A compromise is not a transfer of property within the meaning of S. 10 of the Transfer of Property Act, and therefore, a restraint on alienation imposed by a compromise is not void under S. 10 of the Transfer of Property Act.

JUDGMENT:- In this second appeal by Balak Ram, defendant No. 3, his learned counsel urged that the Courts below have erred in enforcing the terms of the compromise entered into by Kashi Ram and Ruldu (defendants 1 and 2) on one side and Mansu, father of Surat Ram, plaintiff-respondent, on the other, in the Court of the District Judge of Ghund on 26-4-1946. That compromise related to 11 bighas and 5 biswas of land as well as a residential house, situated in village Bassa Baghain. Both the land as well as the house were sold by Kashi Ram and Ruldu in favour of Balak Ram (the present appellant) on 26-12-1952.

Surat Ram contended that the sale was against the terms of the compromise and, consequently, would not bind him. The trial Court (Subordinate Judge of Theog) granted Surat Ram a decree for possession of the house in dispute. As regards the land, the plaintiff was granted a declaration that the sale effected by defendants 1 and 2 in favour of defendant No. 3 was null and void and would not affect the plaintiffs reversionary rights under the compromise of 26-4-1946. On an appeal being taken by Balak Ram to the learned District Judge (Kashi Ram having absented himself both at the trial and in the appeal to the learned District Judge), the decree for possession of the house in question was maintained.

As regards the declaratory decree in respect of the land, the lower appellate Court slightly varied the decree of the trial Court, i.e., in this way that for the words reversionary rights of the plaintiff under the compromise, the words rights of the plaintiff under the compromise were substituted. Hence, this second appeal by Balak Ram. Here, too, Kashi Ram has not appeared. The contest was confined to Balak Ram, defendant, on one side, and Surat Ram, plaintiff, on the other.

2. It would be convenient to split up the arguments, advanced by the learned counsel for the parties, into two portions, i.e., one portion- relating to the house in question and the other regarding the land in suit.

3. Let us take up the question of the house first.

4. Mr. Kashyap for the appellant argued that the Courts below have erred in overlooking the terms of the decree Ex. P-3 passed by the District Judge of Ghund on 26-4-1946. He pointed out that under the terms of the decree, Kashi Ram and Ruldu were to hold the house in dispute, as owners. As the learned District Judge has rightly pointed out, the decree (Ex.P-3) was not correctly prepared, i.e., it is not in accordance with the terms of the compromise. A perusal of the terms of the compromise (Ex. P-4) shows clearly that Kashi Ram and Ruldu were merely permitted to reside in the house in question. It was specifically mentioned therein that ownership would remain vested in Mansu. Obviously, it is not open to the appellant to take advantage of the error that has crept into the decree. As was held by a Division Bench of the Calcutta High Court in Amrita Sundari Devi v. Sherajudin Ahamed, AIR 1915 Cal 464 (A) - which has been referred to by the lower appellate Court -

"A consent decree cannot have greater validity than the compromise itself."

5. It is therefore, quite clear that under the terms ox the compromise, Kashi Ram had only a right of residence in the house in question. Mr. Kashyap for the appellant invited my attention to the statement of the plaintiff at the trial to the effect that the house had been given to Ruldu for his life for residential purposes. As already remarked, under the terms of the compromise, the house in question was given to Ruldu and Kashi Ram for residential purposes, although the period was not specified.

I fail to see how, under the circumstances, Kashi Ram validly could have sold the house in question to Balak Ram, appellant. Under the provisions of Ss. 52 and 62 of the Easements Act, the licence in favour of defendants 1 and 2 stood revoked, consequent to the sale. The result is that the plaintiff would be entitled to the possession of the house. In Suraj Baksh Singh v. Bhugg

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