Ram Prasad Singh and Others vs Motiram Marwari and Another

Meredith, J.—The decree-holder respondent seeks to execute his money decree by attachment and sale of the appellant judgment-debtor''s interest in eleven villages. The appellant resists this prayer on the ground that he is a khorposhdar, and that his interest in the villages is a mere right of future maintenance which cannot be sold u/s 6(dd), T.P. Act, Section 60(1), (n), Civil P.C. and the express terms of his grant.

It was admitted by both parties before the lower appellate Court that the villages in question were given by the proprietor of the Jamtara Raj, an impartible estate, to the ancestor of the appellant for maintenance of him and his male heirs in the male line in 1858, and it was admitted that the right acquired by the khorposhdar was a heritable one. There is no evidence as to the exact terms of the grant then made, or as to the special customs of the family, if any. It appears, however, that there was a dispute between the Raja and the then khorposhdar before the settlement authorities in the year 1910. They arrived at a compromise, which was filed before the settlement authorities and incorporated in, the record of rights. This compromise and the entry in the record of rights were placed before the Court, and these documents show that the khorposhdar was recognized by the compromise to have the right to appropriate the income of the eleven villages, that right to descend to his male descendants in the male line, and on the extinction of that line the property was to revert to the estate. It was further provided that the khorposhdar or his descendants would not be at liberty to sell or transfer the properties or any portion thereof in any form, and, if they did so, the proprietor of the estate would be entitled to take back the properties into his khas possession.

In deciding whether Section 6(dd), T.P. Act and Section 60(1)(n), Civil. P.C. afford any protection the judgment-debtor in this case the crucial question is, is the judgment-debtor the holder of a bare incorporeal and personal right of future maintenance, or, is he the holder of an estate in property in lieu of maintenance? If the former, then manifestly the interest in question is protected from sale by the statutory provisions just referred to. If the latter, then equally manifestly those provisions have no application. It is true that Section 6(dd) is in very wide terms. It speaks of a right to future maintenance in whatsoever manner arising, secured, or determined; but, in my view, there is an essential difference between assigning property in lieu of maintenance and securing the right of maintenance upon certain property.

Prima facie it would seem that the holder of a heritable interest has something more than a bare right of future maintenance, and this is the view adopted in Muthuraman Chettiar v. Sundarakumara Ettappa Sami (99) 9 M.L.J. 113 by Subrahmania J. and by a Bench of the Oudh Chief Court in Mt. Bhagwati v. Raghubar Dayal AIR 1936 Oudh. 76. I concede that the grantor may adopt two attitudes. He may say "I recognize your right of maintenance and in lieu of it and in extinguishment of my liability take these villages", or, he may say "I recognize your right of maintenance and I am prepared to maintain you, but to save me trouble collect it yourself from the rents of these villages." The fact, however, that the grant is made heritable seems to me a plain indication that the grantor has adopted the former alternatives, for, though a man may acquire a right of maintenance by birth, he cannot inherit it. The plea that he is merely collecting the rents without any interest in the property is, to my mind, not available to any khorposhdar such as the judgment-debtor who has acquired his rights by inheritance. He cannot be heard to say that what he has inherited from his ancestors is a mere incorporeal right of future maintenance.

The judgment-debtor in the present case, however, relies strongly on the decision of the Privy Council in AIR 1925 176 (Privy Council) which is, he says, a case where the facts, were very similar to the present case, and the Privy Council held that the interest of the judgment-debtor was a right of future maintenance which could not be sold in execution, though a Receiver might be appointed.

