P L D 1966 Supreme Court 612 (PLP)

HAMOODUR RAHMAN, J.-This certificated appeal is directed against the judgment and decree passed by a Division Bench of the High Court of West Pakistan at Lahore in a Regular First Appeal, on the 22nd of July 1960. The certificate was granted on the 19th of March 1962, under the provisions of Article 158 of the late Constitution read with clause 2 (2) of the Laws (Continuance in Force) Order, 1958, on the basis of valuation alone. The said appeal arose out of a suit instituted by the appellant herein against the respondent, his elder brother, for a declaration to the effect that the appellant alone is the occupancy tenant of a half share in lands measuring 641 kanals entered in Khata No. 2 of Khataunis Nos. 32 to 34 in Chak 56-A Janoobi, Tehsil Sargodha, and that a compromise decree passed by the Civil Judge, First-Class, Sargodha, on the 6th of April 1945, in Suit No. 35 of 1943, was ultra vires, null, void and ineffectual against the rights of the plaintiff and for a permanent injunction to restrain the respondent from interfering with the possession of the appellant. It appears that the father of the appellant and the respondent one Malik Ahmad Khan had acquired 12 squares of land under the Horse Breeding Conditions under the Colonization of Government Lands (Punjab) Act, 1912, in Chak No. 57/SB, Tehsil Sargodha. At that time the law of primogeniture applied in the case of succession to such lands and under that law the respondent alone would have inherited all the properties of his father. Know ing this the father wanted to make some other provision for his younger son, the appellant herein, who had been educated in the Chiefs' College, Lahore, and got employed in the Police depart ment. The father accordingly acquired in the year 1920 another 3 squares of land under the Sufaid Posh Grant Conditions and made a gift of these three squares to his younger son by getting the latter's name mutated in the records as the occupancy tenant in respect thereof. In these mutation proceedings the respondent appeared as the attorney of his father on the 1st of November 1920, and made the following statement:- "My father Ahmad Khan purchased three squares of land in respect of sufaidposh grant. He purchased it in Chak No. 56-A. He wishes to get it mutated in favour of my younger brother Muhammad Hayat Khan, and I am his attorney. It may be mutated in his favour. I have no objection thereto on account of being the elder brother and a right holder. There are 12 squares of land relating to sufaidposhi on horse-breeding in Chak No. 57, and those will be mutated in my favour." This mutation was attested on the 12th of April 1921 but sub sequently the rule of primogeniture was abolished in 1939. At this time Malik Ahmad Khan was still alive and was of about 98 years of age. He died in December 1940 and, in accordance with the law then prevailing, the 12 squares of land first acquired by him devolved on both his sons and were mutated in their names in equal shares on the 9th of June 1941. This, not unnaturally, dissatisfied the elder brother who, on the 5th of February 1943, instituted a suit, being Suit No. 35 of 1943, for a declaration that he was the exclu sive owner of the said 12 squares of land or that, in the alternative, he should be declared to be entitled to a half share in also the three squares of land mutated in the name of his younger brother in 1921. The appellant contested this suit claiming that the three squares transferred to him in 1921 were in the nature of a gift by the father in his lifetime and, as such, his elder brother could claim no right or interest therein. Furthermore, he maintained that since this gift had been made with the consent of the elder brother the latter could not now challenge the validity thereof. This suit was, however, ultimately compromised and a decree was passed in terms of the compromise on the 6th of April 1945. Under the terms of the said compromise it was provided that:- (i) upon the present respondent, who was the plaintiff in that suit, depositing Rs. 5,000 in Court within one month for pay ment to his younger brother, the present appellant, the former would be entitled to jointly own with his younger brother I J squares of land out of the 3 squares mutated in the name of the younger brother in 1921; (ii) that the remaining 12 squares situated at Chak No. 57 Janoobi would also be held in equal shares by both the brothers; (iii) that the rest of the lands situated in Chak No. 57 Janoobi will be divided according to possession but if the present appel lant was found to be in possession of more than one-half of the area he will be liable to make good the deficiency from such portion of his other lands that the respondent may select, except square Nos. 15 and 16 and the border line; (iv) that the respondent would have no concern with the resi dential 1hata situated in Chak No. 56-A Janoobi of which the appellant will be the sole owner; (v) that the lands situated in Tehsil Muzaffargarh would be the sole property of the appellant; and (vi) that in the event of the sum of Rs 5,000 not being deposited or paid within the period stipulated the suit will be dismissed with costs. The sum of Rs. 5,000 was admittedly paid within the stipulated period