Raj Kishore Prasad, J.:— 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. 1) 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. The plaintiffs, who are the surviving three brothers of Bikramajit, thereafter, on the 26th November, 1945, brought the present suit, out of which the appeal arises for a declaration that their brother, Bikramajit had only a life-interest in the disputed properties which were the subject matter of the mortgage execution, and, therefore, after his death his life interest ceased, and the plaintiffs became the absolute owners of the properties in dispute, being the only heirs of Bikramajit. They also asked or a permanent injunction restraining defendants 1 and 2, who are the appellants from proceeding with the execution against the properties in suit.

4. Tire suit was contested by the appellants on the ground inter alia, that the deed of 1929, was not a deed of family settlement, but a deed of partition, which amounted to a transfer of property within the meaning of Section 10 of the Transfer of Property Act, and, as such, the condition imposed in the deed by Bikramajit restraining himself from alienating the Property allotted to his share was void under Section 10 of the Transfer of Property Act.

5. Both the Courts below negatived the contentions of the appellants and decreed the plaintiff's suit. Defendants 1 and 2, therefore, have preferred the present second appeal.

6. In support of the first contention that the deed dated the 23rd October, 1929, executed by the four brothers namely, the plaintiffs and deceased Bikramajit, is a deed of partition and not a family arrangement, as contended by Mr. G.C Mukharji appearing for the plaintiffs respondents, Mr. L.K Chaudhary, placed before us the official translation of the document Ext. 1. Relevant portions of the said deed are as follows:—

We, the four (executants) are full brothers. The ancestral properties, houses, mauzas and orchard etc. have been joint. We, the executants nos 1, 2, and 3 earn our livelihood by service. I, executant No. 4 do not carry on any business nor am I in service. Hence I, executant No. 4, do not enjoy full comforts in mess. Hence, I, executant No. 4, requested my three brothers i.e executants Nos. 1 to 3 to partition and separate my share in the ancestral properties, and advised them to keep the share of the ancestral properties joint among them. Accordingly, the three brothers accepted the request of me, executant No. 4.

I took 2 annas 8 pies as my share in mauza Batehra……..comprising an area of 31,47 area of land………….. We, executants Nos. 1, 2, and 3 took as our share the remaining 4 kitas of houses together with orchard in Ranchi town and the entire mauza Hctbasi and 2 annas share in mauza Chardi, the entire mauza Rengre, ½ anna share in mauza Baraidiha Kalan, 8 pies share in mouza Kordihra……We, the four co-sharers have been in possession of our respective shares. Now, I executant No. 4 shall not ever put forward any claim to the share of executants Nos. 1, 2, and 3 nor shall I have any claim in fuuure. If I do so, it shall be void and illegal.

We executants Nos. 1, 2 and 3 shall not ever put forward any claim in respect of the share of the executant No. 4, during his life time. If we do so, it shall be void and illegal. We, executants Nos. 1, 2 and 3 shall sell our share, mentioned above or transfer the same in any manner as we desire. At that time, executant No. 4 shall not raise any objection thereto…………….. The value of the properties allotted to the share of me, executant No. 4 is fixed at Rs. 500/- (Rupees five hundred only). I, executant No. 4 during my lifetime shall not sell etc. (the share) in mauza Batohra aforesaid allotted to my share or transfer the same in any manner. If I do so, it shall be void and illegal as against this deed. Hence, we have executed this deed of partition, so that it may be of use when required.”

7. The argument put forward by Mr. Chaudhary, in support of his contention, that the above deed is a deed of partition, and not a deed of family arrangement, is that the document itself is described as a deed of partition, and further that admittedly there was no dispute of title between the parties at the time of the execution of the above document, and, therefore, unless a document is executed in settlement of some dispute about title between the parties, such an agreement cannot be called a family arrangement.

8. Mr. Mukherjee in reply, however, submitted that for a document to be a family arrangement the existence of a dispute about title is not necessary at all. The document, as a whole, has to be construed, and, then it is to be ascertained what the intention of the parties was, and, if the document, although described as a deed of partition, was really a deed of family arrangement.

