Property - Transfer by Will - Imposition of conditions - Validity of - Section 10 of Transfer

of Property Act, 1882 - Respondents and Appellant were sons of deceased - Deceased held
joint family property - Partition took place between parties and deceased and brother of
deceased - Share allotted to each party as well as to deceased - One condition of partition
deed required share of property of deceased to go to parties - Deceased executed Will in
favour of Appellant - First Appellate Court held that deceased was limited owner and has no
right of disposal - Hence, the present appeal - Whether deceased could legally make will in
respect of said property received by him in said partition deed in favour of Original Plaintiff
with such condition - Held, recital in partition deed to be treated as will as it speaks of
manner of disposition of property upon death of that sharer/deceased - Although recital in
partition deed being Will that not being last will and only last will to prevail - Last will being
one on which appellant claims exclusively - Section 10 of the Act of 1882 makes it clear that
if condition is put then it will be invalid - Condition as put in partition deed certainly
repugnant to Act of 1882 and therefore void - Deceased full owner and possessed every right
to dispose of his separate property by Will - Appeal allowed

Ratio Decidendi:
"If a condition is put in the partition deed restraining alienation of property, then it is
certainly repugnant to the Transfer of Property Act and therefore void."

JUDGMENT

C.L. Pangarkar, J.

1. This second appeal is preferred by the original defendant No. 1, he having lost before the
District Judge in the first appeal. The parties shall hereinafter be called as the plaintiffs and
the defendants.

2. The facts shorn of details are as follows

The plaintiffs and the defendants are sons of one Rajaram Lambat. Rajaram Lambat held
joint family property. In order to avoid there being any dispute between family members, all
members of the family decided to effect the partition. Accordingly, a partition took place
between the plaintiffs, defendants and their father and their another brother. The said partition
took place on 23/12/1974 and it was reduced to writing. It is a registered partitiondeed. Share
was allotted to each one of the sons of Rajaram as well as to Rajaram. However, no share was
allotted to the wives of Rajaram and they had signed the partitiondeed giving their consent
for not allotting any share to them. One of the conditions of the said partitiondeed was that
the property that has fallen to the share of Rajaram would go to the two plaintiffs and
defendant No. 1. Rajaram died on 27/1/1983. The plaintiffs submit that, therefore, the
property left behind by Rajaram is liable to be divided into three shares i.e. a share each to the
two plaintiffs and defendant No. 1. They contend that they have come to know that Rajaram
had executed a Will in favour of defendant No. 1 and defendant No. 1 has got his name
mutated in respect of the said property. Their contention is that Will was got executed from
Rajaram Lambat taking disadvantages of his advanced age and according to them, that is of
no avail.
3. A written statement was filed by the defendant No. 1. Defendant No. 1 i.e. present
appellant contested the suit. He does not dispute that the partition took place in the year 1974.
He also does not dispute that the share was allotted to Rajaram. He further does not dispute
that in the said partitiondeed there was a clause that upon death of Rajaram property was to
go to three brothers. However, his contention is that the condition that the property was to go
to three brothers was a void condition. He does not dispute that the Will has been executed in
his favour.

4. The learned judge of the trial court framed issues and he found that the plaintiff had failed
to prove that deceased Rajaram had only life interest in the suit property. He also found that
on the basis of the partitiondeed they could not claim 1/3rd share in the property left behind
by Rajaram. He also found that the plaintiff had failed to prove that the Will was brought
about by exercise of undue influence and that the will was valid. Holding so, he decreed the
suit.

5. The plaintiffs, therefore, preferred appeal before the District Judge. The District Judge
found that Will was validly executed by Rajaram on 31/7/1983 but he found that Rajaram had
only life interest in the suit property. As a result, he allowed the appeal and decreed the suit.
Feeling aggrieved thereby defendant No. 1 has preferred this second appeal.

6. The Second appeal has been admitted by this Court on the following substantial question
of law.

Whether the said Rajaram could legally make a will in respect of the property received by
him in the said partition deed in favour of the original plaintiffs with such condition ?
7. The learned Counsel for the parties addressed me on the above substantial question of law.
No other point was urged.

8. At the costs of repetition, I may narrate a few undisputed facts once again. The plaintiffs
and the defendants are real brothers. Their father Rajaram held joint family property. The
same was partitioned by registereddeed on 23/12/1974. Besides the plaintiffs and the
defendants, other brother Namdeo and the father Rajaram were also given a share each in the
joint family property. The two mothers of plaintiffs and defendants i.e. the two wives of
Rajaram were not given any share but they had consented for the same. The parties have been
cultivating their respective share since 1974. Rajaram died on 30/1/1987. The dispute relates
to property which had fallen to the share of Rajaram. The plaintiffs claim 1/3rd share each on
the basis of the recital in the partitiondeed that upon death of Rajaram his property is to go to
the plaintiffs and defendant No. 1 in equal share. Defendant No. 1, on the other hand, claims
entire property on the basis of the will said to be executed in his favour.

9. The recital in the partitiondeed, which raises this controversy is to the following effects.

Share which Rajaram has taken is not taken by him as full owner. He is to enjoy his property
during his life time and after his death party No. 1A to 1C are to become owners
10. With this, I proceed to decide the main controversy. Before dwelling on that, however, it
may be mentioned that both the courts concurrently held the Will executed by Rajaram to be
valid. Obviously, that is the last will of Rajaram. The plaintiffs do not challenge that finding
at all. Therefore, if it is held that deceased Rajaram had right of disposition, defendant No. 1
being legatee becomes exclusive owner of the suit property.

