R. Sadasivam, J.
1. This appeal by the plaintiff in O.S. No. 259 of 1961, on the file of the Subordinate Judge's Court, Coimbatore, relates to the site, building, machinery, furniture, etc. of a cinema theatre known as ' Narayana Talkies ' in Pollachi, more fully described in the plaint schedule. Narayana Pillai, the father of' the plaintiff and the third defendant and the paternal grandfather of defendants 4 to 6, leased the theatre to the second defendant and his partner one Muthuswami Gounder for a period of seven years from 1st November, 1949, under a lease deed dated 19th October, 1949. The interest of Muthuswami Gounder devolved on. defendants 1 and 2 on the dissolution of the partnership. On 24th March 1956,. Narayana Pillai entered into an agreement with defendants 1 and 2 for granting an. extension of the lease of the theatre for a further period of five years. But subsequently Narayana Pillai instituted the suit O.S. No. 175 of 1958, on the file of the-
2. Sub-Court, Coimbatore, against defendants 1 and 2 for recovery of possession of the cinema theatre. Defendants 1 and 2, in their turn, filed O.S. No. 227 of 1958 on the file of the Sub-Court, Coimbatore, for specific performance of the agreement dated 24th March, 1956 for extension of the lease for five years. It is during the pendency of these suits Narayana Pillai and the members of his family entered into the registered partition deed Exhibit A-1 dated 15th October, 1958. Subsequently Narayana Pillai died. On 18th November, 1959, defendants 1 and 2 took a lease of the suit properties from the present plaintiff and defendants 3 to 6 under Exhibit A-2 for the unexpired portion of five years mentioned in the agreement on 24th March, 1956, namely, one year, eleven months and thirteen days and thus the above two suits were compromised. On 26th February, 1960, defendants 4 and 5 sold their one-fourth share of the suit properties to defendants 1 and 2 under Exhibit B-1. On the same date, the third defendant sold his one-fourth share in the suit properties to defendants 1 and 2 under Exhibit B-2. On 17th April, 1960, the sixth defendant, who was mentally unsound and was represented by his mother, leased his share in the suit properties to defendants 1 and 2. In R.C.O.P. No. 34 of 1961 defendants 1 and 2 unsuccessfully invoked the jurisdiction of the Rent Court for depositing the rents due to the appellant-plaintiff. The appellant-plaintiff filed the present suit to recover possession of the suit properties together with damages at the rate of Rs. 2,500 per month for use and occupation.
3. The learned Subordinate Judge found that the document Exhibit A-1, though styled a deed of partition, is really a deed of gift, that the clauses and conditions in the deed Exhibit A-1 as regards the restraint on alienation and the mode of enjoyment are not valid and binding on the defendants and cannot be enforced after the lifetime of Narayana Pillai, that by virtue of the execution of the lease deed Exhibit A-2 the plaintiff (appellant) has abandoned his rights to recover possession of the suit properties under Exhibit A-1 and is also estopped from doing so, that the suit is not maintainable without setting aside the alienations made by defendants 3 to 5 that the order of the Rent Controller in the proceedings taken by defendants 1 and 2 cannot operate as res judicata in these proceedings and in the result dismissed the suit with the costs of defendants 1 and 2. Hence the plaintiff has preferred this appeal.
4. Though the sixth defendant filed a written statement on the same lines as defendants 3 to 5 denying the plaintiff's claim, he now supports the claim the appellant-plaintiff, as the lease granted by him has expired and he has filed a suit to establish his rights to his share of the suit properties.
