(Prayer: Appeal (disposed of on 11-4-1950) against the decree of the Court of the Subordinate Judge, Masulipatam dated 12-3-1948 in O.S. No. 24 of 1946.)

Subba Rao, J.



1. This is a defendants appeal against the preliminary decree for partition in O. S. No. 24 of 1946 on the file of the Court of the Subordinate Judge, Masulipatam. The plaintiff is the paternal grandfather of the defendant. The defendants father was Satyanarayana who died in the year 192

1. They constituted members of a joint Hindu family and possessed of immovable properties set out in Schedules A and B annexed to the plaint and some movables. The plaintiff filed the above suit for partition of the family properties and for profits.



2. The defendant inter alia, pleaded that there was a partition of the family properties through the intervention of mediators and he wag put in possession of the properties that fell to his share. He relied upon a document me. bodying the arrangement between the parties. He also resisted the suit on the ground that the plaintiff was precluded from questioning the alleged partition on the doctrine oi part performance. As many as eleven issues were rained in the suit hut it is unnecessary to consider them in detail as the learned advocates confined their arguments before us only on two points. The learned Subordinate Judge held that the letter dated 15th February 1944 alleged to have been executed by the plaintiff was not admissible in evidence. He passed a preliminary decree effecting a division into two equal shares of the properties set out in the schedule to the plaint. The defendant preferred the above appeal.

3. The learned counsel for the appellant raised two contentions before us: (1) that the document dated 16th February 1944 is admissible in evidence as it only recorded a completed partition that was entered into between the parties through the intervention of the mediators; (2) that the defendant having been put in possession of the properties that fell to his share is entitled to defend the suit on the ground of part performance. The first point turns upon the construction of Ex. X-

1. It may be pointed out that the contention now raised before us, namely, that document was only a record of a completed oral partition that was entered into between the parties, was neither raised in the plead, ings nor the question was argued before the learned Subordinate Judge. The only question that was addressed to him was that the document did not require registration as it con-template a formal document being executed subsequently. The document gives in detail the nature of the disputes between the parties and also the settlement of the same through the intervention of the mediators. The properties allotted to the respective parties are minutely described. It provides for payment of money for equalization of the shares; the debts payable by the respective parties are detailed; the covenants of mutual indemnity are also embodied in the document, it was signed by the plaintiff and the mediators attested the same. In short, all the terms in regard to the partition of the properties between them are embodied in the document. The document contains the following recital:

"In the said settlement the mediators settled to give the hereunder Schedule A items 1 and 2 of property to me, the Schedule B mentioned property to the minor, and Schedule C mentioned property to your daughter Leelavati on your behalf, towards the income, that may be got from the family property for the property given to you for pasupu kunkuma (pin money). Therefore, Schedule mentioned property fell to Leelavati. As regards the said properties, we have this day accordingly taken possession of tbe lands inclusive of the heaps of crops and the standing crops that fell to our respective shares. Hence we shall not raise disputes with each other."

These recitals clearly show that the document itself creates a right in present in favour of the parties to the deed. The learned advocate relied upon the recital in the document, namely, that

"We shall enter into a proper document before 15th March 1944 and get it registered at the expense of both the parties,"

in support of his argument that it does not require registration. The recent judgment reported in Md. Ghouse Sahib v. Jamila Bibi, to which one of us was a party, discusses tbe scope of such recitals in a document. It was held therein that as the document in question created an interest in immovable property the mere fact that a provision was inserted enabling the par-ties to get a proper partition deed written up on stamp paper and get the same registered did not take away the document from the mischief of 33. 17 and 49, Registration Act. A perusal of the present document leaves no doubt in our minds that it creates an interest in present in tube properties covered by the same and, therefore, it requires registration. It not having been registered, we agree with the learned Subordinate Judge that the document is not admissible in evidence.

4. The next question raised by the learned advocate raises an interesting point of law, namely, whether tbe doctrine of part performance embodied in Section 53A, T. P. Act applies to partition arrangements. Section 53-A, T. P. Act reads :

"Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and tbe transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though it requires to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, tbe transferor or any person claiming under him shall be debarred from enforcing against tbe transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other tan a right expressly provided by the terms of the contract."

