A compromise between family members, which imposes a restraint on alienation, is not a transfer of property within the meaning of Section 10 of the Transfer of Property Act, 1882, and therefore the restraint on alienation is not void.

Kapur, J.

1. This is a plaintiffs appeal against an appellate decree of District Judge M. R. Bhatia dated 3-8-1948, confirming the decree of the trial Court, whereby the suit of the plaintiffs was dismissed.

2. The plaintiffs in this case are the collaterals of one Amrika who in 1879 made a gift of the property in dispute in favour of his pichhlag son Fauja. This gift was objected to by the collaterals of Amrika but in the revenue department a compromise was arrived at between Amrika, Fauja and the then existing collaterals that the donee or his descendants will have no right to effect a sale or mortgage of the land and that they will be entitled only to its usufruct. In 1935 the descendants of Fauja made an exchange of a portion of the land which was challenged by the collaterals, but the exchange was upheld by the High Court by Judgment dated 9-7-1943, as the exchange was neither a sale nor a mortgage.

3. On 31-871944 the descendants of Fauja mortgaged a portion of the land and the collaterals challenged this alienation and sued for possession of the whole of the land gifted on the ground that there was a breach of the terms of the compromise. Both the Courts below dismissed this suit holding that such a condition which was imposed in the gift was contrary to Section 10, T. P. Act and was void. The plaintiffs have come up in appeal to this Court.

4. In order to decide this case it has first to be determined as to what was the effect of the compromise which was arrived at between the original donee, the donor and the then collaterals of the donor. Exhibit P. 2 is a fard bader dated 31-12-1879. On the record we have the statements of parties which were made before the order in Ex, P. 2 was passed. Although those statements would be part of the proceedings before the revenue officer, that, document has for some reason or the other been held to be unproved and was ordered to be returned to the appellants although it was never actually returned. It is therefore not a document which is unproved nor is it a document which is not on the record because it forms a part of the proceedings on which the order of the Superintendent dated 31-12-1879 was passed.

The parties there stated that the collaterals had agreed to the mutation of the land in favour of Fauja on the condition that he will not have the power to sell or mortgage and that he will be entitled only to the usufruct of the land. Then the reasons are given why they were agreeing to this compromise and upon this the mutation was made in favour of the donee Fauja who had accepted the terms of the compromise that neither he nor his descendants will have the power to sell or mortgage the land gifted to him.

5. Transactions such as these are only compro-mises and are not transfers to which Section 10, T. P. Act applies. This was held by Lord Moulton in -- Mt. Hiran Bibi v. Mt. sohan Bibi, A. I. R. 1914 PC 44 (A). At page 45 his Lordship described such a compromise as a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent, and by way of compromise, admitted by the other parties. Reliance was there placed on another judgment of their Lordships of the Privy Council in -- Lala Khunni Lal v. Kunwar Gobind Krishna Narain, 33 All 356 (PC) (B). in this case the statement of the law in -- Lala Oudh Beharee Lall v. Ranee Mewa Koonwer 3 Agra HCR 82 at p. 84 (C), was approved of which was as follows:

"The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognising the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrang