THATTOLI KOTHILAN ALIYAMMA Vs. CKKUNHAMMED

JUDGEMENT

(1.) The 1 defendant had a kanom dated the 1 June 1890. Poker, father of the plaintiff and 2nd defendant had an equity of redemption. In 1903 Poker executed a document called a deed of settlement. It was also signed by his children, including the plaintiff and the 2nd defendant. Some of his children being minors, Poker signed the documents for them. One of the questions in the case is as to the effect of this document. The 2nd defendant has redeemed the kanom. The plaintiff claims possession from the 2nd defendant on payment of the amount due, Poker being dead. The and defendant contends that the plaintiff is only entitled to sue for his share. The decision rests on the true construction of Exhibit C, the deed of settlement. Paragraph No. 2 of the document declares that Poker's children are his heirs under the Mahomedan Law and entitled to succeed on his death. Paragraph No. 4 transfers to the present plaintiff all rights of management and control overs Poker'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 Mahomedan Law after Poker's death, no partition shall be made during the plaintiff's lifetime.

(2.) 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 Poker's death. There are no words of disposition to the children of any interest in the property. On Poker's death, therefore, all the children, including the 2nd defendant, became entitled to their several interests under the Mahomedan Law. The 2nd defendant was entitled, by virtue of her interest in the equity of redemption, to redeem the kanom. On redemption she was entitled to hold 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 2nd 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 2nd defendant gave her consent is binding upon her-see Sri Mohan Thakur V/s. Macgregor (1901) I.L.R. 28 C. 769 and Krishnendra Nath Sirkar V/s. Debendra Nath Sarkar (1908) 12 C.W.N. 793; also Mayne S Hindu Law, p. 657-though it is difficult to see what consideration Poker'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 B. 538, which declared an agreement never to divide invalid, does not affect the present case. The preponderance of American authority summarised in Freeman on Co-tenancy, Section 442, appears to be in favor 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 Domat, Art. 1498. But the agreement in this case was entered into in respect of a spes successionis. 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.

(3.) 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 Poker himself, as guardian, gave the assent. The powers of the guardian under the Mahomedan Law in respect of immoveable property are very restricted : see Amir Ali, Vol. II Edn., p. 479, and Shama Charn Sarkar ; Part I, p. 484. Urgent necessity or clear benefit to the ward must be shown: see Mussammat Bukshan V/s. Mussammat Kooeri (1869) 3 B.L.R.A.C. 423; Mussammat Syed V/s. Syud Velayat Alikhan (1872) 17 W. R. 239; Bhutnath Dey V/s. Ahmed Hosain (1885) I. L. R. II C. 417. and Hurbhai V/s. Hiraji Byramji Shanja (1895) I. L. R. 20 B. 116. The decision of the Privy Council in Kali Dutt Jha V/s. Abdul Ali (1888) I. L. R. 16 C. 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 to management of a spes successionis is within the rule as to the 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 a spes successionis. However this may be, we are clear that the agreement as to management cannot affect the kanom interest which was outstanding. The 2nd 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.