KHUSMANBEN BANKULAL Vs. BABUBHAI RANGILDAS

JUDGEMENT

(1.) * * * *

(2.) MR. Trivedi then urged that the said agreement in so far as it restricted the transfer absolutely and stagnated the flow of the property was void on two grounds. He firstly stated that the mother had no auth- ority to bind his son. The mother was the natural guardian but when the defendant No. 2 had become major he chose not to challenge this understanding between the parties. It cannot be disputed that even when one of the co-parceners is a minor joint family property can be partitioned. If the minor has got any grievance it would be perfectly open to him to get that partition reopened by alleging fraud or unconscionable chara- cter of the partition. Nothing of the sort had been done by the defendant No. 2 on attaining majority long ago. As a matter of fact till the suit came to be filed in the year 1968 he had sat with folded hands. This issue is picked up by him only with a view to see that the plaintiffs suit is frustrated on any plausible legal Plea. The judgment of Privy Council in the case of Mohammad Raza and Others v. MR. Abbas Bandi Bibi 1932 Privy Council 158 has clinched this question. The Privy Council in that case held as follows : The terms of the compromise were binding that the restriction as to alienation was only partial and that such a partial restriction was neither repugnant to law nor to justice equity and good conscience. In that case there was an express agreement between the parties that the property was not to be alienated outside the family. This condition was upheld by the Privy Council. MR. Trivedi tried to urge that this view of the Privy Council was sought to be explained away by the Madras High Court in the case of Trichinopoly Varthaga Sangam Ltd. v. T. N. Shanmugh- asundaram A.I.R. 1939 Madras 760. In that case a term in the partition deed amongst the father and sons restraining the sons during as well as after the lifetime of the father from alienating their share to a stranger to the family; was held to be the restriction on alienation amounting to an absolute restriction and therefore void under sec. 10 of the Transfer of Property Act. It is difficult for me to accept this view of the Madras High Court because the view expressed by the Privy Council is very clear and emphatic. Secondly the Madras view proceeds on the assumption that partition is transfer in terms of sec. 5 of the Transfer of Property Act but the Supreme Court in the case of V. N. Sarin v. Ajit Kumar Poplai and Anr. A.I.R. 1966 S.C. 432 has held that partition is not transfer - On facts also the agreement ex. 3/1 cannot be said to be an agreement imposing absolute restrictions firstly because this arrangement is limited to the period as long as the property remained common property that is as long as it was not partitioned by metes and bounds. Secondly there is no restriction because what is provided for is the preference in the matter of giving possession to the erstwhile members of the joint Hindu family. MR. Trivedis apprehension that if these relations declined to accept the officer there would be no transfer at all is difficult to be up held because it is open to the party intending to sell etc. to get the property partitioned by metes and bounds and secondly because in such contingencies the restriction which was intended for the benefit of those people can be deemed to have been waived by other members not acce- pting the offer.