Iqbal Ahmad, C.J and Dar, J.:— This is an appeal by Rao Rani defendant arising out of a suit for profits filed in the revenue court by Mst. Gulab Rani plaintiff respondent under section 226 of the Agra Tenancy Act (III of 1926). The facts of the case are no longer in controversy and are as follows.
The parties to the present litigation, viz., Mst. Rao Rani and Mst. Gulab Rani, are the widows of a lodh named Ram Adhar. Ram Adhar died in or about the year 1925 leaving certain zamindari property. Disputes arose between Gulab Rani and Rao Rani in the mutation court and in that court it was pleaded by Rao Rani that Gulab Rani was not married to Ram Adhar and as such Rao Rani prayed that her name alone be mutated in place of Ram Adhar. The parties, however, amicably settled their dispute and the terms of the compromise were embodied in a deed dated 21st August, 1926, which was filed in the revenue court. The main terms of the compromise were that the names of the two widows were to be entered in equal shares as against the properties left by Ram Adhar, and that, in the event of either widow re-marrying, she (i.e the widow re-marrying) would forfeit her interest in the properties left by Ram Adhar, and the other widow will, in that event, become entitled to the whole of the properties. The rest of the terms of the compromise have no direct bearing on the decision of the present appeal.
Sometime after the compromise Mst. Gulab Rani remarried, left Ram Adhar's home and went to, and has all along continued to, live in her new husband's house in a different village. It is a matter of admission that by the custom governing the caste (lodh) to which the parties belong, re-marriage of widows is allowed and that on re-marriage a widow is not divested of the property of her husband.
After the mutation case Rao Rani was appointed lambardar and has all along continued to be a lambardar. By the suit giving rise to the present appeal Gulab Rani claimed her share of the profits of the properties of Ram Adhar from Rao Rani. Rao Rani contested the suit mainly on two grounds. Firstly she pleaded that the compromise in the mutation case was in the nature of a family settlement and, in view of that settlement, Gulab Rani was not entitled after her re-marriage to claim the profits of the properties left by Ram Adhar. Secondly she pleaded that Mst. Gulab Rani forfeited her rights in Ram Adhar's properties on her re-marriage.
The second plea raised by Rao Rani was not pressed in the courts below and was abandoned.
The Assistant Collector remitted the following issues to the civil court for decision:
“(1) Was there a family settlement between Gulab Rani and Rao Rani in which it was agreed between the two that whoever re-married would forfeit her claims in her deceased husband's property?
(2) Where one of the two widows of a proprietor re-marries, does she forfeit her proprietary claims in her deceased husband's properties by reason of the re-mariarge?”
The civil court (Munsif) decided the second issue in favour of Gulab Rani, but on the first issue his decision was adverse to Gulab Rani. He held that the compromise amounted to a family arrangement and, in view of that arrangement, Gulab Rani lost all rights in Ram Adhar's properties on her re-marriage. On receipt of these findings the Assistant Collector dismissed Gulab Rani's suit.
Gulab Rani filed an appeal before the District Judge and the learned Judge held that the compromise referred to above was in restraint of marriage within the meaning of Section 26 of the Indian Contract Act and was, therefore, void. In view of this finding the learned Judge reversed the decree of the trial court and remanded the case to that court with the direction to determine the amount of profits to which Gulab Rani was entitled and to pass a decree in her favour for that amount.
A first appeal from order (No. 220 of 1938) was filed in this Court by Rao Rani against the order of remand passed by the District Judge. During the pendency of that appeal the Assistant Collector, in pursuance of the order of remand, ascertained the amount of profits and passed a decree in favour of Gulab Rani for a sum of Rs. 314-4-9 and this decree of the Assistant Collector was, on appeal, affirmed by the District Judge. The present second appeal was then filed by Rao Rani in this Court against the appellate decree passed by the District Judge.
By consent of parties both the first appeal from order and the second appeal were connected and were put for hearing before a learned Judge of this Court. The learned Judge held that no appeal lay to this Court from the order of remand passed by the District Judge and accordingly dismissed the first appeal from order. In the second appeal the counsel of Rao Rani appellant assailed the order of remand passed by the District Judge on the ground that the compromise did not offend against the provisions of Section 26 of the Indian Contract Act. The respondent's counsel then contended before the learned Judge that as no appeal lay to this Court against the order of remand, this Court could not, in the second appeal against the appellate decree passed by the District Judge, consider the propriety of the order of remand. As in the opinion of the learned Judge this question was of some importance, he referred the case to a Bench of two Judges.
