Abdur Rahim, J.:— Defendant 1, the zamindar of Tarla, who died during the pendency of this suit, has been succeeded by defendant 2, who is the son of defendant 1's deceased eldest son. The other defendants are the sons and grandsons of the Zamindar. The suit was instituted on a mortgage executed on 3rd October 1903 by defendant 1. The other defendants were made parties on the allegation that they were interested in the right of redemption and also that they benefited by the debts contracted by defendant 1, who was the head and managing member of the family. Defendant 2 and defendants 3 to 7 alleged that there was no necessity either for the mortgage or for the previous promissory notes which were merged in the mortgage and that defendant 1 had no right to create the mortgage and that it did not bind the estate. It appears however that the suit was compromised, the razinamah being to the effect that defendant 1 should pay the sum agreed upon in certain instalments, that the debt was binding on the estate and that, on failure of payment according to the razinamah, the mortgaged property would be sold and the money realized from the sale proceeds. There was default in paying the amount of the compromise decree, and then an application was made under O. 34, R. 5 of the CPC for a final decree and for sale of the mortgaged property. Both defendants 1 and 2 by their counter petitions preferred objections, mainly on the ground that as Tarla was an impartible and inalienable estate it could not be sold in pursuance of the compromise decree, defendant 2 further urging that defendant 1 had no necessity to borrow the amount for which the mortgage was executed.

2. The learned District Judge held that there was an express admission in the compromise petition that the debt was binding on the whole family and the property might be brought to sale and that therefore it was not competent for the defendants to re-open this question.

3. As already stated, defendant 1 has since died and the only question now is whether, by reasons of the statements in the petition of compromise and the decree passed in accordance therewith, defendant 2 is precluded from raising the question as to the binding character of the debt, or whether the question should be tried. The transaction in dispute is governed by S. 3 Act 2 of 1902. That Act was afterwards repealed and the Act now in force is the Madras Act 2 of 1904. The section in the present Act which corresponds to S. 3 of the previous Act is S. 4. S. 3, Act 2, of 1902, says:

“Notwithstanding anything contained in S. 8, Madras Permanent Settlement Regulation 1802, the proprietor of every such estate shall be restricted from alienating his estate or any portion thereof except in circumstances where alienation would be permissible by law, if the estate were ancestral property and the proprietor occupied the position of managing member of a joint Hindu family governed by the ordinary law of succession and no decree for debts contracted after the passing of this Act by much proprietor otherwise than under the circumstances aforesaid shall be executed against his scheduled estate and the explanation to the section states that alienation shall include temporary transfers such as mortgages and leases. Tarla is one of those scheduled estates. It is clear that, apart from the razinamah, the plaintiff would have to prove that there was necessity for the execution of the mortgage and that the debts were of such a character as a manager of a Hindu family could bind the estate with. Otherwise, though the plaintiff might obtain a decree against defendant 1 personally, he could not obtain a mortgage decree directing sale of property. There having been no inquiry and decision regarding the binding character of the debt, can it be said that the razinamah or the statements contained therein have any higher effect than the mortgage? All that is stated in the razinamah petition is that the debt is binding on the mortgaged property. That may be evidence for whatever it is worth as to the nature of the debt, but can it be said to have the same effect as a decision of the Court after inquiry on an issue properly raised in the suit?

4. The policy of the Impartible Estates Act is to preserve the property in the family of the zamindar and for that purpose it categorically prohibits all alienation by the zamindar for the time being except in certain circumstances. The zamindar for the time being has practically a life estate in the zamindari with powers to deal with the estate in certain contingencies. Where no such contingency has arisen the zamindar is prohibited from alienating any portion of the estate. If he could not alienate the estate by mortgaging it or selling it he could not do so by any voluntary act having the same effect such as by confessing judgment. In Attorney-General v. Corporation of Dublin(1) the old Corporation of Dublin having, confessed judgment in respect of certain debts it was held that such judgment did not preclude the new Corporation from raising the question whether the debt was ultra vires of the powers of the Corporation. Lord Sugdenheld that it would be impossible for him to hold that the judgment by confession concluded the new Corporation and directed the trial of the issue as to whether the debt was such as it was within the power of the Corporation to incur. The razinamah decree here does not embodyany decision of the Court but embodies a contract of the parties with reference to the subject-matter. For purposes of enforcement it stands on a higher footing than a mere contract. It is well stated however that it has many incidents of a contract attached to it. For instance, if there is a clause of forfeiture in a compromise decree the Court in a proper case would relieve against it. Nagappa…(Counter-Petitioner No. 1) v. Venkat Rao…(Petitioner) .*(2). In Lakshmanaswami Naidu v. Rangamma(3) it was held that a compromise decree had the effect of a sale of a religious office and could not be enforced. In Ramasami Naik v. Ramasami Chetti(4) this Court held that a transfer by an heir to an impartible estate of his chance of succession, though embodied in a consent decree was void.