"Transfer of property" is defined in Section 6 of the Act as

"an act by which a living person conveys property, in present or in future to one or more other living persons, or to himself and one or more other living persons; and to transfer property is to perform such act."

The necessary condition for the application of Section 58-A is that the transition must be a contract of transfer for consideration of any immovable property. The question, therefore, is whether a partition is a transfer for consideration within the meaning of the section. There is no direct decision on the interpretation of Section 63-A in regard to its applicability to a partition, hut the learned counsel relied upon the meaning attributed to the word "transfer" appearing in Section 53 of the Act and also in other Acts. There is a sharp cleavage of judicial opinion on the question, and a long catena of cases have been cited before us on either side. We shall consider them in some detail in their chronological order as the reasoning of the learned Judges certainly helps us to arrive at our conclusion.

5. The earliest case on the subject is the decision in Gyannessa v. Mobarakannessa, 25 Cal. 210 [LQ/CalHC/1897/105] : (2 C. W. N. 91). In that case some of the co-owners possessing an undivided share in several properties took by an arrangement a specific property in lieu of their shares in all the properties. It was contended that the said arrangement was not valid as it was not effected by an instrument in writing. The learned Judges held that the transaction was not an exchange within the meaning of Section 118, T. P. Act, but the completed transaction amounted to a partition which was not required by law to be effected by an instrument in writing. Macpherson J., says at p. 213:

"The completed transaction was the partition by which the parties held in severally the lands which had been before held in common. The law does not require a partition to be effected by an instrument in writing, and the right of partition being an incident of property held as this property was, the right is not, according to the second section, affected by any of the provisions of the Act."

At p. 215 the other learned Judge, Ameer Ali J., says:

"Section 118, In my opinion, is not applicable to cases where some of the co-owners possessing an undivided share in several properties take by arrangement a specific property in lieu of their shares in all. Section 118 as its language shows, refers to cases where two persons owning two specific properties transfer or convey their respective ownership one to the other."

This decision was approved by Mukherjee J., in Satyakumar Banerjee v. Satyakripal, 10 C. L. J. 503 : (3 I. C. 247). In Indoji Jithaji v Kotha-palli Ramacharlu, 10 M. L. W. 498 ; (A. I. R. (7) 1920 Mad. 20) the question was whether a partition deed was bad because it contravened the provisions of Section 63, T. P. Act. Abdur Rahim J. held that the partition was voidable at the instance of the plaintiff upon the principle enunciated in Section 63, T. P. Act. It may be noted that Sir Abdur Rahim did not hold that Section 53 directly applied to a partition document but only invoked the principle underlying that section. The other learned Judge, Spencer J., was definitely of the opinion that a partition is not a transfer within the meaning of Section 53, T. P. Act. At p. 506 he says :

"A partition is a division or agreement among co-owners to nuke a division of their joint property in severally; it effects a change in the mode of enjoyment of property but it is not an act of conveying property from one living parson to another. Exhibit II is not in terms a division of property, nor is it a transfer or release of property, but purports to be a relinquishment of the executants incorporeal right to have a partition."

At p. 508 he adds:

"I have already given reasons for thinking that partitions of coparcenaries properties do not fall within the scope of Section 51 which deals with transfers of immovable property seeing that every member of a coparcenaries has, before a partition takes place, a common interest in and possession of every item of ancestral property."

6. The nature of a partition came again to be considered by the Calcutta High Court in Atrabannessa Bibi v. Safatulla, Mia, 43 Cal. 504 [LQ/CalHC/1915/264] : (A. I. R. (3) 1916 Cal. 645). This judgment is rather important as the law laid down by the learned Judges has been invoked by different Judges to support divergent views. It is also important as one of the learned Judges, Mooker-jee J was a party to the decision in Satyaku-mar Banerjees case, 10 C. L. J. 503 : (3 I. C. 247) which affirmed tha principle laid down in Gyan-nessa, v. Mobrakannessa, 25 Cal. 210 [LQ/CalHC/1897/105] : (2 C. W. N. 91). It is unnecessary to state the facts. It would be enough if the relevant passage found at p. 509 is extracted :

"The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer. Partition is thus the division made between several persons, of joint lands which belong to them as co-proprietors, so that each becomes the sole owner of the part which is allotted to him, the essence of partition is that the property is transformed into estates in severally and one of such estates is assigned to each of tbe former occupants for his sole use and as his sole property."

