Waiver of pre-emption rights can arise without contract or consideration when conduct shows acquiescence and relinquishment.

Waiver of a pre-emptive right under Section 26F of the Bengal Tenancy Act did not require a contract or consideration, because waiver is the abandonment of an existing right and, under Section 63 of the Indian Contract Act, a promisee may dispense with or remit performance without consideration. In pre-emption matters, conduct amounting to acquiescence or positive relinquishment can forfeit the right. The Court rejected the argument that waiver must rest on agreement and upheld the factual finding that the right had in fact been waived. The appeal was dismissed.

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Issues: Whether waiver of a right of pre-emption under Section 26F of the Bengal Tenancy Act required a contract or consideration, and whether waiver was established on the facts.

Analysis: Waiver of a right is the abandonment of a right and, under Indian law, is governed by Section 63 of the Indian Contract Act, under which a promisee may dispense with or remit performance without the necessity of consideration. In the law of pre-emption, acquiescence in the sale by a positive act amounting to relinquishment of the pre-emptive right results in forfeiture of that right. The contention that waiver must rest on contract or agreement was therefore rejected. The finding that the appellant had in fact waived the right was also not shown to be erroneous.

Conclusion: Waiver of the pre-emptive right under Section 26F could be established without contract or consideration, and the finding of waiver on the facts was upheld.

Final Conclusion: The appeal was dismissed and the respondent's position was sustained.

Ratio Decidendi: Under Indian law, waiver of an existing right does not require consideration or a contractual agreement, and a pre-emptive right may be lost by conduct amounting to acquiescence or relinquishment.

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