The difficulty created by this case seems to me to arise mainly from the placitum and the statement of facts made by the reporter, and not from the actual wording of their Lordships'' judgment. Reading the judgment carefully it seems to me that the case before the Privy Council proceeded on the basis that the creditor in terms prayed to proceed against what he conceded was a mere right of future maintenance. There is indeed a quotation in the judgment from that of the Subordinate Judge which would suggest that the decree-holder had only asked for the appointment of a receiver, and the defence of the judgment-debtor proceeded on the lines that u/s 60, Civil P.C. a right of future maintenance could not be attached, and when you cannot attach you cannot appoint a receiver, a proposition not accepted. It is significant, I think, that in disagreeing with an expression of opinion, by the High Court that the interest could be attached and sold their Lordships said that they did not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment debtor. Moreover, in speaking of the terms of the compromise under which the right arose, their Lordships said that the substance of the agreement was that the judgment-debtor, one of the two brothers parties to the compromise, was declared to have a right of maintenance in certain villages enumerated, the right being conferred expressly "without power of transfer."

They added:

The Subordinate Judge correctly limited the issue between the parties to this maintenance question. No other point teas brought before the Board.

There is there, I think, a hint that other points might possibly have been brought before the Board.

Apart from this, the facts of the Privy Council case differ from the facts in the present case in one very important and significant particular. In the case before the Privy Council, there was no question of the customary rights of the junior members of the family in an impartible Hindu Raj. They were dealing with a particular right in the judgment-debtor which arose solely under the terms of the compromise between him and his brother, and which was treated as a personal right of the judgment-debtor alone, which had arisen purely under the compromise and could not exist independently. It is plain in the present case that the khorposhdars as junior members of the family had rights prior to and independent of the compromise of 1910, rights which had been previously recognized by the settlement authorities, the name of the proprietor having been previously entered on behalf of the khorposhdar. It had been recognized in many cases, including at least two Privy Council cases, that such rights in the absence of proof of any special and peculiar custom in the family, of which there is no evidence before us in the present case, are absolute rights in the property assigned by way of maintenance, and are transferable. Two such cases are Durgadut Singh v. Rameshwar Singh (09) 36 I.A. 176 and AIR 1936 332 (Privy Council) . There is also the authority of a Division Bench of the Patna High Court in Shiba Prosad Singha v. Lekhraj Shewakram & Co. AIR 1945 Pat. 162, which is binding on us. In that case, it was held that a khorposh grant is neither a family arrangement nor a lease. After the grant the grantor has no interest whatever left in the property (save, of course, the right of reversion on failure of heirs to the grantee), and the grantee is the absolute owner thereof with an unrestricted power of transfer.

In my opinion, the present is a case of assignment of property in lieu of maintenance. The interest of the judgment-debtor cannot be described as a bare right of future maintenance and Section 6(dd), T.P. Act, and Section 60(1)(n), Civil P.C., have no application. I find nothing in AIR 1925 176 (Privy Council) compelling me to take a different view.

The appellant, however, relies also on the restrictive clauses in the compromise. It has been argued with much force that these restrictions against transfer are void under Sections 10, 12 and 14, T.P. Act. Though certainly if there was an absolute grant of the property, the restrictions would be void on the ground of repugnancy and the creation of perpetuities, it is unnecessary to decide these points and whether any escape from that position could be found by reason of the fact that prior to 1929, Section 2, T.P. Act, provided that nothing in Chapter II (which includes Sections 10, to 14) shall be deemed to affect any rule of Hindu, Muhammadan or Budhist law. The reason why it is unnecessary to consider this point further is that the restrictions against transfer if contractual and not statutory are only between the grantor and the grantee. The effect would, therefore, merely be to render alienations voidable by the grantor, and not void ab initio. Therefore, these restrictions could not prevent the creditor from selling the property and purchasing it, thereby stepping into the shoes of the judgment-debtor. This distinction was clearly pointed out in the case of Mt. Bhagwati v. Raghubar Dayal AIR 1936 Oudh. 76 to which I have already referred.

In my opinion, the Order of the lower appellate Court is correct, and I would dismiss the appeal with costs.

Ray, J.

I agree to the order proposed by my learned brother and I wish to add the following words:

The appeal is by the judgment-debtor challenging the validity of the judgment of the lower appellate Court declaring alienability of the properties in dispute and directing the same to be attached in liquidation of the judgment-debts of the decree-holder in a money suit.

