GOVIND WAMAN Vs. MURLIDHAR SHRINIVAS

JUDGEMENT

(1.) THE short question of law which this appeal raises for our decision is whether a compromise decree which contains a term contrary to the provisions of Section 10, T. P. Act is a nullity and can be ignored without setting it aside. This question arises in this way. In Civil Suit No. 341 of 1926, a claim was made by the present defendants 1 and 2 against the predecessors of the present plaintiff for accounts. Their allegation was that the defendant to that suit was their guardian and had not rendered accounts. Between the guardian and his wards, a compromise decree was passed and by this decree the guardian conveyed to the wards certain immovable property. The compromise decree provided that it is declared that the plaintiffs, meaning the wards, and their descendants alone shall enjoy the said land and the building, that they should not alienate the same by lease etc. and that they should let it out only to their caste people. If in contravention of these conditions the plaintiffs or their descendants alienate, then defendants 2 and 3 or their descendants shall be entitled to recover possession of the suit land and the house. It is clear that this clause amounts to an absolute restraint on alienation and is void under Section 10, T. P. Act. Despite this clause, defendants 1 and 2 to whom the property had been delivered by their guardian sold the property to defendant 3 on 5-2-1941. Thereupon, the successor-in-title of the guardian who had been sued in 1926 filed darkhast No. 522 of 1942 for restoration of possession of the said property. The Darkhastadar contended that the property had been sold by defendants 1 and 2 contrary to the provisions of the consent decree and he was, therefore, entitled to claim back possession of the said property. This darkhast proceeding came to this High Court in Second Appeal No. 583 of 1944. The High Court held that the execution application as such was incompetent, but allowed the darkhpstdar to convert his application into a suit. Thus converted, the suit was sent back for trial in accordance with law it is this suit which has given rise to the present appeal.

(2.) THE substantial defence raised by the predecessors was that the material clause in the compromise decree which prohibited alienation of the property was void and the decree which contained that clause thereby itself became a nullity. This Plea prevailed in the trial Court with the result that the plaintiffs' suit was dismissed. On appeal, the learned District Judge has taken a contrary view. He has held that, though absolute prohibition against alienation in itself may offend against Section 10, T. P. Act, since the said prohibition has been incorporated in a compromise decree, the compromise decree cannot be treated as a nullity and the Only remedy open to the party aggrieved by the said term in the compromise decree is to get the said decree set aside by a proper proceeding. On this view, the learned District Judge has decreed the plaintiffs' suit. Mr. Murdeshwar for defendant 3 has challenged the correctness of the decree passed by the District Judge before us in the present second appeal and his contention is that the compromise decree passed in Civil Suit No. 341 of 3936 is a nullity and so the transfer made by defendants 1 and 2 in favour of his client should stand as good and valid.

(3.) AS I have already mentioned, there can be no doubt that the absolute restraint on alienation is clearly inconsistent with the provisions of Section 10, T. P. Act. But the question is whether, when this restraint had been imposed upon defendants 1 and 2 by a compromise decree, they could ignore the decree treating it as a nullity and proceed to sell the property contrary to the terms of the decree with impunity. If the decree is a nullity, it need not be set aside and the enforcement of its provisions can be resisted by defendant 3 or defendants 1 and 2. If on the other hand the decree is not a nullity, but is merely contrary to law, proper proceedings must be taken to set aside the decree and unless the decree is set aside, it would be binding as between the parties.