1. This appeal is brought by defendant No. 2 Captain Parmodh Singh against an appellate decree of the Senior Subordinate Judge, Dharamsala, reversing the decree of the trial Court dismissing the plaintiffs' suit with costs.
2. The facts which have given rise to this appeal are that on 4-7-1928 one Gulaba obtained 19 'Kanals' 10 'Marias' by a compromise which was arrived at in original suit No. 78 decided on 18-7-1928 in the Court of the Senior Subordinate Judge, Dharamsala. This compromise is dated 4-7-1928 and one of its terms was that 19 Kanals 10 marlas was to be given, to Gulaba. The deed of compromise further recites:
'On this' land I, the plaintiff (Gulaba) will remain in possession as 'Malik Kamal Dwami'. I shall not be entitled to mortgage or sell the land to anybody else. * * * * * If I, the plaintiff, die without any sons, then the land above referred to 19 'kanals' 10 'marlas' will without the payment of any compensation revert to Mehr Singh defendant No. 2.'
And a mutation was entered on the basis of this on 9-10-1928.
On 14-4-1933 Gulaba gifted 20 'kanals' 2 'marlas' of land to his wife, Mst. Panjabo. The area does not seem' to be quite correct, and the done in her turn sold the land in dispute to Parmodh Singh defendant No. 2 for Bs. 1,500/- on 23-12-1938. The successors-in-interest of Mehr Singh, who entered into the compromise, brought a suit on 6-5-1944 for declaration that the alienation made by the widow will not affect their right of reversion obtained by them under the deed of compromise The suit was dismissed by the trial Court, but on appeal the learned Judge held that Question No. 54 of Middleton's Riwaj-i-am of Kangra District applied and as the plaintiffs fell within the third category of persons entitled to inherit, they were entitled to challenge the sale and gave the declaration in favour of the plaintiffs.
3. In appeal it is contended that the transaction was not a gift at all and that it was really nothing more than a transfer, and reliance is placed on the following words in the deed of compromise:
'The defendants after going home (meaning after going from the Court) will get the ownership transferred in my (the plaintiff's) name in the revenue papers.'
But as against this Mr. Nayar has pointed out that in the beginning of the deed it is stated that this land was being given to Gulaba for his maintenance and he also points out that the other terms of this compromise show that if the original plaintiff, Gulaba, had any lineal descendants then they will after the death of Gulaba be entitled to the property and his submission is two-fold (1) that it was given by way of maintenance to Gulaba and his lineal descendants and (2) that there is an express condition of reversion on the line of Gulaba becoming extinct.
4. But I have to interpret the words of the document in their true setting. It appears that there was a case in which Gulaba was the plaintiff and had brought a suit for possession of 213 'kanals' and it is not shown that Gulaba and Mehr Singh, who was the defendant in that suit, were collaterals. The land may have been given for the purpose of maintenance, but the words of disposition are quite clear in that they gave an absolute estate in perpetuity. The words are:
''Is nar man wuddai bataur malik kamil dorri, qubiz rahega' (On this land I, the plaintiff, shall remain in possession as Malik Kamil in perpetuity.'
These words have been held to convey an absolute title.
5. In -- 'Nand Singh v. Pratap Das', AIR 1924 Lah 674 (A), there was a compromise in a pending proceeding by which a portion of the property was given to one party and the rest to the other and there was a condition by which one of the parties had agreed that they will be absolutely debarred from making any sort of alienation. Mahant Pratap Das who was the other party to compromise brought a suit for declaration that a mortgage which was created by the other party to the compromise was null and void, but Harrison J, before whom the matter came up in the first instance held that to a transaction like this Section 10, Transfer of Property Act, applied, and on the matter going up in appeal to a Letters Patent Bench Shadi Lal C. J. and Le Rossignol J. upheld the judgment holding that the restriction contained in the compromise on the power of alienation is a derogation from the full proprietary rights conferred upon the defendant and was therefore void. See -- Partap Das v. Nand Singh', AIR 1924 Lah 729 (1) (B).