5. The learned Judge laid down that such a decree did not involve any adjudication by the Court as to the rights of the parties and could not empower parties to do what they were otherwise prohibited from doing. In Moti Chand v. Ihram Ullah Khan(5) the Judicial Committee of the Privy Council laid down that an agreement to relinquish certain rights in the defendant's land was illegal and void as being in contravention of the policy of the Agra Tenancy Act. The policy of that Act, as found by them was to secure to a certain class of proprietors the right of occupancy in lands of a particular description and they observe that the policy of the Act was not to be defeated by ingenious devices, arrangements or agreements between a vendor and a vendee, as all such devices, arrangements and agreements are in contravention of the policy of the Act and contrary to law and are illegal and void and cannot be enfoiced by the vendee in any civil Court or in any Court of Revenue. If the Zamindar of Tarla could not alienate the property except under given circumstances he could not defeat the policy of the Act which is to preserve the estate intact by the device of a consent decree. But it is argued that defendant 1 having been a party to the suit and to the razinamah decree it must either be held that the debt was incurred for a proper purpose or that he is estopped from raising the question again at this stage. As regards the last it should be pointed out that is his written statement defendant 1 questioned the validity of the mortgage, and the statements in the razinamah petition as to the character of the debt can at the most be treated as evidence against defendant 1. It is difficult to see how it estops him from asking for an inquiry on this issue. It is well known that there is no estopped against a statute it is the duty of the Court to give effect to a statute in spite of the conduct of the parties.

6. It is however pointed out on behalf of the respondent that it is open to the mortgagee seeking to enforce a mortgage against an estate in possession of a Hindu widow to implead the next reversioners in the suit and a decree obtained in their presence will bind the estate. The authority for this proposition is Ganga Narayan Dutta v. Indra Narayan Saha(6), but I am not satisfied that the position of an owner of an impartible estate and of an heir to such an estate is analogous in all respects to that of a Hindu widow and the next reversioner. With regard to alienations by a Hindu widow there are rulings to the effect that the consent of the nearer reversioner would be sufficient by itself to validate it white other decisions on the subject lay down that such consent is merely evidence of the propriety of the Act. A Hindu Widow being regarded in Hindu law as a person of immature judgment the reversioners are for certain purposes regarded as a sort of family council whose concurrence has been held to afford strong proof of the validity of the widow's act so concurred in. I should not feel justified in importing any such theory into a case of impartible zamindaris. An heir to an impartible estate has no sort of light in it for the time. His interest in the estate is a mere spes succession is and any attempt therefore by defendant 1 to deal with his chance of succession must be held to be void. It was next sought to apply the ruling in Mt. Hiran Bibi v. Mt. Sohan Bibi(7) to this transaction. What is laid down there is that a compromise is in no sense an alienation. There the compromise was in the nature of a family settlement, its essence being that each party took a share in the family property by virtue of the independent title which was to that extent by way of compromise admitted by the other party. The razinamah in this case could not be said to be a family settlement in any sense. It is a confession of judgment by which the estate is made liable to be ‘sold in realisation of the zamindar's debts. The judgment of the District Judge must therefore be set aside and the case will be remitted to him for trial on the merits. Bach party will bear his costs hitherto.

Oldfield, J.:— Acts 2 of 1902 and 2 of 1904 are in my opinion clearly founded on public policy being intended to prevent transfers of impartible property, not to lay down conditions on which they can be made and unless the suit mortgage can be brought within the exception provided it follows from Lakshmanaswami Naidu v. Rangamma, which has for many years been regarded as stating the law correctly that a decree on it is not enforceable. I prefer to rely on this authority and not on Ramasami Naik v. Ramasami Chetti which is also mentioned in the judgment of my learned brother because with all due deference to the learned Judges responsible for the latter decision, I doubt whether Section 6(a) of the Transfer of Property Act, which was in question in it is founded on public policy and not on the ground also indicated by them that a mere possibility of succession having none of the characteristics of property, a transfer of it would be a contradiction in terms.

7. I concur in my learned brother's decision.

S.N/R.K

8. Case remanded.