Judgment : Prabha Sridevan, J. The defendants are the appellants. There are two appeals arising out of two suits. The plaintiff in O.S.No.34 of 1985 (A.S.No.161 of 1991) is the wife of the plaintiff in O.S.No.36 of 1985 (A.S No.162 of 1991). They are the first respondent in each of the appeals. The facts are almost identical. The averments in the plaint are as follows: The suit property belonged to one Mehaboob Hunnissa, who was in possession and enjoyment of the same till 111. 1972. She had five sons and one daughter. The defendants 1 to 8 were the legal heirs of her son Abdullah Khan. (They are the appellants 1 to 8 and the LRs of the deceased appellant 1 and 6/defendants 1 and 6 have been brought on record). The defendants 9 to 13 and 2 other daughters were the legal heirs of another son Saukhatali Khan. (The appellants 9 to 12 are defendants 9 to 12 and the 13th defendant is the third respondent since she has not chosen to join in the appeal, she has been shown as a respondent). Another son Jaffar Khan died married and issueless prior to 1972. Mehaboob Hunnissa divided the said property into five shares on 111. 1972. At that time, another son Gaffar Khan had also expired. So Mehaboob Hunnissa divided her property into five shares. She allotted two shares to Abdullah Khan directing him to look after the heirs of Gaffar Khan also; one share to Basheed Khan; one share to Fathima Kathoon her daughter; and one share to Shaukatali Khan. All were parties to and jointly executed Exhibit B-1. Since that date they have been in enjoyment and absolute possession of their shares. The property subject matter of No. 34 of 1985 was allotted to Bashed Khan. The property subject matter of O.S. No.34 of 1985 was allotted to Fathima Kathoon. According to the plaintiff, Basheed Khan and Fathima Kathoon rented out to Abdullah Khan their properties on a rental income of Rs.100/-, which he paid until his death. Since the defendants who are his legal representatives failed to pay the rent they made repeated demands. Since there were no document to evidence the tenancy they have started denying the tenancy itself. Since they were separate door numbers for the five portions, tax receipts were issued in the name of Mehaboob Hunnissa. Since the defendants who are his legal representatives failed to pay the rent they made repeated demands. Since there were no document to evidence the tenancy they have started denying the tenancy itself. Since they were separate door numbers for the five portions, tax receipts were issued in the name of Mehaboob Hunnissa. This was also taken advantage of by the defendants. When Basheed Khan and Fathima Kathoon made an attempt to sell the property to the defendants 1 to 8, they were offered a very low and inadequate price. Thereafter, Basheed Khan sold his share to the plaintiff in O.S.No.34 of 1985 and Fathima Kathoon sold her share to the plaintiff in O.S.No.36 of 1985 and the purchasers were given possession of the property. The defendants denied the plaintiffs title and refused to pay the rent. Therefore, the suit was filed for declaration of title and for possession. 2. The written statement of the defendants is identical in both the suits. According to them, the plaintiff has purchased litigation. It was admitted that the property belonged to Mehaboob Hunnissa. But the husband of Fathima Kathoon procured the settlement deed from her by which the entire property was ostensibly conveyed to Fathima Kathoon. But no possession was given. Mehaboob Hunnissa came to know of this fraud later and revoked the settlement deed on 11. 1972 by Exhibit B-2 and entered into an arrangement Exhibit B-1 dated 111. 1972. According to the defendants, Fathima Kathoon had received a sum of Rs. 10,000/-and had given up her right in the property, and Abdullah Khan had been in exclusive possession of the property since 111. 1972 and any right that Fathima Kathoon had, she had lost. The case of tenancy it as denied. The offer of Rs. 10,000/- is consideration for the property was also denied. According to the defendants, it was curious that a person of another religious faith as the plaintiff has come forward to purchase this property, which was occupied by a Muslim family. In spite of the right of the defendants, the plaintiffs had purchased litigation. Most importantly, it was stated that Exhibit B-1 prohibits the sale of the property allotted to the respective sharers to any outsider. A right of pre-emption was created and the sale could be effected only between the sharers not to a stranger. In spite of the right of the defendants, the plaintiffs had purchased litigation. Most importantly, it was stated that Exhibit B-1 prohibits the sale of the property allotted to the respective sharers to any outsider. A right of pre-emption was created and the sale could be effected only between the sharers not to a stranger. The parties had agreed to these terms which gave a pre-emptive right when all of them signed Exhibit B-1 dated 111. 