JATRU PAHAN Vs. MAHATHMA AMBIKAJIT PRASAD

JUDGEMENT

(1.) The two questions raised in the appeal are (1) that the deed dated the 23rd October, 1929 is a deed of partition, and not a family arrangement and, (2) that the self-imposed absolute-restriction on his own power of alienation by Bikramajit was void under Section 10 of the Transfer of Property Act.

(2.) The plaintiffs and deceased Bikramajit were full brothers, being members of a joint Mitakshara Hindu family. On the 23rd October, 1929, they jointly executed a registered deed describing it as a deed of partition (Ext. I) in respect of their ancestral and joint properties. Under this document Bikramajit, who was executant No. 4, took a life interest. He provided in this document that during his" life-time he shall not sell the share allotted to his share, or transfer the same in any manner.

(3.) Subsequently, Bikramajit executed a simple mortgage in favour of the father of defendants Nos. 1 and 2, the appellants, in 1935. The appellants in 1939, brought a mortgage suit against Bikramajit and obtained a mortgage decree against him. During the pendency of the execution of this decree, Bikramajit died on the 22nd March, 1944, and, in his place, No. 1 was substituted,