1. This is a second appeal by the plaintiffs whose suit; has been dismissed by both the lower Courts. The plaintiffs in t.heir plaint set forth that the defendants were members of a joint Hindu family and that they borrowed a sum of money under the simple mortgage deed, dated 10th November 1924 from the plaintiffs, the mortgagors being Melhu Bai and Lachman Bai and the mortgagee being Kolaram. Subsequently on 10th June 1930 a sum of Rs. 1,000 was due from the defendants on account of the principal and interest under this mortgage-deed, and a sale deed was executed by the defendants on 10th June 1930 in favour of plaintiff No. 8, a member of the joint Hindu family of the plaintiffs. The sale deed was in lieu of the amount of Rs. 1,000. The sale deed purported to transfer 1.14 acres of zamindari property of the defendants. On the same date there was a deed of relinquishment executed by the defendants of their sir rights in the sir which appertained to the 1.14 acres of zamindari land. Subsequently the defendants did not give actual possession of the plots and the plaintiffs accordingly brought a suit asking for the following reliefs : (a) that the plaintiffs should receive actual possession of the plots with damages; (b) that if actual possession and damages are not granted then a decree undar Order 34, Rule 4, Civil P.C., should be passed on the original simple mortgage of 10th November 1924 with mesne profits.
2. The suit was resisted on the ground that actual proprietary possession of the zamindari share sold had been given to the plaintiff's and that the defendants were in possession as ex-proprietary tenants, and that the plaintiffs had no right to obtain possession of the actual plots. Both the lower Courts dismissed the suit of the plaintiffs. In this Court an issue was framed and remitted to the Court below as follows:
Whether the sale deed and the relinquishment form part of one agreement within the meaning of Section 2(e), Contract Act.?
3. The finding of the lower appellate Court is in the affirmative. The question was than argued as to how the finding would affect the suit. On behalf of the plaintiffs it was argued that a relinquishment of ex-proprietary rights made as one agreement with the sale deed of zamindari property is contrary to law, that is Section 15, Agra Tenancy Act, Act 3 of 1926, and therefore that as this is contrary to law the object of the agreement was not lawful and the sale deed and the deed of relinquishment were inoperative under Section 23, Contract Act. Beferenee is also made by learned Counsel to Section 24, Contract Act, which provides:
If any part of a aingla consideration for ona or more objects, or any one or any part of any one of several considerations for a single object is unlawful, the agreement is void.
4. Learned Counsel then proceeded to refer to a ruling of their Lordships of the Privy Council reported in Har Ckandi Lal v. Sheoraj Singh A.I.R. 1916 P.C. 68. In that ruling there was a mortgage of 1876 by a deceased person and in the yoar 1887 his widow and his nephew who also owned a share in the village executed two mortgages partly in lieu of the debt of the mortgage of 1876 which was then handed back to the mortgagors. Subsequently it was held that the mortgage of 1887 did not bind the widow. Their Lordships held that the intention of the mortgagee after the two deeds of 1887 were executed was to accept in them a new security, but that intention was entirely frustrated by the fact that the deeds of 1887 were held to be not binding on the widow; and it was not in accordance with equity and good conscience that the respondents, who had successfully maintained that the transaction embodied in the deeds of 1887 was not binding on the widow and consequently did not bind them as the heirs of her husband, should now claim the benefit of that transaction as a release of the mortgage of 1876. Their Lordships therefore in the events that had happened were of opinion that the mortgage of 1876 was wholly unaffected by the mortgages of 1887. But this ruling differs in certain points from the case before us. One point of difference is that their Lordships held that the debt remained subsisting and that what had changed was the fact that new security had been given. On p. 185 it is stated:
It is ol course true that the mortgagee's intention at the time when the two deeds of 1887 wore executed was to accept a new security.