1972. 3. An additional written statement was also filed in which it was stated that Exhibit B-1 dated 111. 1972 cannot be treated as a sale deed, since no possession was given. A reply statement was filed in which it is stated that Exhibit B-1 is a partition deed and therefore, there cannot be any restraint on transfer. 4. On these pleadings, the parties went to trial. The two suits were tried jointly. The plaintiff in O.S. No. 36 of 1984 who is the husband of the plaintiff in O. S. No. 34 of 1984 was examined as P.W.1. Fathima Kathoon was examined as P. W.2 and two others as P.Ws.3 and 4. Exhibits P-1 to P-8 were also marked on the side of the plaintiff. The first defendant Ismail Khan (the deceased first appellant) was examined as D.W.I and three others were examined as D.Ws.2 to 5. Exhibits B-1 to B-40 were marked, The Trial Court decreed the suit. 5. The learned senior counsel appearing for the appellants submitted that a proper construction of Exhibit B-1 would clearly show that there was an agreement amongst the parties to sell the property only amongst the family members and read out the relevant recitals in the documents. The learned senior counsel submitted that it is relevant to note that the Hiba in favour of Fathima Kathoon was revoked on 11. 1972 under Exhibit B-2 and the very next day Exhibit B-1 was executed to which Fathima Kathoon was a party. The learned senior counsel submitted that it is relevant to note that the Hiba in favour of Fathima Kathoon was revoked on 11. 1972 under Exhibit B-2 and the very next day Exhibit B-1 was executed to which Fathima Kathoon was a party. It cannot be denied that she who had obtained a Hiba in her favour would have objected to the revocation of Hiba and therefore, the mother Mehaboob Hunnissa to ensure that there was no friction amongst the family members had taken care to have Exhibit B-1 executed which is in the nature of a family arrangement and all the parties had agreed to the condition viz., that they should not sell the property to anyone than the said sharers. The learned senior counsel submitted that it is not necessary that parties to a family arrangement should have an existing title and there are judgments to the effect that such family arrangement should be considered widely. The learned senior counsel submitted that the Trial Court had proceeded on the basis that Exhibit B-1 is a gift deed and for this there is no basis. Neither in the pleadings nor in their evidence had the parties referred to this document as a gift deed. The only occasion where there is a reference to it as a gift deed is in the reply statement where the words used are "if it is taken as a gift deed also". But in the evidence and in all other relevant materials this parties have referred to this document only as a partition deed and this is how that they have understood it. It is also submitted that the agreement which gives a preemptive right of sale of the shares in the house where the family members are residing, cannot be construed as an absolute restraint on alienation hit by Section 10 of the Transfer of Property Act. The learned senior counsel referred to the following judgments: .(a) Atika Regain v. A.A.M Abdulla (2002) 2 MLJ 4 .(b) Mohammad Raza v. Mt. Abbas Bandi Bibi AIR 1932 PC 158, .(c) P.L.N Paramasivam v. P.K Rarnaswami Gounder (1970) 1 MLJ 592 , .(d) Govt. of A.P. v. M. Krishnaveni (2006) 7 SCC 365 .(e) Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies (Urban) AIR 2005 SC 2306 : (2005) 5 SCC 632 . 6. Abbas Bandi Bibi AIR 1932 PC 158, .(c) P.L.N Paramasivam v. P.K Rarnaswami Gounder (1970) 1 MLJ 592 , .(d) Govt. of A.P. v. M. Krishnaveni (2006) 7 SCC 365 .(e) Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies (Urban) AIR 2005 SC 2306 : (2005) 5 SCC 632 . 6. The learned counsel for the respondent on the other hand would submit that the respondents are bona fide purchasers for valuable consideration and there is nothing to justify the restraint on alienation after there was an absolute transfer and therefore, there shall be no interference with the judgment and decree of the Trial Court. The learned counsel further submitted that Mehaboob Hunnissa the absolute owner of the property even seen from the recitals she had obtained it under a Hiba and therefore it would not be correct call Exhibit B-1 as a partition deed or a family arrangement from Mehaboob Hunnissa to her children or legal heirs of the children, since no other person except Mehaboob Hunnissa had any right in the property. The learned counsel for the respondent relied on the following judgment: (i) Ramkishorelal v. Kamal Narayan AIR 1963 SC 890 . 