5. The main question for consideration in this appeal is whether Exhibit A-1 is really a partition deed as styled in the document, or in the alternative, a deed of family arrangement, as contended by the learned Advocates for the appellant (plaintiff) and the sixth respondent (sixth defendant), or whether it is really a deed of gift by Narayana Pillai in respect of his self-acquired properties to the several members of his family as put forward by the contesting respondents 1 and 2 (defendants 1 and 2) and found by the trial Court. The decision on the question depends upon a proper construction of the relevant terms of the document Exhibit A-1. In the absence of any oral evidence in this case, we have to rely on the statements of fact found in the document. The executants of Exhibit A-1 are Narayana Pillai, his daughters Thillai Ammal, Thayammal, Alamelu Animal, Ambujavalli and Ayyammal, his sons Paramasivam (Plaintiff) and Arunachalam (third defendant) and his grand sons Thirugnanam fourth defendant and Kandaswami--fifth defendant both (through his son Venkatachalam Pillai) Venugopal--sixth defendant (through his son Varadaraja Pillai) and Balasubramaniam (through another of his daughters). Narayana Pillai reserved a life interest for himself in the suit properties which are described as the A schedule in Exhibit A-1, and divided the vested remainder into four shares and gave one share to the plaintiff, one share to the third defendant, one share to defendants 4 and 5 and one share to the sixth defendant, subject to certain restrictions as to alienation and enjoyment. He has divided the rest of his properties among his sons, daughters and grand-children, who are parties 2 to 12 in Exhibit A-1. He has given the F Schedule properties in Exhibit A-1 to his grandsons Thirugnanam and Kandasami. But he has given to each of the other parties to Exhibit A-1 separate properties as described in schedules B to E and G to K. Under the terms of Exhibit A-1, the parties get only a life interest in the properties described in Schedules B to K of Exhibit A-1. In respect of the C Schedule properties allotted to Thayammal, it is the plaintiff and defendants 3 to 6 who get the A. Schedule properties, who are entitled to life interest in the C Schedule properties after the life-time of Thayammal, and it is their heirs who are entitled to the vested remainder. In respect of the properties described in the other Schedules B and D to K, the heirs of the persons who take life interest in the said properties are entitled to the vested remainder. Though it is stated in the document that Narayana Pillai effected a division by casting of lots, it appears from the several Schedules B to K that his sons and daughters are not given equal shares. The value of share allotted to each of the daughters is very much less than the value of the share allotted to each of the sons and there is no equality in the value of the shares either among the sons, or among the daughters. It is recited in the document that a division of all the movable properties among the parties had already been effected and if there are slight differences in the value of the properties allotted to each party, such difference shall be borne by the respective individuals. In the second paragraph of Exhibit A-1, Narayana Pillai has stated that though he got a few items of ancestral properties, they were sold and the small amounts received by him were spent for family expenses and it is only thereafter he acquired the properties dealt with by him under Exhibit A-1 by doing business. He has further mentioned in Exhibit A-1 that he had executed several wills and that the last will executed by him was one dated 13th July, 1958. He has also referred to the fact that he had settled some of the properties in favour of Thillai Ammal vagaira and subsequently cancelled the same. It appears from the document that the children, grandchildren and certain other relatives of Narayana Pillai requested him to effect a division of his properties according to his wish, that he effected a division by casting lots and that the parties agreed to the division effected by him. It is clear from a reading of Exhibit A-1 that Narayana Pillai has dealt with his properties as his self-acquired properties in giving shares to his sons, daughters and grandchildren.
6. Sri Vedantachari relied on some of the recitals in Exhibit A-1 in support of his contention that it was really a partition of joint family properties. He laid stress on the fact that Narayana Pillai had some ancestral properties. But it is clear from the document that the said properties were sold and the small amount which was received by Narayana Pillai by the said sale was also spent for family expenses then itself and only after that, Narayana Pillai acquired properties by doing business. The parties to the suit are parties to the document and there is no plea or evidence to support the contention of the learned Advocates for the appellant and the sixth respondent that the properties covered by Exhibit A-1 are joint family properties. It is not the case of the appellant or the sixth respondent that the properties dealt with under Exhibit A-1 were acquired with the aid of ancestral nucleus or that they were blended with joint family properties. In fact there could be no blending of the properties acquired by Narayana Pillai with any of his ancestral properties as the ancestral properties were alienated prior to the acquisition of properties by Narayana Pillai. The recital in Exhibit A-1 that a division of all kinds of movable properties had already been effected among the parties to Exhibit A-1 would not show that the movable properties so divided belonged to the joint family of Narayana Pillai, his sons and grandsons. It is quite possible that Narayana Pillai allowed the other members of his family to take shares in his moveable properties just as he allowed them to take shares in his immovable properties under Exhibit A-1. The mere fact that Narayana Pillai agreed to effect a partition of his properties with the other members of his family cannot also lead to the inference that the properties dealt with under Exhibit A-1 are joint family properties. It is significant to note that Narayana Pillai has given shares to his daughters, who were all married at that time. In Natesan v. Commissioner of Income-tax I.L.R. (1964) 1 Mad. 502, it has been held by a Bench of this Court that in a partition amongst the members of a Hindu undivided family governed by the Madras School of Mitakshara Law, the wife and the unmarried daughters will not have any right to be allotted a share. At least, an unmarried daughter can claim maintenance till marriage and provision for' marriage expenses, but no such claim can be made by married daughters.
7. Property which was originally self-acquired, may become joint family property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it. In Mayne's Treatise on Hindu Law and Usage at page 348 para. 283 this doctrine has been referred to and it is pointed out that it has been repeatedly recognised by the Privy Council. It is stated in the same paragraph that 'the question whether a coparcener has done so or not, is entirely one of fact, to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection.' The judgment in Shiba Prasad Singh v. Prayag Kumari Devi (1932) 63 M.L.J. 196 : L.R. 59 IndAp 331, is quoted as authority for the said doctrine in the foot-note ' Q ' at page 348 of the book. According to the judgment of the Privy Council in that case delivered by Sri Dinsha Mulla, the doctrine of blending or throwing into the common stock is based on the text of Yagnavalkya that ' in cases where the common stock undergoes an increase, an equal division is obtained.' In his commentary on this text Vigyaneshwara has observed as follows:
Among unseparated brothers, if the common stock be improved or augmented by any one of them through agriculture, commerce or similar means, an equal distribution nevertheless takes place; and a double share is not allotted to the acquirer.
