KARTHIAYANI Vs. RAGHAVAN PILLAI

JUDGEMENT

(1.) Plaintiffs 1 to 3 and defendants 2 to 4 are the children of the first defendant. The first defendant took a mortgage of the suit properly in his name in the year 1083. On the 3rd Chiugom, 1123, a sale deed for the equity of redemption was taken in the names of the first plaintiff and defendants 1 to 4. On the same day, they entered into an udampady Ext. A., by which the mortgage right was given up in favour of the first plaintiff and defendants 2 to 4, and provision was made restraining them from alienating or encumbering the property, except jointly by all of them. In contravention of this provision, on the 10th Thulam, 1123, defendants 1 to 4 secured the property under a chitty hypothecation bond in favour of the 5th defendant. He sued on that bond and obtained a decree in O. S. 1309 of 1124 against defendants 1 to 4. The plaintiffs have instituted the suit out of which this second appeal arises for a declaration that the decree in O. S. 1309 of 1124 is not buinding on the property in view of the provision in Ext. A and for injunction restraining the execution of that decree. The suit was decreed by the Trial Court, but in appeal the Subordinate Judge held the decree to be binding on the 3/4 share of defendants 2 to 4, and gave a decree only to the extent of the 1/4 share of the first plaintiff. Plaintiffs 2 and 3 have preferred this second appeal.

(2.) By this purchase, the first plaintiff and defendants 1 to 4 came to own the equity of redemption as tenants in common. By Ext. A, their ownership was. not affected, except that the first defendant gave up his rights to the others. The provision in Ext. A that the first plaintiff and defendants 1 to 4 shall enjoy the property for their lives in succession was only one for enjoyment of the property, and the view of the Judge that it offended the rule of perpetuity was not supported at the hearing. The provision in restraint of alienation was repugnant to the right of ownership which was vested in the first plaintiff and defendants 2 to 4 and is void for repugnancy. Learned counsel for plaintiffs 2 and 3 contended, that S.10 and 11 of the Transfer of Property Act have no application, for there was no transfer of property by Ext. A. S. 10 and 11 relate only to one phase of the principle of repugnancy. The right to alienate is incidental to and inseparable from the right of full ownership. In In re Parry and Daggs (- 1886 (31) Ch. D. 130, 134) Fry L. J., said "From the earliest times the Courts have always leant against any device to render an estate inalienable. It is the policy of the law always to make estates alienable, and it is immaterial by what device it is attempted to prevent an owner from exercising the power of ownership". As tenants in common, defendants 2 to 4 were entitled to deal with or alienate their respective interests in the property, notwithstanding the clause against the alienation. By Ext. A, they did bind themselves not to alienate except jointly. It may be, that if a proper case is made out, the first plaintiff might sue the others for damages, if any, for breach of this agreement; as to this however, I express no opinion. It may also be, that if a legal ground of estoppel was established, the plaintiffs might be entitled to relief; none such was alleged or proved. It is sufficient to hold, that the plaintiffs cannot impugn the hypothecation bond to the extent of the interests of defendants 2 to 4, relying on the clause in restraint of alienation in Ext. A.

(3.) Moreover, plaintiffs 2 and 3 were nowhere in the picture. By Ext. A they were given a right to pay off the encumbrance if any created by the others; they did not do so. On the other hand, they impugned the chitty hypothecation bond. So plaintiffs 2 and 3 are not entitled to any remedy. The first plaintiff was entitled to a decree so far as his share in the property was concerned, and that has been granted to him by the Subordinate Judge.