K.S. Ramamurti, J.
1. The plaintiffs, who have failed in the Courts below, are the appellants in this second appeal. The genealogical tree set out in the judgment of the lower appellate Court shows the relationship between the parties. The plaintiffs filed the suit for partition and the controversy in the second appeal relates to the A Schedule properties. Under a sale deed, Exhibit A-2 of the year 1911, the A Schedule properties were purchased by one Kose Vellayappa Rowther and one P.T.S. Mohamed Meera Rowther, (the latter being the predecessor-in-interest of the parties to this litigation. A partition appears to have taken place between this Vellayappa Rowther and Mahomed Meera Rowther in respect of the properties under Exhibit A-2, and Mohamed Meera Rowther became entitled to one half. Under Exhibit A-3 of the year 1946, a partition was effected between the heirs of Mohamed Meera Rowther who died, in 1938, and the heirs being his five sons, Appa Rowther, the eldest, who has been impleaded as the 16th defendant in the suit, had no issues. His wife Ismail Bibi is the 17th defendant. The other three sons are defendants, 18, 19 and 20. One Abdul Kadar, the fifth son, died, and his legal representatives have been impleaded as defendants 11 to 15. The plaintiffs are the children of the 19th defendant. Under this partition, Exhibit A-3 one-fourth share of the A Schedule properties was allotted to the 16th defendant, the eldest brother subject to the condition that he shall enjoy the same without powers of alienation, that after his lifetime his wife, the 17th defendant, shall enjoy the same as above, i.e., without powers of alienation, and that after the lifetime of both of them the 16th and the 17th defendants, the A Schedule properties shall be taken by the other brothers in equal shares. The deed of partition also contains a provision that in case the 16th defendant should beget any issue, those issues shall enjoy the properties with absolute powers. Under Exhibit A-1 of the year 1955, the 16th defendant executed a settlement in favour of the children of the 19th defendant. The plaintiffs have filed the suit to enforce their rights under the settlement deed, Exhibit A-1.
2. From the above narration of facts it will be seen (the 16th defendant having died during the pendency of the suit) that the only person who is really interested in the contest is the 17th defendant, the wife of the 16th defendant. On behalf of the plaintiffs it was contended in the Courts below that the provision in the family partition deed, Exhibit A-3, regarding the share in the A Schedule properties alloted to the 16th defendant by way of life interest in his favour and thereafter again a life interest in favour of his wife the 17th defendant, the Vested remainder to be taken by the other brothers, was invalid as being opposed to Mohammadan law, and that the 16th defendant would be entitled to alienate the properties in any manner he liked regardless of the restrictions which had been imposed under the partition deed Exhibit A-3. This objection was overruled by the Courts below on the ground that the rule of Mohamedan Law which does not permit the creation of a life interest and vested remainder would not apply to cases of contracts or family arrangements. The Courts below also held that under this document Exhibit A-3 there was no estate carved out in favour of the 16th defendant, and that really the arrangement was the 16th defendant, should have merely a right to the usufruct and therefore there was no violation of any principles of the Mohamedan Law. Hence the second appeal by the plaintiffs.
3. It is unnecessary to express any opinion as to whether the recital in the partition deed conveys an estate as such to the 16th defendant or merely confers a right upon, him to the usufruct or the income from the properties, the corpus remaining undisposed of as I am satisfied that the view taken by the Courts below, that Exhibit A-3, regarded as a family arrangement supported by mutual consideration is a perfectly valid and enforceable arrangement binding upon all the parties thereto and that the rule of Mohamedan Law against the creation of a life estate and vested remainder has no application to the effects of the case, is correct. Before I refer to the reported decisions to which my attention was invited by learned Counsel appearing on both sides, reference may first be made to the unreported judgment of Ramakrishnan, J., in S.A. No. 429 of 1959, in which the learned Judge had to deal with identical situation. In that case, on the death of a Muslim, a partition arrangement was entered into between his heirs, the widow, the son and the daughter, and under that partition arrangement some properties were allotted to the widow subject to the condition that on her death, properties allotted to her and remained undisposed of, shall be taken by the daughters of the son. After the death of the widow, the daughter filed a suit as the heir of the mother claiming partition of the properties allotted to the deceased mother ignoring the specific provision in the partition deed as to what should happen to the properties that were allotted to the mother. There too the same objection was raised on behalf of the plaintiff the daughter that this provision creating as it were a life estate in favour of the widow and the subsequent provision for the devolution of the properties allotted to her on her death offended the rules of the Mohamedan Law. But this argument was not accepted by the learned Judge who held that the arrangement in that case was a family settlement, and that as it was supported by mutual consideration between the parties, the entire partition arrangement was binding upon the parties thereto. The learned Judge has referred to and applied the principle of the leading decisions mentioned in his judgment.