The suit for profits giving rise to the present appeal was filed when the Agra Tenancy Act (Act III of 1926) was in force, and it is admitted on all hands that the right of appeal in the present case was governed by the provisions of that Act. By that Act no appeal from order is provided to the High Court. It follows that the order of remand passed by the District Judge court not be challenged in this Court by way of appeal. The question, however, remains whether the validity of that order could be called into question in the present second appeal against the ultimate decree passed by the District Judge. In our judgment, the answer to this question must be in the affirmative.
Section 105(1) of the Code of Civil Procedure runs as follows: “Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.”
It is clear from this provision that the correctness of an order affecting the decision of a case can be called into question in an appeal against the decree. There can be no manner of doubt that the question whether the compromise was or was not valid was the cardinal question in the case, and on the answer to that question depended the decision of the claim preferred by Gulab Rani. The earlier decision of the District Judge about the invalidity of the compromise, therefore, vitally affected the decision of the case. It follows that Rao Rani is entitled in the present second appeal to assail the order of remand passed by the District Judge.
Speaking generally by section 264 of the Tenancy Act (Act III of 1926) the provisions of the Code of Civil Procedure have been made applicable to suits and other proceedings under the Act except where those provisions are inconsistent with anything contained in that Act. It is contended by the learned counsel for the respondent that section 249 of the Tenancy Act is inconsistent with that portion of section 105 of the Code of Civil Procedure which allows the validity of an order to be called in question in an appeal against a decree. We are unable to agree with this contention.
section 249 of the Tenancy Act runs as follows: “No appeal shall lie from any order passed in appeal.”
Having regard to the scheme of the Act we are clearly of opinion that all that section 249 means is that no second appeal from an order will lie under the Tenancy Act. section 249 of the Tenancy Act is identical with the provisions contained in sub-section (2) of section 104 of the Code of Civil Procedure which provides that “no appeal shall lie from any order passed in appeal under this section.” It is true that section 249 is not very happily worded, but bearing in mind the fact that section comes under the sub-heading “appeals from orders” in chapter XV of the Act and is immediately after sections 248 and 249 which provide about first appeals against orders, we have no doubt that section bars second appeals against orders. This was the view taken by a learned Judge of this Court in Gambhir Singh v. Surendra Singh(1). We, therefore, hold that it is open to this Court to consider the propriety or otherwise of the order of remand passed by the District Judge.
This brings us to the consideration of the question whether the compromise in the mutation court was in restraint of marriage within the meaning of section 26 of the Indan Contract Act. In our judgment, it was not.
As already stated, Rao Rani had asserted in the mutation case that Gulab Rani was not married to Ram Adhar. There was, therefore, a dispute between Rao Rani and Gulab Rani. The dispute threatened the peace of the family and was amicably settled by the compromise. The compromise was accordingly in the nature of a family settlement. Even though one of the terms of the compromise was that either widow would forfeit her rights in the properties of Ram Adhar in the event of her re-marriage, the compromise by itself did not impose any restraint on either of the two widows from re-marrying. Section 26 of the Indian Contract Act is no doubt general in its terms, but we entertain considerable doubt that partial or indirect restraint on marriage is within the scope of that section. By the compromise no restraint was imposed on either of the two widows from re-marrying. All that was provided was that if a widow elected to re-marry, she would be deprived of her rights given to her by the compromise. In other words, no direct prohibition to re-marry was imposed by the compromise and the compromise was arrived at in order to preserve the family properties and to ensure their proper management. The view that we take finds support from the decision in Muhammad Hasan v. Noor Jahan.
The matter may be looked at in another way. According to the Hindu law the re-marriage of a widow ordinarily divests the estate inherited by her from her deceased husband. The only exception to this rule is furnished by those cases where re-marriage is allowed by the custom of the caste to which the widow belongs. But even in such cases there is divergence of judicial opinions on the question as to whether after re-marriage in accordance with the custom of the caste the widow is or is not entitled to retain possession of the estate of her husband. It was in this state of doubt and uncertainty that the two widows entered into this compromise and good consideration passed from one to another. The compromise did not prohibit either of the two widows from re-marrying. All that it provided was that if any of the two widows exercised the option to re-marry, she will be divested of her husband's property.
We, therefore, hold that the compromise was not void and was binding on Mst. Gulab Rani.
For the reasons given above we allow this appeal, set aside the decrees of the lower courts and dismiss the plaintiff's suit. In the circumstances of the present case we direct the parties to bear their own costs in all courts.