that in view of Section 10 of the Transfer of Property Act, the agreement Ext-1 to the extent it contemplates absolute restriction imposed on alienation of the property, is void. 5. The appeal was finally heard and by judgment dated 20.10.1986, the judgment decree of the trial Court was reversed mainly on the ground that in view of Section 10 of the Transfer of Property Act, the agreement Ext-1 to the extent it contemplates absolute restriction imposed on alienation of the property, is void. 5. The learned counsel for the plaintiff-appellant has submitted that the provision of Section 10 of the Transfer of Property Act has no application to the fact of the present case in view of the specific- condition stipulated in the document Ext. 1, restraining alienation in favour of any third party only before the same was offered to the plaintiff and as such, it was a partial restriction on alienation of the property. It is his submission that on a close reading of Ext-1 it would be clear that alienation of the property was prohibited without the consent/option for purchase of the vendor and in the event the vendor declines to purchase the same, the alienee was free to sell it to any third party. Such a condition in the sale deed (Ext-1) being not an absolute prohibition. Section 10 of the Transfer of Property Act has absolutely no application thereto. It is alternatively argued that if it is held that Ext-1 was not an agreement or a deed of transfer, but a family arrangement, then the bar contemplated u/s 10 of the Act is not applicable and as such, the plaintiff cannot nullify the said transfer by defendant No. 1 in favour of defendant No. 2 since the validity of Ext-A is beyond dispute- 6. The learned counsel for the respondent, however, centended that in view of Section 10 of the Transfer of Property Act, a condition restraining alienation is void, ah initio and in that view of the matter and in view of the specific stipulation made in Ext-1 that the alienee was restrained from effecting any alienation in in favour of any body except the plaintiff, the said stipulation is illegal and void and therefore, the defendant No. 1 was at liberty to transfer the property. The learned counsel has relied on AIR 1932 158 (Privy Council), AIR 1955 Mad. 350 (P.V.S. Vencatachellum v. P.V.S. Kabalamurty Pillai and Bulkan Sah and Others Vs. Ganga Devi Nathani and Others, in support of his contention. 7. The learned counsel has relied on AIR 1932 158 (Privy Council), AIR 1955 Mad. 350 (P.V.S. Vencatachellum v. P.V.S. Kabalamurty Pillai and Bulkan Sah and Others Vs. Ganga Devi Nathani and Others, in support of his contention. 7. The undisputed factual position in view of the pleadings of the parties is that the plaintiff and defendant No. 1 are the common defendants of Madhab Baliarsingh, the father of Pathani and Hata. Defendant No. 1 is the son of Pathani, the brother of Nata, who is plaintiff's father. Execution of Ext-1 and its conditions and stipulations are admitted. Ext-1 appears to be a deed of family settlement arrived at between the parties in view of the disputes regarding possession pursuant to the decision in Title Suit No. 34/1943-44. Clause-1 of the deed contemplates that the homestead land and Bari in the share of Nidhi Bhokta, purchased by Hata Bhokta by constructing a cow-shed would be removed and left to the possession of Nidhi Bhokta instead in the Bari land falling to the share of Nidhi Bhokta will be owned and possessed by Hata by way of exchange. Under Clause-2, respective possession was accepted. Under Clause-3, it was stipulated that the parties possessing Gharabari land as above if at any future point of time are inclined to sell, it has to be first offered to the other party and if the other party agrees to purchase the land at the market value, then none else can purchase the same except the other party. But however, if the other party is not able to pay the market rate and not interested to purchase, the same can be sold to a third party. The genuineness of Ext-1, the agreement or the family arrangement is into in dispute. The learned lower appellate Court however, held that in view of Section 10 of the Transfer of Property Act, the stipulations restricting alienation by the transferee is void and, therefore, has to be ignored. Accordingly, the lower appellate Court held that the condition being void and the defendant No. 1 having acquired exclusive right of ownership and possession over the suit property the sale deed executed by him on 11.1.1980, under Ext-A, he too has acquired valid right, title and interest. 8. Accordingly, the lower appellate Court held that the condition being void and the defendant No. 1 having acquired exclusive right of ownership and possession over the suit property the sale deed executed by him on 11.1.1980, under Ext-A, he too has acquired valid right, title and interest. 8. The moot question, therefore, is whether, in view of the facts and circumstances of the case, the stipulation with regard to the alienation in Ext-1 is to be construed as an absolute bar for further alienation by the transferee or is a partial restriction not attracting the rigour of Section 10 of the Transfer of Property Act. 9. The prohibition contained in Section 10 of the Transfer of Property Act is operative against absolute restraint on alienation only and not against a partial restraint. The Privy Council in Mohammad Raza's case (supra) laid down the law that the prohibition can operate on absolute restraint on alienation. Whether there is absolute restraint or not has to be examined taking into all the conditions incorporated in the document. In Jagar Nath Vs. Chhedi Dhobi and Others, a view has been taken that the prohibition contemplated u/s 10 of the Transfer of Property Act is not attracted in a partial prohibition. In similar situation where a document contained a clause that where the vendee desires to sell the house, he would have to offer the same first to the vendor or his heirs, as the case may be, and if they did not purchase the house within a reasonable time the vendee had the right to sell the same to any person he likes, such a clause like that of the present, has been construed as a partial restraint not attributing the prohibition embodied u/s 10 of the Transfer of Property Act. Similar view has also been taken in a Division Bench in Mohamud AH Majumdar v. Brikedar Nath and Ors. : AIR 1960 GAU 178 . The Division Bench of the Assam High Court held that agreement requiring parties to sell their lands amongst themselves on their not purchasing same to sell it to one of the members of the community and otherwise the sale be invalid, has been held to be an agreement restricting right of alienation partially but did not create a right of pre-emption and, therefore, not hit by the provision of Section 10 of the Transfer of Property Act. 10. 10. In the case at hand, the restriction imposed under Ext-1 is a restriction on alienation to the extent that first the offer has to be made to the vendor and on his refusal or inability to purchase the same at the market value, the vendee will be at liberty to sell the same to third party. In my considered opinion such a restriction is a partial restriction with regard to alienation of property and cannot be construed as a total prohibition for alienation and, therefore, the said clause does not attract the prohibition contained u/s 10 of the Transfer of Property Act and as such, is not void. In such view of the matter when the condition and stipulation in Ext-1 was not illegal or void, alienation contrary to the stipulation has to be held to be invalid and, therefore, Ext-A cannot be acted upon. In the result, I allow the appeal, set aside the judgment and decree passed by the learned Additional District Judge, Cuttack and restore and confirm the judgment and decree passed by the learned Subordinate Judge, Athagarh. Final Result : Allowed