5. In the present case it cannot be said that there was a debt which remained subsisting and for which a new security had been accepted. On the contrary the debt came to an end when it was satisfied by the payment of Rs. 1,000 on 10th June 1930. By that transaction no further debt remained due between the parties and the sale terminated the mortgage. If instead of a sale deed a further deed of mortgage had been taken then the circumstances would have been parallel to the case before their Lordships of the Privy Council. We consider that because the debt did not subsist after 10th June 1930 therefore a distinction must be drawn between the two cases. A further distinction would arise that in the case before their Lordships the new mortgage was wholly ineffective because the widow was in possession of the 'whole share of the deceased and it was held that the mortgage was not binding on her. In the present case it cannot be claimed that the plaintiffs have obtained nothing out of the transaction of 10th June 1930, because that transaction has transferred to them the possession of the proprietary share. Learned Counsel for the respondents further pointed out that Section 15, Agra Tenancy Act, did not forbid the relinquishment of ex-proprietary rights. That section provides in Sub-section, (1) as follows:
Except as provided in Sub-Sections (2), (3) and (4), no sale of sir or agreement, relinquishment or other transaction having the effect of a surrender orrelinquishment of ex-proprietary rights executed or carried out within six months lm mediately preoeding or succeeding a transfer of proprietary rights, shall affect or detract from the rights created by Section 14.
6. That is there is nothing in the subsection forbidding such a relinquishment but it is provided that the relinquishment if made within six months of the transfer shall not affect Section 14 by which ex-proprietary rights arise. In other words the relinquishment would be void.
7. There is a further provision in Sub-section 2 of Section 15 for the landlord to apply for sanction for the relinquishment if he desires to make it within the period of six months of the transfer, and if that application is sanctioned by the Assistant Collector in charge of the sub-division then the relinquishment will be effective. No general rule of law therefore is laid down that a relinquishment is an act forbidden by law. Learned Counsel for the rsspondenta therefore claims that the relinquishment is nojb an unlawful object, and the agreement to relinquishment would not come under Section 23, Contract Act. The two provisions of that section which it is claimed for the appellants would apply are cases where the agreement is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law. It was claimed for the appellants that the relinquishment, if permitted, would defeat the provisions of Section 15, Agra Tenancy Act, We do not think that this argument is sound. What is provided in Section 15, Agra Tenancy Act, is that in general the relinquishment will be void, if carried out within six months of the transfer. The execution of a relinquishment will not in any way defeat the provisions of that section. It is for the persons interested to ask the Courts to apply the provisions of that section. The case would be otherwise where there is a definite provision of law that a certain thing must not be done and where an agreement is made to do that thing. It was further pointed out by learned Counsel for the respondents that Section 24, Contract Act, is not applied by the Transfer of Property Act to transfers of immoteable property. Section 6(h), T.P. Act, applies Section 23, Contract Act, but Section 24 is not applied. We consider therefore that the argument for the appellants that under Section 24 the sale deed would be void because the agreement to relinquish was unlawful and because the two agreements had one consideration is an argument which is unsound.
8. It was further argued by learned Counsel for the respondents that the provisions of the Contract Act apply to agreements but do not apply to transfers of property in general, and for this he relied on the Eull Bench ruling of this Court reported in : AIR1930All1 , Dip Ncumin Singh v. Nageshar Prasad. In this it was held that the cases of mere contract are governed by the provisions of the Contract Act and cases of transfer of immoveable property are governed by the Transfer of Property Act. It was further held in that ruling that Section 24, Contract Act, had not been made applicable) to transfers of immoveable property. That case was. in regard to attempted transfers by tenants of their rights which wero incapable of being transferred as laid in Sections 20 and 21, Agra Tenancy Act 2 of 1901. It was held that the language of those sections does not justify the inference that such a transfer has been expressly forbidden and prohibited by law. We consider that this argument will also apply to the case of a relinquishmend under Section 15, Agra Tenancy Act, Act II of 1926.
9. For the reasons given above we consider that the case for the plaintiffs-appellants fails and we dismiss this second appeal with costs.