Judgement Appeal (No. 97 of 1930) from two decrees of the Chief Court of Oudh (January 4, 1929) reversing a decree of the Subordinate Judge of Fyzabad (September 30, 1927). The respondent instituted a suit against the appellants claiming that as heir to one Sughra Bibi, a Shia Mahomedan lady who died in 1914, she was entitled to two-thirds of properties scheduled to her plaint. The title of the defendants rested upon transfers made by Sughra Bibi during her life, and the validity of the transfers depended upon the effect of an agreement in compromise of litigation dated September 19, 1870, made between Sughra Bibi and Afzal Husain, her cousin, to whom she afterwards was married, and who died in 1872. The terms of the agreement and the other material facts appear from the judgment of the Judicial Committee. Upon a preliminary issue the Subordinate Judge held that the restriction placed by the document of September 19, 1870, upon Sughra Bibis power of alienation was invalid and not legally enforceable. In his view the document conferred an absolute estate, and the restriction was repugnant thereto. Further issues were then framed, and judgment was delivered subsequently by another Subordinate Judge. Under the above finding he dismissed the suit as to certain of the properties, but as to other properties he made a decree upon grounds not material to this report. Upon appeals by both parties to the Chief Court the learned judges (Raza and Pullan JJ.) reversed the decision of the Subordinate Judge as to the effect of the agreement. They held that it conferred upon the ladies a limited ownership without power of alienation to a stranger, and an absolute title upon their respective heirs ; further that the estate contemplated was one permitted under Shia Mahomedan law. Decrees were made in favour of the plaintiff for the whole property claimed by her. 1932. Feb. 16, 18, 19, 22, 23. Dunne K.C. and Wallach for the appellants. Decrees were made in favour of the plaintiff for the whole property claimed by her. 1932. Feb. 16, 18, 19, 22, 23. Dunne K.C. and Wallach for the appellants. Having regard to the use of the words " malik mustaqil " and the provision with regard to divorce, the agreement constituted each of the ladies absolute owner of a moiety of the properties, and the restriction against alienation to a stranger was void for repugnancy Lalit Mohun Singh Roy v. Chukkun Lal Roy (( 1897) L. R. 24 I. A. 76.) ; Surajmani v. Rabi Nath Ojha (( 1907) L. R. 35 I. A. 17.) ; Bhaidas Shivdas v. Bai Gulab (( 1921) L. R. 49 I. A. 1.) ; Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh (( 1929) L. R. 56 I. A. 372.) ; Jagmohan Singh v. Sri Nath (( 1930) L. R. 57 I. A. 291.) ; Saraju Bala Devi v. Jyotirmoyee Debi.(( 1931) L. R. 58 I. A. 270.) The words "malik mustaqil" are even stronger than "malik" Naulakhi Kunwar v. Jai Kishan Singh.(( 1918) I. L. R. 40 A. 575.) Where the agreement intended that a life interest only should be taken that was clearly expressed. The agreement cannot be construed as conferring a life interest on Sughra Bibi and an absolute estate upon her heirs, because that would be invalid under Mahomedan law Abdul Wahid Khan v. Nuran Bibi (( 1885) L. R. 12 I. A. 91.) ; Humeeda v. Budlun (( 1872) 17 Suth. W. R. 525.); Abdul Gafur v. Nizamudin.(( 1892) L. R. 19 I. A. 170, 178.) If the agreement purports to give Sughra Bibi a life interest followed by remainder to her heirs, the effect in law is that she took absolutely Suleman Kadr v. Darab Ali Khan.(( 1881) L. R. 8 I. A. 117, 122.) It is true that in Banoo Begum v. Mir Abed Ali(( 1907) I. L. R. 32 B. 172.) Jenkins J. held that among Shias such an estate is valid. That view, however, was founded largely upon the judgment of the Board in Umes Chunder Sircar v. Zahoor Fatima (( 1890) L. R. 17 I. A. 201.), in which the question of Mahomedan law was not dealt with, and, it is submitted, upon a misreading of the texts Jainabai v. R. D. Sethna (( 1910) I. L. R. 34 B. 604.); Cassamally Jairajbhai v. Currimbhoy Ebrahim.