(1) Attra had two sons Dalip Singh plaintiff and Ishar Singh defendant No. 5. During his lifetime Attra executed a will dated 24th of December, 1944 bequeathing the whole of his landed property to Arjan Singh, Nirmal Singh, Naranjan Singh and Sadhu Singh sons of Dalip Singh to the exclusion of his own sons Dalip Singh and Ishar Singh. This will was got registered on 7th of October, 1946. On 15th of July, 1947 Attra died and on his death his landed property was mutated in the names of his grandsons, Arjan Singh, Nirmal Singh, Naranjan Singh and Sadhu Singh sons of Dalip Singh. Dalip Singh took the matter in appeal and the order of the revenue officer was set aside, with the result that the mutation was ultimately effected in the names of Dalip Singh and Ishar Singh.
Notwithstanding the mutation in his favour Dalip Singh could not get possession of the land, with the result that he had to institute a suit for possession of the land left by his father. In this suit be claimed possession of the whole land as against his own sons as well as against his brother Ishar Singh. During the course of litigation Ishar Singh applied for being transposed as a plaintiff; this prayer was granted and he was arrayed as a co-plaintiff in the suit. Later Ishar Singh withdrew the suit with respect to his half share in the land left by his father Attra and the suit of Dalip Singh was decreed with respect to possession of the remaining one-half share.
(2) The sons of Dalip Singh preferred an appeal whereupon a compromise was effected between the sons and the father by virtue of which the father gave over 2 ghumaons of land to his sons and the suit with respect to the remaining land was decreed. The present suit out of which this appeal has arises was instituted by Dalip Singh with respect to the other half of the land about which Ishar Singh had withdrawn his suit.
It is alleged by the plaintiff that the withdrawal of the suit by Ishar Singh was tantamount to a transfer or an alienation of the property and that the land being ancestral qua Ishar Singh and the plaintiff, this alienation by Ishar Singh, who was a sonless proprietor, being without consideration and legal necessity was not binding on him and it should not prejudicially affect his reversionary rights after Ishar Singh's death.
The usual declaration impeaching the alienation as contrary to custom was claimed. Defendants Nos. 3 to 5 did not contest the suit whereas defendants Nos. 1 and 2 pleaded that the withdrawal of the suit by Ishar Singh did not amount to alienation or transfer which could be impugned under Customary Law. The land was also alleged to be non-ancestral. Both the Courts below have held the withdrawal of the suit to amount to an alienation and have decreed the plaintiff's suit.
The learned Additional District Judge construed the withdrawal to be a compromise and observed that this compromise by virtue of which Ishar Singh gave way his share in the land to his nephews amounted to an alienation which could be attacked by a suit under Customary Law.
(3) On second appeal, Mr. Narinjan Singh Keer has raised several points but the principal contention has centred round the finding of the Courts has been constructed to amount to an alienation which is unauthorised and assailable under the Customary Law as in force in the Punjab. Mr. Keer has, to begin with, relied upon Gulkandi Lal v. Manni Lal, ILR 23 All 219, the head note of which is in the following terms:
'The plaintiff and the defendants is a suit for partition having arrived at a compromise, presented to the Court a joint petition asking that the suit might be struck off (kharij kardiya jawe). The Court passed orders accordingly in terms of the petition, striking off the suit. The terms of the compromise were not however inserted in the decree, and were never carried out. Subsequently the plaintiff brought a second suit for partition of the same property.
Held, that it was incumbent on the plaintiff to see that the Court did its duty and recorded a proper order in the suit with reference to S. 375 of the Code of Civil Procedure, and that, as he had not done, so, he must be taken to have withdrawn his suit without permission to sue again, and his second suit was barred by section 373 of the Code'.
This decision, in my opinion, is not at all helpful to the counsel as it did not touch the point which arises for decision in the present case. Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44, is, in my opinion, more to the point. According to this decision, a compromise is in no sense of the word an alienation by a limited owner of family property but a family settlement by which each party takes a share in independent right which is admitted by the other parties.
The Judicial Committee is the reported case placed reliance on an earlier decision in Kunni Lal v. Gobind Krishan Narain, ILR 33 All 356 (PC). In the last quoted case Mr. Ameer Ali while delivering the judgment of the Judicial Committee observed as follows:
'The true test to apply to a transaction which is challenged by reversioners as an alienation not binding on them is, whether the alienee derives title from the older of the limited interest or life-tenant. In the present case Chariot Lal acquired no right from the daughters of Daulat, for 'the compromise', to use their Lordships' language in Mewa Kuwar v. Hulas Kuwar, 1 Ind App 157 (PC), is based on the some kind in the parties, and the agreement acknowledges and defines what that title is'.
In the present case Ishar Singh was to prosecute the suit and to establish his title in the case. Having not secured a decision in his own favour and therefore having not acquired title to the property by successfully impeaching the will executed by Attra, it is impossible to construe the withdrawal of the case or the compromise said to have been effected by him to amount to an alienation in favour of the defendants which can be, attacked under customary law.
It must not be forgotten that the defendants in the previous suit were claiming title on the basis of the will and therefore non-prosecution of his suit by Ishar Singh could at best be construct to mean an acknowledgment of the validity of the will. On no principle of law to which my attention has been drawn, could Ishar Singh's withdrawal or compromise in the present circumstances amount to an alienation which could be attacked under the Punjab Customary Law. The Court below appears to have dealt with the case very superficially.
In the view that I have taken, I do not think it is necessary to refer to some other cases on which Mr. Keer has also placed reliance. Shankar Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352, lays down that a consent decree is as binding upon the parties thereto as a decree passed by invitum. This decision has been relied upon by Mr. Keer in support of this contention that Dalip Singh being also a party to the suit in which Ishar Singh had come to terms with the defendants, he (Dalip Singh) is bound by the compromise decree and therefore it is not open to him to institute the present suit.
For the same purpose the counsel cited Ganesh Jha v. Baidyanath Jha, AIR 1958 Pat 270. In Basangouda Giriyeppagouda v. Basalingappa Mallangouda, AIR 1936 Bom 301, a Division Bench of the Bombay High Court laid down that the plea of estoppel by res judicata may prevail even when the result of giving effect to it would be sanction what is illegal in the sense of being prohibited by statue.
As already observed, it is not necessary to express any opinion on this point as the appeal has to be allowed on the ground that the compromise or the withdrawal of the suit by Ishar Singh did not amount to an alienation which could be challenged by Dalip Singh under the rules governing Customary Law.
(4) For the reasons given above, this appeal is allowed but in the peculiar circumstances of the case there will be no order as to costs.
(5) Appeal allowed.