K. Sreedhar Rao, J.@mdashThis appeal is filed against the judgment and decree of the 5th Additional City Civil Judge, Bangalore City in O.S. No. 1972 of 1989. The plaintiff/appellant, had filed suit against the defendant/respondent seeking partition of half share in the suit property, which consists of one acre of dry land in Choodenapura, Kengeri Hobli, Bangalore South Taluk.
2. The deceased appellant and the respondent are the brothers, who along with their father in the year 1969 partitioned the properties under registered partition deed, whereunder the suit schedule property was allotted to the share of the father and mother with a stipulation that they should enjoy the properties during their lifetime in the manner they like and after their death, the property shall devolve in equal shares to the appellant and the respondent. During the year 1977, the parents sold the property under registered sale deed in favour of the respondent. After the demise of both the parents, the suit is filed by the appellant seeking partition of half share in the property contending that the parents had no absolute right of alienation. The respondent contested the suit claimed exclusive title in the property and also set up the plea of limitation that the suit is barred by time.
3. The material portion in the Kannada version of partition deed Ex. D-1 relating to the suit schedule is extracted hereunder for convenient reference:
4. The English translation of Ex. P-1 furnished by the plaintiff reads thus:" ''A'' schedule property is allotted to Kittappa and Venkatamma who are the eldest persons of the family. ''B'' schedule property is allotted to K. Muniswamy. ''C'' schedule property is allotted to K. Venkataswamy. The said properties are ancestral as well as self-acquired. Khata stands in the name of Kittappa. We have partitioned the properties giving half share in the house to the said Venkatamma. Hereafter, the parties may enjoy their respective properties paying taxes therefore getting khata made out in their names and (they could enjoy their property in the manner they like) ''A'' schedule property should be enjoyed by Kittappa and his wife Venkatamma during their lifetime and thereafter ''A'' schedule property should be partitioned equally between K. Muniswamy and K. Venkataswamy".
The underlined portion in the Kannada version of the document is not reflected in the English translation, which is noted in bracket. The omitted portion of the extract if it read in conjunction with the other material averments it reads that ''A'' schedule property is given to the parents. ''B'' schedule property is given to the plaintiff and ''C'' schedule property to the defendant. It is agreed that parties shall have to get their names mutated in khatas and pay the taxes henceforth on their own and that they enjoy the said properties allotted to their shares in the manner they like and ''A'' schedule property given to Kittappa and his wife shall be enjoyed during their lifetime and thereafter, the plaintiff and defendant shall share the said property equally.
5. The Trial Court has referred to the ruling of this Court in Mudegowdara Bakkappa and Another v Mallikarjuna and Another , held thus:
". . .The creation of the absolute ownership in each one of the shares in the properties allotted to him in the partition is a legal incident of partition. That being so, the recital contained in the partition deed that after the death of Doddabasappa his three sons should get the properties fell to the shares of Doddabasappa divided among themselves cannot at all interpreted to have had the effect of creating a limited estate without a right of transfer in Doddabasappa in the suit schedule properties which were allotted to him in the partition. Such an interpretation would be opposed to the legal concept of partition as understood in Hindu Law."...
In the said case the joint family of Doddabasappa and three sons divided their shares. Under partition deed stipulation was imposed that after the death of Doddabasappa his three sons should get the properties in equal shares. In the said reported decision there is a reference to the ruling of in the case of K. Venkatarammanna v K. Brammanna Sastrulu and Another, the facts of the case discloses that in a partition by a separate agreement it was stipulated that any one of the parties to the agreement or their heirs dying leaving no issue should not sell or transfer as a gift but should on his death be divided by the shareholders. In regard to the said stipulation it is held thus:
"The obvious purpose of these stipulations was to frustrate indefinitely the right of alienation which was a legal incident of the absolute estate in severally created by the partition in effect to covert the estate in the case of each sole ness or issueless possessor into a mere life enjoyment. But this we are of the opinion they were inoperative to do. Although the parties might by mutual contract impose on themselves an obligation restrictive of their proprietary rights, they could not we think by a collateral agreement, annex hereditarily to each separate absolute estate acquired by the division a condition which was incompatible with the beneficial rights incident thereto. It is a sound principle and one from its very nature of general application that an estate cannot be made subject to a condition which is repugnant to any of its ordinary legal incidents and we are not aware of anything in the Hindu Law which would permit of a departure from that principle".
