IMPORTANT POINT
Section 10 of Transfer of Property Act may be applicable in case of partition.

P.B.Suresh Kumar, J.—The plaintiffs in a suit for partition are the appellants. The plaint schedule properties belonged to one Makki. The first defendant is the wife of Makki. On the death of Makki, the properties held by him were partitioned by his legal representatives as per Ext.A1 partition deed. The plaint schedule properties are properties allotted to the share of the first defendant in Ext.A1 partition deed. The case of the plaintiffs is that the plaint schedule properties were allotted to the first defendant as per the said partition deed only for her enjoyment during her lifetime and the children of Makki continued to be the co-owners in respect of the said properties. According to the plaintiffs, during the lifetime of the first defendant itself, one of the sons of Makki namely Kunhammed assigned his 1/7th right in the plaint schedule properties to plaintiffs and defendants 5 to 7 as per Ext.A2 assignment deed on 22.9.1972. The case of the plaintiffs is that in the light of Ext.A2 assignment deed, the plaintiffs are entitled to 1872 out of 32760 shares in the plaint schedule properties and the suit was filed for partition of the said right of the plaintiffs.

2. The defendants contested the suit contending mainly that the plaintiffs had not obtained any right over the plaint schedule properties on the basis of the assignment made by Kunhammed as the first defendant had absolute right over the properties till her death. They also contended that in the course of time, as permitted by the first defendant, the plaint schedule properties were partitioned among the children and the legal representatives of the pre-deceased children of Makki as per a partition deed executed on 19.1.1976. According to the said defendants, the plaintiffs were also represented in the said partition deed and therefore, at any rate, they are not entitled to the relief sought in the suit.

3. Among the issues settled for trial, issue No.4 was whether the plaint schedule properties are partible. The trial court, on a consideration of the pleadings and evidence on record, found on issue No.4 that the clause in Ext.A1 partition deed restricting the right of the first defendant in alienating the plaint schedule properties is invalid under Section 10 of the Transfer of Property Act; that the first defendant was the absolute owner of the plaint schedule properties at the time of execution of Ext.A2 assignment deed and that therefore the plaintiffs have not acquired any right over the plaint schedule properties as per the said document. Consequent on the said finding, the suit was dismissed without deciding the remaining issues. The appellants are aggrieved by the said decision of the trial court and hence this appeal.

4. Heard the learned counsel for the appellants and the learned counsel for the respondents.

5. The learned counsel for the appellants, relying on the decision of this Court in Ammukutty Amma v. Viswantha Iyer, (1986 KLT 905). contended that in a partition of family properties between co-owners, no transfer of property is involved and therefore, Section 10 of the Transfer of Property Act has no application. According to the learned counsel, even though the plaint schedule properties were allotted to the first defendant for enjoyment during her life time, the property continued to be that of the children of Makki and as such the plaintiffs have acquired the fractional right in the plaint schedule properties as claimed by them in the suit.

6. In the aforesaid facts and circumstances, the only issue that falls for consideration in this appeal is as to whether the restrictions imposed on the first defendant as per the terms of Ext.A1 partition deed are hit by Section 10 of the Transfer of Property Act. The relevant portions of Ext.A1 partition deed read thus:

[Matter in other language]

Section 5 of the Transfer of Property Act defines transfer of property as an act by which a person conveys property, in present or in future, to one or