Mayne has pointed out in the foot-note that the above text makes it reasonably clear that what is meant is that any coparcener who uses the family stock through trade, agriculture or any other means for the purpose of augmenting it, is not entitled to an extra share for his special exertions and that it does not appear to have anything to do with blending the income of a distinct self-acquisition with the income of the joint family property and so converting that which was originally a self-acquisition into coparcenary property. In Mallesappa v. Mallappa : 3SCR779 , Gajendragadkar, J., has also criticised the above observation of Sir Dinsha Mulla in the above case and pointed out that the said text cannot be treated as the basis for the doctrine of blending as it has been judicially evolved. The doctrine of throwing into the common stock is also one evolved by judicial decisions.
8. In Mulla's principles of Hindu Law, 13th edition, page 253, Section 227, the principles are clearly stated in the following terms:
Property which was originally the separate or self-acquired property of a member of a joint family may (by the operation of the doctrine of blending) become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it.. A clear intention to waive his separate rights must be established, and it will not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings. So also acts of generosity or kindness should not be construed as admissions of legal obligation. Separate property thrown into the common stock is subject to all the incidents of joint family property.
9. Sri R. Gopalaswami Iyengar, appearing for the contesting respondents 1 and 2 urged that as there was no joint family property, there could be no question of Narayana Pillai throwing his self-acquired property into common stock. Such a contention has been negatived in several decisions. Thus in Damodar Krishnaji Nirgude v. Commissioner of Income-tax : 46ITR1252(Bom) , it was held that it was open to a member of a Hindu undivided family to throw his self acquired property into the family hotchpot even though there was no joint or ancestral property. Again in Natesan v. Commissioner of Income-tax I.L.R. (1964) Mad. 502 , this contention has been negatived in the following passage:
It is now well settled that a separate property of a coparcener under the Hindu Law can acquire the character of a joint family property of the coparcener by his own voluntary act of putting it in the common stock or blending it with joint family properties. The process of blending cannotes that there are two sets of properties, separate and joint family, and they are pooled so that the exclusive rights of the coparcener holding the separate property are abandoned; then there emerges only one kind of property, the whole of it becoming joint family property. Where, however, there exists no joint family property and the coparcener owning separate property desires to have it treated as joint family property, it will be open to him to do so and the Hindu Law does not require any formality to achieve this result. The act of the coparcener by which this conversion of separate property into joint family property takes place is described as throwing the property into the common stock or as treating the separate property as joint family property. It is, however, not necessary that there should be pre-existing common stock before it can be said that the separate property is thrown into it. In a case where the family has no joint family property, the common stock is a mere fiction and throwing into the common stock is only a convenient phraseology to describe the process of conversion. A clear, unequivocal and unambiguous declaration by the holder of the separate property that it is joint family property would sufficiently impress that property with the joint family character.
As pointed out in the above passage, the very concept of blending of self acquired property with ancestral or joint family property presupposes the existence of a joint family property. But it is clear from what we have already stated that the conversion of self-acquired property into a joint family property by what is known as throwing into common stock is only an application of the principle of abandonment or waiver of his rights by a coparcener with intention to treat his property as joint family property. Thus, in the Bench decision in Subramania Iyer v. C.I.T., Madras (1955) 2 M.L.J. 405 , Rajagopala Ayyangar, J. has observed as follows:
Under the Hindu Law there is no necessity for joint family property to exist in order that there may be a joint family. The assessee and his son undoubtedly constitute members of a joint Hindu family. They might have started with no ancestral nucleus or other joint family property but there was nothing to prevent the assessee from impressing upon any self-acquired property belonging to him the character of joint family property. No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separate property to abandon his separate rights and invest it with the character of joint family property. Where an inference of this sort is sought to be deduced from the conduct of the parties, there might be room for ambiguity and for difference of opinion. Where, however, it is the declaration of the owner of the separate property that is the evidence before the Court or the Tribunal, the inference that the character of joint family property is impressed upon the separate property follows, unless the words are incapable of that construction or if it represents merely a future intention not yet given effect to.
10. In Ramaswami Nayakar v. Raja Padayachi : AIR1926Mad963 , it has been held that the question whether the self-acquired property of a member of a joint Hindu family has been thrown by him into the common stock or not is a question of fact. In Pearey Lal v. Nanak Chand (1948) 61 L.W. 437, the Privy Council had to consider a case where a father, who had no ancestral property, started a business and his son claimed that by reason of his association in the business the character of the business became a joint family business. It has been held in that decision that the onus of proving that the separate business of the father became joint family business, especially when there is no-ancestral property, is heavy on the son and that it is for the son to prove that he was associated in the business in such a manner as to raise a reasonable inference that the father intended to make and did make his business a joint family business. In Subramania Iyer v. Commissioner of Income-tax, Madras (1955) 2 M.L.J. 405, it has been held that the declaration by the owner of the separate property in unambiguous terms in the partition, deed entered into by him as the manager of the undivided family of himself and his minor son is sufficient to impress the character of joint family property upon the separate property.