The properties in dispute consist of the judgment-debtor''s interest in eleven mauzas of taluq Pabia which his ancestor got from the Jamtara Raj for maintenance. The controversy emerging as it does from the respective contentions of the parties turns upon whether the aforesaid interest of the judgment-debtor is interdicted from sale in execution. The judgment-debtor relies in support of his contention upon Section 6(dd), T.P. Act, and Section 60(1)(n), Civil P.C., and contends that the interest aforesaid is but a future right to maintenance within their meaning.

The decree-holder''s answer to the above contention of the judgment-debtor is the right to future maintenance contemplated in the sections aforesaid connotes a mere personal right enforceable in law, or, in other words, such as can form the basis of a cause of action for recovery of maintenance.

At the outset it can be predicated with certainty the construction sought to be put by the decree-holder is too narrow to be entertained. Section 6(dd), T.P. Act, reads as follows:

A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.

This clause is new and was added by the Amending Act of 1929. Before this there was a conflict of opinion as to whether a right to future maintenance fixed by a decree or charged upon Immovable property can be held alienable. It must be held that the Legislature added the new clause in its present form to set the controversy at rest so far as its words, comprehensive as they are, can do. It is quite plain, and manifest even if the right to future maintenance, in any particular case, is no longer in the category of a mere personal right enforceable in law, and has merged in a decree or grant charged upon movable or immovable properties, or fixed by assignment of or appropriation from a particular fund, it cannot be transferred. Section 60(1)(n), Civil P.C. must, in its ambits of operation, fall in line with that of Section 6(dd) of the Act, particularly both the provisions being legislations in pari materia with each other. To put any other interpretation would amount to detract from the plain grammatical meaning of the words used by the Legislature. To illustrate myself, I would take a case in which a decree for maintenance has been passed, and a charge on immovable property has been declared in its favour. The declared charge, there can be no possibility of any doubt, is an interest in immovable property and is enforceable as a mortgage so far as may be. A question may arise ''is the charge alienable?" Before answering the question, the nature of this charge has to be further analysed. It is a charge which takes a tangible shape only after the recurring right to periodical maintenance materialises and can be ascertained in terms of money. The charge spends itself up when the right ceases to exist, generally on account of the maintenance-holder''s death. Such a charge can be alienated, so far as it operates in respect of maintenance accrued and due but not for future maintenance that may or may not become due. If you transfer in the latter case, you contravene the law as defined in Section 6(dd), T.P. Act. The same is the case when the charge is created by a grant or transfer inter vivos.

The same will be the case where the grantor in discharging his obligation to maintenance assigns the rents and profits of a specific property, or a particular fund, for being appropriated, from time to time in satisfaction of the maintenance, as and when right to it accrues, and so long as it enures. A different consideration, however, arises when the recurring right to future maintenance of a person or a branch of a family or a person and his heirs, at large, or heirs male, is sought to be provided for by giving certain properties, in consideration and in full discharge thereof. The most apt illustration of such a disposition is furnished by khorposh grants, sometimes called, babuana grants in favour of junior member of a Raj. Duration of such grants is limited by an ultimate right of reversion reserved in favour of the grantor or his heirs in the event of extinction of the grantor''s line. Such estates are generally made heritable and the heritability is limited to such heirs only as are entitled to maintenance under the law and custom governing the family or the estate as the case may be.

