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Ram Nath Vs. Nanak Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All686
AppellantRam Nath
RespondentNanak Chand and ors.
Excerpt:
- - act, was not applicable to a family arrangement which is not a transfer and the validity of which should be considered according to the rules of justice, equity and good conscience. the munsif however clearly found on the evidence of one of the defend ant's own witnesses that one of the two shops had fallen down and that defendant 1 appropriated its materials including galvanized iron sheets. we are satisfied that the finding of the munsif is correct......it was considered to be in the interest of his-descendants (it should be noted that at the date of award mangu lal had no issue} that his right of full ownership,, expressly recognized, be fettered by the condition to which reference has already been made. it seems to us that an alienation by mangu lal in contravention of that condition is not void but voidable as against mangu lal's descendants, who have been declared to be the ultimate beneficiaries, having power to transfer. subject to that reservation, assuming it to be valid a point on which we express no opinion-the property is vested in mangu lal and no one else. so long as mangu lal is alive, the right of enjoyment described as full ownership is unfettered. the award does not provide that in case mangu lal makes an alienation in.....
Judgment:

Niamatullah, J.

1. This appeal arises out of a suit for partition of two 3hops, the plaintiff claiming a three-fourths share in one and half in the other. He claims title from Mangu Lal, defendant 3 under a sale deed dated 15th December 1919, executed by the latter. The deed purports to transfer to the vendee all rights which the vendor had. Mangu Lal himself did not contest the plaintiff's suit but one of his half-brothers, the present respondent 1, resisted it on grounds which will presently appear. The plaintiff also claimed a subsidiary relief of damages amounting to Rs. 500 on the allegation that defendant 1 completely demolished a portion of one of the shops and appropriated the materials thereof. The Munsif, before whom the suit had been instituted, decreed the plaintiff's claim for partition and to damages amounting to Rs. 120 to be paid by defendant 1. The lower appellate Court dismissed the suit in its entirety on an appeal preferred' by defendant 1. In the present second appeal by the plaintiff, ;the only contesting respondent is defendant 1, though other defendants including Mangu Lal, the plaintiff's vendor havo been impleaded as respondents. It is not disputed that the shops in question formed part of ancestral property in the hands of one Mathura Prasad, who had four sons. One of these sons is Mangu Lal, under whom the plaintiff claims and who was born of Mathura Prasad's first wife. Defendants 1, 2 and Basdeo, father of defendants 4 and 5 were the sons of Mathura Prasad by another wife. In consequence of certain disputes which arose in the lifetime of Mathura Prasad, the entire family property was partitioned through certain arbitrators, who gave an award on 26th February 1909. It provided, inter alia, that

the property specified below and entered under head 0 belongs to him (Mangu Lai), who is the absolute owner thereof (malik kamil hai). He is to appropriate, and maintain himself with the income and rent of such property, but he will have no power to make any transfer, such as sale, mortgage, lease, hypothecation as security and theka for a term or in perpetuity etc., in respect of such property ; and if he does make a transfer, the same shall be considered to be invalid (najaiz). Besides Mangu Lal any one among his descendants (aulad) -will have power to make mortgage, etc.

2. Among the properties thus given to Mangu Lal are shares in the two shops now in question. As already stated, he was given a three-fourths share in one shop and half in another. Another part of the award provides that Mathura Prasad is to collect rent and pay to Mangu Lal his share thereof. Mathura Prasad subsequently died, and it does not appear who collected the rent of the joint shops ; but it was admitted by defendant 1 in the Court of first instance:

that Mangu Lal was in possession of the shops, although he confines (sic) that possession to have been for maintenance only and through re-oeipts of proceeds directly and indirectly.

3. This admission is noted in the judgment of the first Court under issue 4 which relates to limitation and adverse possession a plea raised by defendant 1. It was pleaded in defence that Mangu Lal had transferred the property in dispute to the mother of defendant 1 by a' sale deed, dated 22nd July 1902, that the reference to arbitration and the award ware null and void for certain reasons stated in the written statement, which it is not necessary to mention in detail, and that if the award is valid, Mangu Lal had no transferable interests in the shops so as to give any right to his transferee, the plaintiff. The only ground on which the plaintiff's right to claim partition has been challenged before us is that, Mangu Lal having been given no more than a right to maintain himself with the income of the property allotted to him by the award, his transferee, the plaintiff-appellant, acquired no rights which can entitle him to maintain a suit for partition. The validity of the reference and the award on the allegations mentioned in the written statement has not been questioned before us and so far as we can gather from the judgment of the lower appellate Court, it was not challenged in that Court also.

4. The Court of first instance, which held that the condition in restraint of alienation, contained in the award, was unenforceable, relied in support of its view Section 10, T.P. Act. It is argued before us that that section applies to transfers and that an award is not a transfer. Reliance is placed on some observations of their Lordships of the Privy Council in the recent case of Mohammad Baza v. Abbas Bandey in which a family arrangement was in question. Their Lordships expressed the view 'that Section 10, T.P. Act, was not applicable to a family arrangement which is not a transfer and the validity of which should be considered according to the rules of justice, equity and good conscience. Their Lordships however proceeded to consider the case on the assumption that Section 10, T.P. Act, was applicable and held that the condition in restraint of alienation in that case was not absolute and was therefore not void for repugnancy. It should be noted that in that case the question arose after the death of the transferor, between his heir and the transferee. We do not propose to decide this case with reference to Section 10, T.P. Act. Mangu Lal being alive and a party to this case, it is not necessary to decide whether ha has only a life interest, which will be the case if the condition in restraint of alienation mentioned in the award, is valid, or he is an absolute owner, as the award declares him to be, and whether the subsequent condition depriving him of the right to alienate is void, being in derogation of full ownership conferred by the award. In the existing circumstances, the controversy is narrowed down to the question whether Mangu Lal, who is in possession, could claim separate enjoyment of his share of the shops by partition and if so, whether he could assign his own right of enjoyment, jointly with his cosharers or separately by partition to the plaintiff-appellant.

