BAI MANGU Vs. BAI VIJI

JUDGEMENT

(1.) THIS Second Appeal is directed against the decision dated 10th December 1957 recorded by the learned District Judge, Broach, in Regular Civil Appeal No. 42 of 1957. The facts necessary to be stated in order to understand the disputes between the parties may be stated at first. Defendants Nos. 1 and 2 are the sisters of the husband of plaintiff. Plaintiff filed Civil Suit No. 105 of 1954 against defendants Nos. 1, 2 and 3 for partition of certain properties mentioned in the plaint of the suit and separate possession of her 1/2 share therein. Defendant No. 3 was joined as a party because defendants Nos. 1 and 2 had mortgaged some of the aforesaid suit properties with him. The suit ended in a compromise and a consent decree, of which Ex. 23 is a certified copy, was passed on 25th of July 1955. By this decree plaintiff was made the exclusive owner of lot No. 'B' in that suit and defendants Nos. 1 and 2 were made exclusive owners of lot No. 'C' therein. A latrine which was lot No. 'D' was kept common between the parties. THIS compromise decree contained the following agreement which plaintiff seeks to enforce specifically in the suit from out of which this second Appeal arises. The agreement is as follows:

(2.) ALL the three defendants resisted the claim on a number of grounds, some of them legal and others on merits. The trial Court rejected all the contentions of defendants and decreed the claim for specific performance. Defendants Nos. 1 and 3 preferred the aforesaid appeal to the District Court at Broach, but the appeal was dismissed. I am no longer concerned with the dispute between the parties regarding the merits of the case. The present appeal is preferred by defendant No. 1 alone. Mr. Majumdar, the learned counsel for defendant No. 1 attacks the appellate decree on the same legal grounds on which the suit was attacked in the two lower Courts and in addition, he has raised one or two more points, which will be dealt with at their proper place. I propose to take up the contention raised by Mr. Majumdar one by one.

(3.) THE second contention which Mr. Majumdar urged was that the aforesaid agreement was hit by the provision contained in section 10 of the Transfer of property Act. I notice that this point, though raised in the memo of appeal in the first appellate Court, was not presented before the learned District Judge. But the learned District Judge has made a passing reference about this in paragraph 12 of his judgment. However, Mr. Majumdar is right in saying that the point being purely one of law, defendants were not bound by the concessions made by their Advocate and I permitted Mr. Majumdar to address me on this topic. In my judgment, there is no merit in this contention also. Section 10 makes void a condition or limitation embodied in a transfer absolutely restraining the transferee or his successor from parting with or disposing of his interest in the property. In the first instance, the aforesaid section does not apply because this is not a case of a transfer of property. THE impugned condition is embodied in an agreement and not in a document of transfer. Secondly, the aforesaid agreement does not amount to an absolute restraint. It is a clause which embodies an agreement of pre-emption. It does not prohibit transfer altogether but says that, in case a transfer is to be made, the transfer shall be made to the person with whom the agreement is made at a price to be fixed by the Panchas. Thirdly, even assuming that the agreement comes within the mischief of section 10 of the Transfer of Property Act, there is an authority of the High Court of Bombay, which is binding on me, which specifically decides that section 10 of the Transfer of Property Act does not apply to an agreement embodied in a compromise decree. That case is Govind Waman v Murlidhar Shrinivas, 55 Bom LR 465: ( AIR 1953 Bom 412). In this case, THEir Lordships held that a compromise decree passed by a Court competent jurisdiction which contains a term contrary to the provision of section 10 of the Transfer of property Act is not a nullity and is binding as between the parties unless it is set aside by proper procedure. In view of this authority, I am bound to reject the contention of Mr. Majumdar that the agreement is hit by section 10 of the Transfer of Property Act.