Absolute restraint of right of transfer defends upon the nature of estate.

P.D.Dinakaran,J.

1. Heard both sides.

2.1. The above appeal is directed against the judgment and decree dated 22.6.1981 and 10.7.1981 made in C.S.No.118 of 1975.

2.2. For the purpose of convenience the parties are referred to as arrayed in the suit.

2.3. Theappellants are the defendants in the suit.

2.4. The plaintiffs, namely respondents 1 to 5 herein filed the above suit for division of the plaintiffs' 11315.87 shares out of 40254.87 shares in the suit property by metes and bounds and for delivery of possession thereof.

3. The suit property consists of land, market, bazaar, stalls, houses and other superstructure, known as Parachery Market, situated on the western side of Govindappa Naicken Street, Madras-1, having Municipal Door Nos.111, Govindappa Naicken Street, 1 to 5 Appaswamy Koil Street, 43, Amman Koil Street and 19 to 28, Appaswamy Mudali Street, measuring about 1 Cawnie 6 grounds and 1666 sq.ft., out of which, Mosque portion and superstructure - bearing Door No.5 and 20 in Appaswamy Mudali Street are excluded. Admittedly, the value of the shares of the property is described in terms of rupees. The identification of the suit property is not disputed between the parties.

4. Admittedly, the suit properties are purchased by the ancestors of the plaintiffs 1 and 2 as well as the defendants 1 to 113 out of their common fund, and the same is owned by the plaintiffs and defendants jointly by inheritance, sale and gift.

5.1. Theplaintiffs 1 and 2 are husband and wife. Plaintiffs 3 and 5 are wakfs.

5.2. According to the plaintiffs, on 11.2.1897, the first plaintiff’s paternal grand father's brother, one Hafiz Mohammed Ghouse, alias Intizam Khan Bahadur, executed a registered will, which contains a list of sharers who were entitled to the suit property and the number of shares held by each one of them. On 11.2.1897, there were 23 sharers having a total number of 40000 shares. In the said registered deed, Hafiz Mohammed Ghouse declared himself as the Manager of the suit property on behalf of the co-owner s and stipulated a condition that a sharer could sell his share to another sharer alone; and the property should not be divided by metes and bounds, and put into individual possession.

5.3. In the said registered will dated 11.2.1897, the testator also appointed one Haji Abdul Rahman, who is nonetheless the father of the plaintiff and the fourth defendant, son of Gulam Mohammed Sherfad Dowla, as his successor to manage the suit property with a power to nominate his successors in consultation with other sharers.

5.4. Thesecond plaintiff is the wife of the first plaintiff.

5.5. It is alleged that on 11.2.1897, the first plaintiff’s paternal grandmother Halima Bi owned 18000-14-4 shares out of 40000 shares, out of which, it is stated that she orally gifted 2000 shares to her son Haji Abdul Rahman, the first plaintiff’s father; 1000 shares to her grand daughter Amatur Rawoof; and out of the remaining 15000-14-4 shares, she created a wakf in her name in respect of one-third share i.e. 5000-14-4 shares for performing fathihas and aiding the poor and Madrasa Mohammadi; and allotted the balance 10000 shares to her two sons viz., Abdul Rahman, Sibgatulla and four daughters, viz., Mariam Begum, Khadija Begum, Amatur Rahim Begum and Fatima Begum. But her pre-deceased sons Abdul Wahab and Abdul Khader did not get any share.

5.6. Halima Bi, the first plaintiff’s paternal grandmother, executed a registered will on 18.10.1910, mentioning the objects of the Wakf, giving directions to the same and also distributing her shares to her children, referred to above. Thereafter, Halima Bi died on 3.2.1925.

5.7. But, even before the death of Halima Bi, her son i.e., Haji Abdul Rahman, who is nonetheless the father of the first plaintiff and fourth defendant, brought about an unregistered agreement on 30.3.1921, prescribing the number of shares and the list of sharers.

5.8. There were 43250 shares in total due to the addition of s