1. The facts of the suit cut of which this appeal arises have been set out clearly in the decision of the Court below. The findings are that the plaintiff is the legitimate daughter of Ram Din and that the property in dispute is property to which Ram Din became separately entitled under the provisions of the deed of partition, dated the 5th of March 1902. The lower Appellate Court hat refused relief to the plaintiff on the ground that she was excluded from inheritance by the provisions of the partition deed itself and has found in favour of the title of Ram Din's collaterals. We thus have it that Ram Din, as a Hindu not belonging to a joint family, had full proprietary title to the property in suit and that ordinarily the property would descend on his death to his daughter, he having no other heirs. In order to arrive at a different conclusion, it is necessary on the facts to find that not only does the deed of partition exclude the daughter, but that such exclusion is effective. I have made the following translation of the paragraphs of the deed which have a bearing on the question. This translation is as follows:
(a) Out of the executants if any ore desires or finds it necessary to transfer his property, he should transfer such property, being his divided share, to his near co-sharer, but if sash so sharer refuses to take the property then the person wishing to make the transfer may, after obtaining the written consent of his co-sharers, transfer the property to a stranger.
(b) If any co-sharer dies lawland, the property left by him shall be divided amongst his near so sharers according to their shares. No co sharer shall have a right to receive anything more than his proper share in the property left by the deceased.
(c) No co sharer shall have the right of creating title in favour of a daughter's son in his divided share directly or in-directly.
2. Paragraph (a) is a contract creating a right of pre-emption amongst the parties to the partition and is in no way objectionable.
3. In paragraph (6) I agree that the translation of 'lawalad' should be 'without male issue.' That is the usual meaning of the word and I agree with the lower Court that the distinct exclusion of a daughter's son affords additional reason if additional reason be required, for accepting this meaning of the word. What then does paragraph (6) lay down? It is a distinct ouster of the ordinary law of inheritance inasmuch as it excludes female issue and their descendants. Farther, this paragraph ousts the law of succession of collaterals, for, ignoring the precepts of the Mitakshara it directs that on failure of a co-sharer's issue the property shall not devolve according to the law, bad shall be divided amongst the remaining co sharers according to their shares.
4. Paragraph (c) is a restraint upon the right of transfer. The property, as has already been shown, is property in which Ram Din had fall title. I do not look upon paragraphs (b) and (c) of this deed as creating a legal contractual relationship between the parties to the deed. Paragraph (a) undoubtedly creates a legal contractual relationship, bat paragraphs (6) and (c) go math farther. The intention, there, is to alter the rules of succession and to restrain the right of transfer. The attempt to alter the rules of succession is obnoxious in view of the well-known Tagore case Jotendro mohun Tagore v. Ganendromohun Tagore 18 W. R. 359 : 9 B. L. R. 377 : I. A. Sup. Vol. 47 : 2 Suth, P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.)--[Ed.], and the restrictions laid down in paragraphs (b) and (c) cannot, in my opinion, be enforced. The essential thing is not the description of the document but its effect. This has been laid down in many cases; and not long ago by their Lordships of the Privy Council in the case of Purna Sashi Bhattacharii v. Kalidhan Rai Chowdhuri 17 Ind. Cas. 412 : 8 A.L.J. 681 : 15 C.W.N. 693 : 13 Bom. L.R. 451 : 14 C.L.J. (1911) 2 M.W.N 403 : 38 C. 603 : 10 M.L.T. 361 : 21 M.L.J. 1119 : 38 I.A. 112 (P.C.). In the result I allow this appeal. I set aside the decision of the learned District Judge and restore the decision of the learned Subordinate Judge. Bageshar Rai will pay his own costs and those of the plaintiff in all Courts. These costs will include, in this Court, fees on the higher stale.