11. The decision of this Court in M. K. Stremann v. Income-tax Commissioner : 41ITR297(Mad) , was confirmed by the Supreme Court in Commissioner of Income-tax v. Stremann : 56ITR62(SC) . The Supreme Court held that even from the time when instructions were given by the assessee for the preparation of the partition deed that his self-acquired property was to be treated as joint family property in the deed to be executed, the property assumed the character of the joint family property and that on execution the deed became evidence of a pre-existing fact, i.e. of throwing a self-acquired property into the hotchpot. In Kandaswami Chettiar v. Commissioner of Agricultural Income-tax : (1967)2MLJ352 a Bench of this Court observed that there has been a well known line of decisions which held that, where an assessee who is the manager of a joint Hindu family, proceeds to impress upon his self-acquired property with the character of joint family property and proceeds to divide it between himself and the other members of his family, it cannot be considered to be a case where he has effected an indirect transfer of his self-acquired property in favour of wife or minor children so as to attract the provisions of Section 16 (3) of the Indian Income-tax Act, 1922. It was held, in the circumstances of that case, that the assessee Kandaswami, as the Manager of a joint Hindu family, desired to impress upon the schedule properties mentioned in the partition deed executed by him, which no doubt were his self-acquisitions, with a joint family character and thereafter to divide them between himself and the other members of the family. If an act or transaction by which a coparcener impresses his self acquired property with the character of joint family property cannot amount to transfer even under the wider definition in Section 2 (47) of the Income-tax Act, it cannot obviously be a transfer within the meaning of the narrower definition of transfer in Section 5 of the Transfer of Property Act.
12. A scrutiny of the terms of Exhibit A-1 in the present case does not disclose any intention on the part of Narayana Pillai to impress his self-acquired properties with, the character of joint family properties. It is not the case of the appellant or the sixth respondent that Narayana Pillai treated the properties dealt with under Exhibit A-1 as joint family properties at any time prior to the execution of the document. It is true he could express his intention to treat the properties dealt with under Exhibit A-1 as joint family properties even under the very document and proceed to effect a partition of the properties among the members of his family. This is clear from the decision in Damodar Krishnaji Nirgude v. Commissioner of Income-tax : 46ITR1252(Bom) , where it was held that the fact that throwing of self-acquired property into the family hotchpot and partition of such property between the assessee and his wife and minor son were effected by the same deed did not materially affect the effect or validity of the partition. But there is no declaration by Narayana Pillai in the partition, deed, Exhibit A-1, to treat his self-acquired properties as joint family properties by throwing them into a common stock, that is, by impressing them with joint family character. The following passage in Natesan v. Commissioner of Income-tax I.L.R. (1964) Mad. 502 , is relevant for the present discussion:
There can be no doubt that a separate property will retain its character as such unless and until there is some evidence to show, either by the course of conduct of the exclusive owner of that property or by an express declaration of such a person, that it was treated as joint family property. The mere fact that a separate property is divided between the members of the family would not be sufficient to establish that at the point of division it was treated as joint family property. Nothing prevents a coparcener from being generous to the other coparceners and allowing them to share his exclusive properties. This is possible even without a change in the nature of the property. There may be a case in which his separate property and the admitted joint family properties-are all brought into hotch-pot and divided and in such a case, the contention that the separate property also partook of the nature of joint family property is plausible; but where what is divided is only the separate property and there is-no indication that at any point of time prior to its division or even at the moment of division, there was an alteration or change in the nature of the property, it would be very difficult to contend that the division amounts to a partition as the term is understood under the Hindu Law.
13. The mere fact that the document Exhibit A-1 is styled as a deed of partition, though a relevant circumstance, is not decisive on the question whether it is really a deed of partition. We have pointed out that Narayana Pillai has dealt with the properties under Exhibit A-1 as his self-acquired properties and has given shares even to his married daughters. It is true the sons and grandsons were parties to the document and consented to the shares being given to the daughters of Narayana. Pillai. But, as already pointed out, Narayana Pillai merely complied with the request of his children and grandchildren and relations to effect a division as decided by him. One has to search in vain in Exhibit A-1 for a declaration, much less an unequivocal declaration, on the part of Narayana Pillai disclosing any intention on his part to treat his self-acquired properties as joint family properties. For' the foregoing reasons, we are unable to accept the contention of the learned Advocate for the appellant and the sixth respondent that Exhibit A-1 is a deed of partition in. respect of the joint family properties of Narayana Pillai and his sons and grandsons..