5. The object of the arbitrator seems to have been to preserve the property for the descendants of Mangu Lal, who was probably a spendthrift and was considered likely to squander away his share of the family property; and therefore it was considered to be in the interest of his-descendants (it should be noted that at the date of award Mangu Lal had no issue} that his right of full ownership,, expressly recognized, be fettered by the condition to which reference has already been made. It seems to us that an alienation by Mangu Lal in contravention of that condition is not void but voidable as against Mangu Lal's descendants, who have been declared to be the ultimate beneficiaries, having power to transfer. Subject to that reservation, assuming it to be valid a point on which we express no opinion-the property is vested in Mangu Lal and no one else. So long as Mangu Lal is alive, the right of enjoyment described as full ownership is unfettered. The award does not provide that in case Mangu Lal makes an alienation in violation of the aforesaid condition, he is to forfeit his right of enjoyment and the property is to pass to another person, nor has any other member of his family a present vested right which can entitle him to eject Mangu Lal's transferee, to whom he chooses to transfer his right of possession. The transferee, being in such possession as Mangu, Lal had, can, at least, rely upon his possessory right against a person who can claim no right in himself. Even a trespasser can exercise acts of ownership, except as against the rightful claimant. This being so, it is impossible for defendant 1 to resist the claim of the plaintiff appellant, who has for the time being stepped into the shoes of Mangu Lal. The latter does not contest his claim. Defendant 1 can have no more right to resist the claim of the plaintiff-appellant to obtain partition of the shops than he would have had if Mangu Lal himself had sued for partition. It may be mentioned incidentally that the award does not forbid partition of the shops at the instance of Mangu Lal.

6. The learned advocate for the contesting respondent relies on 8. 6 (d) T.P. Act, which provides that

an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

7. It is said that Mangu Lal has only a right to maintain himself with the usufruct of the shops. We are unable to accept this contention. If Mangu Lal's right is as limited as this contention presupposes, the property must be shown to be vested in somebody else, so that a mere personal right of maintenance should be deemed to have been carved out and given to Mangu Lal, and the ownership is vested in some one eke who can eject persons having no title. It is, conceded that the property is not vested in any living person other than Mangu Lal. Cases between a landlord and the transferee of his tenant having no right to transfer or between a person in whom the paramount right is vested and the [transferee from a holder under a maintenance grant, to which Section 6(d) may possibly be applicable are essily distinguishable. In all such cases the transferee is ejected by virtue of a right of re-entry contained in the lease or grant, or by virtue of proprietary right being vested in another person who can eject trespassers. In this class of cases the person in whom the paramount right is vested can be prevented from entering on the property only by the lessee or grantee, as the case may be, who has the right of enjoyment. Any other person, even though he may be a transferee of a person or grantee, who ex hypothesis acquires no right under his transfer, cannot question the right of the paramount owner I to enter on his own land. If the lessee or grantee having no right of transfer has himself abandoned possession and transferred it to a third person, the person in whom the paramount title is vested an re-enter. All that he need establish in support of his right of re-entry is that the lessee or grantee abandoned his interest in the property restricted in its I enjoyment to him personally. As already stated Marigu Lal is the only person in whom the property is at present vested, and if he hag chosen to place the plaintiff in the position he himself occupied there is no one who can eject the latter. Defendant 1 can have no locus stand to eject him 'or to question his right. In these circumstances, we hold that Section 6 (d), T.P. Act, does not apply and, in any case, does not entitle defendant 1 to question the right of the-plaintiff to obtain partition by virtue of his present possession of the shares of Mangu Lal in the shops in dispute.

8. The learned advocate for defendant 1. relied on Kuldip Singh v. Khetrani Koir [1898] 25 Cal. 869 and Basangowda v. Irgowdatti A.I.R. 1923 Bom. 276, in which it was held that Section 10, T.P. Act, did not apply to cases of compromise and family arrangement. We have already referred to the Privy Council case on the point and have not considered it necessary to have recourse to Section 10. For the rest those cases have no bearing, as in the former the reversioners in whom the estate was vested sued for a declaration that the alienation was invalid, and in the second it was held that the widow's interest could not be attached by her creditors in execution of a simple money decree, she having been held on the construction of the compromise between her and her husband's reversioners to possess no 'disposing power' within the meaning of Section 60, Civil P.C. In. the view of the case we have taken, this appeal must succeed. The learned Subordinate Judge did not arrive at any finding as regards the plaintiff's claim for damages. The Munsif however clearly found on the evidence of one of the defend ant's own witnesses that one of the two shops had fallen down and that defendant 1 appropriated its materials including galvanized iron sheets. The Munsif also referred to other relevant matters and assessed the damages at Rs. 120. We do not think it necessary to remand the case for determination by the lower appellate Court of the amount of damages. We are satisfied that the finding of the Munsif is correct. Accordingly we set aside the decree of the lower appellate Court and restore that of the Court of first instance, The plaintiff-appellant shall have his costs in this and the lower appellate Court from defendant 1.


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