1. I concur in the order proposed. No doubt there are several classes of pensions and those falling under Section 7 are not subject to the provisions of Sections 4 and 6, Pensions Act, (Act 23) of 1871. It is also true that the burden is on the defendants to show that the pension in dispute in this case was of the class mentioned in Sections 11 and 12. But inasmuch as it has been assumed throughout in all the Courts that this was a political pension of the nature to which Section 12 would be applicable, I would prefer not to base my decision on the ground that this has not been established by the defendants.
2. In the same way I have considerable difficulty in holding that even if the withdrawal of the claim to the political pension in the former suit was in fact an invalid and void offer, the counter promise is enforceable. So far as the Indian Contract Act, is concerned, all considerations and objects of an agreement are unlawful which are of such a nature that if permitted they would defeat the provisions of any law. If therefore the object of an agreement is such that if carried out, it would be contrary to the provisions of any law, it would follow that it would defeat the provisions of that law and would therefore be unlawful. Reading Section 23 with Section 24, it would then follow that if any part of the consideration for one or more objects is unlawful, the whole agreement is void. I would therefore be inclined to consider if a part of the offer made by the plaintiffs to the former suit was such that if permitted, would defeat the provisions of the Pensions Act, then that part of it was unlawful with the result that the whole of the offer made by the then plaintiffs would be void and therefore the compromise made by the predecessor of the defendants would be without consideration and therefore not enforceable as against the unwilling defendants. But the promise made by the defendants predecessor to pay so much a month was not unlawful and the consideration passing from him was not void. Hence he might have either avoided the contract or enforced that Dart of it which was valid provided he performed the whole of his part of the contract.
3. The cases of conveyances stand on a different footing far two reasons : In the first place, Section 6, Sub-section (h) of the T.P. Act, in terms does not make Section 24, Contract Act, applicable to the transfers governed by the Transfer of Property Act. In the second place where one party has performed the whole of his part of the contract, and it is only the opposite party which is incompetent to perform one part of it, then it is open to the civil Court to enforce the performance by the second party of that part which he is competent to perform. The present case is one where the plaintiffs' predecessor, assuming that the offer to withdraw the claim to the pension was invalid, was not in a position to perform a part of the compromise made by him, it might therefore be difficult to decree the plaintiff's claim when one part of the compromise made was not capable of being performed. That would amount to a substitution of a new contract by the splitting up of the offer made by the defendant's predecessor so as to uphold one part of it which might be regarded as consideration for the valid part of the compromise of the then plaintiffs and not to uphold the rest. On the other hand, as the plaintiffs' predecessor never afterwards laid any claim to the pension or the estate and the defendants are in possession of these, it would be unfair to the plaintiffs if their claim is dismissed.
4. I am however of the opinion that, the withdrawal of the claim to political pension made in the previous suit, was in no way invalid. Even as regards oases which are governed by Sections 11 and 12, there is a specific provision in Section 5 that where any person has a claim relating to such pension or grant, he may prefer it to the Collector of the district who may either dispose of such claim or under Section 6 grant a certificate authorising that the case relating to such complaint should be tried by a competent Court-When such a certificate has been granted by the Collector, it seems to me that a civil suit filed in a civil Court is a perfectly legitimate action. The civil Court is not only competent to try it, but under Section 6 of the Act is bound to take cognizance of any such claim and has to try the case and decide it. No doubt, in deciding that case the civil Court is not empowered to make any order or decree in the suit by which the liability of Government to pay any such pension or grant would be affected directly or indirectly, but the Court is authorised to adjudicate upon the rights of the parties, if any, and the decree of the Court would certainly be binding upon the parties who are before it. It therefore follows that if there had been no compromise but the suit had been tried on its merits and decided in favour of the then plaintiffs, it would not be right to say that there was any defect in the action. I agree with the learned Judge from whose judgment this appeal has been preferred that the position is the same whether the suit is decided by the Court after contest or whether a decree is passed in, terms of a compromise which has been entered into between the parties. The effect of the compromise was that the then plaintiffs abandoned their claim not only to their alleged share in the political pension but also to their share in the estate of the deceased Syed Muhammad. The then plaintiffs were entitled to press their claims before the Court and ask the Court to adjudicate upon it and if the decision was in their favour, they could have gone to the Collector armed with the decree of the Court and would most probably have been able to persuade the Collector to recognise them as the pension-holders and grant the pension to them. They in consideration for what was offered by the opposite party abandoned their claim to go on with the suit and abandoned their right, if any, to the property as, also the pension. I am therefore of the opinion that when the suit itself, was maintainable the abandonment of the claim was valid consideration passing from the then plaintiffs which could form good consideration for the compromise made by the defendants. I see no objection in a person not persisting in his claim for a pension and abandoning the suit which he has instituted on the strength of a certificate of the Collector.