and in accordance with the terms of the compromise muta tion was also formally attested on the 9th of April 1946 (vide Exh. D-11) in a public assembly at which the respondent personally appeared and produced the compromise decree. No appeal was filed against the mutation sanctioned by the Assistant Collector by the appellant but subsequently he applied for the revision of the order to the Collector. This was refused but again no proceed ing was taken to challenge such refusal before the Commissioner. The appellant, however, later moved the Financial Commissioner in revision against the said mutation but the Financial Commis sioner refused to interfere on the ground that he would not entertain an application for revision when the Commissioner who enjoyed concurrent jurisdiction had not been moved. In spite of this mutation the appellant, it appears, did not deliver possession to the respondent of his half share. The latter accordingly put the compromise decree into execution and applied for obtaining joint possession. Warrants for delivery of possession were issued and the Girdawar Halqa subsequently reported that he had delivered possession on the 15th of November 1956. This possession was evidently only symbolic possession, for the Patwari's report stated that "proprietary possession of half share of land measuring 641 kanals was delivered". The appellant, it may be stated here, did not admit that even symbolic possession was delivered, for on the 22nd of November 1946, he filed an objection in the execution proceedings contending that the com promise decree was inexecutable being void under the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He also contended that the warrants for possession had not been executed in the prescribed manner. No order was, how ever, made on this objection petition which was directed to be eonsigned to the record, as the decree-holder, now respondent herein, had declared that he was satisfied with the kind and mode of possession which he had obtained and was prepared to accept the responsibility for any defect therein. As against this order the appellant moved the High Court in appeal. This appeal was allowed by a learned Single Judge and the execution case was remanded for fresh decision after recording evidence and hearing arguments on certain questions formulated by the learned Judge himself but in Letters Patent Appeal the order of remand was set aside, as the appeal before the High Court was itself found to be incompetent due to the executing Court not having been found to have finally decided any question in controversy between the parties. This order of the Letters Patent Bench was passed on the 15th of May 1951, but even before this the appellant instituted the suit, out of which the present appeal arises, on the 20th of March 1951. The main contention raised by the appellant in this suit was that the compromise was in contravention of the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, and, therefore, void and of no legal effect. The respondent contested the suit and maintained that the compromise was nothing more than a family arrangement and that for entering into such an arrangement the permission of the Commissioner or the Collector under the said section was not necessary. In any event, it was said that since after the passing of the compromise decree the authorities under the Colonization of Government Lands Act had sanctioned the mutation of the lands in accordance with the compromise, the provisions of section 19 of the said Act has been complied with. The plaintiff, it was further contended, was estopped from instituting this suit and raising objections to the validity of the compromise decree after taking advantage of the other terms thereof. In this suit certain preliminary objections were also taken as a result of which the appellant was directed to amend his plaint and the respondent was given leave to file a further amended written statement specifically setting up the following plea:- "After the passing of the decree the authorities under the Colony Act, via. the Commissioner and the Collector are bound to give effect to the decree between the parties and there remains no need for obtaining any permission after passage of the decree. Moreover, in spite of submitting several applications and preferring an appeal by the plaintiff that the above-men tioned officers should intervene, they did not do so. On the other land the approval is derivable and admitted by their conduct. In any case the plaintiff has no right to raise this objection. Moreover, the mutation sanctioned on the 19th April 1946, was entered and sanctioned with the permission of the Colony Officer and thus he gave permission for the compromise which he was authorised to do." On the pleadings so amended the following issues were raised:- (1) Whether plaintiff without permission of competent autho rity under the Colonization of Government Lands Act, 1912, could enter into the agreement, dated the 6th April 1945, in dispute? (2) Whether the Colony Assistant, Sargodha, permitted the plaintiff to make the alienation referred to in the agreement in dispute and whether this subsequent permission could validate the agreement? (3) Whether the agreement dated the 6th April 1945, amounts to a