Oldfield and Yenkatasubba Rao JJ, relying on tbe aforesaid passages held in Rasa Goundan v. Arunachala Goundan, 44 M. L. J. 513: (A.I.R

. (10) 1923 Mad. 577) [LQ/MadHC/1923/61] that a partition is a transfer within the meaning of Section 53, T. P. Act. They dissented from the view expressed by Spencer J. in Indoji Jithiaji v. Kothapalli Ramacharlu, 10 M. L. W. 498: (A I. R. (7) 1920 Mad. 20) but relied upon a part of the definition of partition found in Atrabannessa Bibi v. Safatullah Mia, 43 Cal. 504 [LQ/CalHC/1915/264] : (A. I. R. (3) 1916 Cal. 645), namely, "the surrender of a portion of a joint right in exchange for a similar right from co-sharers" in support of their conclusion. With great respect to the learned Judges, they have ignored the relevant portion of the statement of law contained in Atrabannessa Bibi v. Safatullah Mia, 43 Cal. 504 [LQ/CalHC/1915/264] : (A. I. R. (3) 1916 Cal. 645), which, as we shall show later on, is relied upon by other Judges to come to a contrary conclusion. Devadoss J., sitting as a single Judge, followed the observations in Rasa Goun-dan v. Arunachala Goundan, 44 M. L. J. 513 : (A. I. R

. (10) 1923 Mad. 577) [LQ/MadHC/1923/61] in Venkataramayya v. Raghavalu, A. I. R. (12) 1925 Mad. 492 [LQ/MadHC/1924/536] : (85 I. C. 1054) and Ramaswami Chettiar v. Katha-muthu Thevar, 1926 M. W. N. 641: (97 I. C. 70). Ramesam J. in Abobilachariar v. Thulasiam-mal, A. I. R. (14) 1927 Mad. 830 [LQ/MadHC/1927/18] : (103 I. C. 281) made some relevant observations in regard to the applicability of the theory of part-performance to a partition. It may be noticed that the decision was given before the enactment of Section 53-A, T. P. Act, which embodied the principle of part performance, limiting it only to a particular class of cases. The question whether a partition was a transfer or not was neither raised before him nor decided by the learned Judge. As it was then thought that the principle of part performance was of general application even in India, the learned Judge made general observations to the effect that though the deed of partition is inadmissible for want of registration, if there is later enjoyment of certain items, as separate property, such enjoyment amounts to partial performance of the contract of partition and its terms, and in such a case the partition can be given effect to by reason of the partial performance even though the terms of the partition cannot be proved. Obviously the restricted principle of part per-formance now given statutory recognition would not permit of such treatment of unregistered partition deeds though partially performed. In Raman Singh v. Dilla Singh, 4 Luck. 243: (A.I. R. (16) 1929 Oudh 334), the construction of the word transfer in Section 5, Oudh Rent Act, fell to be decided. If a partition wag a transfer, it would be invalid under the said Act. The learn-ed Judges at p. 248 defined the words transfer with lucidity and they say;

"A transfer in law must be deemed to imply a transfer by a person entitled to that property in favour of ft person having no title otherwise. Such a transaction relating to an occupancy tenure must, therefore), be deemed to be inoperative. Where, however, the holding is claimed by different here of a deceased occupancy tenant or where the occupancy tenure forms part of the property of a joint family or of co-tenants and a division takes place among such persons, it cannot be held that the transaction amounts to a transfer from one having a right in favour of one having no right at all. In such a case all the persons must be deemed to have a right in the holding, and when the parties divide it among themselves their action must be considered to refer to the right possessed by each party to whom the land has been allotted on division or partition."

