The provision in the partition deed prohibiting alienation without consent of other sharers was found to be repugnant to Section 10, T.P. Act, making the mortgage valid despite non-joinder of collateral branch members.

Pandalai, J.

1. The plaintiffs, of whom plaintiff 3 is the assignee, of a mortgage from the other plaintiffs, appeal against the decision of the learned District Judge of South Kanara confirming the decree of the Subordinate Judge and dismissing their suit on the mortgage Ex. A dated 6th March 1919, for Rs. 1,500 executed by defendants 1 and 2 for themselves and as guardian of defendants 3 to G and three others since deceased who were all members of an Aliyasanthana family to which the mortgaged property belonged. The defence was that the mortgage was invalid for various reasons viz., (1) that it should have been executed not only by those who executed it but also by the members of a collateral branch according to the terms of a partition deed (Ex. 2); (2) that even all the members of the mortgaging branch had not joined the mortgage and (3) that the mortgage was not for debts binding on the family. The District Munsif found that the mortgage was true in the sense that the mortgagee paid the full amount of consideration, that the objection as to non-joinder of the other persons was not sustainable but that the debt had not been proved to be for the benefit of the defendants family and therefore binding on it. In appeal the learned Judge took a somewhat different view but agreed with the Munsif in dismissing the suit.

2. He did not go into the question whether the debt was for purposes binding on the defendants family because in his view the mortgage failed as it was not executed either by all the members of the defendants branch nor a fortiori by those members together with the members of the other collateral branch. According to the learned Judge these conditions were necessary to validate the mortgage according to the stipulations of the partition deed (Ex. 2). As to the persons who did not join in Ex. A it was admitted that among the members of the defendants branch one Kanhalva who was examined as D. W. 2 in the case had not taken part in the mortgage and it was also admitted that none of the members of the collateral branch joined in it. If the Judges view that the mortgage is invalid because these persons did not join in it is incorrect, it will be necessary to consider the validity of the mortgage on the usual ground of the debt being binding or otherwise. The learned Judge has fallen into a mistake in thinking that Ex. 2, the partition deed, amounts only to an arrangement for maintenance which left the integrity of the entire tarwad unaffected. The facts are that one Thankaju, a lady of this family was the owner of some properties. Being issueless she gave it to the descendants of her two pre-deceased sisters, viz., two daughters of her sister Parmeswari and two grand-daughters of the other pre-deceased sister Vengamma. The gift is Ex. 1 dated 18th February 1878, and the terms of the gift are important to show what right the donees derived under it. It says,you four and your descendants in hereditary succession shall enjoy in two equal shares.

3. It is clear that the descendants of Parameswari and those of Vengamma were given the properties in equal halves to be enjoyed by them and their descendants in absolute right. The later partition (Ex. 2) dated 14th January 1889, recites that the two branches had been enjoying this property with out division till that time, that such joint enjoyment had become inconvenient and that therefore with the help of wise men the properties themselves wore being divided by metes and bounds. In short though there had been a division in interest before, there had not been an allotment of property in two shares which was all that Ex. 2 effected. The learned Judges view therefore that Ex. 2 amounts to an arrangement for maintenance is against the express terms of Ex. 1 and of Ex. 2. If anything more were necessary to show the real character of Ex. 2 it is found in the provision therein that the members of the respective branches were to enjoy (the properties allotted to them) under perm