family arrangement and what is its effect on the case? (4) Whether the agreement ceased to contravene section 19 of the Colonization of Government Lands Act because it had merged in a Civil Court's decree and the Provincial Govern ment and the plaintiff are obliged to recognise it as valid? (5) Whether parties' father under the circumstances recited in para. 2 of the written statement, gifted the land in dispute in favour of the plaintiff and it was agreed between parties that if the land came to devolve on both the sons, parties would share it jointly? If so, what is its effect on the case? (6) Whether the condition imposed on the gift in favour of the plaintiff is valid? (7) Whether the agreement referred to in issue No.. 5 did not contravene the provisions of section 19 of Colonization of Government Lands Act? (8) Whether the agreement referred to in issue No. 5 could furnish a valid basis for the agreement, dated the 6th April 1945 ? (9) Whether plaintiff's suit is within time? (onus objected to). (10) Whether plaintiff is estopped by his conduct from insti tuting the suit? (11) Whether this Civil Court has jurisdiction to entertain this suit in view of section 36 of Colonization of Government Lands Act? (12) Whether section 47, C. P. C. bars the suit? (13) Whether section 11, C. P. C. bars the suit? Both sides adduced oral as well as documentary evidence in support of their respective cases and after considering the evidence the trial Court came to the conclusion that the compromise was not a family settlement, although at one place in its judgment it did mention, that the object of the compromise of the 6th April 1945, appeared to be to place both the sons on the same footing and to give parity to them in succession. The ultimate finding, however, was that it was an agreement to transfer within the meaning of section 19 of the Colonization of Government Lands (Punjab) Act, 1912, and was, therefore, void, as it had not been proved that Colony Assistant had specifically granted any sanction to the transfers agreed upon between the parties. The suit was, accordingly, decreed and the compromise was declared to be null and void. The respondent went up in appeal to the High Court where only three grounds were argued in support of the appeal. They were as follows:- "(1) Whether for the compromise of 6th April 1945, sanction of the Financial Commissioner under section 19 of the Coloni zation of Government Lands Act, 1912, was necessary? (2) Whether such sanction had in fact been obtained, and (3) Whether a declaratory suit challenging the compromise of the 6th April 1945, was competent to the plaintiff?" On the first ground the High Court was of the view that the foundation of the claim of the appellant was "obviously inheri tance and not sale, exchange or gift or other contract." The compromise was, according to it, "founded on the assumption that both Subedar Yar Muhammad Khan and Malik Muhammad Hayat Khan, as the two sons of Malik Ahmad Khan, were entitled to the half of the share in the 15 squares mentioned in the plaint." The sum of Rs. 5,000, which was stipulated to be paid by the respondent to his younger brother, was not "as price of his half share but as compensation for improvements effected by him." The compromise decree was not, therefore, in the opinion of the High Court, a transfer either by way of sale, exchange or gift or other private contract within the meaning of section 19 of the Act of 1912 and, therefore, not hit by the said section. In this view of the matter it was further held that a compromise of this nature did not need the sanction of the authorities under the said Act, as no sanction was necessary thereunder in the case of devo lution of rights by way of inheritance. It was also held that even if it be assumed that the compromise came within the mischief of section 19 and sanction is considered necessary then from the evidence on the record it was clear that the sanction accorded to the muta tion on the 26th of March 1946, was sufficient compliance with the requirements of the said section. The mere fact that the sanction was given after the compromise decree was not sufficient to invali date the compromise, for as a rule of law it must be held that the subsequent sanction had validated the transaction previously negotiated. Lastly the High Court was also of the opinion that if the com promise was a fraud upon the statute, then the present appellant was as much a party to the fraud as the respondent and for this reason too in equity he should not be allowed to take advantage of his own fraud. The appeal was, accordingly, accepted, the decree of the trial Court was set aside and the suit was dismissed as being incompetent. The main question that arises for consideration in this appeal is whether the compromise of the 6th of April 1945, was a transfer either by sale, exchange, gift or other private contract of any of the rights or interests vested in a tenant by or under the Govern ment Tenancy (Punjab) Act, 1893, or the Colonization of Govern ment Lands (Punjab) Act, 1912, and, if so, was such transfer made without the consent in writing of the Commissioner or an officer authorised by him in that behalf in writing as required by section 19 of the Colonization of Government Lands (Punjab) Act, 1912. This section reads as follows:- "