In relation to the properties sought to be attached and sold in the present case, the judgment-debtor relying upon its description in the record of rights based upon a compromise between his ancestor and the holder of the Jamtara Raj, and applying the dictum of the Privy Council in AIR 1925 176 (Privy Council) urges that they are inalienable, they being "right to future maintenance". The rights of the judgment-debtor are described in the petition of compromise filed in Commissioner''s settlement case No. 274 of 1909-10 in the following terms:

Be it noted that Sri Krishto Prosad Singh of Rampur Bhitra, Tq. Pabia has been enjoying the rents payable by the raiyats of this village as entered in the Jamabandi and the income from the Hat etc. and other income and in future he and his male descendants in the male line will realise and enjoy the same for all time to come, but none of his descendants in his daughter''s line will enjoy it and in default of heirs as mentioned above it will become khas of the proprietor and his descendants. And Krishto Prosad Singh and his descendants as indicated above shall not be entitled to transfer by sale or otherwise the above right or any portion thereof. If such transfer is made then the proprietor and his heirs shall be entitled to take khas possession of the property so transferred.

The learned Munsif construed this to be such a right to future maintenance as is contemplated in Section 6(dd), T.P. Act, and disallowed the decree-holder''s prayer for attachment. The learned Subordinate Judge observed, inter alia, that. Section 6(dd), T.P. Act was introduced by Act, [x] of 1929 and could not be given retrospective operation so as to govern the grant in question. He further held that the judgment-debtor''s interest sought to be attached is not a right to future maintenance within the meaning of the section.

The first proposition of law enunciated by the learned Subordinate Judge must be forthwith ruled out as untenable. To give effect to the contention of the judgment-debtor deducible from the provisions of Section 6(dd), T.P. Act, it would not be necessary to give a retrospective effect to the section. The section is intended to interdict transfer of properties answering the description of a right to future maintenance, irrespective of the time when the property or the right accrued. Its prospective operation has reference to the transfer of the property or the right. This section has nothing to do with the valid creation of the interest of the kind contemplated therein, but it aims at prohibiting its transfer when such a transfer is sought to be made after the section comes into force.

With regard to the lower appellate Court''s second proposition of law, to the effect that the judgment-debtor''s interest defined in the petition of compromise, the text of which has been quoted above, does not constitute the right of future maintenance, it is urged that it is wrong in view of the decision of their Lordships of the Privy Council in AIR 1925 176 (Privy Council) . In my view, if the matter rested there, the dictum of their Lordships in the aforesaid decision would be a complete answer to the decree-holder''s case. The facts of the case before their Lordships of the Privy Council, so far as they can be inferred from the body of their Lordships'' judgment, independently of the statement of facts given by the reporter that precedes the judgment, are that there was a compromise agreement between two brothers of which the substance was that the judgment-debtor before their Lordships who was one of the two brothers, parties to the compromise, was declared to have a right of maintenance in certain villages enumerated the right being conferred expressly without power of transfer. This property of the judgment-debtor in the aforesaid villages which the judgment-debtor got from his brother for maintenance was sought to be proceeded against by realising the rents and profits thereof through a receiver appointed for the purpose and the decretal amount paid out of the said realisation as far as possible. The judgment-debtor objected on the ground that this property was a right of maintenance and was not attachable u/s 60, Civil P.C. The Subordinate Judge dismissed the application agreeing with the contention of the judgment debtor and holding that the judgment-debtor''s property in the said villages were not liable to attachment and sale. The High Court, it is at least clear from the report, was not ready to agree with the Subordinate Judge in his view that the property in question could be described as a right to future maintenance which according to the High Court would mean only bare personal right of maintenance and nothing more. In the circumstances of that case evidently holding it to be property secured to ensure the right to future maintenance as distinguished from personal right to future maintenance, the High Court expressed the view that the appropriate method of execution would be by the appointment of a receiver. The High Court in this view of the matter reversed the decree of the Subordinate Judge. When the matter came before their Lordships of the Privy Council, the point no doubt was whether the judgment-debtor''s interest was a right to future maintenance. In my view, if this was not the point, there would be no meaning to bring the appeal before the Privy Council and there would be no object in their Lordships saying what they are reported to have said in the following passage:

Their Lordships do not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment-debtor. That right of maintenance arose under a compromise which was made between the judgment-debtor and his brother. The compromise agreement is not produced, but its terms are said by the parties to be recorded in a decree pronounced by the Subordinate Judge of Jaunpur on 20-5-1915. The substance of this agreement is that the judgment-debtor one of the two brothers parties to the compromise, was declared to have a right of maintenance in certain villages enumerated, the right being conferred expressly ''without power of transfer''.

