JAGDISH Vs. CHAVI LAL

JUDGEMENT

(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.

(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.