1. This second appeal arises out of a suit brought by the plaintiff-respondent for sale of a certain property on the basis of a mortgage. The mortgage was in respect of two kinds of property; one was land and the other was a certain money charge created on other property. It is with the latter only that we have to deal in this second appeal.
2. The question is solely one of interpretation of a certain deed. This deed was executed by one Kishori Lal, a zemindar, in favour of two minor children in consideration of the mother of these children having given up her rights to claim an exproprietary tenancy.
3. The important portions of the deed are as follows:
Therefore, in consideration of the relinquishment of their exproprietary rights Rs. 150 a year for maintenance in favour of Mohammad Abdul Hafiz Khan and Mohammed Abdul Aziz Khan minor sons of Mt. Ali-un-nissa, daughter of Ch. Mohammed Hidayat Ali Khan deceased resident of qasba Balram have been fixed for ever and after them to their descendants and successors-in-interest generation after generation and womb after womb.
4. This is followed later on by the following provision:
The minors during their minority or after attaining majority shall have right to transfer this fixed maintenance to me at any time, but they shall have no right of transfer in favour of a stranger (shaksh gair).
5. Now the first question is whether these two clauses are repugnant and irreconcilable. We agree that they can be reconciled by supposing that it was the intention of the grantor that the minors during their lifetime should have no right to transfer the charge or annuity, but that after their lifetime their descendants should have such a right.
6. The second question, however, is whether the subsequent clause was void under Section 10, T.P. Act. Here we find that a charge on land is transferred subject to a condition restraining the transferees from parting with or disposing of that interest to any person other than the grantor. This clearly amounts to an absolute restriction on his right of transfer. The provision that the grantees may transfer back to the grantor has no effect. It would be the same if the deed provided that on transfer by the grantees the grant should be at an end.
7. It is true that we have to look at the substance and not the form. But this deed clearly indicates that the minor grantees should have an unfettered right to the charge. The deed gives that right but it cuts it down by the later clause. This is exactly what we conceive Section 10, T.P. Act, was designed to obviate. No decision exactly on all fours with this case has been shown to us, but there are numerous decisions which justify it being held that such a restriction of a grant as is made by Clause 2 in this deed would be construed as a
condition or limitation absolutely restraining the transferee from parting with or disposing of his interest in the property.
8. 'His interest' means interest conferred by the earlier portion of the deed. For the above reasons we hold that the decision of the lower Court was correct and we dismiss this appeal with costs.