The main legal point established in the judgment is that the surrender of occupancy rights in the sir lands, as part of a sale transaction, was held void as a device to defeat the Tenancy law, while the sale of the villages was considered a legal transaction.

1. The only questions therefore that arise in this appeal are as to the validity of the transaction which falls into two parts; first; the question of the surrender which is alleged by the respondents to invalidate the whole transaction; and secondly, the question of the sale of the villages as distinguished from the surrender, if that can stand as a separate transaction.

2. Taking first the question of the surrender we are of opinion that the view of the lower Court that the sale of the villages and the surrender formed one transaction is correct. It is contended on behalf of the appellant that if this were a suit for the recovery of consideration, it might be argued that the whole transaction is void. But here we have two promises, one legal and one, according to the other side, illegal. The consideration of the surrender was paid nine months after the sale, during which period the defendant was in possession as a lessee. There can be no doubt that the agreement between the parties was that Venkatrao should sell the villages including his occupancy rights in the sir lands, to the defendant. In this connection we may refer to Exhibit, P. 57, which is a letter from the defendant's father to Venkatrao, dated 3rd April 1913, in which he states: ''You have agreed to sell to us your villages (named) with the houses and moveable property (&c.) for Rs. 20,000'' Exhibit P. 9 is an agreement executed by the defendant's father to Venkatrao on the same date as the alleged deed, which recites: ''We have agreed to purchase three villages (named) including the sir land for Rs. 20,000. Rs. 10,000 have been paid for the villages, and as the sir land cannot be sold without sanction, Rs. 5,000 is kept and will be paid after sanction is received, .... or if sanction is not granted, the occupancy rights should be surrendered and the balance of Rs. 5.000 will be paid with interest.'' In these circumstances we have no doubt that the agreement to sell the rights in the sir land and the agreement to sell the villages are all one transaction; although the actual surrender took place nine months after the sale of the villages it must relate back to the date of the sale.

3. There are several leading cases on the point, which have been quoted by the lower Court. We may refer to Mir Dad Khan v. Ramzan Khan, 1918 44 IndCas 988 which lays down that if a covenant to relinquish the sir lands is part of the transaction of sale or of mortgage, then the agreement to surrender will be void and unenforceable, no matter what ingenious devices may be employed to give colour to it. It is only when a Court is satisfied that there was first of all a transfer by way of sale or mortgage and that the transferee having obtained the status of an ex-proprietary tenant, with knowledge of that fact and of the rights preserved to him by statute, deliberately chooses as a separate transaction to relinquish his ex-proprietary tenancy into the hands of the new proprietor, that the law will not interfere to protect him.

4. The facts of the present case are very similar to those of the case quoted above, and to those of Ikram-Ullah Khan v. Moti Chand,1911 11 IndCas 17 which was confirmed on appeal by the Privy Council in Moti Chand v. Ikram-Ullah Khan, 1916 44 IndApp 54. The mere fact that nine months intervened between the sale deed and the relinquishment of the occupancy rights in the sir lands does not avail the defendant in the present case because it is manifest that the arrangement by which the occupancy rights were to be surrendered dates back to the date of the sale. In this connection we may refer to Ratan Dei v. Durga Shankar Bajpai, 1917 41 IndCas 892. We are therefore of opinion that the lower Court correctly held that the agreement to relinquish the occupancy rights in the sir lands formed part of the agreement of the sale of the villages, and in view of the decisions quoted above there can be no doubt that this must be regarded as a device to defeat the Tenancy l