(( 1911) I. L. R. 36 B. 214.) [Reference was made to Baillie, vol. ii., p. 226; Wilson, Anglo-Muhammadan Law, 3rd ed., s. 484b ; and (as presenting a different view) to Ameer Ali, Mahammedan Law, 4th ed.s ch. 2, s, 4, and ch. 5, s. 2 ; and to Tyabji, Muhammadan Law, s. 449.] De Gruyther K.C. and Jopling for the respondent. This case is not governed by the Mahomedan law of gift, but by the law of contract. Mahomedan law in India recognizes the distinction between gift and contract Wilson, Anglo-Muhammadan Law, s. 229 ; Ameer Ali, ch. 2, s. 4. Having regard to s. 3 of the Oudh Laws Act, 1876, and there being no material as to the law of contract in Oudh in 1870, the rights of the parties under the contract should be determined according to justice, equity and good conscience, that is to say, by the rules of English law so far as appropriate Waghela Rajsanji v. Shekh Masludin. (( 1887) L. R. 14 I. A. 89, 96.) In Khajeh Solehman Quadir v. Salimullah Bahadur (( 1922) L. R. 49 I. A. 153, 166.) the Board pointed out that the document then under consideration, like that in this case, was a compromise agreement and that consequently the Mahomedan law as to gifts was not applicable. So too in Umes Chunder Sircar v. Zahoor Fatima (( 1890) L. R, 17 I. A. 201.) the reason why that law was not considered was because the transaction was a sale for consideration. It was only a transfer to a stranger, that is one outside the family, that was excluded by the agreement. A partial restriction of that nature upon an absolute estate is valid in English law In re Macleay. (( 1872) L. R. 20 Eq. 186.) But upon the true construction of the agreement an absolute estate was not constituted. It was only a transfer to a stranger, that is one outside the family, that was excluded by the agreement. A partial restriction of that nature upon an absolute estate is valid in English law In re Macleay. (( 1872) L. R. 20 Eq. 186.) But upon the true construction of the agreement an absolute estate was not constituted. In construing Indian documents the intention has to be ascertained without attaching too much importance to technical words used Hunoomanpersauds case (( 1856) 6 Moo. I. A. 393, 411.); Dinbai v. Nusserwanji Rustomji.(( 1922) L. R. 49 I. A. 323, 329.) The use of the word “malik" does not constitute an absolute estate if the context shows a different intention Lalit Mohun Singh Roy v. Chukkun Lal Roy. (( 1897) L. R, 24 I. A. 76.) That rule was correctly applied in Ashurfi Singh v. Biseswar Pratap Narain Singh (( 1922) I. L. R. 1 P. 295.), which was affirmed by the Board.(May 9, 1924; unreported.) The same is true of such expressions as " for ever," where the context shows that only a life interest is intended Muhammad Abdul Majid v. Fatima Bibi (( 1885) L. R. 12 I. A. 159.) ; Rameshar Bakhsh Singh v. Arjun Singh.(( 1900) L. R. 28 I. A. 1.) In the present case the clause that there was not to be power to alienate to a stranger clearly shows that no more than a life interest was intended. Unless the document as a whole shows an intention to create an absolute interest no question of repugnancy can arise. In any case Mahomedan law recognizes a family arrangement (described as a tawri) by which a person takes fo life, and upon his death his heirs or a particular person Ameer Ali, 3rd ed., vol. ii., p. 52. Further, the view of Jenkins J. in Banoo Begum v. Mir Abed Ali (( 1907) I. L. R. 32 B. 172.) that Shias recognize as valid a life interest followed by vested remainders was correct; that view is supported by most textbooks. Dunne K.C. replied. April 12. The judgment of their Lordships was delivered by SIR GEORGE LOWNDES. The facts necessary for the decision of this appeal are within a small compass. Dunne K.C. replied. April 12. The judgment of their Lordships was delivered by SIR GEORGE LOWNDES. The facts necessary for the decision of this appeal are within a small compass. In 1868 one Sughra Bibi brought a suit against her cousin, Afzal Husain, claiming a half-share in certain immovable properties in Oudh which had been entered in his name at the post-mutiny settlement. The litigation ended in a compromise upon which a decree was passed in the suit on September 19, 1870. The compromise was in the following terms— "We are Musammat Sughra Bibi, plaintiff, claimant of a share in Mahal Shadipur, Nusha, &c, pargana Tanda, and Surhurpur, and Syed Afzal Hasan, son of Syed Tegh Ali Qanungo, Lambardar of the aforesaid Mahal, defendant. Whereas between the parties to the above-mentioned case in which a share is claimed an amicable settlement has been arrived at to the effect that the plaintiffs marriage by way of nikah with the defendant may be performed in the next month, accordingly in view of a marriage settlement, there no longer exists any dispute regarding a share, and insomuch as the defendants first wife, the daughter of Raja Syed Abbas Ali, deceased, is alive, it has been settled that both wives should, in accordance with this agreement, in their capacity as wives, from this very time be declared permanent owners [malik mustaqil] of a moiety each of the entire Mahal Shadipur, and that the names of Musammat Fatima Begam, the first wife, and Musammat Sughra Bibi, plaintiff, be entered