It is urged, by the learned advocate for the decree-holder, that the only point before their Lordships of the Privy Council was that as the judgment-debtor''s interest was not attachable u/s 60, Civil P.C., it could not also be proceeded against in the manner suggested by the High Court, that is, by appointment of a receiver etc. There is no doubt that this was one of the points before their Lordships but the question whether it was a right of maintenance at all was also before them and with reference to this position their Lordships are reported to have said:

In the present case the Subordinate Judge in his judgment of 10-8-1920, correctly limits the issue between the parties to this maintenance question. No-other point was brought before the Board.

It may be, as it appears from a part of the Subordinate Judge''s judgment quoted in the judgment of their Lordships of the Privy Council, that the decree-holder called the judgment-debtor''s interest in the villages as a property charged with right of maintenance and hence liable to be proceeded against by appointment of a receiver, while the judgment-debtor objected that that particular right consisting as it did in the villages granted for maintenance was a right to future maintenance, and, therefore, not attachable u/s 60, Civil P.C., and hence not liable to be proceeded against in the manner proposed by the decree-holder; but the learned Judges of the High Court ruling out the judgment-debtor''s contention expressed themselves to say that the particular right in question not being a bare right to future maintenance could be proceeded against in the manner proposed notwithstanding Section 60, Civil P.C., This view of the High Court was, there can be no doubt, ruled out by their Lordships of the Privy Council in the passage already quoted above. It may be that their Lordships contrasted a bare personal right to future maintenance as against a right of maintenance secured by creation of some interest in immovable property by holding that the latter can be the subject of an equitable or indirect execution while the former cannot, but they made no distinction between the two with regard to both of them being equally not attachable and not-saleable. It would be seen that in the first paragraph at p. 264 of the report their Lordships have unreservedly described the judgment-debtor''s interest in the villages as his right of maintenance, and in the third paragraph of that page they have said:

Their Lordships are of opinion that the right of maintenance is in point of law not attachable and not saleable. They think that Section 60, Civil P.C., head (n), precludes an application for that purpose.

It may be further noticed that their Lordships in declaring realisation of the rents and profits of the property (subject of maintenance) by the appointment of a receiver as proper remedy do not do so unreservedly as they say that such a remedy lies in a fitting case.

In my judgment this decision is an authority for the proposition that where for securing a right of maintenance some interest, without power of transfer, is created in immovable properties that interest falls within the mischief of Section 60(1)(n) and for the matter of that Section 6(dd), T.P. Act. Their Lordships might be taken to have laid down that what is not transferable, not attachable and not saleable can be the subject of an equitable or indirect execution, but that is not the question before us. I do not find any distinction between the interest of the judgment-debtor, before their Lordships, in the 16 villages created under the'' compromise, and the interest of the present judgment-debtor in the 11 villages before us. Both are interests in immovable property created for satisfying either preexisting or newly created right of maintenance with a power to appropriate all its income but without a power of transfer. In my view, therefore AIR 1925 176 (Privy Council) does fully support the judgment-debtor''s contention, but in my view, in the present case the judgment-debtor''s interest in the disputed villages is something more than a right to future maintenance. The compromise petition shows that formerly these villages constituted the Khorposh grant and the proprietor of the estate was recorded as malik by way of representing the Khorposhdar there by showing that the latter was in fact the malik. This khorposh grant, it was admitted by both parties before the Subordinate Judge, comprised in the villages in question, was given by the Jamtara Raja to the ancestor of the judgment-debtor for the purpose of maintenance in 1858. The grant was heritable and limited in its duration till the khorposhdar''s male line became extinct. It has now to be determined whether such a grant can be called a right to future maintenance. These grants have their origin in the joint ownership of the junior members of the family in the Raj. The following quotation from Mayne on Hindu Law, 10th Edition, p. 861 will go to make the matter clear:

In the latest case, AIR 1934 157 (Privy Council) , the Privy Council have clearly laid down that the earlier judgments of the Board such as Mallikarjuna Prasada Nayudu v. Durga Prasada Nayudu (1900) 27 I.A. 151 which regarded the right to maintenance of junior members, however limited, out of an impartible estate as being based on the joint ownership of the junior members of the family, should be followed.

