1. The plaintiff obtained a decree for money lent to one Bishan Lal on a bond. The decree was against the heirs of Bishan Lal. He sought to bring to sale in satisfaction of it the property in suit, and the respondents objected to the sale, and the objection was allowed. The object of this suit is to have it declared that the property was the property of Bishan Lal, and liable to be sold in satisfaction of his debt.
2. It appears that this property and other property was the subject pf litigation some years ago between Bishan Lal and the respondents, and they came to a compromise by which this property was transferred to Bishan Lal. The respondents, however, allege that the terms of the arrangement placed restrictions on Bishan Lal's power of transfer. I have examined the copy of the deed of compromise filed on which the respondents reply, and I find that it passes an absolute estate to Bishan Lal and his heirs. The terms are: 'The said Bishan Lal will hold possession as proprietor, generation by generation, (naslan bad naslan)' These words show that he obtained an estate heritable according to law, to which the law annexes a power of transfer, and the stipulation against alienation on his part, or against sale by auction in execution of decrees against Bishan Lal, must be held void. I may refer to Ashutosh Dutt v. Doorga Churn Chatterjee I.L.R. 5 Cal. 438 and the Tagore Case 9 B.L.R. 377 and Section 10, Transfer of Property Act. The decree of the Lower Appellate Court is set aside, and the case remanded for disposal on the merits.
3. The question raised by the facts of the present case is whether the property in suit is or s not liable to sale in execution of the decree obtained by the plaintiffs against the heirs of Bishan Lal for debts due by him.
4. In the first place, we have to consider in what way the interest of Bishan Lal in the property was created. To answer this question it is necessary to refer to the deed of compromise which ended the litigation of 1863. This deed is a fact of the greatest importance in the case. It begins with the words: 'In the suit instituted by Sahib Dayal Singh and others, plaintiffs, against Musammat Raghubans Kuari and Bishan Lal, defendants, pending in the Court, to obtain possession of the shares in mauza Ahrauli...the plaintiffs have actually the proprietary and hereditary rights in the shares in dispute, and have settled the matter as follows.' That is, the first sentence in the deed admits, on behalf of all the parties to the suit, that the plaintiff's are full proprietors of the disputed property, but have entered into an agreement in the form of a suleh-nama as follows. The deed goes on to provide the manner in which the property is to be divided among the parties, and the last portion of it says that certain properties are, with the consent of the plaintiffs, to be allotted to Bishan Lal. But then comes the most important clause in the suleh-nama: 'That the said Bishan Lal hold possession over the under-mentioned shares as a proprietor, generation by generation, without the power of transferring in any shape, such as mortgaging the property by taking an advance sum, and he is bound to pay the Government revenue; but in the case of his doing anything against the said terms, it will be invalid, and the other sharers will have no concern with the shares so allotted to the defendant Bishan Lal, and according to this decision the names are to be recorded in the khewat, and the right of the shares so invested would not fall to the plaintiff or any other than the male heir of the said Bishan Lal. The following shares recorded in Bishan Lal's name shall not be transferred or sold in auction in payment of any debt payable by the said Bishan Lal, and in the event of their being transferred or sold, such transfer will be invalid, and the plaintiffs will then be entitled to set aside such transfer and to obtain possession.' Now, this deed of compromise was presented to the Court with an application for a decree in accordance with its terms. But the Court to which the application was made passed the following decree: 'According to the compromise, out of the property a four-pies share in each of the mauzas' (names of mauzas set out) 'and a two-pies share in' (name of mauza set out) 'and a two-annas and eight-pies share in each of the mauzas' (names of mauzas set out) 'be decreed in favour of the plaintiffs, and the rest of the claim be dismissed. As the parties have not written anything about costs they shall bear the costs in proportion to the claim decreed and dismissed.' In other words, the suit of the plaintiffs in 1863 was decreed to the extent of the claim less the property given by the compromise to Bishan Lal. Then the decree went on to say:' Such passages in the compromise as are unnecessary and irrelevant in this case may be regarded as void and unnecessary; and having regard to the fact that the said passages are irrelevant to the present case, they have not been attested by the parties, and they are at liberty to be bound by the said passages or not; the Court has nothing to do with them.'
