JUDGMENT
1. This is a plaintiff’s second appeal. The facts, so far as they are material for the disposal of this second appeal, are these: Plaintiff-appellant Manohar is one Shivram’s son. This Shivram had two other brothers by name Hari and Vithu. Defendant No. 1 — Respondent No. 3 Dhondubai and one Dattu were the two issues of Hari. Defendants Nos. 2 to 5 (Respondents Nos. 1, 2, 4 and 5) are sons of Vithu. The properties in disputes consist of land and a house. All these properties originally belonged to Dattu. Bya will dated 13th June, 1962 he bequeathed them to the plaintiff. The properties vested in the plaintiff for good on the death of Dattu in 1966. The plaintiff executed a sale deed in respect of these properties in favour of defendant No. 1 on 22nd June, 1968. It appears that the parties are Jangams by caste. One of the vendees’ covenant is :
“If it is necessary to transfer the aforesaid property by any instrument, I shall transfer it into your Jangam family and not to others. The property is sold on this condition.”
Thereafter Defendant No. 1 executed a sale
deed in favour of defendant No. 6 in respect of the house property alone on 14th April, 1971.
2. Plaintiff sued Defendants Nos. 1 to 6 :for a perpetual injunction restraining them from interfering with his possession of the suit property, on the allegation that by selling away the suit property to Defendants Nos. 2 to 5, defendant No. 1 had committed breach of the covenant extracted above by me. It is not necessary to refer to other averments made by him in the plaint, as they are not material for disposal of this second appeal. The trial Court held that defendant No. 1 had committed breach of the aforesaid covenant. It negatived the defence that the aforesaid limitation was void under Section 10 of the Transferor Property Act. Eventually the trial Court passed a decree in favour of the plaintiff declaring that the sale-deed executed by defendant No. 1 in favour of Defendants Nos. 2 to 5 was void and not binding on the plaintiff. It further directed defendants Nos. 2 to 5 to reconvey the property to the plaintiff for Rs. 2000/-, which is the consideration paid by them to Defendant No. 1.
3. In the appeal carried to the District Court, the learned Extra Assistant Judge took the view that the restriction quoted in the first paragraph of the judgment was void, being hit by Section 10 of the Transfer of Property Act. Resultantly he upheld the validity of the sale-deed. He negatived the plaintiff’s alternative stand based on breach of covenant. According to him defendants Nos. 2 to 5 who are first cousins of plaintiff and defendant No. 1 also belong to the Jangam Gharana of the plaintiff. Accordingly he allowed the appeal, dismissing the suit in its entirety with costs.
4. The substantial question of law formulated by my brother Jahagirdar J. at the time of admitting this second appeal is whether the condition put in the sale-deed executed by plaintiff in favour of defendant No. 1 is hit by Section 10 of the Transfer of Property Act? This question is practically concluded by a Division Bench decision of the Allahabad High Court , Gayashi Ram v. Shahabuddin. In that case, the sale deed included a clause providing
that the vendee would not transfer the subject matter of sale, namely a house, by mortgage, gift or sale to any one excepting the vendor or his heirs, and that if the house was transferred in contravention of that term then-the vendor or his heirs would have a right to get back the house by paying Rs. 175A instead of Rs. 150/- which the vendor has originally received. Now in the case before me, plaintiff’s learned Counsel contends that the phrase would mean only the plaintiff or his heirs, and not even the cousins of the plaintiff as held by the District Court. The term as used in Marathi covers a wider amplitude than the word is a far more apt and correct rendering of the word ‘family’ as we understand this term in English. I have no hesitation to endorse the conclusion that a first cousin will very much belong to plaintiff’s stock. There is thus no breach of the condition incorporated in the sale deed….
5. It is true that defendants Nos. 2 to 5 have further transferred a part of the property, namely, the house to defendant No. 5 who does not admittedly belong to the Jangam fold. However, the covenant incorporated in the sale deed executed by the plaintiff cannot be said to be one running with the land. There would thus be no actionable breach of this covenant by this subsequent sale deed of 14th April, 1971.
6. Even assuming that the learned Counsel is right in her submission that the defendant No. 1 has committed breach of the covenant, that does not advance the plaintiff’s case to any extent, because the condition would be void under Section 10 of the Transfer of Property Act. The Allahabad High Court has ruled in Gayashi Ram “in order to see whether there is absolute restraint or not, one has to examine the effect of all the conditions and find whether for all practical purposes alienation is prohibited. The mere fact that there may be some remote contingency in which there may be a possibility of an alienation taking place would not necessarily take the case out of the prohibition contained in Section 10.” With respect, I agree with these observations of the learned Judges. The ratio of this decision applies to the case before me on all fours. The finding of the District Court will have to
be upheld that the conditions incorporated in the sale deed executed by the plaintiff in favour of defendant No. 1 is void under Section 10 ibid. Broach of the condition, even if assumed to be proved, is neither here nor there.
7. No other point was argued before me. This second appeal has no merit, and is accordingly dismissed with costs.