Apart from custom or statute, the right of junior members to maintenance would seem to be co-extensive with their right of survivorship. As was pointed out by the Madras High Court in Naraganti v. Venkataobalapathy (82) 4 Mad. 250 which has often been approved by the Privy Council, ''where from the nature of property, possession is left with one coparcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner two obligations to his coparceners in virtue of their co-ownership, the obligation to provide them with maintenance and the obligation to preserve the corpus of the estate.

In substance, the position is that their right to joint ownership of the whole estate is for the time being limited to their enjoyment of such property as is sufficient, in keeping with their status, for their maintenance. Subject to the right of reversion in the eventuality of extinction of their line, they possess the full power over the properties so long as there is no express prohibition of transfer. In (09) 36 I.A. 176 while dealing with a babuana grant appertaining to an impartible-estate, it was observed by their Lordships of the Privy Council at page 182 as follows:

It was conceded that the lands, or usufructs, granted by this babuana grant to Kirat Singh, the father of Durgadut Singh, were impartible-descending to the eldest male heirs of the grantee to be held, or managed, by the person to whom they descend for the maintenance of the family-and that, on failure of male descendants, they reverted to the raj and became the property of the Maharaja for the time being, or that the interest granted then ceased to exist, whatever it might be; and, further that meanwhile the Government revenue should be paid by the grantee, or the person to whom the property should descend through the Maharaja. There is no provision, express or implied, that the interest granted should be inalienable, It is no doubt impartible that is to say, those who for the time being are entitled to be maintained out of it cannot have it divided amongst them by proceedings in the nature of partition. It by no-means follows, however, that it is, by reason of this fact, inalienable: Raja Udaya Aditya Deb v. Jadub Lal (82) 8 I.A. 248 Rani Sartaj Kuari v. Rani Deoraj Kuari (88) 15 I.A. 51; (96) 26 I.A. 83 Sri Venkata Surya Mahi Pati Rama Krishna Rao v. Court of Wards. On the contrary, these authorities establish that property, though impartible, may be alienable.

In this particular case, so far as the original grant is concerned, it is not suggested that there-was any provision express or implied that the interest granted should be inalienable.

In AIR 1936 332 (Privy Council) it was observed at page 447:

It is common ground that a village granted to a junior member in lieu of maintenance is resumable on failure of his male line, but until that event takes place, the grantor has no interest in the property. The grantee-is the absolute owner thereof, and has an unrestricted power of transfer. If a transfer is made, the transferee holds the property as a full proprietor, and the grantor has no right to interfere with him until the extinction of the male line of the grantee. When that incident takes place, the tenure of the grantee comes to an end, and the property reverts to the grantor.

I do not, however, understand that the aforesaid two decisions of the Privy Council intend to lay down that all grants of maintenance are alienable so far as the holders are concerned. It is no doubt true that where properties are granted in full discharge of the obligation of maintenance, it is not a right to future maintenance simply because the consideration for the grant is liquidation of the total capitalised value of all future maintenance. But where the grant consists in right to periodical appropriation of rents and profits of any property, and by appropriate-words such as "the grantee will have no interest in the lands or the grantee will have no power of disposition over the property," it is made clear that no interest in the landed or other properties is thereby transferred by the grant, the said right to appropriate the income, even though described to be heritable by a particular line of descendants of the original grantee, will keep the character of a right to future maintenance in whatsoever manner arising, secured or determined. The Privy Council decision in AIR 1925 176 (Privy Council) hereinbefore referred is, in my view, an authority for this proposition. It is also in accord with the meaning conveyed by the expressions used in Section 6(dd), T.P. Act.