11. We have seen that it is undisputed that the suit property was ancestral joint family
property. The plaintiffs, defendants, their other brother Namdeo and their father formed a
coparcenery. Obviously, therefore, each one of the coparceners had a share in the joint family
property. Rajaram too, therefore, had a share in the same. He, therefore, had a preexisting
right in the coparcenary property. Upon partition of the joint family property, share of each
coparcener was determined and separated. The act of partition has defined the share of each
coparcener by meets and bounds. A coparcener takes his share in his own rights. Once his
share is separated by meets and bounds, he becomes a full owner of the same. The Supreme
Court in MANU/SC/0225/1997 : (1996)6 SCC 373 (Sk. Sattar Sk. A Mohd. Choudhari v.
Gundappa Amabadas Bukate) holds so. To my mind, there is no concept in Hindu law of a
coparcener becoming a limited owner on getting his share in partition. Such a concept is in
existence only in respect of a female who receives the property not against her preexisting
right. The Shastrik Hindu Law does not recognize the right of one coparcener putting a
restraint or constraint on the right of the other coparcener in respect of the property allotted in
partition in respect to its disposition. Such a condition would be, therefore, totally void. It
must be said that whenever a share is allotted to a coparcener in partition, he becomes a full
owner irrespective of condition that may have been incorporated in the partition deed. Apart
from the above, if the partitiondeed is read as a whole, it becomes very clear that each sharer
had taken his share exclusively with a right of disposition also. At two places, it is clearly
mentioned that each party will have a right to cultivate his land and dispose it of according to
his wish. Thus, the parties intended to give full and exclusive right including right of
disposition to each sharer. The recital in the partitiondeed, upon which the plaintiffs rely,
could at the most be treated as a will. It becomes a will because it speaks of manner of
disposition of the property upon death of that sharer. This partition deed is signed by Rajaram
and it is attested by two attesting witnesses. It speaks of disposition of the property. All three
ingredients of a valid Will, therefore, seem to be fulfilled. This Court had occasion to
interprete the effect of such term in partition in a case reported in MANU/MH/0392/2008 :
2008(5) Mh.L.J.654 (Vasant Dattatraya Sarade v. Manohar Dattatraya Sarade). Although this
recital in partition deed is a Will that was not the last will. It is the last will which prevails.
The last will is one on which the appellant claims exclusively it is dated 21/7/1983 (Exh.113).
This will prevails.

12. Section 10 of the Transfer of Property Act, 1882 makes the position very clear. The
Section reads as follows

10. Condition restraining alienation - 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 property may be transferred to or for the benefit of a women (not being a
Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to
transfer or charge the same or her beneficial interest therein.
A bare reading of Section makes it clear that if such condition is put, that would be invalid. I
would also quote here illustration given under Section 10 in Mulla's Commentary on Transfer
of Property Act (10th Edition) at page No. 146.

A,B.C. and D effect a partition of joint family property, and agreed that if any one of them
should have no issue, he would have no power to sell his share but should leave it for the
other sharers. A sold his share and died without issue, B,C. and D sued to recover the share.
The court held that the condition was void as repugnant to one of the legal incidents of
property.
13. The facts of the case at hand are almost identical with the illustration as given. This Court
in a case reported in MANU/MH/0166/1968 : AIR 1968 Bombay 25 (Jagannathpuri Guru
Kamaleshwarpuri v. Godabai w/o Kamaleshwarpuri and Anr.), observes as follows Second

(8) I am, therefore, inclined to think that, in a limited sense, for the purpose of the Transfer of
Property Act, the partition of a joint Hindu family could be a transfer. If this is so, then the
next question to consider is whether the award of a full title in one part of the document is
inconsistent with the limitation put on the alienations and if so what is its effect. Shri
Chandurkar argued, in that case, the document must be read as a whole and one cannot spell
out the awarding of full title because of the recitals in one part of the document and ignore the
restrictions put in the other part of it. I think the true meaning of the concluding part of the
document (exhibit P11) is that the parties intended to give full title to each member of the
family, irrespective of the fact that the widows had the right to obtain a limited or restricted
estate known as Hindu widow's estate. If the full title was sought to be conferred, then the
condition accompanying such transfer is void. In that view of the matter, the plaintiff is the
full owner as a result of the partition deed (exhibit P11) and the condition is void. "This alone
might be enough to grant a decree in favour of the plaintiff and to affirm the decree passed by
the first Appellate Court.
14. It is thus clear that the condition as put in the partition deed is certainly repugnant to the
Transfer of Property Act and therefore void. The learned judge of the first appellate court fell
in error in holding that Rajaram was limited owner and had no right of disposal. I hold that he
was full owner and had every right to dispose of his separate property by a Will. The question
of law is answered accordingly. The appeal, therefore, must be allowed. Judgment and decree
passed by the appellate court is set aside and that of the trial court restored. The respondents
to pay costs of this appeal to the appellant.

PRABHAKAR vs. Shantaram and Ors. (18.08.2009 - BOMHC) : MANU/MH/0736/2009