The main legal point established in the judgment is that the transfer of rights in family property through a deed of settlement constitutes a transfer within the meaning of Clause (b) of Section 27 of the Specific Belief Act.

Devadoss, J.

1. The first point urged in the second appeal is that the second defendant is not a transferee of the right of the first defendant and that therefore Section 27 of the Specific Belief Act has no application to him. The first and the second defendants are brothers. By Ex. I, called a deed of settlement, the first defendant relinquished all his rights in the family property in favour of the second defendant. The contract of sale with the plaintiff was on 4th March, 1919. The Subordinate Judge has held that the second defendant entered into the arrangement evidenced by Ex. I with the knowledge of the contract, in favour of the plaintiff. The question is whether the second defendant is a transferee of the right of the first defendant. The argument of Mr. Lakshmanna for the appellants is that the second defendant is a member of a joint Hindu family and when the members of the family agree to divide their property, it cannot be said that there is a transfer of the right of any one in favour of any other and that every member of a joint family is entitled to all the properties and that if one member takes some property for himself, under a partition arrangement, it cannot be said that the person, so taking all the properties, acquires the right of the other, or is a transferee, within the meaning of Section 27 of the Specific Belief Act. When a partition arrangement is made, members relinquish their rights in the properties allotted to the other members. If there is a release by one member in favour of others, by the release, the other members acquire the right of the person, who releases his right in the properties. Though the right to partition is by virtue of birth, yet when properties are divided, it cannot be said that there is no transfer of the right of each of the members in favour of the others. Mr. Lakshmanna relied upon an observation in Bappu v. Annamalai Chettiar A.I.R. 1923 Mad. 313, that When one member of the coparcener dies, his share passes to the other; but it is a mere question of the lapse of the title of the deceased person, rather than an acquisition of title in the survivors; for, even before the death of the ODO coparcener they had a right in the whole of the property including the share of the deceased members.

2. In the case of the death of one of the members, the shares of the others are increased. If there are four members and if one of them dies, each of the remaining brothers would be entitled to one-third share. Though the members of an undivided Hindu family have a right to a share, on partition, it cannot be predicated at any time that they will be entitled to so much at the time of partition. The share of each co-parcener can be determined only, at the time of partition. In this case, there is no question of any member dying and the share of the others being increased, or the share of any one lapsing in favour of the others. Here the first defendant, by an act of his, transferred whatever right he had in the property in favour of the second defendant. Ex. I is not an ordinary partition deed. It is a settlement deed and under that deed, the family property is settled upon the second defendant, subject to a reservation, in favour of the first defendant, of a small portion of the property. I think under Ex. I, the first defendant has transferred his right in the family property to the 2nd defendant; and Ex. I is a transfer of the first defendants right with-in the meaning of Clause (b) of Section 27 of the Act. That a partition can amount to a transfer was held by a Bench of this Court in Rasa Coundan v. Arunachala Goundan A.I.R. 1923 Mad. 577. The learned Judges differred from an observation of Mr. Justice Spencer that the partition affected only a mode of enjoyment of property and was not an act conveying property from one person to another and held that a partition arrangement did amount to a transfer of the interest of one person, in favour of another. In this case, Ex. I is not