The ratio of the said decision permits either in the family settlement or a partition by mutual consent a restrictive covenant partially curtailing proprietary rights could be agreed upon. But however, creating the absolute bar against the alienation is not said to be permissible even according to the tenants of Hindu Law.
6. In P.V.S. Venkatachellum v P.V.S. Kabalamurthy Pillai, para 26, referring to the catena of decisions on this point rendered by several High Courts and the Privy Council pithily summarise thus:
"Point 3: A life tenancy coterminous with the extinction of the business which is claimed by the plaintiff is illegal under Sections 10 and 11, T.P. Act and inequitable on the facts of this case. Sections 10 to 17, T.P. Act have been enacted to encourage free alienation and circulation of property. Entire transfers are not vitiated simply because there may happen to be some clauses in the deeds which are repugnant to the free transfer and circulation of property; such restrictive clauses are to be treated as void. So gift of income without providing for the corpus must be taken as gift of the corpus. -- Viskram v Gangaram. The principle is of universal application and there is nothing in the Hindu or Mahomedan Law inconsistent with it and so it applies to Hindus and Mahomedans - Sonatun v Sm. Juggat Sundari; Raja Chandra v Govind Nath; Jatindra Mohan Tagore v Ganendra Mohan Tagore; Pudmanund Singh v Hayes; Bhairo v Parameshwari; Maharam v Ajudha; Anantha v Nagamuthir; Amiruddaula v Nateri Srinivasa Charlu; Kuldip v Khetrani and Muthu Kumara Chetty v Anthony Udayan. u/s 10 a condition absolutely restraining a transferee from disposing of the property is void, and the section is wholly silent as to the validity of qualified restraints on alienation. A condition imposing a partial restraint on alienation is not void --
7. The ruling of the Privy Council in
"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".
Further at page No. 161, it is observed thus:
"It seems clear that after the passing of the Transfer of Property Act in 1882 a partial restriction upon the power of disposition would not, in the case of a transfer inter vivos, be regarded as repugnant; see Section 10 of the Act. In view of the terms of this section, and in the absence of any authority suggesting that before the Act a different principle was applied by the Courts in India, their Lordships think that it would be impossible for them to asserts that such an agreement as they are now considering was contrary to justice, equity and good conscience.
It was said by Lord Hobhouse in Waghela Rajsanji v Shekh Masludin, that the expression "equity and good conscience" was generally interpreted as meaning English Law, if found applicable to Indian Society and circumstances. If this is to be the test there is authority that in England a partial restriction would not be regarded as repugnant even in the case of testamentary gift. So in In re Macleay, Sir George, Jessel, M.R., upheld a condition attached to a devise in fee that the devise should "never sell out of the family", pointing out that this had been the law from the time of Coke; and in Gill v Pearson, Lord Ellenborough in the King''s Bench affirmed the validity of a similar restriction".
8. Ruling of Peshawar High Court in Prithmi Chand Chandu Mal, supra. By relying on the ratio laid down by Privy Council in Mohammed Raza''s case, supra, has held thus:
"Section 10 of T.P. Act, applies to transfers, and family settlements are not covered by the expression "transfer" occurring in the section.
Therefore, a condition of the family settlement which prohibits alienation altogether is surely not hit by Section 10, T.P. Act, but creating, as it does an absolute restraint on alienation, it is repugnant to public policy and would be invalid and unforceable on general principles of law".
