JUDGMENT
1. This is a defendant’s appeal arising out of a suit brought by Mt. Anari Kuar, wife of Basdeo Singh, against him and his transferees for the cancellation of a deed of gift dated 23rd April 1925. According to the findings of fact of the District Judge, which we must now accept as final, it appears that Basdeo Singh married two wives and the usual quarrels ensued between his wives. The matter came to a head in 1924 and Basdeo Singh executed a document called a tamliknama on the 25th August 1924 under which he made himself and his two wives Mt. Parbati Kuar and Mt. Anari joint owners of his property on the following terms:
(1) The deed was to come into force immediately.
(2) Basdeo Singh gave his property to his two wives who along with Basdeo Singh were to be the owners in possession of the property and would remain so.
(3) Basdeo Singh would get the names of his wives entered in the revenue papers along with his own name and if he failed to do so his wives would have a right to get their names entered.
(4) Neither Basdeo Singh nor his wives would have the right to transfer the property separately unless all combined. They would have the right to manage their affairs from the income of the property.
(5) From the date of the execution of the document Basdeo Singh and his two wives became the owners of the property jointly.
2. The document did not specifically state whether the three persons would have a definite share, viz., 1/3rd each in the property which was the subject-matter of the tamliknama, nor did it specify who would be the heir after the death of one of them. The learned District Judge has recorded a finding that this tamliknama was the result of settlement between Basdeo Singh and his wives to put a stop to the quarrels and “to settle 2/3rds of his property on his wives” Soon afterwards, viz, on the 21st April 1925 Basdeo Singh executed a fresh document purporting to cancel the previous tamliknama of 1924. Having revoked the previous document, he proceeded to transfer his property on account of which the present suit has arisen. The contention on behalf of the appellant who has been impleaded as a pre-emptor of this property is to the effect that the tamliknama was void inasmuch as it purported to create a joint tenancy which is unknown to Hindu Law, and that in any case the restraint on alienation, being absolute, was void, and that Basdeo Singh had authority to transfer his own share of the property.
3. So far as the question of the creation of a joint tenancy is concerned there is no doubt the observation of their Lordships of the Privy Council in the case of Jogeswar Narain Deo v. Ram Chandra Dutt [1396] 23 Cal. 670, that joint tenancy, except in the case of the members of a Mitakshara joint Hindu family, is unknown to Hindu Law. We may assume for the purpose of this appeal that Basdeo Singh had no power to create a joint tenancy in the sense known in English Law with the necessary consequence of the rights of survivorship on the death of one of the beneficiaries. But it does not follow that Basdeo Singh who had an absolute power of disposal over his own property, could not make his wives joint owners of the property along with himself. We have quoted the terms of the tamliknama, and they do not necessarily amount to the creation of a joint tenancy with a right of survivorship. We accept the finding of the Court below that his intention was to create a tenancy-in-common with them, with the result that 2/3rds share in the property was transferred to his two wives, that is to say it was a gift of 1/3rd share to each of his wives. The remaining 1/3rd remained vested in him. In these circumstances Basdeo Singh had no power to revoke the tamliknama so as to deprive his wives of the property which had passed to them.
4. The next question is whether the alienation by Basdeo Singh so far as his own 1/3rd share is concerned is without authority and void. The answer to this question will depend on whether the restraint on alienation was an absolute restraint within the meaning of Section 10, T.P. Act, or it was only a partial restraint which is not prohibited by that section. No doubt there was one extreme possibility in which when Basdeo Singh and his two wives all agreed there could be a valid transfer under the deed. But in order to determine whether the restraint was absolute or partial one must gather the intention of the transferrer from the contents of the document. It seems to us that the idea underlying the execution of the tamliknama was to protect the property and retain it in the family and prevent it from passing out of the family. Although on the one hand the donor transferred 2/3rds share to his wives he reserved to himself the power to refuse consent for alienation. It seems to us that for all practical purposes Basdeo Singh reserved to himself the absolute power of preventing alienation of any kind. Unless he himself was prepared to waive this condition, he gave no power to his wives to transfer the property gifted to them under any circumstances. We therefore think that this amounted to an absolute restraint on alienation within the meaning of Section 10.
5. A similar case arose in Khiali Ram v. Raghunath Prasad [1906) 3 A.L.J. 621 which was disposed of by a single Judge of this Court. There too one of the terms of the compromise embodied in a decree was that the party to whom the house was conveyed under it was not at liberty to transfer it without the consent of the other party to that compromise decree. Knox, J., held that such a condition was void as being a restraint upon alienation and the house could be transferred in spite of that condition. Our attention has been drawn to the case of Kuldip Singh v. Khetrani Kuar [1898] 25 Cal. 869 where a condition in restraint of alienation without mutual consultation in an iqrarnama was held not to be void. It appears, however, that the learned Judges regarded that iqrarmana as a mere agreement not amounting to transfer but a settlement of a dispute. In the present case Basdeo Singh was the sole proprietor and his wives could have laid no claim to any share in the estate. The present case is therefore distinguishable. We accordingly hold that the tamliknama was a valid document and under it 1/3rd 1 share in the property was conferred on each of the wives which prevented Basdeo Singh from revoking it, but there was no valid restraint on Basdeo’s power of alienating his own 1/3rd share.
6. The result therefore is that we allow this appeal in part and modify the decree of the lower appellate Court in this way, that we give the plaintiff a declaration that proprietary title to the extent of 1/3rd in the property in suit was conferred upon her under the tamliknama dated 25th August 1924 and that the attempted revocation of it by the document dated 21st April 1925, did not affect her right in any way and was void so far as her interest was concerned, and we grant her a decree for 1/3rd share in the one anna share in mauza Bilahri transferred by Basdeo Singh under the deed dated 23rd April 1925 which has been held by the lower appellate Court to be a sale and not a gift. Parties will pay and receive costs in proportion to success and failure.
