BAL KRISHNA SHARMA Vs. PAIJ SINGH

JUDGEMENT

(1.) This is a second appeal by the plaintiff whose suit has been dismissed in full by both the lower Courts. The family tree is as follows:

(2.) Har Lal died first and after him his son Asaram died leaving Paij Singh as the sole survivor of the family. On 7 December 1921 Paij Singh, defendant.1, executed a deed of agreement by which he transferred for her lifetime and for her maintenance two plots to Mt. Sawai, his stepmother, defendant 2. She brought a suit, No. 529 of 1924, for possession and obtained a decree on 18 May 1925, and her name was entered, but she did not obtain possession. Subsequently she married, as is admitted in the written statement, a man called Badle in Gwalior, and after that, on 10 February 1926, she executed a deed of usufructuary mortgage of the two plots in favour of the plaintiff in this suit. On the same date she also executed a sale deed of her right to damages (that is mesne profits) for the years 1333 Fasli and 1334 Fasli in favour of the plaintiff. The consideration for the mortgage deed was Rs. 60 and the term was twenty years. We will first deal with the question of what rights arose under the usufructuary mortgage. It has been argued before us that the intention of the deed of agreement was to create a personal estate for life only in Mt. Sawai, and accordingly that she had no right to transfer her interest in that estate to the plaintiff, because Section 6(d), T.P. Act, states that an interests in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(3.) Various rulings have been quoted before us, and we leave out of account those rulings which refer to attachment of property under decree under Section 266, former Civil P.C. or Section 60. present Civil P.C., because the case of a voluntary transfer is not governed by the same principle as those sections. We may, however, note that in Tara Sundari Debi V/s. Saroda Charan Banerji [1910] 12 C.L.J. 145 there is a very full discussion of the principles governing both classes of transfer. At p. 154 the following principle has been laid down with which we are agreed: From a review of the authorities to which reference has been made it is clear that, when a grant of land has been made and accepted in lieu of a right to maintenance and there is no restraint upon alienation, there is no divergence of judicial opinion that the interest of the grantee is liable to be seized and sold in execution of a personal decree