14. The learned Advocates for the appellant and the sixth respondent urged that Exhibit A-1 evidences a family arrangement. But no such plea had been put forward in the lower Court, or in the grounds of appeal. Sri Vedantachari relied on the decision in Pullaiah v. Narasimham : AIR1966SC1836 in support of his contention that although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so and that even bona fide disputes present or possible, which may not involve legal claims, would be sufficient. It has been pointed out in that decision that members of a joint Hindu family may, to maintain peace or to bring about harmony in the family enter into such a family arrangement and if such an arrangement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the Courts will more readily give assent to-such an arrangement than to avoid it. Reliance was placed in that decision on (1955) 2 M.L.J. 1 : (1955) S.C.J. 417. , as showing how strongly the Court leans in favour of a family arrangement that bring about harmony in the family:
It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing' all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sale and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.
In view of our finding that Narayana Pillai dealt with his self-acquired properties under Exhibit A-1, the other parties to the document had no antecedent title. It could not be pretended that there was any bona fide dispute between Narayana Pillai and his children and grandchildren when he divided and gave his properties to them under Exhibit A-1. In Ram Charan Das v. Girija Nandini Devi : 3SCR841 , relied on by Sri Vedantachari, it is pointed out that it is not necessary, as would appear from the decision in Rangasami Gounden v Nachiappa Gounden (1919) I.L.R. 42 Mad. 523 : L.R. 46 IndAp 72: 36 M.L.J. 493, that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property and that all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground, as, say, affection. It is no doubt true that the children and grandchildren of Narayana Pillai had a claim to the affection of Narayana Pillai. But it could not on that ground be said that they had a claim or semblance of a claim against his self-acquired property. If the contention of Sri Vedantachari that even a semblance of a claim on some grounds such as affection is sufficient to support Exhibit A-1 as a family arrangement is accepted, it would lead to the result that every deed of gift by a father to his children or near relations could be treated as a family arrangement, though the other requisites of the family arrangement are absent. It is not possible to build an argument that Exhibit A-1 evidences a family arrangement solely on the stray observation in the above Supreme Court decision made in the course of a discussion whether a transaction which was a family settlement amounted to a transfer or creation of trust in the property. It is clear from the Supreme Court decision that the transaction in question in that case is a family arrangement entered into by the parties bona fide for the purpose of putting an end to the dispute among the family members. In the present case, neither the appellant nor the sixth respondent has stated that there were any disputes, or that any dispute was in contemplation which necessitated any family arrangement. In Jatru Pahan v. Ambikajit Prasad : AIR1957Pat570 , it has been held that the existence of a family dispute is not essential to the validity of a family arrangement, nor is the existence of a doubtful claim based on the allegation of an antecedent title essential for the validity of a family arrangement; such arrangement may bind the parties to it if it is for the benefit of the family, or for the maintenance of peace and harmony and the avoidance of future discord or for the preservation of the property, but there must be some kind of consideration before an agreement in respect to the division of family property can be held to be a valid family arrangement, though in such cases the Court will not scrutinize the quantum of consideration with meticulous nicety. Again in Gangabai v. Punau Rajwa A.I.R. 1956 Nag. 261, it was held that where a family arrangement was merely a cloak for the transfer it could not be upheld. In Natesan v. Commissioner of Income-tax I.L.R. (1964) 1 Mad. 502, it is pointed out that a separate property of a coparcener cannot be fragmented into shares and disposed of by allotment to sharers under the guise of partition without the element of transfer of property. Even if the document Exhibit A-1 is styled as a family arrangement, it is really a gift by Narayana Pillai to the several members of his family. It is true the parties to the document get rights under it. But it is not by virtue of any antecedent title or bona fide claim. For the foregoing reasons, we see no reason to differ from the finding of the learned Second Additional Subordinate Judge that, though Exhibit A-1 purports to be a partition deed, it is really a gift deed by Narayana Pillai in favour of the members of his family.
15. The learned Second Additional Subordinate Judge held that the restrictions in respect of the power of disposal and enjoyment placed on the sharers would be clearly hit by Sections 10 to 12 of the Transfer of Property Act. The learned Advocates for the appellant and the sixth respondent urged that Exhibit A-1 is either a deed of partition, or a deed of family arrangement, and is, therefore, not a transfer within the meaning of Section 5 of the Transfer of Property Act and hence Sections 10 to 12 of the Transfer of Property Act could not be invoked. They further contended that even if Exhibit A-1 is treated as a gift deed, the restrictions as to alienation and enjoyment are not absolute, but limited, and are, therefore valid.