5. While Section 6 deals with the maintainability, of the suit relating to pensions, Section 11 is directed against a different state of affairs. Where a political pension is sought to be seized, attached or sequestrated at the instance of the creditor or in satisfaction of a decree or order of any such Court, Section 11 prohibits such action. Section 12, on the other hand, deals with private transfers and declares that all assignments, agreements, orders, sales and securities of every kind made by the person entitled to any pension mentioned in Section 11 are null and void. Obviously this deals with voluntary assignments, etc., made by a person entitled to any pension. This section does not govern decrees of Courts passed under Section 6, Pensions Act. The word 'orders' in this section must main orders made by the person entitled to any pension and is equivalent to1 payment orders made by such persons. The decree itself is therefore not hit by the provisions of Section 12 at all. But inasmuch as the decree is based on a private compromise, that part of the terms of the compromise which would offend against the provisions of Section 12 would be invalid even though they are embodied in the compromise decree. For instance, when the political pension under the compromise was allotted to the then defendants, an attempt to create a charge on that political pension for the purpose of securing the payment of the monthly allowance to Samiullah Khan would be null and void and of no effect. But an abandonment of the claim to have the question tried by the Court would not in itself amount to an assignment of any share in the political pension, but merely the withdrawal of the suit in lieu of the consideration offered. In my opinion such a course is not obnoxious, in any way to the provisions of the Pensions Act.
6. I am therefore of the opinion that the offer made by Samiullah Khan to abandon his claim to the estate of the deceased, Syed Muhammad Khan, as well as to the pension, to which he might have been entitled when made in a pending suit which had been instituted after obtaining the certificate of the Collector and which was in every way cognizable by the civil Court, was not unlawful or invalid. The position would have been different if we had nothing but a registered compromise between the parties, which was never filed in any such suit.
7. The question of the liability of the heirs of Samiullah Khan is somewhat difficult; but as there was adequate consideration for the compromise, which was between the members of the family and was in the nature of a family arrangement and it was intended that the allowance would be payable by the heirs out of the property left by Syed Muhammad Khan, there is no reason why when Samiullah Khan's heirs are not claiming any right to the political pension, they should not be entitled to enforce this, compromise against the heirs of Aftab Ali Khan. The amount was intended to be payable out of the assets of the deceased and the compromise decree should certainly be binding on the heirs of the parties so long as the assets of Syed Muhammad Khan are available. I am unable to accept the contention that the proper interpretation of the compromise is that the sum of Rs. 50 was to be paid out of the political pension and that the words 'the property left by Syed Muhammad Khan' would include the political pension as well. The contrary is clear from the later portion of the document in which a distinction is drawn between the property which had devolved from Syed Muhammad Khan and Malik Muhammad Khan and the pension which had devolved from three persons, Malik Muhammad, Syed Muhammad and Aminullah Khan. In view of the pronouncement of, their Lordships of the Privy Council in the case quoted by my learned brother, the want of registration is not fatal.