19. Transfer of rights to be void.-Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenancy (Punjab) Act, 1893, or this Act, shall without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by and sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy. Any such trans fer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be ejected under the order of the Collector: Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated." Learned counsel appearing for the appellant has contended that a compromise, even though incorporated in a decree, is none theless in the nature of a private contract between the parties to the litigation. The fact that there is superadded to it the command of a Court in the shape of a decree incorporating into it the com promise does not make any difference. There can be no cavil with the proposition that a compromise is in the nature of an agreement between the parties, but the question here is as to what was the nature of that agreement, for section 19 of the Coloniza tion of Government Lands Act, it will be observed, does not prohibit any and every kind of agreement but only agreements which purport to transfer or to change the rights and interests vested in a tenant holding land under the said Act. Learned counsel for the appellant has, of course, contended that the transaction which the compromise evidenced in this case was a transaction of sale of a half share in three squares of land mutated in the name of the appellant in 1921 for a consideration of Rs. 5,000 and, therefore, it was a private contract for the sale of the tenant's right or interest in the lands forming the subject-matter of dispute in this-case for a consideration. It is of no consequence that the amount is inadequate, for the adequacy or inadequacy of the consideration cannot be relevant for determining the nature of the transaction itself. In this view of the matter, it is urged, the agreement or contract was clearly void not only under the provisions of the aforesaid section 19 but also under section 23 of the Contract Act if the same was entered into without the consent in writing of the Commissioner or some other officer authorised by him in writing in that behalf. In support of this latter contention learned counsel has placed strong reliance upon the opinion of Sir John Edge of the Judicial Committee in the case of Mot! Chand and others v. Mramullah Khan and others ((ILR39Al1.173(PC ). The question for determination in that case was as to whether an attempted sale of prospective ex-proprietary rights in "sir and khudkasht land and an agreement to execute a deed of relinquish ment in respect of those rights was unlawful." What had happened in that case was that the respondents in that suit had executed a sale-deed which also contained a provision for the execution and filing of a deed of relinquishment in respect of certain "sir" lands held by them. The purchasers to whom the sale was to be made were not proprietors or land-holders or co-sharers in the Mauzas in which the lands were situated. The deed of relinquishment as stipulated for was executed but the dents who were the proprietors of these lands refused to file the deed of relinquishment in the revenue Court as also refused to make over possession of the "sir" lands. It was for this breach of contract that the appellants filed a suit for damages. The Subordinate Judge granted them a decree but on appeal the High Court held that the transaction in respect of the "sir" lands, whether it was regarded as an attempted sale of ex-proprietary rights or an agreement to relinquish those rights, was unlawful being opposed to the policy of the Agra Tenancy Acts of 1881 and 1901 and, therefore, void under section 23 of the Contract Act. These Acts expressly prohibited the transfer of the interest of an ex-proprietary tenant or an occupancy tenant or a non -occupancy tenant either in execution of a decree of a civil or revenue Court or otherwise by voluntary transfer. The Judicial Committee agreed with the High Court that the policy of the above Acts which was "to secure and preserve to a proprietor, whose proprietary rights in a mahal or in any portion of it are transferred otherwise than by gift or exchange between co-sharers in the mahal, a right of occupancy in his "sir" lands and in the land which he has cultivated continuously for 12 years from the date of transfer" and that this policy could not be defeated by any ingenious device, arrangement or agreement between a vendor and a vendee for the relinquishment of such rights. It is clear from the facts of this case that there was indeed a deed of sale and deed of relinquishment executed to effectuate something which was prohibited by the Agra Tenancy Acts. There was no doubt, therefore, that the contract of which breach had been committed was for a purpose which was prohibited by statute. If we come to the conclusion that the agreement evidenced by the compromise in the present case was in the nature of a contract for the transfer of the interest of the tenant either by sale or exchange or gift or other private contract, then it is clear that upon the language of section 19 itself such an agreement must be held to be void, as the section itself provides that