Appeal No 2170 of 1967
Appeal from the judgment and order dated September 5 1963 of the Calcutta High Court in Civil Rule No 2864 of 1952
Purshottam Chatterjee and G section Chatterjee for the appellant
D B Mukherjee and section C Majumdar for respondent No 1
The Judgment of the Court was delivered by Grover J
This is an appeal by certificate from a judgment of the Calcutta High Court arising out of a petition filed by the appellant under section 26F of the Bengal Tenancy Act 1885 claiming a right of preemption over certain lands purchased by respondent No 1
926 The facts may be briefly stated
On July 23 1950 the ap pellant purchased certain portion of land in CS Dag No 3605 of Monza Kasba from the occupancy raiyats respondents Nos 2 and 3 and one Bhabesh Chandra Kundu deceased
By another deed the appellant purchased from the said vendors another plot of land measuring 31 acres
By a Kabala dated October 8 1950 the said vendors sold 10 acres of land in the same Dag number to respondent No 1 for Rs 2700
The appellant filed an application before the Second Subordinate Judge Alipore district 24 Parganas under section 26F of the Bengal Tenancy Act claiming the right of preemption over the land purchased by respondent No 1
The latter took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs 300 as brokerage the appellant had thus waived his right of preemption
The learned trial Judge disbelieved the case set up by respondent No 1 and allowed the application of the appellant for preemption
Respondent No 1 filed an appeal in the court ofthe Additional District Judge Alipore
He held that the appellant s claim for preemption was barred owing to waiver on his part
The appellant filed a petition for revision in the High Court but the same was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver
The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case
Moreover waiver could not be proved by estopped
Learned counsel for the appellant relied on the observations of Lord Russel of Killowen in Dawson s Bank Limited vs Nippon Menkwva Kabushiki Kaisha1
While stating the distinction between estopped and waiver it was said that waiver is contractual and may constitute a cause of action it is an agreement to release or not to assert a right
 According to the appellant all that had been found was that by his act and conduct he had waived his right of preemption
It was pointed out that there was no evidence for any consideration having moved from respondent No 1 in the matter of abandonment of the appellant s right of preemption
In the well known work of Sir William P Anson Principles of the English Law of Contract 22nd Edn it has been stated at p 107 that at Common Law the waiver of existing obligations does not appear to require the presence of detriment in order to make it effective
1 62 IA 100 108 927 In India the general principle with regard to waiver of contractual obligations is to be found in section 63 of the Indian Contract Act
Under that section it is open to a promise to dispense with or remit wholly or in part the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit
Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver
This Court has already laid down in Waman Shriniwas Kini vs Ratilal Bhagwandas  Co1 that waiver is the abandonment of a right which normally everybody is at liberty to waive
A waiver is nothing unless it amounts to a release
It signifies nothing more than an intention not to insist upon the right
 It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right
So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence
The contention that the waiver of the appellant s right under section 26F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected
A faint attempt was made to assail the finding of the High Court that on the facts which had been proved waiver had been established
We find no reason or justification for interfering with the conclusion of the High Court on the point
The appeal fails and it is dismissed with costs
RKPS Appeal dismissed
1 1959 Supp
2 SCR 217 226


Summary:
The appellant filed an application under section 26f of the Bengal Tenancy Act claiming right of preemption over the land purchased by the respondent
The respondent took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle had acted as brokers in the transaction and received brokerage the appellant had thus waived his right of preemption
The trial Judge allowed the application
The appeal Court held that the appellant s claim was barred owing to waiver on his part
A revision to the High Court was unsuccessful
In appeal to this Court it was urged that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver
HELD  Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver
A waiver signifies nothing more than an intention not to insist upon the right
It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of forfeiture of such a right
So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence
The contention that the waiver of the appellant s right under section 26F of the Bengal Tenancy Act must be founded on contrast or agreement cannot therefore be acceded to
927 A D Wanman Shrinwas Kini vs Ratilal Bhagwandas  Co 1959 Supp 2 SCR 217 226 and Dawson s Bank Limited vs Nippon Menkwa Kabushiki Kaisha 62 IA 100 108 referred to