The main legal point established is that a restriction on alienation in a partition deed may be deemed void under Section 10 of the Transfer of Property Act if it constitutes an absolute restraint, allowing the property to be mortgaged by the co-owners as tenants in common.

Alfred Henry Lionel Leach, C.J.

1. The appellant was the plaintiff in a suit filed in the Court of the Subordinate Judge of Trichinopoly to enforce a mortgage executed by three brothers, Nataraja, Nilamegham and Manickavachagam Pillai, sons of one Chockalingam Pillai. Chockalingam had five sons, the other two being named Chandrasekharam and Muthuvelu respectively. The family was joint until the 30th January, 1919, when Chockalingam and his sons executed a deed of partition. The deed provided that three houses (which had been used as the family residence) should be held by the members of the family as tenants in common, but no member should have the right to dispose of his share to a stranger. Chockalingam and Muthuvelu died shortly after the execution of the deed. On the 20th August, 1925, Nataraja, Nilamegham, Chandrasekharam and Manickavachagam on behalf of themselves and their respective sons executed in favour of the appellant a mortgage of the three houses to secure a loan of Rs. 6,000. This loan was repaid in part, but on the 25th October, 1928, a fresh mortgage of the property was executed to secure the sum of Rs. 5,000, Chandrasekharam did not join in the later mortgage as he was away at the time. On the 10th August, 1932, the plaintiff instituted a suit to recover what was due to him on this mortgage. Nilamegham was then dead and his son, the sole respondent in this appeal, was made a party as his legal representative.

2. At the time of the institution of the suit the respondent was still a minor and his mother was appointed to act as his guardian ad litem. She took no steps, however, to defend the suit and as the result an ex parte decree was passed against the respondent, limited of course, to his interest in the property in suit. The suit was contested by certain of the other defendants on various grounds, but it is not necessary to state them. It is sufficient to say that the issues did not embrace the question now before the Court and were all decided in favour of the plaintiff. A decree as prayed was passed against the other defendants, except Chandrasekharam and his sons, who were dismissed from the suit as they were not parties to the second mortgage. The respondent then filed an application for an order setting aside the ex parte decree. The application was granted and the respondent submitted a written statement in which he contended that his father had only a life interest in the property. At the hearing the respondent abandoned this plea, but contended that by reason of the partition deed the sons of Chockalingam had no right to effect a mortgage and therefore his interest was not charged. This contention was upheld and the respondents interest in the property was exonerated from the mortgage. The preliminary decree was accordingly amended.

3. The plaintiff has appealed. The validity of the decision of the Subordinate Judge is challenged on two grounds. In the first place it is contended that the Subordinate Judge was wrong in holding that the partition deed operated to prevent the sons from mortgaging their interests in the property. It is said that the restriction on alienation amounts to an absolute restriction and therefore is void under Section 10 of the Transfer of Property Act. In the second place it is said that the facts did not warrant the setting aside of the ex parte decree passed against the respondent. The second contention cannot be supported because the appellant has not printed the evidence on which the Subordinate Judge based his order setting aside the ex parte decree or even the order itself. There being no materials before us from which it can be shown that the order is wrong it must stand.

4. The clause in the partition deed referring to this property-is Clause 4, which reads as follows:

(a) The three houses described in Schedule G shall be enjoyed in common by T.M. Chockalingam Pillai and his said sons as at present during the lifetime of Chockalingam Pillai. (b) It shall not be c