16. The principles of Sections 10 and 11 of the Transfer of property Act are based on English common law. It is clear from page 96 of Mulla's Transfer of Property Act, Fifth Edition, that Section 10 incorporates a rule of justice, equity and good conscience, and governs transfers to which the Act does not apply. At page 102 of the same book it is stated that the prohibition or a condition in absolute restraint on alienation enacted in Section 10 conforms to Hindu and Mohomedan Law. Again at page 105 of the book it is stated that the invalidity of conditions in restraint of enjoyment of property is recognised both in Hindu and Mohomedan Law and that a direction in restraint of partition in a Hindu will or in a Hindu gift is void. It is stated in the same page that a right to partition is an incident of joint ownership of property and a reference is made to the views of the several High Courts in the following terms:
In Umrao Singh v. Baldeo Singh I.L.R.(1933) Lah. 353, a testator left his property to his sons jointly with a direction that the property should not be partitioned till all the sons attain majority. The Lahore High Court held that this was an invalid restriction on the right of enjoyment even though it was for a limited time. An agreement not to partition, though it may be binding on the immediate parties, will not bind their successors in interest, Anand Chandra v. Pran Kisto (1866) 3 Beng. L.R. 14 . The Bombay High Court has held that such an agreement is inconsistent with the Hindu Law and will not bind even the parties themselves, Ramalinga v. Virupakshi I.L.R.(1833) Bom. 538 and the Allahabad High Court has held that even an immediate party is not bound by an agreement not to partition for an indefinite time, Chandar Shekhar v. Kundan Lal I.L.R.(1909) All. 3.
The argument of Sri Vedantachari is that it is well settled that a partition under the Hindu Law of joint family assets does not operate as transfer inter vivas, as it is only the ascertainment of shares of coparceners, who at the time of the partition, are admittedly the persons having an interest in the properties and hence the prohibitions and restrictions imposed in Sections 10 to 12 of the Transfer of Property Act could not be invoked. But, in our opinion it is not possible to contend that the parties could transgress the rule of perpetuity embodied in Section 14 of the Transfer of Property Act in effecting a partition. In Pirojasha v. Manibhai I.L.R.(1912) Bom. 53, a Division Bench held that the mere fact that the parties settled among themselves by compromise that the lands should not be divided, but they should enjoy the profits, could not in law impart the character of impartiality to the estate and that parties cannot make an estate impartible which is partible, as it is opposed to public policy. In Mudara v. Muthuhengsu : AIR1935Mad33 , it has been held that, however much people may desire to keep their property in the hands of their descendants, they cannot succeed in doing so by violating the provisions of law as to transfer of property. The condition restraining alienation was embodied in a partition deed and the effect of the condition was to make the shares of the defendants branch for ever inalienable except with the consent of the members of the other branch who had no interest in it at all. In fact, the alienation by way of a mortgage was not even executed by all the members of the defendants' branch nor a fortiori by those members together with the members of the other collateral branch. It is observed in the decision that the Courts below seem to have been influenced by the fact that such conditions are frequently contained in family arrangements on the West Coast in Marumakathayam and Aliyasanthanam families into thinking that wherever they occur they must be according to the spirit of the people and therefore, not invalid. In T.V. Sangam Ltd. v. Shanmugha Sundaram : AIR1939Mad769 a Special Bench of this Court held that a restriction on alienation in a partition deed among the father and the sons that the sons should not sell their shares in the family residence to a stranger, but only to a member of the family far below the real value of the share of each son, without a corresponding obligation on the others to buy at that price, was an absolute restraint. Thus the principle of Section 10 of the Transfer of Property Act has been invoked in construing the restraint on alienations even in deeds of partition.
17. In Arumugha Chetty v. Ranganathan Chetty I.L.R.(1934)Mad. 405 : 65 M.L.J. 741, it has been held that co-parceners in a joint Hindu family can agree for consideration that for a certain time or until a certain event or for their lives, they will not exercise their right to divide. It is stated at page 410 of the decision that there could be no legal obstacle to such an agreement. There is a clear distinction recognized in law of real property between personal covenants and covenants running with the land. How far the equitable rule that the burden of a covenant runs with the land is to be found in Section 40 of the Transfer of Property Act. Restrictions as regards alienation and enjoyment in personal covenants can bind the parties or transferees with notice of the personal covenants. The decisions relied on by the learned Advocates for the appellant and the sixth respondent could be clearly distinguished on this principle.
18. In Mohammed Raza v. Mt. Abbas Bandi , it has been held that where a person has been allowed to take property upon the express agreement that it shall not be alienated outside the family, those who seek to make title through a direct breach of this agreement can hardly support their claim by an appeal to the high sounding principles, such as justice, equity and good conscience. It was held in that decision that the terms of the compromise were binding, that the restriction as to alienation was only partial and such a partial restriction was neither repugnant to law or to justice, equity and good conscience. In fact, there is the following observation at page 160 of the decision:
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.... In compromise of their conflicting claims what was evidently a family arrangement was come to, by which it was agreed that she (plaintiff) 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.