8. This is a Letters Patent appeal by the defendants against a judgment of a learned Single Judge of this Court. The case arises as follows : One Aminullah Khan, resident in Saharanpur, had a pension of Rs. 65 p.m. from Government, and he also owned an estate. He died some time prior to 1921 leaving hree sons, Syed Muhammad Khan, Malik Muhammad Khan and Muhammad Elliyas. Syed Muhammad Khan died without heirs. Muhammad Eliyas had a son, Aftab Ali Khan, and the two defendants-appellants are the sons of Aftab Ali Khan. The father of tine present plaintiffs one Samiulla Khan along with one Adil Khan brought a suit No. 616 of 1921 against Aftab Ali Khan and others for a declaration that the plaintiffs were the heirs of the deceased Aminulla Khan and were entitled to a share of the pension. No property other than the pension was in dispute in that suit. The suit was contested on the ground that Samiulla Khan was not the legitimate son of Malik Muhammad Khan. Permission was obtained under Section 6, Pensions Act from the Collector for this suit to be heard by the civil Court. On 8th August 1922 the parties entered into a compromise which was filed in Court and the suit terminated by a decree in the terms of the compromise. This compromise sets out that the claim of Adil Khan to receive Rs. 24-6-0 p.m., out of the pension of Aminulla Khan of Rupees 65-2-0 p.m., should be decreed; secondly that Samiulla Khan, the plaintiff was the son of Malik Muhammad Khan, and also 'in accordance with this compromise Nawab Samiullah Khan and his representatives were entitled to get Rs. 50 per month, generation after generation from Nawab Aftab Ali Khan and his representatives. It was also agreed upon that the (payment of this) monthly allowance of Rs. 50 shall for ever remain a charge upon the property and the pension allowance of Nawab Aftab Ali Khan. In lieu of this Samiullah Khan relinquished his entire share in the property inherited from Nawab Sayed Muhammad Khan and Nawab Malik Muhammad Khan. In accordance with this decree payments were made of Rs. 50 p.m., to Samiulla Khan and the present suit has been brought by the heirs of Samiulla Khan for arrears of this amount. Samiulla Khan died on 25th April 1923 and Aftab Ali Khan died on 23rd December 1927. The Munsif decided the suit in favour of the plaintiffs and the defendants filed an appeal and the lower appellate Court dismissed the suit of the plaintiffs on the ground that the compromise was void under Section 12, Pensions Act.
9. The plaintiffs came in appeal to this Court and the learned Single Judge of this Court has held that Samiulla Khan was not a person entitled to the pension within the meaning of Section 12, Pensions Act, (Act 23 of 1871), but he was only a person who had a claim to a pension, and that the civil Court in 1921 had jurisdiction to hear and decide the suit by virtue of a certificate granted under Section 6, Pensions Act, and that having jurisdiction to determine the suit the civil Court had jurisdiction to accept a compromise made between the parties and that such a compromise would be valid. Further the learned Single Judge held that under Section 24, Contract Act, in the present case the whole of the compromise would not become invalid. The learned Single Judge therefore restored the decree of the trial Court.
10. In Letters Patent appeal the first point which has been argued is that Section 12, Pensions Act, renders the compromise decree invalid. Now Section 12 refers to 'any pension, pay or allowance mentioned in Section 11' and Section 11 seta out:
No pension granted or continued by Government on political considerations or on account of past services or present infirmities or as a compassionate allowance shall be liable to seizure, attachment or sequestration by any process of any Court etc.
