1. This appeal arises in execution of a compromise decree. The compromise decree was in a suit for partition, brought by the junior widow of one Bhagirathi Patel, the late Gountia of the village Laikera against the senior widow of the said Bhagirathi Patel. She claimed partition of various items of land set out in Schedule A attached to the plaint. She claimed in the first instance, eight annas share in all the items. It would appear that item (1) of Schedule A as stated in the schedule itself is a sixteen annas protected Thekadari Gountia share of mouza Laikera with Sir lands and other appurtenant rights thereto, covering a total extent of 194.99 acres. The defendant-widow is the Gountia who has succeeded to the Thekadari right. The plaint itself recognises the likelihood of this item (1) of Schedule A being held not to be partible and hence prayed in the alternative that in case this item is held to be not partible, she may be granted maintenance out of that property and that an eight-anna-share may be decreed in respect of the other items of property.
The suit was ultimately compromised. In the compromise it was recited that item (1) of Schedule A being a protected thikadari was notliable to partition but that the plaintiff should be given a six-anna-share thereof towards her maintenance. As regards the other items of property, she has been given by the compromise a five-anna-share. There was a specific clause in the compromise that the partition as above provided should be effected amicably between the parties within two months of the date of the decree and that in case that was not done, the plaintiff would be entitled to apply to the Court for appointment of a commissioner to effect the partition. The amicable partition contemplated, not having materialised, the plaintiff-decree-holder applied to Court, in execution of the decree, for appointment of the commissioner, and for allotment of shares, so that ultimately she may be given possession of the share so allotted to her. The defendant-judgment-debtor objected that a commissioner cannot be appointed and relied on Order 26, C.P.C., as showing that a commissioner can be appointed only in the course of the suit and not in execution proceedings. This contention was overruled by the Courts below and the execution has been ordered to proceed. It is against that order this appeal has been brought up.
2. The same contention has been raised before us, but it is quite clear that this contention is untenable. There is clear authority for the position, that whether or not Order 26 applies to execution proceedings, there is nothing to prevent a commissioner being appointed in execution of a decree where the parties themselves have agreed by compromise that the partition shall be so effected. The case in --'Gopal Das v. Jagannath Prasad', AIR 1938 All 266 (A), is clear authority for the position, and we entirely agree with this view.
3. Learned counsel for the appellant, has however, raised another point which was not raised in the Courts below. We have allowed him to raise the point, since it is purely a matter of law. He contends that by virtue of Section 65-A, Sub-section 4(a), C. P. Land Revenue Act, the lands comprised in a protected Thekadari tenure are not liable to partition and that the decree to the extent that it provides for partition of item (1) of Schedule A is opposed to this statutory provision and is a nullity and that therefore that this clause in the decree cannot be executed. He contends that such a plea attacking the validity of the decree itself is open in execution proceedings since it raises a question of the power of the Court to act in contravention of the statutory provision. Learned counsel for the respondent contends on the other hand that the question as to the partibility of this item of property being itself a matter at issue in the suit, must be deemed to have been finally disposed of by the decree, whether the same was on contest or by compromise and that therefore, it is not open to the judgment-debtor to raise any such contention in the execution stage.
It is unnecessary for us in this case to decide the correctness or otherwise of the argument, as to whether this point is now open, because, we have come to the conclusion that the main contention urged by learned counsel for the appellant, viz., that the arrangement contemplated in the compromise decree to allot a six-anna-share out of item (1) of Schedule A for the purpose of the plaintiff's maintenance, is really only a partition contrary to the prohibition under Section 65-A, Sub-section (4) (a), C. P. Land Revenue Act of 1881, is not correct and cannot be sustained. Section 65-A, Sub-section (4) (a) says in respect of a protected thekadari tenure, as follows :
'the tenure shall be heritable, but not transferable by sale, gift, mortgage or dower; it shall not be saleable in execution of any decree, nor shall any decree be passed for the sale thereof; and, save in so far as any arrangements to the contrary are in force at the time of the declaration, it shall not be partitioned and shall devolve on one member only of the thekadar's family.'
This provision apparently hits at the partition of the tenure itself and at any consequential arrangements by way of distribution and allotment of the property as a result of the partition of the tenure. What has been, attempted to be done in the present case, is however, not the partition of the tenure itself. The compromise in terms recognises that the tenure is not partible, but says that a six-anna-share is to be allotted to the plaintiff for her maintenance and this arrangement has been agreed to by the judgment-debtor Gountia at the time. We do not consider that this allotment of specified land or specified share of lands by way of convenient enjoyment for the purpose of maintenance of a member, whose maintenance the Gountia was bound to provide for, either out of these very lands or out of some other lands is in no way opposed either to the letter or the spirit of the prohibition of the sub-section.
It is true that this sub-section saves only 'arrangements to the contrary', at the time of the compromise, and it has been suggested that this saving applies to all arrangements either by way of division of title or of allotment by way of convenient enjoyment. It is argued accordingly that this specific saving implies a specific prohibition for the future in respect of all classes of arrangements whether by way of partition of title of tenure or by way of allotment for separate enjoyment as a matter of convenience. But it does not appear to us however that what are saved are anything more than arrangements prior to the grant of the protected status which amount clearly to division of title. So far as arrangements by way of convenient enjoyment are concerned, it was really not necessary to provide for any such saving, because it appears to have been fairly well-understood both prior to and after the Act of 1881 that such arrangements were valid and were generally in vogue. See --'Fagwa v. Budhram', AIR 1914 Nag 48 (B); --'Khedu Singh v. Bhagwan Singh', AIR 1924 Nag 163 (C); -- Tirtha Naik v. Lal Sadanand Singh', ILR (1949) 1 Cut 139 (D). Apparently, it was in confirmation of this view of the preexisting practice and continuation thereof as regards arrangements by way of convenient enjoyment out of the thekadari property for the maintenance of junior members, that the C. P. Land Revenue Act seems to have been amended by Act 2 of 1917 by Section 9 Sub-section (1) Clause (a) thereof and Section 112 specifically providing for the validity of such arrangements. See also --'Bhagwan Singh v. Darbar Singh', AIR 1928 P. C. 96 (E). Of course, that amendment: as such, does not apply to Sambalpur, which had ceased to be a part of the Central Provinces by the date of the amendment, but we are inclined to think that the later amendment is nothing more than a legislative recognition of the pre-existing position, even as under the Act of 1881.
Learned counsel for the appellant attempted to raise a further point that the decisions to the effect that such arrangements are valid, are based on the view that the junior members have got specific rights in the thekadari property in spite of the protected status making the property impartible and that these decisions have been wrongly decided and require reconsideration. It is, however, unnecessary for us in this case to go into the larger question because whatever may be the view that we might have taken, when that question arises for a definite decision, so far as this case is concerned, the parties themselves having agreed to treat this item as an item of property out of which the junior widow, the plaintiff was entitled to an eight-anna-share, that question does not arise.
There is nothing in law prohibiting the recognition of such rights by compromise when the matter is under dispute. We are, therefore, unable to uphold the contention of the learned counsel for the appellant that the provision in the decree providing for a six-anna-share out of item (1) of Schedule A for the maintenance of the plaintiff is opposed to the legal prohibition contained in Section 65-A. Sub-section (4) (a), C. P. Land Revenue Act. We are accordingly of opinion that the decision of the Courts below in directing the execution to proceed is Correct.
4. The appeal must be dismissed with costs.
5. I agree.