1. The point of limitation was not argued, but it was contended on behalf of defendants--appellants--that there was a contract valid by Section 25 of the Contract Act, and that plaintiff could not recover.
2. The facts found and admitted were that first defendant's father and the plaintiff, on 29th November 1876 executed the document, Exhibit I, in favour of first defendant and his son, second defendant, reciting that plaintiff and his brother had borrowed and received money on the sale and hypothecation of certain of the family lands, and that, as first defendant and his son were the only heirs to the family estate, plaintiff and his brother renounced all right in the property in favour of first defendant and his son and agreed to remain under the management and protection of first defendant.
3. Plaintiff in this suit sought to set this arrangement aside and to recover his share of the property.
4. The District decreed for plaintiff.
5. In appeal, the District Judge was of opinion, on the authority of Cherukomen v. Ismala 6 M.H.C.R. 145 that the plaintiff was not estopped by the deed entered into, and still remained a coparcener and entitled to his share. He considered Article 127 of the Limitation Act applicable, and that plaintiff was not barred. He affirmed the District Munsif's decree and dismissed the appeal.
6. At the hearing of the appeal by this Court, the only contention of the vakil for the appellants was that the transaction was a contract on good and valid consideration and could not be repudiated. Section 25 of the Contract Act was referred to.
7. On the other hand, it was contended for the respondent that there was no valid partition of the property, because the law, as laid down in the Mitakshara, requires that even a coparcener, who does not desire be take a share, must have something given him at the time of partition, (Ch. 1, Section II Section 12) and in this instance plaintiff and his brother had had no portion of the property given them. To this it was replied that the question of Hindu law does not properly arise. The transaction was a settlement of the family property to which the text quoted does not apply, and the principles of Hindu law are modified by Section 25* of the Contract Act. The consideration (it was further contended) was that first defendant undertook to pay all the debts.
8. The case quoted by the Judge does not apply to the circumstances found here. What was decided in that case was that a person could not assign rights to a stranger, where those rights were natural rights and carried with them obligations to third parties, without the consent or authority of the third parties interested. In the present case, there is no assignment of rights to any third person, but a mere waiver or release of rights which were enjoyed jointly with first defendant and his son.
9. It appears to us that there cannot be said to have been a partition, since plaintiff and his brother were to continue to live with, and under the protection of, the first defendant, and, if there was no partition, the corporate unity continued and the coparceners could not contract with one another.
10. But, if the transaction could properly be viewed as an agreement between separated coparceners in settlement of the family property, we think there was no consideration. First defendant did not undertake to pay the debts out of his own separate property, but out of the family property. The arrangement was simply one which shifted the management from the elder members of the family on to first defendant. He was to take the management and enjoyment of all the property and to pay the debts out of the property and provide for the elder members. No consideration moved from the first defendant for the agreement between him on the one side and plaintiff and first defendant's father on the other, and the arrangement would not release the two last named from the pressure of suits by creditors. They would all be still jointly answerable for family debts and severally answerable for their several debts. If, however, it was an agreement for natural love and affection, it would be valid though without consideration because it was registered (Section 25, Contract Act). It was not alleged, however, that there was any such motive, nor does this appear on the document itself, which rather seems to say on the part of plaintiff and first defendant's father to first defendant--
" We have been squandering the property and encumbering it with debt, you will probably manage it better--we will make over the entire management to you."
We think, therefore, that there was no consideration for (she document, viewed as an agreement, and that it cannot properly be viewed as an agreement; that the plaintiff is still undivided from defendants and is entitled to his share in the property which the Courts below have awarded him.
11. We, therefore, dismiss the appeal with costs.
* Agreement without consideration void * [Section 25: An agreement made without consideration is void unless unless it is in writing and registered (1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other; or unless or is a promise to compensate for something done (2) it is a promise to compensate wholly or in part a person who has already voluntarily done something for the promisor or something which the promisor was legally compellable to do; or unless or is a promise to pay a debt barred by limitation law.
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
Explanation 1.-Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.
Explanation 2.-An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the concent of the promisor was freely given.]