4. Before I proceed further, I may refer to the statement of the law in 17 Halsbury, page 216, paragraph 357, with regard to the perspective of approach of the Courts concerning the rights and obligations created under a family arrangement.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when deciding the rights of parties, under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to consideration which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangement.
Vide also paragraph 371 at page 223:
Considerations to which the Court gives weight, and which influence the Court favourably, are that disputes are avoided in the family; that the honour of the family is safeguarded, or that various obligations, morally binding on a family are provided for; or that the family property is continued in the family.
5. In Jagddish Narain v. Ramde Ali : AIR1939Pat406 , a compromise was entered into to the effect that certain properties to be taken by Bashiran for her life and after her the properties were to be given to one Roza for life and that Bashiran shall have no power to alienate except for necessity. This Bashiran, ignoring the restriction on her power to alienate as per the conditions of the compromise, sold the house, and the question arose whether that sale was valid. The argument was that, even though under the compromise Bashiran was only entitled to a life estate over the house allotted to her and had no power to alienate, the curtailment of her right was repugnant to Mohamedan Law and that Bashiran had an absolute right. This argument was not accepted. The learned Judge dealt with the matter in these terms at page 408:
Moreover, one cannot lose sight of the fact that the Courts below have dealt with this agreement as a sort of family arrangement and on that point the authorities are not wanting in which it has been held that in an estate created by contract as a sort of family arrangement transferred to a lady limited ownership is permissible even in Mohamedan Law... I need not refer to several other cases that were referred to, but this much is clear, taking into consideration, the circumstances under which the compromise was arrived at, that it was a sort of contract between the parties which the Courts below have determined to be a family arrangement by which certain rights of the property were allowed to Bashiran by the other members of the family and there were certain restrictions also placed upon her power to alienate. In view of the various authorities that have been discussed above I do not think there was anything repugnant to Mohamedan Law in this family arrangement and therefore the interest which Bashiran had, was a life interest in the property.
6. I may next refer to the decision of the Privy Council in Khaja Solehman Quadir v. Salimullah Bahadur . In that case certain wakfs were created under two documents of the year 1846 and 1868 by which provision was made, amongst, other things for the members of the Mohamedan family and all their descendants and then for charitable purposes. Thereafter in the year 1881 there was a settlement among the members of the family to the effect that the wakfs were binding and that the allowances fixed thereunder should be paid out of the income of the properties to certain named members of the family and that upon the death of any of them, the payment should be made to his or her heirs in any proportion as might be fixed, at a family panchayat. By a separate agreement the mutavalli also agreed that he and future mutavallis would pay the agreed allowances. For sometime these allowances were paid, to the persons named and their heirs but later on the mutavalli objected to make payment of the allowances to the heirs of the persons-named in the documents on the ground that it was contrary to the Mohammedan Law. The Privy Council held that the provision for the payment of these allowances constituted a charge upon the property.