11. There are four kinds of pension set out in Section 11. Learned Counsel argued that these four kinds of pension must comprise all kinds of pension other than those set out in Section 7. Section 7 refers to two kinds of pension. I do not Consider that this argument is correct because there is nothing in the Pensions Act, which states that the two kinds of pension in Section 7 and the four kinds of pension in Section 11 comprise all possible kinds of pension; nor is there any reason to suppose that these six kinds do comprise all possible kinds of pension. Further it was argued that because a certificate had been granted in 1921 under Section 6 therefore the pension in question could not have been one under Section 7. Section 7 states that nothing in Sections 4 and 6 shall apply to the pensions mentioned in Section 7. No doubt a certificate is not required for a suit about a pension mentioned in Section 7, but the mere fact that a certificate is not required does not make the proposition correct that if a certificate is granted then the pension in regard to which it is granted cannot be one mentioned in Section 7. The written statement in the present suit in additional plea No. 2 set out that the deed of compromise is invalid according to law, that it is not registered nor executed on a stamp paper, that no charge can be created according to law on the pension allowance, nor is the Government pension fit to be transferred. Apparently in drafting this written statement the person who drafted it was under the impression that all kinds of Government pensions come under Section 12, Pensions Act. This however is not correct. The defendants should have made a proper pleading in their written statement that the pension was one of the four mentioned in Section 11 and it was necessary for the defendants to produce evidence to show that the particular pension in question was one which did come under Section 11, Pensions Act. The onus of proof of this matter was on the defendants as they set up Section 12 of the Act as rendering the compromise invalid. The defendants have neither made the proper allegation nor have they produced any evidence on the point. Under these circumstances I consider that the defendants have failed to establish that the pension in question was one to which Section 11 applies and that the compromise was one which would be invalid under Section 12. I am of opinion that this is not a case in which there should be any remand for a finding on the point because the defence failed to make the proper allegations in the written statement and failed to produce any evidence on the point. The Letters Patent appeal is not the stage of a proceeding where defects in the evidence and pleadings of a party can be set aside, and there are rulings of their Lordships of the Privy Council to that effect. However as many other points have been argued in this case I will assume for the rest of my judgment that this defect in the case for defence does not exist.
12. The next question is whether if the compromise was one which would be within the meaning of Section 12, Pensions Act, what would be the effect on the compromise. Section 12 states that the assignments, agreements, etc., enumerated by it are null and void. It therefore appears that the particular part of the compromise by which Samiulla Khan relinquished all his right to the pension would be null and void. It is to be noted that the compromise does not set out that the allowance of Rs. 50 p.m., should be paid to Samiulla out of the pension. The compromise merely provides that it should, be paid as an allowance per mensem, and the compromise is silent as to the source from which the payment is to be made. There is therefore nothing which could be invalid as regards Section 12 in connection with the provision for the payment of Rs. 50 p.m. The invalidity which is alleged is in regard to the relinquishment by Samiullah of his right to the pension, and this is set out in the compromise clearly and definitely. I am of the opinion that this provision that Samiulla relinquished his right to the pension, may be regarded as null and void within the meaning of Section 12, provided of course on the assumption that the pension is one tinder Section 11. That provision is no doubt part of the consideration of the agreement. The other part of the consideration moving from Samiulla was that he gave up his right to the property which had devolved from Syed Muhammad Khan. Two considerations therefore moved from Samiulla and of these two considerations one was null and void. Now a consideration which is null and void is distinct from a consideration which is unlawful. A consideration which is unlawful is stated by Section 23, Contract Act to be one which is forbidden by law, or is of such a nature that, if permitted, it will defeat the provisions of any law; or is fraudulent; or involves injury to the person and property of another or is regarded by the Court as immoral or opposed to public policy. Now this particular consideration is not forbidden by law, nor is it of such a nature that if permitted it would defeat the provisions of any law. The law makes this particular agreement to give up a claim to the pension null and void. There can therefore be no question of defeating the provisions of the law by recognising that that consideration is null and void. That is not defeating the provisions of the law but that is carrying out provisions of the law as the particular provision states that the particular agreement is null and void. The case there is different from a consideration which is unlawful. If there is a consideration which is unlawful then under Section 24, Contract Act, even if there are other considerations which are perfectly good the agreement will still be void because the existence of one unlawful consideration taints the whole agreement and renders the whole agreement void. What I have said in regard to consideration applies equally in regard to the object of an agreement both under Section 23 and under Section 24. Now the case of a null and void consideration has a different effect on an agreement from a case of an unlawful consideration.
13. Section 25, Contract Act, provides that an agreement made without consideration is void. If therefore there is a single consideration for an agreement and that consideration is void then the agreement is one without consideration and the whole agreement is void. But in the present case the compromise did not depend on the single consideration that Samiulla was to relinquish his right to the pension. There was also the consideration that Samiulla relinquished his right to the property. That consideration of relinquishment of his right to the property is a perfectly good consideration and therefore the compromise cannot be said to have been one without consideration moving from Samiulla. For these reasons I consider that even on this theory of the appellant the compromise would still be a valid compromise.