6. Another case in which this matter was decided is a Single Bench judgment of the Allahabad High Court in -- 'Raja Deo Rai v. Brahmdeo Rai', AIR 1937 All 235 (C). A compromise was entered into between two persons and it was there provided that one of the parties was to hold the property for life and had no right of transfer except for necessity and if that party died without leaving any heirs, then the other party to the compromise and their heirs would have a right to succeed. This was held in the circumstances of that case to be a restraint upon the right of alienation which was Imposed by the compromise and was therefore void under Section 10, Transfer of Property Act.
7. The next case relied upon by Mr. Mahajan is -- 'Basangowda Virupaxagowda v. Irgowadati Kallangowda', AIR 1923 Bom 276 (D). In that case a Hindu widow arrived at a compromise with the reversioners whereby she agreed to keep the property for life and undertook not to alienate it and it was also agreed between the parties that after her death the reversioners would be the owners of the property. A money decree was passed against the widow in execution of which her estate was sold. This was held to be a family arrangement, but at page 278, a distinction was made between what would be a transfer and what would be a family arrangement which would be covered by Section 10, Transfer of Property Act. This case, in my opinion, is of little assistance to me in deciding the matter now before me.
8. As I have said above, the words used in the deed of compromise gave to Gulaba an absolute estate. There are no doubt certain words which restrict that estate. The question which arises is : Do these words take away from the absolute estate which was conferred by the use of the words 'Malik Kamil Dwami'? In my opinion they do not. In a Bench decision of the Lahore High Court in ---'Umrao Singh v. Baldev Singh', ATR 1933 Lah 201 (E), Tek Chand J. said at page 202: 'It is settled law that where in a deed of gift 1 or will, an absolute estate of inheritance Is created in favour of a person, any subsequent clause which purports to restrict that interest is in valid, and the donee or legatee takes an absolute estate as if the deed contained no such restrictive condition'.
9. In a more recent case decided by their Lordship of the supreme Court ,-- 'Ram Gopal v. Nand Lal, AIR 1951 SC 139 (F), a Hindu widow entitled', to a right of maintenance as the wife of a predeceased son relinquished by deed all her rights to the property of her father-in-law in favour of the latter's heirs and as a part of the same transaction received two pieces of property for her maintenance by a deed of transfer described as a 'tamliknama. It was there expressly stated that the grantee was a 'Malik'. This was held to convey an absolute estate although the gift was expressed to be for maintenance and residence, and there is a large number of cases where the same view was taken in regard to gifts made in favour of widows. I need only refer to -- 'Sarajubala Debi v. Jyotirmayee Debi', AIR 1931 P.C. 179 (G).
10. On a review of the facts of this case and the law which has been referred to above and taking into consideration the use of the words 'Malik Kamil Dwami'. I am of the opinion that it was an absolute estate which Gulaba got and that the transaction of the compromise was transfer and not a family arrangement and any restriction placed upon the right of alienation wduld be hit by Section 10, Transfer of Property Act.
It is true, as is pointed out at page 93 of Mulla's Transfer of Property Act, that a compromise between relations which amounts to a family settlement is not covered by Section 10, but in this particular case the finding of the first Court was that it was not a settlement between the relations and the second Court has not given any definite finding on it although Mr. Nayar points out that the trend of the judgment shows that the learned Judge was of the opinion that it was a family settlement a submission which I am unable to agree with, because even in the plaint which was brought in the present case no allegation was made that the present plaintiffs were reversioners of Gulaba. I would hold therefore :
(1) that the deed of compromise gave an absolute estate;
(2) that the words restricting that estate are void;
(3) that the transaction of 4-7-1928 amounts to a transfer; and
(4) that restriction on alienation contained in the compromise is hit by Section 10, Transfer of Property Act.
11. I would therefore allow this appeal, set aside the decree of the appellate Court and restore that of the trial Court. I leave the parties to bear their own costs in this Court.