7. The argument on behalf of the Mutavalli was that the Wakfnamas were gifts and therefore invalid under Mohamedan Law, having regard to the provisions contained in the wakfnamas. But this argument was rejected by the Privy Council on the ground that it was not a gift simpliciter, but that it was an agreement made for valuable consideration and was not subject to the restrictions affecting gifts among Mohamedans. The law was stated in these terms at page 836:
By these agreements the members of the family other than Sir Abdul Gani and his son Ahsanullah surrendered their claims to property of considerable value and stayed their suit in consideration of a firm contract securing to them annuities to an amount exceeding Rs. 1,30,000 and continuing such annuities to their heirs. Such an agreement if made for valuable consideration is not subject to the restrictions affecting gifts among Mohamedans but is a contract creating a charge on lands, which may be enforced like other charges by the Courts. The provision contained in the agreements that the distribution of as annuity among the heirs of the annuitant should be in proportion to be determined by the family panchayat (if it was intended to do more than to authorise the panchayat to settle disputes as to heirship) may be disregarded the more so as no panchayat has functioned for many years past. The view is in accordance with the decision of the Board in Umjad Ally Khan v. Mohamadee Begum (1867) 11 M.I.A. 517, Lakshminarayana Ananga v. Madhava Deo , Khwaja Mohamed Khan v. Hassaini Begum I.L.R.(910) All. 410, and Raja of Ramnad v. Sunderapandiyaswami , and it appears to their lordships that it should prevail.
8. I may also refer to the decision in Umjad Ally Khan v. Mohamdee Begum (1867) 11 M.I.A. 517. The principle of which is applied by the Privy Council in Khaja Solehman Quadir v. Salimullah Bahadur , the decision already referred to. In that case an arrangement was entered into between a father and son as a result of which certain Government promissory notes negotiable securities, etc., were given to the son subject to the condition that during the father's lifetime the father will be entitled to the interest accruing from those notes, the same to be applied by him to certain religious and charitable purposes. This arrangement even though a life interest, as it were, was created in respect of the interests, from the bonds in favour of the father, was upheld on the ground that this arrangement was founded upon a valid consideration (Vide the observations at page 548).
9. A similar arrangement was upheld in the decision in Mubarakunnissa v. Mansab Hasan Khan I.L.R.(1911) All. 421, in which a Mohamedan male gave to his wife certain properties in lieu of her dower with condition that the wife was to enjoy the property for her lifetime, that the property was to revert to the husband if the wife predeceased him, and that if the husband predeceased the wife was to take the property absolutely.
10. It only remains, to refer to the decision of the Privy Council in Syed Mohamed Raza v. Mst. Abbas Bibi (1932) 63 M.L.J. 180 : L.R. 59 IndAp 236 : I.L.R. 7 Luck 257 (P.C.), which affirmed the decision in Mst. Abbas Bandi Bibi v. Sayid Mohamed Raza I.L.R.(1911) All. 421. In that case a compromise was entered into between an intended husband and wife (Shia Mohamedans) by which certain properties were given to the wife subject to the condition that she shall not have power to alienate the properties to any stranger and that the properties shall devolve upon her legal heirs from generation to generation. The High Court took the view that the Shia law recognised the creation of a limited interest in succession and the creation of vested remainder to unborn persons. The High Court also upheld the settlement on the ground that a family settlement might be entered into subject to any conditions which might not be valid in the case of ordinary deeds under ordinary law, and that such conditions agreed to in a family arrangement would be valid and enforceable as between the parties thereto. The Privy Council left open the question as to whether the Shia law permitted the creation of successive life interests and vested remainder. At the same time the restriction imposed under the document was not a deed of gift or conveyance by one of the parties to the other, but was in the nature of a contract between the parties thereto. Sir George Lowndes put the matter thus at page 185-
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 Singh's case I.L.R.(1929) Luck 483, 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 the dispute between her and Afzal Hussain. In compromise of their conflicting claims what was eventually a family arrangement 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.
11. It is unnecessary to refer to the other decisions on the point. The arrangement in this case in a family settlement by which the 16th defendant agreed to take a life interest and after his lifetime the property would be taken by the 17th defendant. It is clear therefore that the settlement executed by the 16th defendant in favour of the plaintiffs is invalid, and cannot defeat the rights of the 17th defendant. The second appeal therefore fails and is dismissed with costs of the 17th defendant in all the Courts. No leave.