9. The ruling of this Court in Channabasappa v Shankariah and Others, it is held thus:
"that when a partition takes places between two or more members of a Hindu joint family, it would be difficult to regard the partition as involving to regard the partition as involving a transfer of any property from one co-sharer to another. All that a partition brings about is a dissolution of the coparcenary and the coparcenery property is transferred into more than one estate in severality and each one of the persons who formed the Hindu joint family becomes entitled to one of such estates to he exclusively enjoyed by him as its sole proprietor. Hence a condition in a partition deed to which one of the parties agreed that he could not alienate certain properties but would enjoy them during his and his wife''s lifetime cannot be regarded as a void condition;
(2) that as the partition did not result in a transfer of property between the plaintiff and his adoptive father-M, Section 10 was inapplicable and the condition on M''s power of alienation was not hit by the provisions of that section;
(3) the principle of Section 10 is that, if an absolute estate is created and after the creation of such estate a condition which brings about a diminution of that absolute estate is created, the condition so annexed amounting inevitably to a circumvention of the law and being repugnant to the very nature of the estate which was created is unenforceable and therefore void;
(4) that the arrangement entered into between the adoptive father and the adopted son providing for enjoyment of certain properties during the lifetime of the adoptive father and his wife, cannot be regarded as a partition between coparceners under a Hindu Law. It is in the nature of a family settlement;
(5) that Section 10 can have no application of family arrangement into which two or more persons may choose to enter under which an absolute estate is created in favour of some parties and a limited estate is created in favour of others".
10. In the light of the ratio laid down by Privy Council, this Court and other High Courts, it becomes explicit that per se the provisions of Section 10 of the T.P. Act would not apply to the partition and family settlement. Since there is no transfer of title contemplated in a partition. However, on the ground of sound public policy any total restraint on the right of alienation in respect of immovable property which prevents free circulation is to be held void, but, any partial restraints or limitation would be valid and binding.
11. The question in the instant case, be whether the stipulation creates a limited estate or an absolute estate. Regarding the construction of deeds. In
"With reference to the presumption of a limited interest, I observe that almost invariably it is stated that the question will depend upon the terms of the Will which the learned Judges then proceed to construe. I have not referred to the cases, more particularly because the rule that the terms of the grant alone must be considered is well-established and there is no overriding presumption which might, if the argument is sound and carried to its logical extreme, be deemed to have the effect of regarding it to be established that the testator did not mean what he said. It has been pointed out that words such as "owner" have been construed as meaning that only a limited estate was given. But it may be that where a vernacular Will has to be construed, due allowance must be made for shades of meaning not susceptible of exact translation. Where however, the Will is in English, as in this case, no such considerations can arise".
12. In the instant case the partition deed is in Kannada. The plain reading of the partition deed suggests that " ''A'', ''B'' and ''C'' schedule properties are given to the shares of the respective parties with a emphasis added that each one of them should get their khata of the property mutated in their names and should enjoy the properties in the manner they like". This would give us no doubt and difficulty to appreciate that what is granted is a absolute estate and not a limited estate. May be that the latter stipulation provides that after the demise of the parents, the plaintiff and the defendant shall equally take the property. This cannot be interpreted to override the clear terms of grant under partition. The restrictive covenants should be cautiously and carefully interpreted. The restrictions which are express would render no difficulty. However, while implied restrictions if they are to be read into the terms of the document should be so clear and unambiguous to suggest the one and only inference in favour of the restrictive covenant set up or pleaded otherwise, if stipulations are ambiguous, susceptible to contrary or alternative meaning, it would not be permissible to read into the said stipulation by inference restrictive covenant. In the instant case, it is possible to assume from the stipulation that an absolute estate is granted in favour of the parents in view of the terms that they should enjoy the property in the manner they like and in the event of they dying intestate and that full or any part of the property available is left for intestate succession, in such a situation latter stipulation may come into effect, otherwise not.
13. In view of the foregoing reasons, I am of the view that the appeal lacks merit, hence, dismissed with costs.