such transfers, if made without the consent in writing of the Commissioner or of an officer as may by written order be empowered in that behalf, "shall be void." In this event it will not be necessary for us to invoke in aid the provisions of section 23 of the Contract Act, for the statute under consideration has itself declared the consequence of such a transfer. The next case relied upon by the learned counsel is that of Mst. Rakho v. Samaila and others (A I R 1939 Lah. 365 ) where a learned Single Judge of the Lahore High Court held that a compromise entered into a suit for the division of certain lands held under the Punjab Colonization of Government Lands Act, 1912, after the death of the recorded tenant, who was a widow, between her daughters and her husband's collaterals was hit by the provisions of section

19. The land in dispute in that case was originally granted to one Bakhu. This land was after his death mutated in the name of his widow Mst. Alan. She applied for permission to gift half of the land to her daughter's son. This permission was granted for her lifetime and mutation was sanctioned accordingly. She died in October 1933. The other half of the land was then mutated in the name of collaterals, i.e. the reversioners. Then two of her surviving daughters sued, after failing before the Revenue Autho rities to get the mutation corrected, for a declaration that the mutation was wrong. This suit was contested by the collaterals who maintained that the jurisdiction of the civil Court to entertain such a suit was barred by section 36 of the Colonization of Govern ment Lands Act. During the pendency of the suit, however, after the evidence had been recorded the parties came to terms whereby the two daughters, who had instituted the suit, were given 3' killas of land, another surviving daughter of Mst. Alan who was married to one of the collaterals 1 killa and the collaterals themselves 8 killas. One of the collaterals who were not present at the time of the compromise, though he was represented by counsel, appealed to the District Judge against the compromise. The latter remanded the suit in order that the Court below might decide the question of jurisdiction, but on second appeal a learned Single Judge of the Lahore High Court held that the District Judge's order was with out jurisdiction, as the value of the property exceeded Rs. 5,

000. The said collateral then filed a first appeal in the High Court which was dismissed as time-barred. The collateral then filed another suit for a declaration that the decree passed on the basis of the compromise was void and inoperative against them and that the Civil Court had no jurisdiction to declare a mutation unlawful. The trial Court held that the compromise was not hit by section 19 of the said Act and that it had the jurisdiction to entertain the suit. On appeal the District Judge held that the compromise was bad for want of the Collector's sanction under section 19 and that the jurisdiction of the civil Court was barred under section 36 of that Act. A learned Single Judge of the High Court in second appeal agreed with the view of the District Judge and dismissed the appeal. The compromise was considered to be a contract which was barred by the provisions of section

19. From the facts of this case, however, it appears that only one set of parties to the suit could be treated as successors-in-interest of Mst. Alan, namely, either the reversioners, i.e. the collaterals of her husband, or her daughters. It was not a case where all the parties to the suit were in the position of successor-in-interest. The compromise, therefore, which provided for the distribution of the lands in dispute between such parties could be treated as a contract for the transfer of the land. Learned counsel appearing for the respondent, on the other hand, has contended that the policy of section 19 is not to prohibit transfers altogether, but merely to invalidate transfers made with out the consent in writing of the Commissioner. The policy of the Act, it is said, appears to be to give the Government as the grantor of the land the power to make a choice as to the grantee and thus to keep out an undesirable tenant and nothing more. In this view the word "void" in the section should, it is urged, be understood as "voidable". In the present case the compromise has been held by the High Court, to be merely a family arrangement for settling a dispute which had arisen on the death of the tenant and, therefore, not to be hit by the provisions of section