9. It is now well settled by authorities that in order that an agreement between the members of a family can be treated as a family settlement, it is not necessary that it must be shown that there was a dispute as to the title between the parties, and that the agreement was by way of accepting the antecedent title of the parties to the properties. Therefore, the existence of a family dispute is not essential to the validity of a family arrangement, nor, is the existence of a doubtful claim based on the allegation of an antecedent title essential for the validity of a family arrangement; such arrangement may bind the parties to it if it is for the benefit of the family, or for the maintenance of peace and harmony, and the avoidance of future discord, or for the preservation of the Property.

10. But there must be some kind of consideration before an agreement in respect to the division of family property can be held to be a valid family arrangement though in such cases the Court will not scrutinize the quantum of consideration with meticulous nicety: Mt. Dasodia v. Gaya Prasad, A.I.R 1943 All 101 : I.L.R (1943) All 411 (F.B) (A) and Rai Kumar Singh v. Abhai Kumar Singh, A.I.R 1948 Pat 362 (B).

11. In the Patna case Manohar Lall, J. who delivered the judgment of the Division Bench, relied on an earlier decision of this Court in Mt. Diltor Koer v. Harku Singh, 2 Pat LJ 578; AIR 1917 Pat 538 (C), on the leading English case Williams v. Williams, (1867) 2 Ch A 294 (D) and on the judgment of Sir Ashutosh Mukherji in Helan Dasi v. Durga Das 4 Cal LJ 323 (E). His Lordship also referred to Pokhar Singh v. Mt. Dulari Kunwar, AIR 1930 All 687 : ILR 52 All 716 (F), in which it was observed that the avoidance of a family dispute, and not the existence of a family dispute, is a ground which validates a family arrangement. I respectfully agree with the state of law laid down by their Lordships in the above case.

12. In the present case, it is not disputed that the agreement in question was with consideration. Even the learned Subordinate Judge has found that the agreement cannot be disturbed only on ground of insufficiency of consideration, when such a concession has been made by a bachelor, having no intention to marry, in favour of his other brothers, who have wives and children and, therefore, he found that the agreement was for some kind of consideration.

13. It is admitted that Bikramajit died a bachelor leaving the present plaintiffs as his heirs. The plaintiffs were expecting ultimately to get the property allotted to the share of Bikramajit, if he died unmarried; and Bikramajit also thought like that, and, therefore, out of affection for his brothers, and, in order to get immediate separate possession over the property allotted to him, he agreed to the absolute restriction being imposed upon his right of alienation, not by others, but by himself.

14. On reading the document as a whole, therefore, it becomes absolutely clear that it was a family arrangement made for the purpose of keeping the property intact for the plaintiffs, and their descendants, who were to get them by operation of law after the life interest of Bikramajit in the said property without its alienation. From the document in the question, it is plain that the main object of executing and registering this document was to provide for the maintenance of Bikramajit because in the document the other brothers of Bikramajit have stated that they maintain themselves by service, while Bikramajit does not do any business or hold any service, and, therefore he cannot conveniently and comfortably provide for his own maintenance. The other brothers remained joint, but only Bikramajit separated, but, even, he did not take his lawful share of ¼th, which he had in the joint properties, and, which he could have demanded on partition, but he demanded partition simply to provide himself for his maintenance, and conferred upon himself by his voluntary act only a life interest with a provision that he would not during his life-time alienate the property in any way.

15. The obvious intention was that after his death, the property should go to his other three brothers, or their descendants, who may be alive at the time of his death, and the property should remain in the family intact.

16. It will further appear from the document that the valuation of the share of Bikramajit was Rs. 500/- whereas the valuation of the properties given to his three brothers was Rs. 2,000/- This also shows that he was taking less share of what he was entitled to. There seems to be no reason why he would take less share, if really he was insisting upon partition, pure and simple. If the document would have been a partition deed, then it was exoected that Bikramajit would have taken his ¼th share, and not less, and further he would not have put any self imposed absolute restriction on his right, of alienation during his own lifetime. On reading the document as a whole, therefore, it is clear enough that all the four brothers put their heads together in order to arrive at family arrangement so that the properties in the hands of Bikramajit may not be destroyed, and may remain in the family, and after the death of Bikramajit may go to his brothers or their descendants.

17. In my judgment, therefore, this deed although described as deed of partition is really a deed evidencing family settlement. The Courts below have put a correct interpretation on the document, and have rightly held that the document was a family arrangement, and, that therefore, after the death of Bikramajit, the plaintiffs became absolute owners. I am, therefore, unable to accept the contenion of Mr. Choudhary on this point.