It has, however, been strenuously contended by Mr. Lall for the appellants that the khorposh grant of 1858 has undergone a revolutionary change by the compromise in Commissioner''s settlement case of 1909-10, and according to the terms of this compromise, recorded as they are in the record of rights, it is no longer an estate in immovable property but is a right to future maintenance. I cannot agree. No doubt, a subsequent khorposhdar, an ancestor of the judgment-debtor has entered into a compromise which greatly detracts from the ancestral tenure of the grant. I have already observed that this grant is not only in lieu of a maintenance but also in recognition of joint ownership of a junior member. This status should enure to every male member of the khorposhdar''s family and it is not within the competence of any particular holder to barter away the rights to great loss and prejudice of the ancestral estate of the family. These conditions, therefore, are engrafted upon the estate by way of restraining a right of alienation, it being (hardly within the competence of the khorposhdar for the time being except under circumstances which arise from legal necessity of or benefit to the family. Such condition must be held to be a voidable one at the instance and in the hands of the members of the later generation. The judgment-debtor accordingly has got a right to avoid these conditions, and his transferee who will step into his shoes can have similar right to avoid the conditions. These conditions, therefore, cannot stand in the way of the judgment-debtor''s power of transfer. I have therefore no hesitation in holding that notwithstanding these conditions the khorposh grant of the 11 villages in dispute is liable to be attached and sold.

It has been contended by the learned Counsel for the decree-holder that the conditions of inalienability attached to the properties in dispute by virtue of the compromise must be void in view of the provisions of one or other of Section 10, 11 and 12, T.P. Act. In my judgment, this point hardly needs decision in consideration of my view expressed above, Incidentally, however, I may observe that Section 2, T.P. Act, as it stood before its amendment in the year 1929, contained the words "Hindu or Buddhist" thereby excluding the operation of the aforesaid sections to Hindu dispositions of property. It was by the Hindu Dispositions of Property Act, 1916 that the provisions contained in Chapter II, T.P. Act, were made applicable to disposition of property by a Hindu. The preamble of the Act reads:

Whereas it is expedient to remove certain existing disabilities in respect of the power of disposition of property by Hindus for the benefit of persons not in existence at the date of such disposition.

The limitations and provisions referred to in Section 2 shall be the following, namely:

(a) in respect of dispositions by transfer| inter vivos, those contained in Chapter II of the Transfer of Property Act, 1882, and

(b) in respect of disposition by will, those contained in Sections 113, 114, 115, and 116, of the Indian Succession Act, 1925.

Therefore, till the enactment of the Hindu Dispositions of Property Act, 1916 (15 [xv] of 1916) Chapter II, T.P. Act, which contains the aforesaid sections was hardly applicable to dispositions of properties by Hindus. Secondly, I should observe that if the disposition contained in the compromise be taken to stand by itself, there appears to be no repugnancy between the clause restraining alienation and the clause transferring the properties. There is no transfer of absolute right to the property, and hence the clause"re-straining alienation" is in fact, descriptive rather than limitative of the main grant. As the estate howsoever limited has been made heritable, it does not come within the mischief of Section 12 of the Act; but, in any view, the question does not arise in this appeal. It may arise after the sale at the instance of the proprietor who, according to the restraining clause in the compromise petition, may claim reversion of the properties on the ground of transfer, and the question will then have to be decided whether the condition restraining alienation is void, and, at that stage, a question may also arise as to whether it was competent for the ancestor of the judgment-debtor to detract from the original khorposh grant by the compromise; but in all circumstances the judgment-debtor''s interest in the villages in question being a khorphosh tenure is liable to be attached and sold.

I, therefore, agree with my learned brother that the appeal has no merit and must be dismissed with costs.