19. A reference to the terms of the compromise, it is also pointed out, would show that this was in the nature of an executory contract which did not and could not effect a transfer of the kind contemplated by the said section. In support of these contentions learned counsel has taken us through the evidence on the record to show that the dispute origi nated due to the change in the rule of succession by primogeniture. It was because of this rule that the father Malik Ahmad Khan had, even as long ago as 1920, been trying to acquire some land in the name of his younger son who would on account of this rule of primogeniture be debarred from getting any share in the pro perties of his father. Indeed in a letter (Exh. D. 8) Written on the 11th of June 1937, by the appellant to his father the appellant himself admitted this position. In this letter the appellant men tioned that he had applied for obtaining permission of some other lands as desired by his father by stating that his father had already given 12 squares of Nehri land to his elder brother and now he wanted to get some new land purchased in the District of Muzaffar garh for the appellant and that although the lands would be purchased by the father the mutation would be in the name of the appellant. The compromise decree itself shows that lands situated in the Tehsil of Muzaffargarh were in fact purchased and mutated in the name of the appellant and by the compromise decree they were to be the sole property of the defendant even though these lands did not form the subject-matter of the suit in which the compromise decree was made. As regards the three squares of land forming the subject -matter of dispute it appears that these were also purchased for the same purpose and the respondent knowing that he would get under the right of primogeniture the entire 12 squares which had been originally acquired by his father, agreed to the purchases thereof for his younger brother, as will appear from Exhs. D. 3 and D. 6, and the statement of the respondent (Exh. D. 15) recorded in the previous suit. Exhibit D. 3 is an application by the respondent to the Colony Assistant, Sargodha, on the 26th of March 1919, wherein he declared that he "as an elder son of Malik Ahmad Khan of Chak No. 57/SB has no objection to have the sale sanc tioned in the name of his younger brother Muhammad Hayat." These are the three squares which now form the subject-matter of dispute in this appeal. The original idea, it appears from this, was that though the land would be purchased by the father it would be mutated in the name of the appellant, but since the Colony Authorities did not agree to this proposal, the lands were actually first mutated in the name of the father and then mutated in the name of the appellant. Even on this occasion, as disclosed by Exh. D. 6, the respondent appeared as the attorney of his father before the Collector and stated that he had no objection to the mutation "on account of being the elder brother and a right-holder." This document again shows that the respondent stated before the Collector that "there are 12 squares of land relating to Sufaidposh on Horse-breeding in Chak No. 57 and those will be mutated in my favour." For determining the true nature of the transaction entered into by the compromise of the 6th of April 1945, we must, we agree look into the entire background which led to it. It is clear from a careful examination of the mass of documentary evidence filed in the case that the father Malik Ahmad Khan knowing that under the law of primogeniture then applying for succession to Govern ment lands his younger son, the appellant herein, would be deprived of any share in his properties, wanted to make some provision for him also and it is for this purpose that not only some lands at Muzaffargarh but also the three squares of land now in dispute were purchased by the father and then got mutated in the name of the son with the consent of his elder son, the respondent herein. The transaction was thus to compensate the younger son for what he would have lost in inheritance by reason of the application of the law of primogeniture. Indeed, the present dispute would not have arisen if the law of primogeniture had not been changed. By reason of this change in the law which took place prior to the death of Malik Ahmad Khan the position was that the elder son was placed in a position of disadvantage, and it was to remove this disadvantage that he filed the Suit No. 35 of 1943. The reliefs claimed in that suit, it is significant to note, were in the alternative form. Firstly, a declaration was asked for to the effect that the respondent alone was entitled to the 12 squares of land which stood in his father's name and which if the law of primogeniture applied he would in the ordinary course have inherited. Secondly, if this declaration could not be granted then he prayed that he may be declared to be a joint owner with the appellant in the three squares of land mutated in the appellant's name in 1921, so that he may share his father's properties equally with his younger brother. The younger brother contested this suit maintaining that whatever he had obtained during the lifetime of his father was in the nature of an out and out gift inter vivos and, therefore, it could not be brought into the Notch-pot. It is this dispute that was ultimately compromised and, as such, what the compromise really sought to effectuate was an equalization of the position of the two sons of Malik Ahmad Khan on the basis that the law of primo geniture no longer applied. It was in effect an admission of ownership on the ground of inheritance. The compromise, in our view, purported to effect a distribution of the estate of Malik Ahmad Khan on the basis that it consisted not of only 12 squares of land but of 15 squares. Even the mutation that was effected in pursuance of this compromise decree was not as in the case of a transfer by sale, exchange or gift but merely by the addition of the name of a co-owner, vide Exh. D.