in the public records as owners of half and half [bil munasfa milkiatan]. The said females shall not have power to transfer this property to a stranger; but the ownership thereof as family property shall devolve on the legal heirs of both the above-named wives, from generation to generation; and the management and collections of the entire estate of Shadipur shall be in the hands of their husband, Syed Afzal Hasan, in his capacity of a husband ; if on the part of the husband there is any act of neglect or estrangement towards either of the wives, then, in that case, the wifes only remedy will be to have the management of her share performed by the Government through the Court of Wards ; but during the lifetime of Afzal Hasan neither of the wives shall have the power on her own authority to have the management of the share which is owned by her performed by any member of her fathers family, and if in contravention of this agreement the defendant refuses to marry the plaintiff by way of nikah, then the plaintiff shall in accordance with this document remain owner of a moiety, and if the plaintiff acts contrary to the stipulation of nikah, she shall cease to have any rights whatever. If, God forbid, contrary to custom the divorce of either of the wives takes place, then, even in that case, ownership shall remain vested in the wives, as before, subject to the conditions mentioned above ; provided that the divorced wife should regard herself as an undivorced wife, and like a woman without a husband continue to live in the house, and be it understood that the aforesaid conditions shall apply to whatever share exists in the villages comprised in Mahal Shadipur, as detailed below —(1.) Shadipur, (2) Ninawan, Behrai, Daudpur, Nandapur, Qutubpur, Belahri, Daryapur; moreover, whatever property, such as Chitoi and Nausanda and Musha, &c, pargana Tanda and Halimpur and Lodhna and Nathupur, pargana Surhurpur, &c, exists at present, or may be acquired in future, shall, during the lifetime of Mir Teg Ali and myself (the defendant), continue to remain in possession of the defendant, and after me (the defendant) this property also shall devolve on the two wives or their descendants (aulad) in equal shares. Hence this agreement is made in writing in order that it may serve as evidence thereof and the pending case may be decided in accordance with its terms." Afzal Husain thereafter duly married Sughra Bibi and died in 1872 childless, his first wife Fatima Begum having predeceased him in 1871. Sughra Bibi took possession of her share in the properties, but had sold or mortgaged it all before her death, which occurred on July 26, 1914. Her transferees remained in undisturbed possession for nearly twelve years after her death. On March 26, 1926, the suit out of which this appeal has arisen was instituted by the respondent in the Court of the Subordinate Judge of Fyzabad for the recovery of two-thirds of Sughra Bibis share from the appellants, in whose possession the properties had come under the alienations above referred to. The respondents case was that under the compromise Sughra Bibi took only a life estate without power of alienation, and that on her death the half-share passed to her heirs, of whom the respondent, in right of her mother Zainab Bibi, the sister of Afzal Husain, was one, her share being two-thirds. The other heirs, taking the remaining third, were said to be certain maternal relatives of Sughra Bibi, who apparently made no claim, and were not joined as parties to the suit, but it is not suggested that it is defective on this account. The present appeal therefore is concerned only with two-thirds of the property, and the rights of the parties depend in the first instance on the validity of the alienations by Sughra Bibi, the title of the respondent, if these alienations were invalid, not being disputed. A preliminary issue which covered this question was raised and tried by the Subordinate Judge. It was in the following terms "Was the restriction placed by the compromise deed dated September 19, 1870, upon Sughra Bibis power of alienation valid and legally enforceable?" The learned judge, after a detailed but not very informing examination of the case law on the subject, held that the restriction imposed by the deed on the ladys power of alienation was invalid and inoperative, and he accordingly answered the issue in the negative. The hearing of some twenty-eight other issues in the case came subsequently before another Subordiate Judge, with the result that the suit was dismissed with regard to certain of the properties claimed, but decreed with regard to