18. The next question for consideration is, whether the self imposed absolute restriction on his power of alienation by Bikramajit was void under Section 10 of the Transfer of Property Act?

19. This question involves the interpretation of Section 10 of the Transfer of Property Act. Section 10 reads thus:

“10. Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him provided that……….”

20. The principle underlying this section is that a right of transfer is incidental, to, and, inseparable from, the beneficial ownership of property. An absolute restraint, therefore, on that power is repugnant to the nature of the estate, and an exception to the very essence of the grant. It is the essence of an immovable property that it confers free power of alienation, and alienation of such a property cannot be made upon the condition that the alienee shall not alienate the land to any.

21. This condition is void, because when a man alienates his property he has the power to alienate to any person by the law; for if such a condition would be given, then the condition would oust him of all the power which the law gives him which should be against reason, and, therefore, such a condition is void. The rule in this section that a condition of absolute restraint of alienation is void, is founded on the principle of public policy allowing free circulation and disposition of property. The courts have always leant against any device to render an estate inalienable, This is the general and basic principle underlying this section.

22. What, therefore, we have to see is, if the present deed comes within the mischief of S. 10 of the Act.

23. The crucial question to be considered is; Has any property been “Transferred” within the meaning of S. 10 of the Act under the deed in question?

24. Section 5 of the Act defines the “transfer of property” as an act by which the transferor conveys property, in present or in future to the transferee or transferees. The words “transfer of property,” therefore, clearly contemplate that the transferor has interest in the property, which is sought to be conveyed but the transferree has no such interest in such property as long as it is not conveyed by the transferor to him. The transferee, in such a case, gets an interest in the property conveyed only when the transfer is complete, and not otherwise.

25. Now, what is the true character of a partition of joint family property by the co-parceners inter se?

26. The true nature of a partition is that each co-owner gets a specific property in lieu of his rights in all the joint properties; that is to say, each co-sharer renounces his rights in the other common properties in consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounced their rights. It is thus a renunciation of mutual rights, and, does not involve any transfer by one co-sharer of his interest in the properties to the other. The true character of partition, therefore, is that it converts joint enjoyment into enjoyment in severalty.

27. Partition is not an exchange of the undivided share of a co-sharer over the whole common property in exchange of the 16 annas share in a definite portion thereof namely, the portion that is allotted to him in exchange thereof. By the partition a co-sharer gets a separate allotment by virtue of his antecedent title as co-sharer. There is thus no acquisition of Property in another independent right. It is not a conveyance; it is not an exchange; it is not a gift. The separate allotment is not obtained by another independent title. This view gets full support from the judgment of Patanjali Sastri J. as he then was, in the Division Bench case of the Madras High Court in Venkatappala Narasimhalu v. Someswara Rao, AIR 1948 Mad. 505 (G) and a Division Bench decision of the Calcutta High Court in Sonatan poddar v. Sreenath Chakravarty, A.I.R 1946 Cal 129 (H).

28. In the above two cases, an exhaustive review of the earlier decision of the different High Courts, and, of the Judicial Committee, has been made, and after a review of those authorities it has been held that such a partition of a joint family property by a partition deed, or a family arrangement deed, is not hit by Section 10 of the Transfer of Property Act, because such a partition does not amount to a property being “transferred” within the meaning of S. 10 of the Act.

29. In the present case, all the four brothers had antecedent title to the properties, which were the subject-matter of the document. It is not a case where the three brothers are transferring a property in which Bikramajit had no previous interest at all. All the four brothers had antecedent title to the property, but by mutual arrangement, the enjoyment of the property was separated. The agreement, therefore, cannot be held to be an alienation. It was a family arrangement in which each party took a share of the family property by virtue of independent title which was to that extent, and by way of agreement, admitted by the other parties.

30. The agreement, in the present case, did not expressly or impliedly purport to transfer or convey anything Bikramajit had interest in the joint property, but it was separated for enjoyment and, he took the bare right to maintenance in the interest of the family. In my opinion, therefore, there was no such transfer here as is mentioned in section 10 of the Act. This view is supported also by Basangowda Virupaxgowda v. Irgowadati Kallangowda, AIR 1923 Bom 276 : ILR 47 Bom 597 (I).