11. We are in agreement, therefore, with the High Court that the compromise in this case was for the purpose of bringing about a family settlement and not a transference of a share on the basis of a consideration. We are unable also to accept the contention that the sum of Rs. 5,000 stipulated to be paid under the compromise was a con sideration for a transference of a half share in the said three squares of land. It is not disputed before us that section 19 has no application to the case of transference by inheritance or succession as held by a Division Bench of the Lahore High Court in the case of Jagpal Kaur v. Surat Singh(A I R 1935 Lah. 638). We are in entire agreement that since section 21 of the Act of 1912, provides for succession a settlement of a dispute regarding the persons entitled to succeed by a family arrangement would not come within the mischief of section 19, for in such event mutation would be entered under section 21 (6) in the name of the person or persons who, as agreed upon, are entitled to succeed "if the tenancy were agricultural land acquired by the original tenant." It is also not without significance in this connection that even the Senior Civil Judge of Sargodha felt that "the object of the compromise dated the 6th April 1945, appears to be to place both the sons on the same footing and to give parity to them in succes sion." It is difficult, however, to appreciate why in spite of this he came to the conclusion that the compromise did not effect any adjustment of title and could not, therefore, be treated as a family settlement. A great deal has been said with regard to the sum of Rs. 5,000 which was payable under the terms of the compromise. But a careful perusal of the terms of the compromise would itself indi cate that this could not possibly have been the consideration for the half share in the three squares of land. These three squares were purchased along with an Ihata situated in Chak No. 56-A Janoobi but by the terms of the compromise this Ihata was to be the exclusive property of the appellant and again the lands in Muzaffargarh which were admittedly purchased by the father for his younger son were also not divided by the compromise. It appears, therefore, that this payment of Rs. 5,000 was also in the nature of an adjustment or equalization fund. The reasoning of the trial Judge that this was a consideration to be paid by the respondent for taking the half share of the three squares of land cannot obviously be correct, for, the respondent could not be made liable to pay any amount after giving up his claim to the 1hata which was acquired with the land and to which he would otherwise have been entitled if both the Ihata and the three squares of land had been brought into the Notch-pot. In our view the conclusion of the High Court that this sum of Rs. 5,C00 was probably paid as compensation for improvements effected in the land by thei younger son during the time it remained in his exclusive possession and cultivation since 1921 appears to be more reasonable. That) it was in reality only an equalization fund is also supported by the fact that it was hopelessly inadequate to constitute a consideration for a half share in three squares of land even in 1945. In this view of the matter it is not necessary for us to enter into any detailed consideration of the other questions raised but we would like to mention here that we are also inclined to agree with the High Court that even if the compromise is treated as an agreement for affecting a transfer of an interest of a tenant within the meaning of section 19 of the Colonization of Government Lands Act the transfer was not invalidated, as it had certainly been granted the necessary sanction by the appropriate authority. It seems to us that there is a great deal of force in the con tention advanced on behalf of the respondent that the compromise itself was merely an executory contract which contemplated that a transfer in accordance with law would subsequently be effected after the payment of the stipulated amount and this transfer was, in fact, effected by the mutations entered with the sanction of the Colony Officer, who was a competent authority under the said section. This sanction was obtained by following the usual pro cedure of making an application to the Colony Assistant who after obtaining a report from the Naib-Tehsildar ordered the mutation which constituted the recognised form of transfer, as the title could pass only by the mutation. The transfer, therefore, took place on the attestation of the mutation, which was made with the prior sanction of the relevant authorities. In this view of the matter the transfer, if any, was made with the prior sanction of the competent authority and the question as to whether an ex post facto sanction would be suffi cient to validate the