Partition of joint family property by co-parceners inter se does not amount to a transfer of property within the meaning of Sec. 10 of the Transfer of Property Act, and a self-imposed absolute restriction on alienation by a co-parcener in a family arrangement is not void under Sec. 10 of the Act.

Raj Kishore Prasad, J.

1. The two questions raised in the appeal are (1) that the deed dated the 23rd October, 1929 is a deed of partition, and not a family arrangement and, (2) that the self-imposed absolute-restriction on his own power of alienation by Bikramajit was void under Sec.10 of the Transfer of Property Act.

2. The plaintiffs and deceased Bikramajit were full brothers, being members of a joint Mitakshara Hindu family. On the 23rd October, 1929, they jointly executed a registered deed describing it as a deed of partition (Ext. I) in respect of their ancestral and joint properties. Under this document Bikramajit, who was executant No. 4, took a life interest. He provided in this document that during his" life-time he shall not sell the share allotted to his share, or transfer the same in any manner.

3. Subsequently, Bikramajit executed a simple mortgage in favour of the father of defendants Nos. 1 and 2, the appellants, in 1935. The appellants in 1939, brought a mortgage suit against Bikramajit and obtained a mortgage decree against him. During the pendency of the execution of this decree, Bikramajit died on the 22nd March, 1944, and, in his place, No. 1 was substituted,

4. The plaintiffs, who are the surviving three brothers of Bikramajit, thereafter, on the 26th November, 1945, brought the present suit, out of which the appeal arises for a declaration that their brother, Bikramajit had only a life-interest in the disputed properties which were the subject matter of the mortgage execution, and, therefore, after his death his life interest ceased, and the plaintiffs became the absolute owners of the Properties in dispute, being the only heirs of Bikramajit. They also asked or a permanent injunction restraining defendants 1 and 2, who are the appellants from proceeding with the execution against the properties in suit.

5. The suit was contested by the appellants on the ground inter alia, that the deed of 1929, was not a deed of family settlement, but a deed of partition, which amounted to a transfer of property within the meaning of Sec.10 of the Transfer of Property Act, and, as such, the condition imposed in the deed by Bikramajit restraining himself from alienating the property allotted to his share was void under Sec.10 of the Transfer of Property Act.

6. Both the Courts below negatived the contentions of the appellants and decreed the plaintiffs suit. Defendants 1 and 2, therefore, have preferred the present second appeal.

7. In support of the first contention that the deed dated the 23rd October, 1929, executed by the four brothers namely, the plaintiffs and deceased Bikramajit, is a deed of partition and not a family arrangement, as contended by Mr. G.C. Mukharji appearing for the plaintiffs respondents, Mr. L.K. Chaudhary, placed before us the official translation of the document Ext. 1. Relevant portions of the said deed are as follows:-

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We, the four (executants) are full brothers. The ancestral properties, houses, mauzas and orchard etc, have been joint. We, the executants Nos. 1, 2 and 3 earn our livelihood by service. I, executant No. 4 do not carry on any business nor am I in service. Hence I, executant No.4, do not enjoy full comforts in mess. Hence, I, executant No. 4, requested my three brothers i.e. executants Nos. 1 to 3 to partition and separate my share in the ancestral properties, and advised them to keep the share of the ancestral properties joint among them. Accordingly, the three brothers accepted the request of the executant No. 4.

I took 2 annas 8 pies as my share in mauza Batehra ........ comprising an area of 31,47 area of land. ............. We, executants Nos. 1,2, and 3 took as our share the remaining 4 kitas of houses together with orchard in Ranchi town and the entire mauza Hotbasi and 2 annas share in mauza Chardi, the entire mauza Rengre, 1/2 anna share in mauza Baraidiha Kalan, 8 pies share in mouza Kordihra..... .We, the four co-sharers have been in possession of our respe