14. The next point on which argument is directed is a more difficult one and that is whether the compromise can bind the defendants, the sons of Aftab Ali, who was a party to the compromise. As regards this High Court there is a ruling reported in Aulad Ali v. Ali Athar : AIR1927All170 of a Full Bench which is binding on us which lays down in connection with the question of pre-emption as follows (p. 531):
I am also clearly of opinion that Section 37 confers that benefit and imposes the obligation upon the representatives of the parties if the parties should die before the contingency occurs. That is, it was held by the majority of that Bench that the second paragraph of Section 37, Contract Act, would apply to a cage of that nature. This paragraph lays down promises binding the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.
15. In addition to that Full Bench ruling there are certain other considerations which apply to the present case. There was a bona fide family dispute in regard to this pension and the Collector had granted a certificate under Section 6, Pensions Act, and the civil Court lawfully had the case within its jurisdiction. Under those circumstances the parties came to a compromise of this family dispute. The compromise was embodied in the decree. It appears to roe that such an arrangement is intended to permanently bind the members of the family. In the case of compromise decrees passed on family disputes it would be intolerable if the members who succeed the actual persons making the compromise were allowed to set the compromise aside on the simple ground that they were not parties to the compromise. Such settlement of family disputes are intended by the law to be of a permanent nature. Further there is the allegation in the plaint that the defendants are in possession of the property which was left by Aminulla Khan and the property which was left by Aftab Ali Khan. The defendants have not pleaded that they were not in possession of the property, nor did they raise this point in their grounds of first appeal to the lower appellate Court. I consider that the compromise will be binding on the defendants, the sons of Aftab Ali Khan, to the extent of the property left by Syed Muhammad Khan which is in their possession. To this extent I consider that the argument is well founded that the liability of the defendants should be limited to the assets of the property left by Syed Muhammad Khan in their hands. The decree therefore should be varied to this effect. The compromise set out that the payment of Rs. 50 p.m., to Samiulla should be made generation after generation so long as the property left by Syed Muhammad Khan remains in the possession of Aftab Ali Khan or in the possession of his representatives. The suit has not been brought to enforce a charge on that property, but nevertheless I consider that there is a liability on the defendants to the extent of the property in their hands.
16. Some further question was argued in regard to the question of registration of the compromise. At the time when the compromise was drawn up in 1922 the Registration Act was slightly different from what it is at present and in Section 17(2) it provided that nothing in, Clauses (b) and (c), Sub-section (1) applies to any decree or order of a Court. That provision of law was interpreted by their Lordships of the Privy Council in the year 1919 in Hemanta Kumari Debi v. Midnapur Zamindari Co. 1919 P.C. 79, (at p. 495), and their Lordships stated that where there was a compromise filed in Court which involved property which was not the subject of the case in that Court, then registration was unnecessary even in regard to that property. This is shown in the ruling pf their Lordships at pp. 496 to 498. Subsequently by Act 21 of 1929 this Section 17(2), Registration Act, has been amended and it now except s a compromise decree passed in regard to property which is not the subject of the suit. But the compromise with which we are dealing was of 8th August 1922, before this Section 17(2) of the Act had been amended. Clearly therefore registration was not necessary for the compromise even so far as it affected the property of Syed Muhammad Khan which was not the property in dispute in that case. Various rulings have been shown by learned Counsel for the appellant in his very able address in which he has pointed out that the mere existence of a compromise and a decree massed on that compromise does not prevent an execution, Court or a different Court from investigating the question whether certain terms, in that compromise would not amount to a penalty which would be invalid under Section 74, Contract Act. I consider therefore that it is open to us to go into the question of whether the compromise in question would or would not be valid. But as I have stated above learned Counsel for the appellants has failed to establish that the compromise was one which is invalid. For these reasons I consider that this appeal should fail except to the extent that the decree to be granted to the plaintiffs should be against the defendants out of the assets of Syed Muhammad Khan in their hands.