JUDGMENT

Sulaiman, C.J. - This is a plaintiffs' appeal arising out of a suit brought for a declaration that the property in dispute belongs to the plaintiffs who are members of a joint Hindu family, and not to defendant 2, though he also is a member of the same joint family, and that accordingly the property is not attachable and saleable in execution of a simple money decree in favour of defendant 1 against defendant 2. The plaintiffs relied on a document called the deed of relinquishment, dated 1st February 1929, executed by defendant 2 within a few months of his attainment of majority. Under this deed defendant 2 purported to relinquish all his interest in certain specified properties which at that time were admittedly joint family properties. He did not intend to separate from the family and continued to be a joint member of the family, and indeed provided that his wife and children would be supported and maintained by the plaintiff 1, the elder brother, and that the latter would meet the expenses of the marriage of his daughter when born in future. In the plaint the plaintiffs did not any where allege that the terms of the conditions imposed by defendant 2 had been accepted by them, or that there was in any other form any consideration passing from the plaintiffs to defendant 2. There was certainly no suggestion that defendant 2 had relinquished his interest in the joint family property on receipt of a part of the family property.

2. Plaintiff 1 made a statement on 26th November 1931 in which he admitted that at the time when the deed of relinquishment was executed the execution of a decree against defendant 2, and perhaps also plaintiff 1, had been transferred to the Collector, who was carrying on proceedings under Schedule 3, Civil P.C., and had given leases of shares in 10 villages out of the shares in 23 villages, which are in dispute in this suit. It was also admitted that defendant 2, Behari Singh, was still living jointly with plaintiff 1, and that both the brothers lived jointly and maintained themselves with the joint family property in which the properties relinquished were included, and that the only change effected by the arrangement was that the younger brother's name had been removed from the khewats, but that possession of the elder brother had continued in the same way as before, and both the brothers were still joint, and there was never any separation between them. After this admission the contesting defendant applied to the Court that the case may be disposed of on the legal point that arose in the case without taking any further evidence. The Court below acceded to this request and had dismissed the suit on two grounds: first, that there was no valid relinquishment which would extinguish the proprietary interest of Behari in the property covered by the deed of relinquishment; and secondly, that para. 11, Schedule 3, Civil P.C., was a bar to the relinquishment.

3. The learned Counsel for the plaintiff had to concede that if the deed of relinquishment was a deed of transfer under which the interest of Behari passed from him to plaintiff 1, Shok Haran Prasad Singh, then the transfer would be invalid firstly because the family being still joint a transfer of an undivided interest by one member of the family in favour of the other would be wholly invalid, and secondly because of the proceedings in the Collector's Court the transfer would be void. As regards the first point the position is perfectly clear from the ruling in Ram Chand v. Mathura Chand 1921 19 ALJ 299, where it was held by a Bench of this Court that a member of a joint Hindu family cannot legally transfer a portion of the joint family property so long as the family remains joint. In that case a document which was styled as tamlikhnamah and had been executed by one member of the family in favour of another was held to be wholly invalid to bring out a transfer and extinguish the interest of that member of the joint family who has parted with his in