JUDGMENT Sunil Ambwani, J.
1. Heard Sri B.N. Singh learned Counsel for the appellant and Sri S.K. Srivastava for the respondents.
2. This second appeal has been filed by Sri Ram Ashrey, son-in-law of respondents 2 and 3 who were defendants 1 and 2 in the suit challenging the judgment by which the 111rd Additional District Judge, by his order dated 12.7.1979 allowed the Civil Appeal No. 56 of 1977 setting aside the Judgment and decree dated 20.10.1976 in O.S. No. 169 of 1968 to the extent that the finding with regard to suit for specific performance of contract and the sale deed dated 31.7.1967 executed by defendant No. 1 in favour of the son- in -law, was set aside, with the directions that Dukhi the defendant No. 1 under the family settlement dated 31.3.1961 could enjoy the property only during his life time, which could be inherited only by his male issue, if born to him, and not by female issue as agreed by him in the family settlement.
3. The facts leading to the suit are that Dukhi, was born to Ram Narain, one of the three brothers after two months of the death of his father. His name was not entered in the revenue records over the agricultural properties jointly owned by the family. On the notification of consolidation operations Dukhi filed objections claiming l/3rd share in the agricultural land. His name was entered by the Consolidation Officer in the revenue records on the basis of a family settlement dated 31.3.1961 by which his uncles agreed with him that he had l/3rd share in the property, qn the condition that Dukhi will enjoy the land only in his life time, during which he will not sell, alienate, transfer or mortgage his property; and that only the male issue, if born to him, will be entitled to inherit his share of property. His married daughter shall not inherit his share, and that if after his death if he did not leave behind him any male issue, the property will revert back to his uncles Janki and Ram Ashrey.
4. Dukhi died leaving only a married daughter. Both the courts below disbelieved the agreement to sale dated 28.3.1965 executed by Dukhi set up by uncles, in their favour. The trial court further held that the restriction on transfer in family settlement dated 31.3.1961 is violative of Section 10 of the Transfer of Property Act. The trial court also disbelieved the settlement dated 31.3.1961 before the Consolidation Officer on the ground that it was not registered and was against public policy, as Dukhi could not disinherit his married daughter. The appellate court did not agree and held the family settlement to be valid.
5. The findings have not been challenged by the married daughter of Dukhi. The second appeal has been filed by Ram Ashrey his son in law who had purchased the land from Dukhi vide sale deed dated 31.7.1965. The plaintiffs had also set up a claim of specific performance of contract on the basis of an agreement with their nephew Dukhi dated 28.3.1965. This claim was given up in the suit. The plaintiffs pressed only for relief of cancellation of sale deed dated 31.7.1965 as violative of the Act.
6. The appellate court found that the family settlement was not required to be registered and was not hit by Section 10 of the Transfer of Property Act, as it was not a transfer of property. The appellate court also held that the family settlement was not violative of Section 23 of the Contract Act as it was not against public policy.
7. Sri B.N. Singh, learned Counsel for the appellant submits that there was no such family settlement. Dukhi had denied that he had entered in to any such settlement, and in any case, even if any such settlement is proved, the conditions to the settlement were not valid inasmuch as any agreement by which the person divests himself with the right of transfer of property is hit by Section 10 of the Transfer of Property Act. He submits that the settlement was also against public policy as it was violative of Section 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 which provides for in heritence by the married daughter.
8. I have considered the submissions and examined the Judgments.
9. It is well settled that a family settlement recognizing pre-existing rights and which does not amount to transfer of property by the deed at the time it was executed, does not require registration. in his deposition Dukhi clearly admitted that he got the recognition of his share by affixing his thumb impression on the document. He, however, did not admit that he had agreed to any such restriction on the alienation of his property during his life time. The document (Ext. 3) is a certified copy of family settlement arrived at between the parties before the Consolidation Officer on the basis of which Dukhi"s name was directed to be entered in the revenue record. Dukhi did not deny his thumb impressions on the document. Once he agrees to have taken the benefit on the basis of the settlement, his statement that he did not know contents of the agreement and was made to put his thumb impression on the document was wholly improbable and was rightly disbelieved by the appellate court. Section 10 of the Transfer of Property Act applies to transfer of property. It is not applicable to the family settlement which only recognizes pre-existing rights. A family settlement may not confer any fresh rights which a person has in the property. in this case the family settlement only recognized the pre-existing rights. in such a case a person could restrict himself from alienation of the property during his life time.
10. The Privy Council in Mohammad Raza and Ors. v. Mt. Abbas Bandi Bibi AIR 1932 PC 158, held that under the compromise agreement which was a family arrangement the widow (one of the parties to the settlement) should take what she agreed upon certain conditions and, conditions were that she would not alienate the property outside the family. in Lachhmeshwar Sahai v. Mt. Moti Rani Kunwar AIR 1939 PC 157, Sir George Rankinheld that the deed in question could not be construed as conferring a life interest upon the wife and then coupling this with a repugnant condition which prohibits alienation absolutely. The intention of the deed was to give her for her maintenance a personal right to appropriate the net profits of her husband's share, after his death. Her interest under the deed was, therefore, an interest in the property restricted in its enjoyment to the owner personally within clause (d) of Section 6 of the Transfer of Property Act, therefore, was not transferable. in Bulkan Sah and Ors. v. G.N.G.A. Devi Nathani and Ors. , the Division Bench held that the question whether an interest in property is restricted in its enjoyment can be answered by ascertaining the intention of the parties, creating such interest as appearing from the recitals in the instrument which created an interest. The right of transfer is incidental to and in separable from the beneficial ownership of a property. Section 10 of the Transfer of Property Act envisaged that a condition of absolute restraint of alienation is void. Before the provisions of this section can be held to be applicable, it has to be ascertained as to whether there was a transfer. in Jatru Pahan and Anr. v. Mahathma Ambikajit Prasad and Anr. , the Division Bench held that the principle underlying Section 10 of the Transfer of Property Act is that a right of transfer is incidental to and, in separable from, the beneficial ownership of property. It is the essence of an immovable property that it confers free power of alienation. The partition, however, of a pre-existing right does not annul the right of the co-parcener or convert it in to an obstructed right. Partition merely adjusts or resolves joint right in to several rights. Therefore, the restriction of alienation by the allottee in a deed which is either a partition deed or a family arrangement deed in respect of Joint family properties is not hit, by and does not come within the purview of Section 10 of the Transfer of Property Act. in Balak Ram v. Surat Ram AIR 1958 HP 5, it was held that a compromise which amounted to settlement of some disputed and doubtful claims relating to the land is not a transfer of property and consequently the restrictions on alienation contained in Section 10 of the Transfer of Property Act would not be applicable.
11. The appellate court then held the family settlement is not against public policy as it did not violate Section 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The appellate court considered the circumstances in which the family settlement was arrived at by the parties. The litigation would have taken a long time to conclude. The married daughter was not in the line of succession under the then existing unamended Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. It is only after the amendment of Section 171 by Section 40 of U.P. Act. 37 of 1985, the married daughter was given a right to succeed to her father over agricultural land. The parties understood the law as it was, on 31.3.1961 the date the family settlement was arrived at. The family settlement as such, on the date it was entered in to by the parties was not against the public policy. No other point was pressed.
12. The second appeal does not raise any substantial question of law to be decided by the Court, and is consequently dismissed.