7. The questions that have to be decided these appeals is whether the document Exhibit B-1 is a partition deed or a gift deed as construed by the Trial Court, and whether the partial restraint imposed under the said document was valid in law. 8. In the plaint this document is referred as follows: "Hence, Mehboobanisa divided the said properties into five shares on 111. 1972. At that time Gaffar Khan and Jaffar Khan were dead. Hence, she allotted to Abdullah Khan, Basheed Khan, Fathima Khan Sowkath Ali Khan and Mehaboob Hunissa who are all parties to and joint executants starts of the partition deed dated 111. 1972 which was registered on 111. 1972." In Paragraph No. 4 of the plaint, there is reference again to the date of partition and the properties allotted under the partition deed. In the written statement, the document is referred to as partition deed. It is only stated that all the persons wanted not a share in the house, but only money. The only person who was interested in keeping the property was Abdullah Khan. Again in Paragraph No. 13, there is reference to the document as a partition deed. In the written statement, the document is referred to as partition deed. It is only stated that all the persons wanted not a share in the house, but only money. The only person who was interested in keeping the property was Abdullah Khan. Again in Paragraph No. 13, there is reference to the document as a partition deed. The additional written statement filed on behalf of the first defendant also refers to the deed as a partition deed for the first time for some reason, the defendant himself in paragraph No. 2 states that it cannot be treated as a Hiba since possession was not given. Since that was never the case of the plaintiff it is not clear why the defendant had to argue the case of it being a Hiba. In the reply statement, again the plaintiff that it is a partition deed and that if it construed as a partition deed it can only be a gift deed. Now let us look at the evidence. P.W.1 in his evidence has stated, TAMIL "P.W.2, who is Fathima Khan has also stated, TAMIL P.W.3 is the husband of P.W.2 vendor of the plaintiff and he has stated, TAMIL He has also stated that there was TAMIL Then in our view of the dispute among the parties the TAMIL came about. D.W.1 also refers to the document as TAMIL DW.2 has signed as witness in this document and he also refers to the document as partition deed. Therefore, both in the pleadings in the oral evidence, the parties have referred to this document as a partition deed. 9. The relevant paragraphs of Exhibit B-1 are discussed hereunder: TAMIL This document is signed by Mehaboob Hunnissa and her four children including the vendors of the plaintiffs. This document is dated 111. 1972, one day before Exhibit B-2 comes into effect. This is the revocation of the Hiba given by Mehaboob Hunnissa in favour of Fathima Khan, her daughter and the vendor of the plaintiff P.W.2. She has stated that though she had created a Hiba in respect of the properties in favour of her daughter, considering her conduct she decided to revoke it and by the said document revoked. This is the revocation of the Hiba given by Mehaboob Hunnissa in favour of Fathima Khan, her daughter and the vendor of the plaintiff P.W.2. She has stated that though she had created a Hiba in respect of the properties in favour of her daughter, considering her conduct she decided to revoke it and by the said document revoked. Therefore, it is seen from the dates and events that a Hiba was made in favour of the daughter of Mehaboob Hunnissa and it was subsequently revoked and the very next day Mehaboob Hunnissa and her three sons and the daughter, the done under the Hiba entered into an arrangement amongst themselves pertaining to the property and recording the same under Exhibit B-1. The daughter, Fathima Kathoon in whose favour the Hiba had been given might have raised a dispute that she had become the absolute owner under the Hiba, the sons may have created a dispute that they should not be totally excluded by the Hiba in favour of the daughter and it is obvious that considering the fact that Exhibit B-2 came up one day prior to Exhibit B-1 and after cancelling the Hiba, the mother decided to arrive at an arrangement which would obviate any such disputes amongst her children in future. Therefore, there are recitals to show that the parties would take the property absolutely. A partial restraint is created that the properties should be offered first to the parties themselves who are willing to purchase. 10. It is well settled that the nomenclature of the document would not decide the nature of the document if the parties had understood the character of the document and the rights and liability arrived there from in one manner. In this case all the parties have referred to Exhibit B-1 as partition deed and not as a gift deed and therefore, the finding of the Lower Court that it is a gift deed is erroneous since that is no-bodys case. All the parties understood it only as a document under which the parties partitioned their share. 