In Waman Ramakrishna v. Ganpat Maha-deo, 60 Bom. 34 [LQ/BomHC/1935/79] : (A. I. R. (23) 1936 Bom. 10) [LQ/BomHC/1935/79] , a different note was struck. The question was whether partition was a transfer within the meaning of Section 53, T. P. Act. The learned Judges preferred the view expressed in Rasa Goundan v. Arunachala Goundan, 44 M. L. J. 513 : (A I. R

. (10) 1923 Mad. 577) [LQ/MadHC/1923/61] to that of Spencer J. in Indisji Jithiaji v. Kottiapalli Ramacharlu, 10 M. L. W. 498 : (A. I. R. (7) 1920 Mad. 20). They also understood the observations in Atra-banessa Bibi v. Safatulla Mia, 43 Cal. 504 [LQ/CalHC/1915/264] : (A. I. R. (3) 1916 Cal. 645) in the same manner as the learned Judges in Rasa Goundan v. Arunachala Goundan, 44 M. L. J. 513 : (A. I. R

. (10) 1923 Mad. 577) [LQ/MadHC/1923/61] understood. The relevant observations made at page 39 may be extracted : "It seems to us that the line of reasoning on which the view of the Calcutta High Court is based is sound, and that for purposes of Section 53, T. P. Act partition where the immoveable property has been partitioned among co-owners by metes and bounds, must be held to be transfer. This does not appear to be an unreasonable or far-fetched interpretation; partition can in fact be adequately described as a mixture of the surrender and the conveyance of right in property."

7. There is an exhaustive treatment of the question in two Bench decisions reported in& Suhashini Poddar v. Sreenath Chakravarthi, 49 C. W. N. 769 : (A. I. R. (33) 1946 Cal. 129) [LQ/CalHC/1945/73] and Khirode Sundari v. Chunilal, 49 C. W. N. 77

9. The first of these decisions is a decision of Mitter and Wright JJ. The question in that case was whether an allottee under a partition decree was a bona fide assignee for value within the meaning of Sub-clause (b) of Section 36(2). Bengal Money-lenders Act. If the allottee was an assignee for value he would be protected and the decree was not liable to be re-opened at the instance of the judgment-debtor. At page 773, a clear and precise statement of the law is found:

"Although partition thus resembles an exchange, it is not an exchange. There is no conveyance but only transformation of the property. The estate in common is transformed, that is, it takes only another form, namely, two or more estates to be possessed and enjoyed in severally. 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--and the separate allotment is not obtained by another independent title."

The other decision at page 779 of the same report also arose under the Bengal Money lenders Act. Another Bench of the same High Court accepted the definition of "partition" found in the earlier decision. At page 783 the learned Judges explained the scope of the observations in Atrabannessa Bibi v. Safatulla Mia, 43 Cal. 604 : (A. I. R. (3) 1916 Cal. 645). After referring to the decision in Rasa Goundan v. Arunachala Goundan, 44 M. L. J. 613 : (A. I. R

. (10) 1923 Mad. 677) and Waman Ramkrishna v. Ganpat Mahadeo, 60 Bom. 34 [LQ/BomHC/1935/79] : (A. i. R. (23) 1936 Bom. 10) [LQ/BomHC/1935/79] , they say :

"The two last mentioned cases, however, proceeded on what was supposed to be the line of reasoning laid down by Mookerjee J. in Atrabannessa Bibi v. Safa-tulla Mia, 43 Cal. 504 [LQ/CalHC/1915/264] : (A. I. B. (3) 1916 Cal. 645) to which we have referred. We do not, however, read the observations of Mookerjee J. in that case, as indicating, contrary to the opinion expressed by him in Satyakumar Banerjees case, 10 C. L. J. 503 : (3 I. C. 247), that a partition involves a transfer of property. The gist of that observation is in the opening sentence, namely, The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners. The expression joint right in the following sentences refers to right of joint possession and enjoyment. The substance of partition, as we have said, is the severance of the joint possession and enjoyment. In the ultimate analysis, in our opinion, and we say so with great respect to the learned Judges who decided the Madras case of Rasa Goundan, 44 M. L. J. 513 : (A. I. R

. (10) 1923 Mad. 577) [LQ/MadHC/1923/61] and the Bombay case of Woman Ramakrishna 60 Bom. 34 [LQ/BomHC/1935/79] : (A. I. R. (23) 1936 Bom. 10) [LQ/BomHC/1935/79] , there is no difference between the observations of Mookerjee J. and those of Spencer J. which we have quoted above."

