THOTTOLI KOTILAN ALIYUMMA Vs. KUNHAMMED

JUDGEMENT

(1.) THE first defendant had a kanom dated the 1 June 1890. Pokker, father of the plaintiff and second defendant had the equity of redemption. In 1903 Pokker executed a document called a deed of settlement. It was also signed by his children including the plaintiff and the second defendant. Some of his children being minors, Pokker signed the document for them. One of the questions in the case is as to the effect of this document THE second defendant has redeemed the kanom. THE plaintiff claims possession from the second defendant on payment of the amount due, Pokker being dead. THE second defendant contends that the plaintiff is only entitled to sue for his's hare. THE decision rests on the true construction of exhibit C the deed of settlement. Paragraph No- 2 of the document declares that Pokker's children are his heirs under the Muhammadan Law entitled to succeed on his death. Paragraph No. 4 transfers to the present plaintiff all rights of management and control over Pokker's properties. Paragraph No. 5 provides that the management shall last during the lifetime-of the plaintiff and enumerates various powers of management. Paragraph No. 6 says that though his children will be entitled to divide the properties according to Muhammadan Law after Pokker's death, no partitions shall be made during the plaintiff's lifetime. THE property in suit though apparently included in the schedule of properties dealt with by the deed of settlement was then outstanding on kanom. It is clear to us that what was transferred to the plaintiff was the mere right to management with certain powers of dealing with the property. No estate was created in the plaintiff's favour either absolute or for life, though authority was given to defray reasonable expenses. THE plaintiff and the other children were simply to inherit the property on Pokker's death. THEre are no words of disposition to the children of any interest in the property. On Pokker's death therefore all the children including the second defendant became entitled to their several interests under the Muhammadan Law. THE second defendant was entitled by virtue of her interest in the equity of redemption to redeem the kanom. On redemption she was entitled to bold the property subject to the plaintiff's right to a partition of his share. But it is argued for the respondent that the plaintiff is entitled to possession by virtue of the right of management acquired under the deed of settlement which was assented to by the second defendant and the other children. It is argued that the provision as to the plaintiff's management and against partition during the plaintiff's lifetime to which the second defendant gave her consent., is binding upon her, see Srimchan Thaknr V/s. Macgregor (1901) I.L.R. 28 Calc. 769 and Krishnendra Nath Sarkar V/s. Debendra Nath Sarkar (1908) 12 C.W.N. 793 and Mayne's Hindu Law, page 657, though it is difficult to see what consideration Pokker's children other than the plaintiff received for agreeing not to divide. THE decision in Ramalinga Khanapure V/s. Virupakshi Khanapure (1883) I.L.R. 7 Bom. 538 which declared an agreement never to divide invalid, does not affect the present case. THE preponderance of American authority summarised in Freeman on Cotenancy, Section 442 appears to be in favour of the binding character of agreements not to divide as regards the parties to the agreement. For a similar rule under the Civil Law, see Dowat Art. 1498. But the agreement in this case was entered into in respect of a spes succsssionis. Section 6 of the Transfer of Property Act has, it is true, no application because the agreement related merely to non-division and the right of management. But we are not aware of any authority for holding that an agreement not to divide a spes successionis is binding upon the parties even though the period of non-division is limited to one life. THE agreement certainly cannot bind the three minors on whose behalf Pokker himself as guardian gave the assent. THE powers of the guardian under the Muhammadan Law in respect of the immoveable property of the ward are very restricted, see Amir Ali, Vol. II (Edition of 1894), page 479 and Shama Charun Sirkar, Part I, page 484. Urgent necessity or clear benefit to the ward must be shown, see Mussa-mat Bukshan v. Mussamat Maldai Kooeri (1869) 3 Bom. L.R. A.C. 423, Massamat Syedun V/s. Syud Velayet Ali Khan (1872) 17 W.R. 239, Bhutnath Dey V/s. Ahmed Hosain (1885) I.L.R. 11 Calc. 417 and Hurbai V/s. Hiraji Byramji Shanja (1896) I.L.R. 20 Bom. 116. THE decision of the Privy Council in Kali Dutt Jha V/s. Abdul Ali (1889) I.L.R. 16 Calc. 627 recognises the rule of clear benefit to the ward as a necessary condition of the validity of the alienation of a ward's immoveable property. It is difficult to pretend so far as minors are concerned that an agreement by the guardian surrendering in anticipation the management of a spes successions is within the rule as to clear benefit to the ward. THE agreement being invalid as regards some of the parties to it, it is difficult to uphold it as to others, vitiated already as it is by its dealing with spes successionis. However this may be, we are clear that the (agreement as to management cannot affect the kanom interest which was outstanding. THE second defendant was entitled to acquire it and the plaintiff's only right is to have a partition of his share on payment of his proportion of the mortgage money. THE present suit is not one for partition and the other sharers who would be necessary parties to such a suit have not been impleaded. We would allow the appeal and dismiss the suit with costs throughout.