5. Now this point occurred to me during the argument. This compromise was simply a petition to the Court for a decree according to its terms. The decretal order was one declining to grant the petition, and declaring the compromise ineffectual so far as concerned the estate conferred by it on Bishan Lal. I am inclined to think that this circumstance might be sufficient to justify the plaintiffs' claim. But I do not wish to base my judgment on that ground. Even if the compromise simply represented the terms of a previous oral agreement, I should still hold that the present appeal must prevail. Giving the greatest benefit to the position of the defendants-respondents, we have to consider whether this is a question of succession or inheritance within the meaning of Section 24 of the Bengal Civil Courts Act (VI of 1871). I think that it is, because the question is, on the death of Bishan Lal, what estate devolved on the present respondents. The law which governs such a question as this is contained in Section 24 of the Bengal Civil Courts Act. I think that it was for the respondents to show that, under the Hindu Law of succession and inheritance, the rights of Bishan Lal in the property in dispute ceased to exist at his death, or that his estate devolved upon them free of liabilities for his debts.
6. No authority was cited in support of this opinion, and therefore, this being a question of succession, and the Hindu Law being silent on the subject, we must decide in accordance with the principles of justice, equity, and good conscience referred to in Section 24 of the Bengal Civil Courts Act. In order to ascertain what is the rule of justice, equity, and good conscience in the pre-sent case the principles of jurisprudence are the best guide that we can have. These principles, so far as transfer is concerned, have received effect in the Transfer of Property Act, to which therefore it may be useful to refer. My brother Oldfield has called attention to Section 10 of that Act. It is a section which forms part of Chapter II 'Of transfers of property by act of parties.' Now Section 2(d) provides that nothing in the Act shall be deemed to affect, 'save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in this Act shall be deemed to affect any rule of Hindu, Muhammadan or Buddhist law.' The rule contained in Section 10 is, therefore, not binding upon us in this case. Still I do not think that there is any rule of Hindu Law which is inconsistent with the object of the Legislature as expressed in Section 10. The leading cases on the subject are those which have been referred to by my brother Oldfield. The exact point decided in those cases does not arise here, but the ratio decidendi is applicable. In the first place, I have no doubt that the deed of compromise of the 7th October 1863, begins by declaring Bishan Lal to have an estate which is heritable, going to his heirs 'generation by generation,' and in fact to be the proprietor. Then come restrictions of his right and of his heir's right to alienate the property. The reason of the rule disallowing such restrictions, that is, the reason of Section 10 of the Transfer of Property Act, is best expressed in the judgment of the Privy Council in the Tagore Case 9 B.L.R. 377. Their Lordships say: 'The power of parting with property once acquired, so as to confer the same property upon another, must take effect either by inheritance or transfer, each according to law. Inheritance does not depend upon the will of the individual owner; transfer does. Inheritance is a rule laid down (or in the case of custom recognized) by the State, not merely for the benefit of individuals, but for reasons of public policy--Domai, 2413. It follows directly from this that a private individual who attempts by gift or will to make property inheritable otherwise than the law directs is assuming to legislate, and that the gift must fail, and the inheritance take place as the law directs. This was well expressed by Lord Justice Turner in Soorjeemoney v. Denobundoo Mullick 6 Moo. I.A. 555. A man cannot create a new form of estate, or alter the line of succession allowed by law, for the purpose of carrying out his own wishes of views of policy.'
7. There is also another passage in the same judgment which applies in principle to the question raised in this case: 'If, again, the gift were in terms of an estate inheritable according to law, with superadded words restricting the power of transfer which the law annexes to that estate, the restriction would be rejected as being repugnant, or, rather, as being an attempt to take away the power of transfer which the law attaches to the estate, which the giver has sufficiently shown his intention to create, though he adds a qualification which the law does not recognize.'
8. These principles appear to me to be equally applicable to the circumstances of England and of India, and in the absence of any provision of Hindu Law by which their application is negatived I think that the present case falls within their scope. The deed of compromise first gave an absolute estate to Bishan Lal, and then proceeded to impose restrictions upon his powers of alienation. These restrictions are opposed to the policy of the law, they cannot be recognised, and therefore Bishan Lal must be held to have had an absolute estate which would devolve upon his heirs and which could be sold in execution of decrees for his debts. I concur therefore in the order which my brother Oldfield has proposed.