John Wallis, C.J.
1. The short question in this case, is whether an attachment obtained by the defendant in execution of a decree against the widow of the late Maria Pillai and his three divided brothers should not be declared to be subject to a mortgage in favour of the plaintiff executed by the three surviving brothers in satisfaction of his debts. Ordinarily, of course, his widow would have been his heiress but under the terms of the partition deed, Exhibit A, between the four brothers, it was provided that in the event of the death of any one of them without male issue his share of the joint family properties, after deducting any alienations made by him, should be divided among the surviving brothers, It was held in Kantee Chandra Mukerji v. Ali-Nabi 9 Ind. Cas. 935 : 8 A.L.J. 199 : 33. A.P 414 in a precisely similar case that such a settlement was neither in contravention of Hindu. Law nor obnoxious to the provisions of the Transfer of Property Act, Section 6 (a), as being a transfer of an expectant interest in property. After the partition the settlors had full powers of disposition over their respective shares, and were at liberty to provide by settlement inter' vivos what should become of those shares in the event of their deaths without male issue. They might even, according to the English decisions, have bound themselves by contract to dispose of them property iu a particular way by Will, and I see no objection to their doing so by settlement. I think the appeal fails and must be dismissed with costs.
2. Seshagiri Aiyar, J.--Four brothers entered into a partition of their family properties on the 20th of July 1904. The deed of partition (Exhibit A) provided that ' the respective parties should take and enjoy the properties which fell to their share, with the right to alienate the same by gift, sale, etc. ' Then it provided for a right of 'pre-emption if one of the brothers should desire to sell his share. The clause which is in dispute in this case is in these terms : ' As we four have thus entered into a partition, each should enjoy his share until his death and when deceased leaves no male issue the properties which may remain at the death, after excluding the properties that may have been alienated by him, should go rateably to the other sharers.' Maria Pillai, one of the four brothers died without male issue but leaving a widow and a daughter. Maria Pillai died in 1911. The defendant in this case obtained a decree against the widow of Maria Pillai and others for a debt due by the deceased. The three surviving brothers executed a deed of mortgage to the plaintiff in this case on the 31st May 1911 for Rs 5,000. The consideration is said to consist of debts payable by the deceased Maria Pillai. When the property was attached in execution of the decree obtained by the defendant, the plaintiff put in a petition that the property should be sold subject to his mortgage. The claim was rejected. The present suit is brought for a declaration of plaintiff's rights under the mortgage. The Subordinate Judge upheld the plaintiff's contention and gave him a decree as prayed. He relied chiefly upon the decision of Kantee Chandra Mukeerji v. Al-i-dbi (1) which is practically on all fours with the present case. Although the point cannot be said to be free from doubt, I am not prepared to differ from the view taken in Kanti Ohandra Mukerjee v. Al-i-Ndbi (1). In the present case there is no restraint upon alienation. The last clause to which I have referred would apply only to residue of the property, which may be left by Maria Pillai after making such alienations as he chose during his life-time. It was contended that the provision for the undisposed of properties devolving upon the remaining brothers is practically a restraint upon the power to make a Will, which is equivalent to a restraint upon alienation. It is doubtful whether Maria Pillai was not competent to dispose t)f the property by Will notwithstanding the language used in this clause. Even on the supposition that the clause imposes fetters upon the powers of devise, I am not satisfied that such a covenant is invalid.
3. Under the English Law it was held Goylmer v. Paddisto 2 Ventris 353 : 86 E.R. 482 by Lord Chancellor Finch that a contract to devise lands can be enforced by persons claiming under the party who makes the contract. In Goilmere v. Battison 1 Vern. 48 : 23 E.R. 301 and Fcrtescue v. Hennaji 19 Ves. 67 : 12 R.R. 137 : 34 E.R. 443 this view was accepted as correct. All these cases are reviewed in In re Parkin, Hill v. Schwarz (1892) 3 Ch. 510 : 62 L.J. Ch. 55 : 67 L.T. 77 : 41 W.R. 120 where it is pointed out that although the persons in whose favour there is a contract to make a Will can sue to enforce it, the Courts should not give relief if the object of the contract is to enable the grantee to execise only a power of appointment. I think that as Maria Pillai was absolutely entitled to the property and could have disposed of it in any way he chose, the clause in the partition must be construed as a contract to leave the undisposed of residue to his brothers. The English decisions to which I have referred to show that such a contract as this is not void. There is no question in this case of creating a new line of succession as in Venkatarammanna v. Bram-tnanna Sastrulu 4 M.H. C.R. 345 and in Anantlia Tirtha Ohariar v. Nagamuthu Amlialagaren 4 M.P 200. If the clause had directed that the property should go in a particular line of succession, then Jatendra Mohan Tagore v. Ganendra Mohan Tagore 18 W.R. 359 : 9 B.L.R. 377 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 85 would be applicable and the direction would be invalid. Reference may be made to the cases in which it has been held that agreements not to divide property were held enforceable, although they would not prevent a party entering into such an agreement from alienating it. See Anand Ghandra Ghose v. Prankisto Dutt 3 B.L.R.O.C. 14 : 11 W.R.O.C. 19 and Rajender Dutt v. Sham-Ghand Mitter 6 C.P 106. The Bombay High Court in Eamlinga Khanapure v. Virupakshi Khianapme 7 B.P 538 seem to doubt this position. But the preponderance of authority is in favour of the view that the parties who are entitled to divide a property can waive their rights. It was so stated by Lyndhurst, L.O., in Jefferys v. Jefferys Cr. and Ph. 139 : 41 E.R. 443 : 54 R.R. 249. My impression is that the principle of the Court to withhold its assistance from a volunteer applies equally, whether he seeks to have the benefit of a contract, a covenant, or a settlement.' 'But in later cases it was held that this would not affect provisions in a marriage settlement for giving the property or devising it [see Leev. Lee 4 Ch. D. 175 : 46 L.J. Ch. 81 : 36 L.T. 138 : 25 W.R. 255. This view proceeds on the principle in marriage settlements consideration permeates all covenants. ' The same may be said of covenants in partition-deeds entered into among members belonging to a joint family. I am, therefore, prepared to follow Kantee Ghandra Mukerji v, Ali-i-Nabi (1) and Earn Nirunjun Singh v. Prayag Singh 8 C.P 138 : 10 C.L.R. 66. The decision of the Privy Council in Pwrna Shashi Bhattacharji v. Kalidhan Eai Ghowdhury 11 Ind. Cas. 412 : 38 C.P 603 : 15 C.W.N. 693 : 8 A.L.T. 681 : 13 Bom. L.R. 451 : 14 C.L.J. 1; (1911) 1 M.W.N. 403 : 10 M.L.T. 361 : 21 M.L.J. 1119 only lays down that where an attempt is made to alter the line of succession by means of a provision for the devolution of the estate on the death of one of the members without male issue, such an arrangement is opposed to the decision in Jatendra Mohan Tagore v. Ganendra Mohan Tagore (8) and that it should not be given effect to. But where there, is no attempt to create a new line of succession, I see no reason for holding that as a contract come to at the time of the partition the clause should not be given effect to.
4. I agree with the learned Chief Justice to hold that the decision of the Subordinate Judge is right and that this appeal must be dismissed with costs.