others. Both sides appealed to the Chief Court. The case was heard by Raza and Pullan JJ., who delivered their judgment on January 4, 1929, allowing the appeal of the present respondent, and dismissing that of the appellants, with the result that the suit was decreed in full. The questions other than that as to Sughra Bibis power of alienation are not now material. They were in part, disposed of by concurrent findings of fact of the two Courts, and for the rest involve matters subsidiary to the main issue as to the validity of the alienations. The learned judges of the Chief Court discussed the meaning of the word malik which has been used throughout the compromise agreement, but came to the conclusion that having regard to the express provision that the ladies were not to have power -to transfer the property to a stranger, they had only a "limited ownership," with a gift over to their heirs. They then considered whether under the Shia law, by which the parties were governed, such an arrangement would be valid, and came to the conclusion that it would. Before the Board the case law has been discussed at great length, but without throwing much light upon the construction of the particular document with which this appeal is concerned. It was urged for the appellants that the true effect of the document was to constitute the ladies full owners of the two moieties of the property, and that the attempt to restrict their power of alienation should be regarded as repugnant, special reliance being placed upon the judgment of the Board delivered by the late Sir Binod Mitter in Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh.(L. R. 56 I. A. 372.) For the respondent it was contended that, having regard to the decisions of this Board, the use of the word " malik " did not necessarily imply full ownership, and that reading the document as a whole the ladies took only life estates with vested remainders in their heirs. In support of the appellants contention it was pointed out that the ladies were to be " malik mustaqil," i.e., permanent proprietors, and were to be entered as such in the public records ; that their proprietorship was to take effect from the execution of the document, and that if Afzal Husain refused to marry Sughra Bibi, she was to " remain owner of a moiety" free from restriction of any kind ; that other property, to which Sughra Bibi had made no claim, was also dealt with ; that it was to remain in the possession of Afzal Husain during his life and the lifetime of his father Tegh Ali, and then was to “devolve on the two wives or their descendants in equal shares "—again, as the respondents counsel concedes, without restriction. From this it is said to be clear that the draftsman of the document was quite competent to put a life estate into direct words if that had been the intention of the parties under the first part of the agreement. It is also suggested that the words upon which the respondent relies as constituting a gift over to the ladies heirs are only explanatory of the restriction against transfer to a stranger, which immediately precedes them, and it is pointed out with some force that if only life estates were intended the restriction would not have been confined to the case of strangers. Their Lordships feel the weight of these contentions, and they might have some difficulty in holding that Sughra Bibi took nothing more than a life estate. But assuming in the appellants favour that she took an estate of inheritance, it was nevertheless one saddled, under the express words of the document, with a restriction against alienation to "a stranger." Their Lordships have no doubt that "stranger" means any one who is not a member of the family, and the appellants are admittedly strangers in this sense. Unless, therefore, this restriction can for some reason be disregarded, they have no title to the properties which can prevail against the respondent. Unless, therefore, this restriction can for some reason be disregarded, they have no title to the properties which can prevail against the respondent. On the assumption that Sughra Bibi took under the terms of the document in question an absolute estate subject only to this restriction, their Lordships think that the restriction was not absolute but partial; it forbids only alienation to strangers, leaving her free to make any transfer she pleases within the ambit of the family. The question therefore is whether such a partial restriction on alienation is so inconsistent with an otherwise absolute estate that it must be regarded as repugnant and merely void. On this question their Lordships think that