Deoki Nandan, J. - (1.) :-
(2.) THIS second appeal is directed against a decree passed by the court of Civil Judge, Basti on appeal from the decree of the Munsif, Basti in a suit for cancellation of a sale-deed dated Sth May, 1965 which had been executed by one Smt. Hansraji in favour of the defendant-appellants. While the trial court dismissed the suit, the lower appellate court has decreed it. Hence this second appeal. The grounds on which the cancellation of the sale-deed was sought were two: firstly that Smt. Hansraji had re-married after the death of her husband Banwari; and secondly that by a compromise dated 26th February, 1960 (vide-Ext. 3) arrived at in the mutation case after the death of Smt. Hansraji's husband Banwari, she had agreed that Barsati, the plaintiff (who is now represented by the respondents) and was Banwari's brother, she would not alienate the land and if she did so the alienation would be void, and that after her death the land would go to Barsati inasmuch as she had no issue. The lower appellate court held that the remarriage of Smt. Hansraji was not proved. However, the lower appellate court has on a construction of the compromise, Ext. 3, held that it was binding on Smt. Hansraji and an alienation made by her in breach of the terms thereof was invalid. The lower appellate court has in arriving at this conclusion heavily relied on the decision of this Court in Sheo Ram v. Ram Raton, 1969 ALJ 83. A similar compromise was entered into in that case but the suit in which the compromise was entered into there was a suit for partition. This Court held that the compromise was a family arrangement and a family arrangement and a partition not being transfers, Sec. 10 of the Transfer of Property Act was not attracted and, therefore, the terms of the compromise imposing a restraint against the alienation of the property allotted to the widow were binding. Mr. G. C. Dwivedi, learned counsel for the appellants urged that Sheo Ram's case was clearly distinguishable. The compromise in that case was arrived at in a suit for partition and was incorporated in the decree passed in terms thereof and consequently the terms of the compromise had the force of a decree. On the other hand, Mr. Dwivedi pointed out that in the present case the order passed on the compromise shows that the order of mutation is based on the admission by Barsati that Smt. Hansraji was the widow and the heir of Banwari. There is no mention in the order of any of the terms of the compromise imposing a restraint on alienation by the widow. In deed the mutation court has no jurisdiction to impose any such restraint by the mutation order, for ft is well settled that mutation proceedings are summary proceedings and any adjudication of title made therein for purposes of finding out who the heir of the deceased is, is not final and could be challenged or reversed in a regular suit for adjudication of title.
(3.) HAVING considered the matter I find that there is force in the argument of Mr. Dwivedi. In Sheo Ram's case the learned Judge has observed at page 86 column I, last paragraph "in my opinion the compromise decree represented a family settlement between the parties" which means that it was the decree passed on the compromise which represented the family settlement and not the compromise itself. Further it is well settled that a compromise is good only to the extent of the subject matter of the suit in which it is filed. A mutation court would have no jurisdiction to impose a term on the heir whose name is mutated in place of the deceased that the heir would not alienate or transfer the land. On the other hand in a partition suit it was not unusual for courts to impose a term by decree passed by them that a widow to whom some property was allotted, whether in lieu of her right to maintenance or in lieu of her share, will not alienate the land during her life time. I am accordingly of the opinion that the ratio-decidendi of Sheo Ram's case does not apply to the facts of the present case. The mutation court had no jurisdiction to impose any such restraint against alienation of the land while mutating her name in place of her husband in the revenue records. Indeed the mutation court did not impose any such restraint against alienation by its order. It was merely a term of the compromise and although the prayer in the compromise was that the case may be decided in accordance with the compromise and also that if Smt. Hansraji alienates the land, whether by way of sale or gift or in any other way, to any one other than her husband's younger brother or his heirs, the alienation shall be deemed to be illegal, yet the prayer made in the compromise application was not accepted in that form and all that the mutation court ordered was to direct the mutation of the name of Smt. Hansraji as the widow of her husband Banwari as tenure holder of the land held by him. It cannot, therefore, he said that the restraint against alienation was imposed by any decree of a court as in Sheo Ram's case (supra). The term against alienation specified in the compromise application could be enforced only if it was incorporated in a decree passed by a competent court having jurisdiction to impose that term or by a registered agreement to that effect, but not otherwise. I accordingly allow the appeal, set aside the judgment and decree of the lower appellate court and restore the decree of the trial court dismissing the suit with costs. However, the parties shall bear their own costs in this Court. Appeal allowed.;