transfer does not at all arise. Our attention has, however, been drawn to a decision of the Revenue Authorities themselves in the case of Md. Suleman and another v. Allah Wasaya and others (P L D 1959 W. P. (Rev.) 99) where it was held that even an ex post facto sanction could be validly granted under the said section 19, as the require ment of sanction therein was merely a formality, which upon general principles is not to be unreasonably refused if the grantee is not an undesirable person. Learned counsel for the respondent also endeavoured to argue that the finding that the compromise effected only a family settle ment was a finding of fact, as even though it depended upon the construction of a document, namely, the terms of the compromise, that construction has been made on the basis of the surrounding circumstances. In support of this contention he relied on two decisions of learned Single Judges of the Lahore High Court in the cases of Ahmad Khan v. Alam Khan (A I R 1917 Lah. 156) and S. Masih Hassan v. Allah Diya and others (A I R 1947 Lah. 320), where the proposition has been adum brated that the interpretation of a deed upon a consideration of the facts and circumstances surrounding the transaction is a ques tion of fact. We need only point out here that the question of the proper legal effect of a document or of a proved fact is always a ` question of law but when an inference is to be drawn as to a question of fact then whether the inference is drawn from oral, evidence or from documents it is always a question of fact. In the case of Wali Muhammad and others v. Md. Bakhsh and others (57 1 A 86) the Judicial Committee of the Privy Council laid down some propositions for determining as to what are and what are not questions of law. It may be worthwhile to set them out here:-- "(1) The proper legal effect of a proved fact is essentially a, question of law, but the question whether a fact has been proved) when evidence for and against has been properly admitted necessarily a pure question of fact. (2) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights, but were really historical materials, have to be cons trued for the purpose of deciding the question." Again in the case of Nafar Chandra Pal v. Shukur and others (45 1 A 183/187) the Privy Council observed:- "Questions of law and of fact are sometimes difficult to dis entangle. The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question of whether any evidence has been offered on one side or the other; but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact." We see no reason to depart from this enunciation of law and applying the tests in the present case we find the question that fell for consideration was as to what was the true intent of the parties to be gathered from the terms of the compromise. In order to ascertain this true intent the surrounding facts and circumstances could legitimately be looked into but this did not in our view, make it a question of fact, for, the question nevertheless remained as to what was the legal effect of the said compro mise decree. In any event, since the appeal in the High Court was a first appeal even questions of fact were open, for they were not concluded by concurrent findings. Lastly as to the principle of pari delicto relied upon by the High Court to defeat the suit of the appellant it has been urged on his behalf that this principle does not apply in a case where a judgment-debtor is in actual possession as held in the case of Raja and others v. Karam Ali and others (P L D 1951 Lah. 177). It is true that in the present case the appellant did manage to exclude the respon dent from actual physical possession but at the same time it must not be overlooked that it has been established beyond doubt that symbolic possession was given to the respondent in execution of the writ of possession on the 15th of November 1946, and it is well settled as against a judgment-debtor that such symbolic possession is as good as actual possession. But even apart from this since in the present case the suit was under section 42 of the Specific Relief Act for a declaration it was only for a discretionary relief and such a relief could certainly have been refused where in the facts and circumstances of the case it is evident that the person seeking the relief is taking an unfair advantage over his adversary by trying to back out of a solemn contract into which he had entered. This would be a sufficient ground for disentitling him to any relief and not allowing him to take advantage of a legal prohibition in the violation of which he was an equally guilty party and had, in fact, taken the benefits which accrued to him as, a result of such violation. For these reasons we are of the view that this appeal must fail and accordingly dismiss it with costs. A. H. Appeal dismissed.