Raghunath Prasad Singhs case (L. R. 56 I. A. 372.) is of no assistance to the appellants, for there the restriction against alienation was absolute and was attached to a gift by will. It is, in their Lordships opinion, important in the present case to bear in mind that the document under which the appellants claim was not a deed of gift, or a conveyance, by one of the parties to the other, but was in the nature of a contract between them as to the terms upon which the ladies were to take. The title to that which Sughra Bibi took was in dispute between her and Afzal Husain. In compromise of their conflicting claims what was evidently a family arrange ment was come to, by which it was agreed that she should take what she claimed upon certain conditions. One of these conditions was that she would not alienate the property outside the family. Their Lordships are asked by the appellants to say that this condition was not binding upon her, and that what she took she was free to transfer to them. The law by which this question must be judged is, their Lordships think, prescribed by s. 3 of the Oudh Laws Act, 1876, and failing the earlier clauses of the section which seem to have no application, " the Courts shall act according to justice, equity and good conscience," which has been adopted as the ultimate test for all the provincial Courts in India. Is it then contrary to justice, equity and good conscience to hold an agreement of this nature to be binding? Is it then contrary to justice, equity and good conscience to hold an agreement of this nature to be binding? Judging the matter upon abstract grounds, their Lordships would have thought that where a person had been allowed to take property upon the express agreement that it shall not be alienated outside the family, those who seek to make title through a direct breach of this agreement could hardly support their claim by an appeal to these high sounding principles, and it must be remembered in this connection that family arrangements are specially favoured in Courts of equity. But, apart from this, it seems clear that after the passing of the Transfer of Property Act in 1882, a partial restriction upon the power of disposition would not, in the case of a transfer inter vivos, be regarded as repugnant see s. 10 of the Act. In view of the terms of this section, and in the absence of any authority suggesting that before the Act a different principle was applied by the Courts in India, their Lordships think that it would be impossible for them to assert that such an agreement as they are now considering was contrary to justice, equity and good conscience. It was said by Lord Hobhouse in Waghela Rajsanji v. Shekh Masludin (L. R. 14 I. A. 89, 96.) that the expression " equity and good conscience " was generally interpreted as meaning English law, if found applicable to Indian society and circumstances. If this is to be the test there is authority that in England a partial restriction would not be regarded as repugnant even in the case of a testamentary gift. So in In re Macleay (L. R. 20 Eq. 186.) Sir George Jessel M.R. upheld a condition attached to a devise in fee that the devisee should "never sell out of the family," pointing out that this had been the law from the time of Coke; and in Doe d. Gill v. Pearson ((1805) 6 East, 173.) Lord Ellenborough in the Kings Bench affirmed the validity of a similar restriction. Their Lordships see no reason therefore to hold that the provision in the compromise agreement that Sughra Bibi should not have power to transfer the properties in suit to a stranger was otherwise than binding upon her. Their Lordships see no reason therefore to hold that the provision in the compromise agreement that Sughra Bibi should not have power to transfer the properties in suit to a stranger was otherwise than binding upon her. Their Lordships have heard much discussion of the question whether the Shia law permits of the creation of a vested remainder in such an indeterminate body as the heirs of a living person, but, in the view they take of the appellants case, it is unnecessary for them to come to any conclusion upon this somewhat abstruse problem, or to consider the authorities that have been cited. In their Lordships opinion Sughra Bibi had no power to transfer any part of the properties to the appellants, and upon her death the respondent became entitled to the two-thirds share in the properties which she claims. They think that this appeal fails, and that the decree of the Chief Court, dated January 4, 1929, should be affirmed with costs, and they will humbly advise His Majesty accordingly.