11. As regards the restraint on alienation there is nothing in the pleadings with regard to the question whether the restraint in the document is a valid one. All the parties understood it only as a document under which the parties partitioned their share. 11. As regards the restraint on alienation there is nothing in the pleadings with regard to the question whether the restraint in the document is a valid one. In the written statement, at paragraph No. 19 there are pleadings to the effect that the document prohibits sale of the property to an outsider and that it is one of the terms of the partition agreement and that all the parties had consented to the terms of the plaintiffs vendor cannot act in derogation of the same. P.W.1 in his evidence has admitted that there is the clause relating to preemption in the document. The plea that the property was offered to the appellant and he quoted a very low price has been denied in the written statement. According to P.W.1 his vendors told him that the respondents wanted to purchase the property for a sum of Rs. 10,000/-. He has admitted in his cross-examination that he is not aware whether his vendors obtained the consent of the other parties to Exhibit B-1. P.W.3 who was the husband of P.W.2 also has admitted that in Exhibit B-1 there is a clause restraining the alienation of the property to strangers and that no notice was given by them to the defendants regarding the proposed sale and there is no written document to show that the defendants refused to purchase. TAMIL Similarly, P.W.4 has stated, TAMIL 12. D.W.1 has stated that if they had been informed about the sale he could have given the money and purchased the property. Therefore, the plaintiffs knew well about the restraint on alienation and yet they purchased the property. Their vendors had not called upon the other parties to Exhibit B-1 to purchase the property and there is no evidence show that they refused to purchase or that it was in those circumstances that the property was sold to strangers. 13. As regards the validity of such a clause, the earliest judgment is Mohammad Raza v. Mt. Abbas Bandi Bibi AIR 1932 PC 158 where under a family arrangement one of the party is a widow was given the property under certain conditions. One such condition was that she would not alienate the property outside the family. 13. As regards the validity of such a clause, the earliest judgment is Mohammad Raza v. Mt. Abbas Bandi Bibi AIR 1932 PC 158 where under a family arrangement one of the party is a widow was given the property under certain conditions. One such condition was that she would not alienate the property outside the family. The Privy Council held, "that 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." 14. Following this in Zoroastrian Co-operative Housing Society Ltd. V. District Registrar, Co-operative Societies (Urban) (supra), the Supreme Court has upheld self-imposed restrictions on alienation and that it cannot be held to be an absolute restraint on alienation offending Section 10 of the Transfer of Property Act. "42. The restriction, if any, is a self-imposed restriction. It is a restriction in a compact to which the father of respondent 2 was a party and to which respondent 2 voluntarily became a party. It is difficult to postulate that such a qualified freedom to transfer a property accepted by a person voluntarily, would attract Section 10 of the Act. Moreover, it is not as if it is an absolute restraint on alienation. Respondent 2 has the right to transfer the property to a person who is qualified to be a member of the Society as per its bye-laws. At best, it is a partial restraint on alienation. Such partial restraints are valid if imposed in a family settlement, partition or compromise of disputed claims. This is clear from the decision of the Privy Council in Mohd. v. Abbas Bandi Bibi AIR 1932 PC 158 and also from the decision of the Supreme Court in Gummanna Shetty v. Nagaveniamma AIR 1967 SC 1595 . Such partial restraints are valid if imposed in a family settlement, partition or compromise of disputed claims. This is clear from the decision of the Privy Council in Mohd. v. Abbas Bandi Bibi AIR 1932 PC 158 and also from the decision of the Supreme Court in Gummanna Shetty v. Nagaveniamma AIR 1967 SC 1595 . So, when a person accepts membership in a cooperative society by submitting himself to its bye-laws and secures an allotment of a plot of land or a building in terms of the bye-laws and places on himself a qualified restriction in his right to transfer the property by stipulating that the same would be transferred back to the society or with the prior consent of the society to a person qualified to be a member of the society, it cannot be held to be an absolute restraint on alienation offending Section 10 of the Transfer of Property Act. He has placed that restriction on himself in the interests of the collective body, the society. He has voluntarily submerged his rights in that of the society." 