1. to 7. x x x x
8. Mr. Trivedi then urged that the said agreement in so far as it restricted the transfer absolutely and stagnated the flow of the property was void on two grounds. He firstly stated that the mother had no authority to bind her son. The mother was the natural guardian, but when the defendant No. 2 had become major, he chose not to challenge this understanding between the parties. It cannot be disputed that even when one of the co-parceners is a minor, joint family property can be partitioned. If the minor has got any grievance, it would be perfectly open to him to get that partition reopened by alleging fraud or unconscionable character of the partition. Nothing of the sort had been done by the defendant No. 2 on attaining majority long ago. As a matter of fact, till the suit came to be filed in the year 1968, he had sat with folded hands. This issue is picked up by him only with a view to see that the plaintiff's suit is frustrated on any plausible legal plea. The judgment of Privy Council in the case of Mohammad Raza v. Mt. Abbas Bandi Bibi has clinched this question. The Privy Council in that case held as follows: -
'The terms of the compromise were binding, that the restriction as to alienation was only partial and that such a partial restriction was neither repugnant to law nor to justice equity and good conscience.'
In that case there was an express agreement between the parties that the property was not to be alienated outside the family. This condition was upheld by the Privy Council. Mr. Trivedi tried to urge that this view of the Privy Council was sought to be explained away by the Madras High Court in the case of Trichinopoly Varthaga Sangam Ltd. v. T. N. Shanmughasundaram, AIR 1939 Mad 769 (SB). In that case a term in the partition deed amongst the father and sons restraining the sons during as well as after the lifetime of the father from alienating their share to a stranger to the family was held to be the restriction on alienation amounting to an absolute restriction and, therefore, void under S. 10 of the T. P. Act. It is difficult for me to accept this view of the Madras High Court because the view expressed by the Privy Council is very clear and emphatic. Secondly, the Madras view -proceeds on the assumption that partition is transfer in terms of S. 5 of the T. P. Act, but the Supreme Court in the case of V. N. Sarin v. Ajit Kumar Poplai : 1SCR349 , has held that partition is no transfer. On facts also, the agreement Ex. 3/1' cannot be said to be an agreement imposing absolute restrictions firstly because this arrangement is limited to the -period as long as the property remained common property, that is as Iona as it was not partitioned by metes and bounds. Secondly, there is no restriction because what is provided for is the preference in the matter of giving possession to the erstwhile members of the joint Hindu family. Mr. Trivedi's apprehension that if these relations declined to accept the offer, there would be no transfer at all is difficult to be upheld because it is open to the party intending to sell etc. to get the property partitioned by metes and bounds and secondly because in such contingencies the restriction which was intended for the benefit of those people can be deemed to have been waived by other members not accepting the offer.
9. to 11. x x x x x x x x x x
12. Appeal dismissed.