AHMAD ALI KHAN Vs. RIYASAT ALI KHAN

JUDGEMENT

(1.) I concur in the order proposed. No doubt there are several classes of pensions and those falling under Section 7 are not subject to the provisions of Secs.4 and 6, Pensions Act, (Act 23) of 1871. It is also true that the burden is on the defendants to show that the pension in dispute in this case was of the class mentioned in Secs.11 and 12. But inasmuch as it has been assumed throughout in all the Courts that this was a political pension of the nature to which Section 12 would be applicable, I would prefer not to base my decision on the ground that this has not been established by the defendants.

(2.) In the same way I have considerable difficulty in holding that even if the withdrawal of the claim to the political pension in the former suit was in fact an invalid and void offer, the counter promise is enforceable. So far as the Indian Contract Act, is concerned, all considerations and objects of an agreement are unlawful which are of such a nature that if permitted they would defeat the provisions of any law. If therefore the object of an agreement is such that if carried out, it would be contrary to the provisions of any law, it would follow that it would defeat the provisions of that law and would therefore be unlawful. Reading Section 23 with Section 24, it would then follow that if any part of the consideration for one or more objects is unlawful, the whole agreement is void. I would therefore be inclined to consider if a part of the offer made by the plaintiffs to the former suit was such that if permitted, would defeat the provisions of the Pensions Act, then that part of it was unlawful with the result that the whole of the offer made by the then plaintiffs would be void and therefore the compromise made by the predecessor of the defendants would be without consideration and therefore not enforceable as against the unwilling defendants. But the promise made by the defendants predecessor to pay so much a month was not unlawful and the consideration passing from him was not void. Hence he might have either avoided the contract or enforced that Dart of it which was valid provided he performed the whole of his part of the contract.

(3.) The cases of conveyances stand on a different footing far two reasons : In the first place, Section 6, Sub-section (h) of the T.P. Act, in terms does not make Section 24, Contract Act, applicable to the transfers governed by the Transfer of Property Act. In the second place where one party has performed the whole of his part of the contract, and it is only the opposite party which is incompetent to perform one part of it, then it is open to the civil Court to enforce the performance by the second party of that part which he is competent to perform. The present case is one where the plaintiffs predecessor, assuming that the offer to withdraw the claim to the pension was invalid, was not in a position to perform a part of the compromise made by him, it might therefore be difficult to decree the plaintiff's claim when one part of the compromise made was not capable of being performed. That would amount to a substitution of a new contract by the splitting up of the offer made by the defendant's predecessor so as to uphold one part of it which might be regarded as consideration for the valid part of the compromise of the then plaintiffs and not to uphold the rest. On the other hand, as the plaintiffs predecessor never afterwards laid any claim to the pension or the estate and the defendants are in possession of these, it would be unfair to the plaintiffs if their claim is dismissed.