Tudball and Muhammad Rafiq, JJ.
1. The facts of this case are as follows : The plaintiff's husband was the owner of zamindari in several villages and some house property in Benares. He also held a large area of land as sir within his zamindari. He was heavily in debt to Durga Shankar Bajpai, defendant No. 1. The latter obtained one decree for about Rs. 20,000.
2. On the 7th of October, 1899, the plaintiff, who was then a widow, transferred the zamindari and the houses to Durga Shankar by a Bale-deed, the consideration for which was Rs. 21,415. This included the amount due on the decree and also another debt. By the terms of the deed the plaintiff agreed to file a relinquishment of her ex-proprietary rights in the sir lands, and Durga Shankar agreed to certify to the Civil Court full satisfaction of his claim under the decree.
3. At that time the Rent Act, XII of 1881, was in force and it is quite clear that the sale consideration was to cover not only the proprietary rights but also the ex-proprietary rights and the arrangement was one of those devices considered by their Lordships of the Privy Council in Moti Chand v. Ikramullah Khan (1916) I.L.R. 39 All. 173 and which are there declared to be 'in contravention of the policy of the Act and are contrary to law and are illegal and void.' The Act which their Lordships had in view was the present Tenancy Act, but in this respect it does not differ from its predecessor, which equally prohibited the sale or transfer of ex-proprietary rights except as between those in whose favour jointly the right had arisen. In the present case a hitch appears to have occurred. The plaintiff at first did not file a relinquishment and Durga Shankar did not certify to the Civil Court full satisfaction of his decree. The cause of this is not given, for neither the plaintiff nor Durga Shankar have given the court any assistance.
4. However, on the 24th of October, 1901, i.e., two years after, Durga Shankar executed a document in favour of the plaintiff in which it is stated the parties had come to an agreement that she was to file her relinquishment and in consideration thereof Durga Shankar would file his certificate of satisfaction of the Civil Court decree, and further bound himself to pay to the plaintiff a monthly allowance of Rs. 5 for the rest of her life, which was to be a charge upon the property transferred by the sale-deed of the 7th of October, 1899. When the relinquishment was actually filed, if at all, is not stated.
5. In subsequent years the property in question was all sold in execution of decrees obtained against Durga Shankar.
6. Now, on the 24th of February, 1914, the plaintiff has brought a suit to recover arrears of the monthly allowance for the period from the 24th of October, 1904, to the 24th of February, 1914, amounting to Rs. 560, plus interest, which brings the claim up to Rs. 932-12-0, and also asks for a decree for future maintenance allowance at the rate of Rs. 5, recoverable by execution of the decree. Durga Shankar does not contest the claim. The subsequent purchasers contest it. The courts below have dismissed the suit holding that the contract is contrary to law and null and void in that it was in fact and in substance a sale of ex-proprietary rights which is forbidden by law.
7. The pleas taken before us are:
(1) That the transaction was not illegal in that it was only a surrender of the ex-proprietary rights for a consideration and reference is made to Section 83 of the Tenancy Act.
(2) That at least it may be treated as the granting of a lease of the ex-proprietary holding, the rent being the monthly allowance of Rs. 6.
(3) That at least the plaintiff is entitled to a personal decree against Durga Shankar. Reviewing the transaction as a whole and keeping in view the terms of both the documents of 1899, and 1901, there is not the slightest doubt that the arrangement between the parties was merely a device to get round the provisions of the Rent Act of 1881. Section 83 of the Tenancy Act does not apply, as that Act was not in force. Even if it did apply, it would not avail the plaintiff anything, for we cannot allow the law to be defeated by any such device. There was clearly a transfer for consideration, a buying out, agreed upon at the time of sale, of the ex-proprietary rights about to be created. The plaintiff, apparently knowing that the vendee could not enforce the contract, made use of her position to extract a further consideration and the case we have mentioned above is to the point. The contract was contrary to law and therefore void. Neither party can enforce it. The plaintiff bases her claim upon it. She does not seek to avoid it and regain her holding. She raised no plea of fraud in her plaint, nor is any such plea raised before us.
8. The suit has the appearance of being far from a bond, fide claim) an attempt to defeat Durga Shankar's creditors. The long delay in the claim is not free from suspicion. As for treating the claim as a suit for rent on the basis of a lease, that is an impossibility. There is no lease and it is not a suit for rent, and this is not the case that the defendants were asked to meet in the courts below.
9. Nor can the plaintiff obtain a personal decree against Durga Shankar. The contract being void she cannot enforce it, any more than he could have done if she had refused to give up her holding.
10. The appeal fails and is dismissed with costs.
11. The cross-objections have not been pressed and are dismissed with no order as to the costs thereof.