In Rap Singh v. Bhabhuti Singh I.L.R.(1920) All. 30, it has been held that the members of a joint undivided Hindu family can bind themselves for their own lifetime not to claim partition of the joint family property and that what may be effected by an agreement may be effected equally by means of a submission to arbitration followed by an award. The decision in Aulai Ali v. Syed Ali Athar : AIR1927All170 , is only to the effect that a contract of preemption does not offend against rule against perpetuities. In Ratanlal v. Ramanujdas , it has been held that an agreement between two brothers that if one of them wished to sell his share in the residential house, it should be sold to the other for a fixed price is not invalid either under Section 10 or Section 14 of the Transfer of Property Act because such an agreement creates no interest in the property and that it binds only the parties and the representatives of the promisor. In Parvathi Pillai v. Neelan Nadar A.I.R. 1955 Tra Co. 231, it has been held that a family settlement does not come within the purview of the Transfer of Property Act. There can be no doubt about the actual decision in that case. Under a partition deed between A, B and C, A got his one-third share and he settled it upon B reserving a life interest for himself. It has been held in that case that the restriction on alienation imposed on A is binding on him as A reserved only a life interest in himself and agreed not to effect any alienation and that it was not competent for him to sell the property.
19. We have already found that Exhibit A-1 is really a deed of gift by Narayana Pillai in favour of his children and grand children. Hence the real question to be considered in this appeal is whether the restrictions as to alienation and enjoyment can be supported on the ground that they are not absolute, but partial. It is, therefore, necessary to consider the relevant terms of Exhibit A-1 restricting alienation and enjoyment of the suit properties by the plaintiff and defendants 3 to 6. Under Exhibit A-1, Narayana Pillai has reserved a life interest in the suit properties and given absolute vested interest in favour of the plaintiff and defendants 3 to 6 in the said properties and specified their shares. The subsequent clause in Exhibit A-1 is as follows:
All persons mentioned above who obtain the A Schedule properties shall, effect any sale etc., only jointly but should they alienate their proportionate share or let out for rent etc., to third persons in their individual capacity they shall not be valid for any reason whatsoever.
It is clear from the above terms in Exhibit A-1 that after giving absolute vested interest in the suit properties to the plaintiff and defendants 3 to 6 in the suit, Narayana Pillai has imposed an absolute restraint prohibiting them from alienating their shares by way of sale etc. The words ' all persons' in the above clause refers to not only the plaintiff and defendants 3 to 6, but also to their sons, grandsons etc., who are to succeed to their properties. Even if it is construed as restricting alienations by the plaintiff and defendants 3 to 6 alone, it is an absolute restraint, which is invalid. In Rosher v. Rosher (1884) 26 Ch. D. 801, it has been held that a condition in absolute restraint of alienation annexed to a devise in fee, even though its operation is limited to a particular time, e.g., to the life of another living person, is void in law as being repugnant to the nature of an estate in fee. The testator in that case devised an estate to his son in fee, provided always that if the son, his heirs or devisees, or any person claiming through or under him or them, should desire to sell the estate, or any part or parts thereof, in the lifetime of the testator's wife, she should have the option to purchase the same at the price of 3,000 for the whole and at a proportionate price for any part or parts thereof, and the same should accordingly be first offered to her at such price or proportionate price or prices. The real selling value of the estate was at the date of the will and at the time of the testator's death, 15,000. It was held in that case, that the proviso amounted to an absolute restraint on alienation during the life of the testators' widow; that it was void in law; and that the son was entitled to sell the estate as he pleased, without first offering it to the widow at the price named in the will. In Gomti Singh v. Anari Kuar : AIR1929All492 , it has been held that the condition in a deed executed by a Hindu governed by the Mitakshara School of Hindu Law making his two wives joint owners along with him of certain property and providing that neither he nor his wives would have the right to transfer the property separately unless all combined to make such transfer, was held to be an absolute restraint within the meaning of Section 10 of the Transfer of Property Act. The decision refers to a similar case in Khiali Ram v. Raghunath Prasad (1906)3 A.L.J. 621, in which Knox, J., held that a term of the compromise embodied in a decree that the party to whom the house was conveyed under it was not at liberty to transfer it without the consent of the other party to that compromise was void as being a restraint upon alienation and that the house could be transferred in spite of that condition. Thus the restraint imposed on the plaintiff and defendants 3 to 6 that if they want to effect a sale etc. they could do so only jointly, but not individually, in respect of their respective shares, is clearly an absolute restraint, which is void under Section 10 of the Transfer of Property Act.
