1. In this case the plaintiff and the defendant No. 2 came to an agreement in a former suit that certain property should be given to the latter for her maintenance, but that she should not be able to alienate it. She has alienated it to the defendant No. 1 and the plaintiffs accordingly have brought this suit to recover possession.
2. The suit has been decreed by the Courts below and the defendant No. 1 appeals. It its contended on his behalf that the restriction on the defendant No. 2's right to alienate the property is contrary to Sections 10 and 12 of the Transfer of Property Act.
3. It appears to me that this contention must succeed. The propertj transferred to the defendant No. 2 appears to have been a life-interest. That, however, is just as much property as an absolute interest, and any condition absolutely restraining the transferee from disposing of that interest is, in my opinion, void.
4. The lower Court has relied on the case of Kuldip Singh v. Khetrani Koer 25 C. 869; 2 C.W.N. 463. But though in that case there was a condition that the widow with the life-interest should not be empowered to execute any sort of document, yet the clause which was really considered by the learned Judge was a stipulation that transfers by either of the parties should not be valid unless consented to by both. It seems clear that this was the only clause that was considered. We sent for the original paper-book and find that this was the clause referred to in the judgment of the Court below. It is the only clause referred to in the head-note of the case and I may observe that it is in this light that the case is regarded in Mr. Gour's commentary on the Transfer of Property Act, Section 379. A clause of that kind would certainly not amount, in my opinion, to an absolute restraint on the transferee from parting with the property; and as the decision in the case cited proceeded exclusively on that clause, it does not, in my opinion, bind us to hold that the restriction in the present case, which of a very different nature, does not come within the scope of Sections 10 and 12 of the Transfer of Property Act.
5. It has been contended that what was given to the defendant No. 2 was merely a right to maintenance and could not be transferred under Section 6, Clause (d), of that Act. But this clearly is not so. No doubt a right to maintenance cannot be transferred; but here specified property was given to the lady in lieu of her maintenance.
6. It is contended that Sections 10 and 12 do not apply by reason of the provisions of Section 2, Clause (d). I do not think, however, that this can be regarded as coming within that section.
7. The transfer was certainly npt a transfer by the operation of law or in execution of a decree. Was it then a transfer by a decree? The compromise was embodied in the decree. It has been laid before us, and it shows that the parties had settled their dispute and that the present plaintiff had agreed to give to the second defendant the property in question. The plaint says that the defendant, second party, received the property under the said decree, or, to use the word's of paragraph 5, on the basis of the said decree.' It can, therefore, I think, be rightly said that the decree itself transferred the property to the defendant No. 2.
8. In my opinion, the appeal succeeds and the suit must be dismissed with costs throughout.
9. I agree.