RAJ DEO RAI Vs. BRAHMDEO RAI

JUDGEMENT

(1.) This is a second appeal by a plaintiff whose claim has been dismissed by the two lower Courts. Without going into the merits of the decision of the Court below it appears to me that the claim of the plaintiff must be dismissed on another ground. The facts found by the lower appellate Court are that the plaintiff had purchased the property in suit which is zamindari shares in two villages, in execution of a decree against defendant 1, Bramhdeo Rai. Bramhdeo Rai filed a suit against the plaintiff in respect of this property alleging that it had been purchased with the money of Bramhdeo Rai for Bramhdeo Rai in execution of the decree. In the suit a compromise was made between the parties on 8 May 1930 which is filed. The compromise has not been quite accurately described by the lower appellate Court. It has two main clauses. No. 1 provides that Bramhdeo Rai is to hold the property for his life and has no right to transfer it except for necessity (zarurat) and if his other property proves insufficient. No. 2 provides that if Bramhdeo Rai dies without leaving any heirs {aulad) of his body or legal widow, then the plaintiff will become owner and the other heirs of Bramhdeo will have no right to succeed. Bramhdeo Rai executed a mortgage in favour of defendant 2, Sugan Rai on 9 April 1931. The plaint asks for a declaration that this document is null and void against the plaintiff so far as it concerns the property specified in the plaint and that defendant 2 will acquire no right thereunder in respect of the said property as against the plaintiff after the death of defendant 1. It will be noticed that the declaration asked for implies that as soon as Bramhdeo is dead the mortgagee will have no right to remain in possession, and this relief is not asked conditional to the existence or non-existence of heirs of the body or a widow of Bramhdeo. The Court below has held that the plaintiff has no locus standi to sue on the terms of the compromise as the compromise only vests in the plaintiff a contingent right of ownership in the property if Bramhdeo Rai dies childless, an event which may not happen, and that the plaintiff is not a reversioner. I may also point out that if the plaintiff claims a right to sue as the nearest reversioner for a declaration in regard to an alleged sic transfer by the owner of a limited interest, then the plaintiff has failed to show that he is the nearest reversioner as he has failed to show that Bramhdeo has no wife living, and under the compromise if there are no children of Bramhdeo the widow would take after his death.

(2.) But the main objection to the claim of the plaintiff appears to me to be that the restraint on alienation which the compromise seeks to impose is one which is contrary to law. Learned Counsel argued that under Section 28, T.P. Act, an interest may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen, such interest shall pass to another person or that in case a specified uncertain event shall not happen such interest shall pass to another person, and he argues that this provides for the creation of a life, interest with remainder to another person. That may be so as Section 6(c) states: An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him, and accordingly a life estate is recognized by the Transfer of Property Act. But the question is: Can an estate be created under the Transfer of Property Act of the nature of the estate which the compromise sets up that is a life estate is conferred on Bramhdeo and an estate which is apparently absolute on the heirs of his body and on his wife? There is no restraint of alienation whatever imposed on the heirs of the body, and then after creating such an estate there is provision that on failure of heirs the plaintiff is to become owner. It is the principle of English law that where an estate is created for life for a man and afterwards to the heirs of his body, then that will give him an absolute estate, and there is nothing in the Transfer of Property Act which recognizes that there can be any remainder left over after the. creation of such an estate. This is one of the grounds on which I consider that the estate which the compromise purports to set up is not an estate in which the plaintiff can claim to have any interest to restrain alienation. The second ground on which I think that the restraint on alienation will fall is that this restraint appears to be contrary to Section 10, T.P. Act, as interpreted by various rulings. That section provides: Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest the property, the condition or limitation is void except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him, provided that property may be transferred to or for the benefit of a woman (not being a Hindu or Mahomedan or Buddhist) so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

(3.) Now learned Counsel pointed out that the section referred to a condition or limitation absolutely restraining the transferee and he argued that the present was not one of absolute restraint; that is to say the present limitation was that Bramhdeo had no power to transfer except for necessity and in case his other property was not sufficient. It has however been held in various rulings that the word absolutely covers cases like the present. For instance, it has been held that a restraint on alienation except to a particular or special class is void: Teja singh v. Moti singh . In Asghari Begam V/s. Maula Bakhash a Bench of this Court held [as given in A 1 J head-note: Where the first portion of a mortgage deed, executed in favour of minor children in consideration of the mother of these children having given up her rights to claim an exproprietary tenant, read as follows: Therefore in consideration of the relinquishment of their exproprietary right Rs. 150 a year for maintenance in favour of... minor sons of... have been fixed for ever and after them to their descendants... and then followed a subsequent provision: The minors during their minority or after attaining majority shall have right to transfer this fixed maintenance to him at any time, but they shall have no right of transfer in favour of a stranger. Held (1) that these two clauses could be reconciled by supposing that it was the intention of the grantor that the minors during their lifetime should have no right to transfer the annuity, but that after their lifetime their descendants should have such a right; (2) that the restriction of the grant, as made by the second clause, would be construed as a condition or limitation absolutely restraining the transferee from parting with or disposing of his interest in the property, his interest meaning interest conferred by the earlier portion of the deed.