KUNDAN SINGH Vs. JADON PRASAD

JUDGEMENT

(1.) I am doubtful whether on the facts the difficult questions of law which have been so elaborately argued both before Lindsay, J., and ourselves really arise.

(2.) The facts are these:-- Puran Singh and his two sons, Kunr Singh and Kundan Singh (plaintiff-appellant), formed a joint Hindu family owning considerable Zamindari property. They agreed to partition this property, and this was done by two awards in 1912 according to which the undivided property was divided into three shares. By these awards Puran Singh acquired fall proprietary rights in the specific property allotted to him, and he became sole owner thereof. That property included the Chaupal or ?collection house" which is in dispute here.

(3.) In 1913 Kuar Singh applied to have the awards made a rule of Court. It appears that Puran Singh and Kundan Singh raised objections but ultimately they agreed to a compromise and the Court passed a decree, not indeed in terms of the awards, but in terms of the compromise which modified the awards. According to the compromise decree, Puran Singh gave up his full proprietary ownership of the property which had been allotted to him, and reserved to himself only a life interest in that property. It seems to me that Puran Singh then, after the award, as full and sole owner of his specifically allotted property was perfectly justified in doing what he liked with it. He could, if he so wished, have made a gift of this Chaupal or of any other parcel of his (now own) property to whomsoever he pleased. If he had made a gift of this Chanpal, for instance, to one or both of his sons, it could not be argued that such a gift was illegal in itself. Instead, however, of making an absolute gift of the Chaupal he gave it subject to his own life interest, in other words, the sons became owners of it subject to the father s right to enjoy its usufruct so long as he lived. Whether this transaction was done out of Court, by private treaty, or during the pendency of litigation and was finally incorporated in a Court decree, seems to me wholly immaterial. It must of course be understood that the transfer made by Puran Singh was not vitiated by fraud or made to defeat creditors. No such considerations arise in this case, although it is true that in the course of his judgment the learned Munsif observed that "the condition in the compromise derogating Puran Singh s absolute ownership in the properly under the arbitration award was not a bona fide one but was evidently intended to defeat Puran Singh s creditors, such condition in restraint is, in my opinion, void and ineffectual as against the contending defendants who were no parties to the ease." This seems to we to be an inference drawn from what the learned Munsif considered the probabilites of the case, rather than a decisive finding on which he based his conclusion. This must be so because there was no proper foundation laid in the pleadings on which such a defence could be raised, and I find on examining the record no evidence at all on which it could be decided. It was not the ground of decision in either of the Courts below. The lower Appellate Court held simply that "the condition imposed in the compromise embodied in the decree that Puran Singh will have no power to transfer his separated property was void as being a restraint upon alienation, vide Section 10 of Act IV of 1882 and Khiali Ram v. Raghunath Prasad 3 A.L.J. 621 : A.W.N. (1906) 214." In my opinion the Court has completely misconstrued and misunderstood the compromise decree. So far from being a transfer from the sons to their father with restrictions on his powers of alienation, the father transferred to his sons (subject to his life enjoyment of the usufruct) with no restrictions on their rights of alienation in the property so transferred. Hence Section 10 has no application. It would have been otherwise had Puran Singh conveyed to his sons his whole proprietary rights in the property and then sought by a condition in the compromise to prevent them alienating the property.