31. A partition of joint property, like the present case is not even an “exchange” within the meaning of section 118 of the Transfer of Propertv Act. So as to attract section 10 of the Act “Exchange” has been defined in section 118 of the Act. When two persons mutually transferred the ownership of one thing for the ownership of another, neither thing, or both things being money only the transaction is called an “exchange”. Therefore, obviously in the case of an exchange, both the parties have no interest in the properties exchanged. If a person gives in exchange his property, in that property the other person has no interest as long as it is not given to the other in exchange.

32. The ownership of one party must be exclusive of the ownership of the other, so that a partition is not an “exchange”. The usual type of family settlement by which each party takes a share by virtue of an antecedent title does not involve an, alienation, and does not fall within the definition of an “exchange”. In my opinion, therefore, the present document cannot be considered even as an “Exchange” so as to come within the mischief of S. 10 of the Act. This view is supported by Gyannessa v. Mobarakannessa, ILR 25 Cal 210 (J), Satya Kumar Banerjee v. Satya Kripal Banerjee, 10 Cal LJ 503 (K); AIR 1946 Cal 129 (H); and observations of Wort J. in the Division Bench case of Mohammad Yohiya v. Mt. Bibi Soghra, AIR 1937 Pat 232 at p. 234 (L).

33. In my judgment, therefore, the document in question, considered either as a partition, deed, or a family arrangement deed in respect of the joint family properties, in which all the four parties had antecedent rights is not hit by, and does not come within the purview of section 10 of the Transfer of Property Act.

34. Strong reliance was placed on a special Bench decision of the Madras High Court in Trichlnopoly Varthaga Sangam Ltd. v. Shanmughasundaram, AIR 1939 Mad 769 (SB) (M) but in my opinion, this case does not support the appellant, because in that case, the only question raised was whether the restriction on alienation was absolute, or partial, and, the question of self-imposed absolute restriction being void under Section 10 of the Act did not arise at all.

35. Reliance was also placed on Venkatarammanna v. Brahmanna Sastrulu, 4 Mad HCR 345 (N), in which it was held that an estate cannot be made subject to a condition which is repugnant to any of its ordinary legal incidents, and that the power of disposition, being a legal incident of the estate which passed to the vendor, could not be taken away by the agreement. But, in my opinion, this judgment does not support the appellants, because their Lordships, in course of their judgment, also said that:—

“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.”

36. What their Lordships decided in the case was that the possessor of property could not pub a restraint upon the exercise by his descendants of the right of partition given by the Hindu Law. In the present case, however, that is not the position. If Bikramajit would have imposed a condition on his brothers, or their descendants, preventing them from alienating the properties, then such a condition could have been void as against the rule of perpetuity. But, in the present case, Bikramajit imposed upon himself a restriction not to alienate the property during his lifetime in order to give the property intact after his death to his descendants. In my opinion, such a condition cannot be considered to be void. But, as I have already said, section 10 has no application to such a case, and therefore, the question of voidance of such a self imposed restriction on his own power of alienation does not arise.

37. This view is also supported by Kundan Singh v. Jadon Prasad. AIR 1919 All 80 (O).

38. The question as to what is the effect of partition of joint Mitakshara Hindu family property has been thoroughly and exhaustively examined by my Lord the Chief Justice, Ramaswami, J. as he then was sitting with Manohar Lall. J. in Bhairab v. Birendra*, AIR 1950 Pat 1 (P). My Lord, the Chief Justice, after examining the original texts of Mitakshara, and other authoritative books on the subject, held that partition does not annul the right of the co-parcener or convert it into an obstructed right, Partition merely adjusts, or resolves joint right into several rights. I respectfully accept his Lordship's statement of the law on the point as it lays down the law correctly.

39. For the reasons I have attempted to give, in my judgment the deed in question, whether it is taken to be a partition deed, or a family arrangement deed, in either case, it is neither a conveyance, nor an exchange, nor a gift, nor any transfer of any kind of property so as to attract the provisions of S. 10 of the Act and as such be self imposed absolute restriction by Bikramajit on himself, and not on his brothers or their descendants, is not void under section 10 of the Act.

40. In the result, the appeal fails, and is hereby dismissed with costs.

41. Ramaswami, C.J:— I agree.

M.K.S

42. Appeal dismissed.