20. In the latter part of the document Exhibit A-1 Narayana Pillai has prescribed the mode and enjoyment of the suit properties. His sons Paramasivam and Arunachalam appear to have been residing with him at the time of Exhibit A-1. It is clear from the document that Narayana Pillai had executed a power of attorney in favour of Paramasivam to conduct the suit filed by him against defendants 1 and 2 in respect of the suit properties. Under the terms of Exhibit A-1, Paramasivam was directed to conduct the cinema theatre for a period of five years after obtaining possession of the suit properties from defendants 1 and 2 and pay Narayana Pillai an aggregate rent of Rs. 750 per month. The document Exhibit A-1 provides for the enjoyment of the suit properties for a subsequent period of three years by the sixth defendant Venugopal and likewise, by defendants 4 and 5 for the next three years and by the third defendant Arunachalam for the succeeding three years, subject to payment of rent to Narayana Pillai. After the turn to the third defendant Arunachalam, the plaintiff Paramasivam is entitled to enjoy the suit properties for a period of three years and thereafter each of the other parties are entitled to enjoy the suit properties by turn for a period of three years as provided earlier, but there is no reference to payment of rent to Narayana Pillai. Thus Exhibit A-1 provides for a permanent arrangement for the enjoyment of the suit properties by turns. The contention of the contesting defendants 1 and 2 is that the provision as regards the mode of enjoyment of the suit properties in Exhibit A-1 was intended to be operative only during the lifetime of Narayana Pillai. If the said construction is correct, it will not offend Section 11 of the Transfer of Property Act, as Narayana Pillai had a life interest in the suit properties and he is clearly entitled to provide for the enjoyment of the suit properties by the plaintiff and defendants 3 to 6 by turns, subject to their paying rent to him. It is true Narayana Pillai has executed a power of attorney to the plaintiff Paramasivam to conduct the litigation against defendants 1 and 2 and to recover possession of the suit properties. He has made provision for the period during which each of the plaintiff and defendants 3 to 6 should enjoy the suit properties and pay him rent. But it should be noted that after referring to the enjoyment of the suit properties in turns by the plaintiff and defendants 3 to 6 subject to payment of rent to him, he has proceeded to state that the plaintiff should get his next turn, but that it should be only for a period of three years, instead of five years as stated in the earlier clause. It is clear from the document that the parties should thereafter enjoy the suit properties by turns of three years each. It is admitted that Narayana Pillai was go years old at the time of Exhibit A-1 and he died shortly after effecting the alleged partition evidenced by Exhibit A-1. The detailed provision for enjoyment of the suit properties for several terms could not be merely for the period of Narayana Pillai's lifetime. There can be no doubt that Narayana Pillai has made a permanent provision for the enjoyment of the suit properties by turns for indefinite period. We have already found that Exhibit A-1 is a deed of gift by Narayana Pillai. By virtue of Section 11 of the Transfer of Property Act, such a restraint upon enjoyment of the suit properties is repugnant to the absolute interest given to the plaintiff and defendants 3 to 6 and it is void. The fact that the plaintiff and defendants 3 to 6 have joined in executing the document Exhibit A-1, cannot estop them from disputing the validity of the clause in Exhibit A-1 restricting the enjoyment of their shares.
21. The parties to the suit have really dealt with the suit properties as though the conditions restraining alienation and enjoyment are invalid. We have already referred to the sale deeds Exhibits B-1 and B-2 executed by defendants 3 to 5 in respect of their half share and the lease Exhibit B-5 executed by the sixth defendant. In fact, defendants 3 to 6 have filed written statements stating that they do not admit the allegations made in the plaint. It is submitted that during the pendency of this appeal, the appellant-plaintiff has sold his share of the suit properties. Even in the lease deed Exhibit A-1 executed by the plaintiff and defendants 3 to 6 in favour of defendants 1 and 2, provision is made for payment of rent separately to each of the sharers.
22. The learned Second Additional Subordinate Judge has commented on the fact that the plaintiff has failed to get the sale deed Exhibits B-1, B-2 and the lease deed B-5 set aside. The plaintiff is not a party to these documents and he cannot sue to have them set aside. He can only seek a declaration that the alienation? are invalid in view of the conditions in Exhibit B-1 restricting such alienations and that they will not bind him. But in view of our findings that the conditions in Exhibit A-1 restricting alienation of the suit properties by plaintiff and defendants 3 to 6 are invalid and inoperative, the plaintiff can get no such declaration.
23. The learned Second Additional Subordinate Judge has erred in dismissing the suit completely. Admittedly, the plaintiff is entitled to 1/4th share in the suit properties. It is true defendants 1 and 2 got a lease of the suit properties from the plaintiff and defendants 3 to 6 under Exhibit A-2, but the term of the lease has expired. Defendants 1 and 2 have purchased the shares of defendants 2 to 5 in the suit. Under Section 44 of the Transfer of Property Act.
Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
But defendants 1 and 2 have already obtained possession of the suit properties as lessees from all the sharers who are entitled to the suit properties. Plaintiff is a co-owner of the suit properties as he is entitled to one-fourth share in the same. It is true he cannot get exclusive possession of the suit properties, but he is entitled to decree for joint possession of the suit properties along with the other co-owners.
24. The decree and judgment of the learned Second Additional Subordinate Judge totally dismissing the suit with costs are wrong and they are set aside. There shall be a decree in favour of the plaintiff for joint possession of the suit properties with defendants 1 and 2. It is open to the plaintiff to take appropriate steps to work out his rights to get his share of the income of the suit properties or to effect a partition. The possession of the suit properties with defendants 1 and 2 as co-owners cannot be said to be wrongful and the claim for damages made by the plaintiff was rightly dismissed. Having regard to the above facts, we direct the plaintiff to pay half the costs of the suit to defendants 1 and 2 in the trial Court. Defendants 1 and 2 are entitled to half the costs of this appeal from the plaintiff and the sixth defendant.