1. The agreement between the brothers Ramlinga and Virupakshi, to the effect that two houses were for ever to be held undivided, was one inconsistent with the Hindu law to which they were subject--Rajender Dutt v. Sham Chund Mitter I.L.R. 6 cal. 106; Anantha Tirtha Chariar v. Nagamuthu Ambalagaren I.L.R. 4 Mad. 200; Ashutosh Dutt v. Doorga Churn Chatterjee L. R. 6 I A. 182. That law gives to a member of a united family a right to demand partition from his co-members The division of sacra takes place when it is lawfully claimed, and of this division of the sacra a division of the property, or of the interests in the property, is a necessary accompaniment to have been ruled more than once that, by an agreement not to divide, a Hindu family could not tie up their family estate so as to deprive a purchaser of one of the shares ot a right to enforce partition--Anand Chandra Ghose v. Prankisto dutt 3 B L.R. 14 O.C.J.; Rajendur Dutt v. Sham Chunder Mitter I.L.R. 6 Cal. 106. But the purchaser cannot take a greater right than the vendor had to convey to him-Sreemutty Soorjee Money Dosee v. Denobundoo Mullick 6 Moo. I.A. 539. If he could, then a sharer bound not to separate could defeat his engagement by merely selling his share, and subjecting his brethren to additional annoyance by introducing a stranger into the family house the right to demand a partition is in itself superior as a part of the Hindu's public law in the larger sense, to the convention of individual. These conventions may afford a ground for Suits for breach of contract, but they cannot be enforced to deprive those who enter into them of a right conferred in the public interest and the religions interest of the Hindu community.
2. It is urged that the brothers by their general partition became, as to the property retained in common, joint tenants like those so called under the English law. A dealing with joint property which implies a severance of the interests constitutes a severance under the English law, whether the dealings be, those of joint tenants inter se--Caldwell v. fellowes L.R. 9 Eq. 410 or of one with a stranger--Jackson v. Jackson 9 Ves 591. A joint tenant can sever the joint tenancy forthwith by selling his share, even if he, should buy it back next day. He may always sue for a partition if he desires it Co. Litt. 175a. To such a state of legal relations the same remarks apply as to those of the Hindu united family--Privy Council in nawab Ali khan v. Hurdwaree Mull 13 Moo. I.A. 395. The ownership of a joint tenant cannot be tied up so as to create a perpetuity any more than a perpetuity for a similar purpose can be created under the Hindu law-Shookmoy Chunder Dass v. Monohari Dassi I.L.R. 7 Cal. 269. The perpetuity here proposed would be 'a new from of estate' Which, it has been ruled, 'a man cannot create for the purpose of carrying out his own wishes or policy'- Sreemutty Soorjee Money Dossee v. Denobundoo Mullick 6 M I.A. 526. See, too,. jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 B L.R. 395. Hence, either as a united brother or as a joint tenant, Ramlinga could not, by an agreement with his brother, be deprived of his right to separate, and require a separation of his interest from that of Virupakshi Co. Litt, by Thomas, Bk, II, Ch. XXV, Note E.
3. The case of Gopalacharya bin Trivangacharya v. Keshav Daji Kale Printed Judgments for 1876 p. 244 was one of a courtyard retained undivided for the convenience of the adjacent dwellings. The agreement to the effect was enforced Without regard to whether the yard remained joint property, or had passed wholly to one of the parceners in partition. An analogous case on this point is that of Western v. Macdermot L.R. 2 Ch. 72. Still closer is the case of Maclean v. Mackay L.R. 5 P.C. 327. See, too, Sudgen's Vendors and Purchasers (1862) p.596.
4. In the present instance there is this additional circumstance, which is really conclusive of the case, that Ramlinga mortgaged to Virupakshi his moiety of the property which was to be retained for ever joint and undivided. It could not remain joint, in any intelligible sense, when one of the parties to the agreement disposed to the other of his interest as a separable and for the purpose in view, separated share. It is one of the indicia of partition, according to the Hindu law, that the brethren should enter into independent mutual dealings; and certainly that property could not be any longer joint which was the subject of such a transaction as a mortgage between the alleged joint owners. The mortgage implied a new agreement to hold separate interests, and such an agreement really constituted a partition with respect to the property now in question as the complement: of the partition previously made of the other parts of the family estate.
5. For these reasons we reverse the decree of the district court, and restore that of the Subordinate judge, with cost throughout on respondent.