15. In Atika Begum v. Haji A.A.M Abdulla (supra), the partial restraint on transfer to persons other than co-owners is considered by a Division Bench of this Court. The following paragraphs are relevant at p. 10 of MLJ: "19. It is true that the right of pre-emption is a right in the event of sale to purchase the property upon agreed terms and it can only be exercised as to immovable property. 13.10 The object of right of pre-emption is to prevent the introduction of strangers as co-sharers and the right is enforced on the assumption that the introduction of strangers causes inconvenience to the preemptive co sharers. It is a transient right in its very inception and nature; and being a personal privilege, it cannot be transferred to anyone except to the owner of the property affected thereby. The right of preemption is applica-ble as per equity justice and good conscience. 13. 11 But, a right of transfer is incidental to and inseparable from the beneficial ownership of the property. Therefore, an absolute restraint of such power is repugnant to the nature of the estate and any such condition violates such right is void, as the same is opposed to the rule of justice, equity and good conscience. 13. 13. 11 But, a right of transfer is incidental to and inseparable from the beneficial ownership of the property. Therefore, an absolute restraint of such power is repugnant to the nature of the estate and any such condition violates such right is void, as the same is opposed to the rule of justice, equity and good conscience. 13. 12 It is well settled in law that a partition is not actually a transfer of property, but is analogous to an exchange and only a process of mutual renouncement. The partition signifies the surrender of a portion of a joint right in exchange of a similar right from the co-sharer. In other words, the partition effects a change in the mode of enjoyment of property, but is not an act of conveying property from one to another. In other words, partition is a process in and by which, a joint enjoyment is transformed into an enjoyment severally. Hence, partition is not actually a transfer of property, but would only signify the surrender of a portion of a joint right in exchange of a similar right from the other co-sharer or co-sharers. A right of partition, therefore, being an incident of joint ownership of property, any restriction repugnant to such right or interest is invalid as per Section 11 of the Transfer of Property Act. Hence, the condition imposed in the suit agreement Exhibit Pi dated 12. 1897 opposing the partition will not be binding on, the parties. 13. 13 No doubt, a partial restraint on transfer is permissible. In the instant case, the condition imposed in the agreement dated 12. 1897, with regard to the right of partition, is not partial, but an absolute one. Hence, the same is void under Section 10 of the Transfer of Property Act. 13. 14 But, the restraint, such as, the owners of a share could only sell it to the members of his community, is only a partial restraint and the same is valid in law. Therefore, the condition that sharers cannot sell the property to any person who is not a sharer, as imposed in Exhibit B-1 dated 12. 1987, is only a partial restraint and hence, the same is valid in law and binding on all the sharers of the suit property." 16. In Govt. Therefore, the condition that sharers cannot sell the property to any person who is not a sharer, as imposed in Exhibit B-1 dated 12. 1987, is only a partial restraint and hence, the same is valid in law and binding on all the sharers of the suit property." 16. In Govt. of A.P. v. M. Krishnaveni (2006) 7 SCC 365 , the Supreme Court has spelt out the reason why such family arrangements are looked upon with approval b Courts and that is to protect family from long drawn litigation. "It is well settled that a document, which is in the nature of a memorandum of family arrangement and which is filed before the Court for its information for mutation of names, is not compulsorily registrable and, therefore, can be used in the evidence of the family arrangement and is final and binding on the parties. (See Kale v. Dy. Director of Consolidation (1976) 3 SCC 119 . Further, it was held in the cited decision that the object of the family arrangement is to protect the family from long-drawn litigation or perpetual strifes, which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. It promotes social justice through wider distribution of wealth. Family therefore, has to be construed widely. It is not confined only to people having leg: title to the property." 