With great respect we entirely agree with the said observations.

8. The learned counsel strongly relied upon the judgment of Wadsworth and Patanjali Sastri JJ. in Schwelo Firm v. Subbiah, I. l. r. (1946) Mad: 138 : (A. i. R. (31) 1944 Mad. 381) [LQ/MadHC/1944/85] . In that case the learned Judges held that where the partition was fair and in accordance with the proper shares of the parties, it was not liable to be impeached under Section 53, although it was entered into with a view to prevent attach-ment of the sons shares in execution of the decrees obtained against the father after the partition and was in that sense mala fide. In the course of the judgment, Patanjali Sastri J., who delivered the judgment on behalf of the Bench, noticed the various cases construing the word transfer in Section 63, T. P. Act. We do not find any definite view expressed by the learned Judges in regard to the meaning of to be attri-buted to the word transfer. Perhaps it was not necessary as in that case the learned Judges held that the partition was not a fraudulent transfer under Section 63, T. P. Act. Indeed, at page 145, the learned Judge specifically states that there are obvious difficulties in dealing with a partition among members of a Hindu joint family as a fraudulent transfer coming within the section. Whatever doubt there may be, the learned Judges view was made clear by his pronouncement in a later decision reported in Narasimhulu v. Someswararao, 1948-1 M. L. J. 150 : (A. I. R. (35) 1948 Mad. 505) [LQ/MadHC/1947/95] . The question was whether the allotment at a partition of jyeshtabhagam to the eldest brother involved a gift by the younger brother or brothers. After considering the case-law on the subject, the learned Judges stated as follows :

"The argument proceeds, in our opinion, on a misconception of the true nature of a partition arrangement under which each co-owner gets a specific property in lieu of his right 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 renounce 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 others. That is why it has been held that a partition can be effected orally and without any registration instrument though it may affect immovable properties of the value of one hundred rupees or more."



9. The aforesaid discussion of the case-law on the subject brings out two divergent views: (1) Partition is a conversion of joint enjoyment into enjoyment in severalty. The crucial tests of a transfer by a person having a right in favour of a person having no right is not satisfied. There is no conveyance but a transformation of property, an allotment by virtue of his antecedent title as co-sharer. (2) It is a conveyance of a portion of joint right in exchange for a similar right from his co-sharer. In our view, the latter view of a partition as a conveyance of a joint right involves an introduction of fiction and is also contrary to the fundamental conception of partition.



10. In Freeman, on Co-tenancy and Partition, the following passage from Allnatt, extracted at page 396, may usefully be reproduced here :

"Partition between coparceners neither amounts to, not requires, an actual conveyance. It is less than a grant. Its operation is not to pass the land by a fresh investure of the seisin, for parceners are supposed to be already in possession of the whole lands. Partition, therefore, makes no degree. It only adjusts the different rights of the parties to the possession; each does not take her allotment by purchase; but is seized of it by descent from the common ancestor as she was of her undivided share before partition."

Partition, therefore, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore, no conveyance is involved in the process as a con-ferment of a new title ia nod necessary. We are glad to be able to arrive at this conclusion as otherwise we would be introducing complications and anomalies in the working of Section 53A, T. P. Act. One member of the family who was put in possession of his share would be liable to resist the suit for partition and another who did not take possession of his share would have to submit to a decree for partition In a suit for a general partition there would he a decree for partition in regard to same properties and some parties, leaving out those sharers who secured possession of the properties under an invalid partition. It may be that a decree would have to be pass-ed even in their favour in regard to properties not divided. The working out of equities and equalization of sharers would involve insoluble complications. We, therefore, hold that a partition is not a transfer within the meaning of Section 53A, T. P. Act, and therefore, the defendant could not invoke the doctrine to support his case.

1

1. In the result the appeal is dismissed with costs.