17. It was submitted on behalf of the respondent that Mehaboob Hunnissa got the property under the Hiba and therefore, it s hers absolutely and the document is not strictly a family arrangement since the other parties are not co-sharers. But the Supreme Court in the above case has held that the parties to a family arrangement need not be people having legal title. In this case, Hiba was give in favour of the daughter of one of the parties is revoked and therefore, she cannot be said to be a person who has no interest in the property the strict sense. The other parties are Mehaboob Hunnissa’s sons. Therefore, on that ground we cannot construe that the document would be anything other than the partition deed. The other parties are Mehaboob Hunnissa’s sons. Therefore, on that ground we cannot construe that the document would be anything other than the partition deed. The Court below relied on Therefore, the Division Bench held that no sharer can sell his share in the suit property to any other person who is not a sharer and that such a condition is valid in law. P.L.N. Paramasivam v. P.K. Ramasivami Gounder and Others (1970) 1 MLJ 592 to come to the conclusion that the property with the constraint under the deed in question would be absolute restraint and not a partial constraint. That was a deed of gift and it did not give a pre-emptive right. On the other hand, the clause was to the effect that all sales should be joint sales and any sale made in individual capacity to third persons would be invalid. That was an absolute restraint on alienation and was frowned upon by the Division Bench of this Court. The clause in Exhibit B-1 is not an absolute restraint on alienation. It is only a partial restraint prohibiting the sharers from selling the properties to any person except the other sharers. 18. Ramkishorelal v. Kamalnarayan (supra) the Supreme Court judgment was referred to by the learned counsel for the respondent for the manner in which this document should be construed and the following paragraph is relevant: "A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void." In fact, even in that case, the earlier clause gave an absolute right which was limited by the subsequent clause. The Supreme Court held that it appears to us to be clear beyond any shadow of doubt that the intention was not to make Ramsaranlal the absolute owner of the village but to give him possession of Shri Ramchandra Swamy temple and that the property was not given to Ramsaranlal absolutely but the dedication was to the Temple and he was given only the possession of it as a Manager and the Trustee. Therefore, even though the Supreme Court declared that the earlier clause giving an absolute right would prevail over a later clause restricting the right, on the facts of the particular case this is how the Supreme Court construed the effect of the document, by reading it as a whole. 19. In the present case all the parties, had signed Exhibit B-1 and had agreed to the partial restraint on alienation. They are all aware of the same. They do not deny that they have executed the document under which they agreed to sell their shares as and when they so desire, only to the other sharers. 20. In Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies (Urban) (supra) the Supreme Court construed such self-restraints imposed on alienation as being valid. The Division Bench of this Court in Atika Begum v. Haji A.A.M. Abdulla (supra) has also held that a pre-emptive right given under the document 1 does not offend the provisions of the Transfer of Property Act, but it is only a partial restraint. Therefore, the restraint on alienation to third parties under Exhibit B-1 is valid in law and the sale in favour of the plaintiff is not valid and the plaintiffs are not entitled to the declaration that they have sought for. 21. At the time of arguments the counsel for respondents was asked to ascertain from the parties whether they would be willing to agree for a compromise by receiving some money in lieu of what they have purchased. The property is a house, inhabited by the family members all of whom are Muslims and there are Purdanasheen females and the respondents are Non-Muslims and if they execute the decree for possession, it would really cause inconvenience since strangers that too of a different religious faith would intrude into a property which is actually one house, But the respondents were not willing to receive money. 22. 22. For the reasons given earlier, the judgment and decree of the Court below are set aside. The appeals are allowed with costs. Appeals allowed with costs.