DAYABHAI NATHUBHAI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE petitioners are brothers and form a joint and undivided Hindu family. The said family owned Survey Nos. 91/2, 75/1, 60 -P, 149/1, 153, 95 -96, 110 and 136 of village Pardi in Taluka Olpad. These lands were managed by petitioner No. 1 as the Karta and the manager of the said family. Sometime back the petitioners partitioned these lands in accordance with their respective shares. As a result of the said partition, Survey Nos. 91/2, 75/1, 60 -P, 61, 149/1 and 153 came to the share of petitioners Nos. 1 and 3 while the rest of the survey numbers came to the share of petitioners Nos. 2 and 4. It is not. in dispute that the petitioners partitioned these lands at a time when a notice under Section 15 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as the said Act) had already been served by the officer appointed under the Act. The Prant Officer, Surat, found that this partition had taken place during the continuance of the scheme of consolidation and was, therefore, contrary to the provisions of Section 27(6) and Section 9 of the said Act. The Prant Officer, by his order dated July 11, 1958, declared the partition to be illegal and void and under Section 9 of the Act imposed a fine of Rs. 50 upon petitioner No. 1 who was until the said partition acting as the Vahiwatdar of these joint family properties. Dissatisfied with this order, the petitioners filed an appeal to the Government of Bombay. That appeal was dismissed. The order of the Prant Officer and that of the Government of Bombay have been challenged in this petition.

(2.) MR . Bhatt, who appears for the petitioner, has raised before us a two -fold contention, (i) that the partition of joint family properties amongst the members of that joint family is not a transfer and (ii) that, in any event, it is not a transfer within the meaning of Section 27(5) of the said Act. Mr. Bhatt urged that in the case of a joint and undivided Hindu family, all the members of the family jointly hold the co -parcenery property, that each of them has a joint interest in that property and when the property is partitioned amongst them, the only effect of that partition is that instead of a member of the family having an undivided interest in the whole of the property to the extent of his share in the property, he gets an interest in a distinct share in that property, Mr. Bhatt argued that, therefore, a partition of a joint Hindu family property amongst the co -parceners does not amount to a transfer within the meaning of Section 5 of the Transfer of Property Act.

(3.) THE question whether a partition is transfer or not has been the subject matter of several decisions of this Court and other High Courts. In Atrabannessa Bibi v. Safatullah Mia I.L.R.(1915) Cal. 504, the High Court of Calcutta observed that 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. A similar view was expressed by the High Court of Madras in Rasa Goundan v. Arunachala Goundan (1923) 44 M. L.J. 513. In Waman v. Ganpat : (1935)37BOMLR925 , a Division Bench of this Court held that the partition of a joint family property between the members of the family operates as a transfer within the meaning of the word 'Transfer' in Section 5 of the Transfer of Property Act. That view was reiterated in Jivram Jagjivandas v. Kantilal (1949)52 Bom. L.R. 104. In Soniram Baghushet v. Dwarkabai (1950) 53 Bom L.R. 325, Mr. Justice Bhagwati and Mr. Justice Chainani, as he then was, held that a partition of joint property by metes and bounds effected between the members of a joint Hindu family amounts to a transfer within the meaning of the definition thereof contained in Section 5 of the Transfer of Property Act. Dealing with the observations made by the High Court of Calcutta in Atrabannessa Bibi's case, the Division Bench observed that the observations contained in that decision showed that even though there may be no acquisition of property as such by reason of a partition, the property having devolved upon the co -owners or the Cc -sharers by inheritance or having been held as joint family property by them by processes known to Hindu law, the effect of partition is that the property which was thitherto enjoyed by all the members of the joint family as co -owners or co -sharers, is, after the partition, so far as the shares allotted to the respective members of the joint family are concerned, enjoyed by them for their sole use and as their sole property. The co -ownership and the joint enjoyment no doubt come to an end and in its place and stead is substituted the sole enjoyment and the sole ownership of the property which falls to the share of each member of the joint family. But as a necessary corollary of this, there is an extinction of the right which the other co -owners or co -sharers of the property had of enjoying that property in common with the co -owner or co -sharer to whose share that particular property is allotted as a result of the partition. That extinction of the right is brought about by what may be described as the process of the exchange of similar rights between the various co -owners and co -sharers of the joint family property or by a renunciation of the right by the other co -owners or co -sharers in favour of the co -owner or co -sharer to whom the property is allotted as a result of the partition, or by a conveyance of these rights of enjoyment of the property in common by the other co -owners and co -sharers in favour of the co -owner or co -sharer to whom that property is allotted as a result of the partition. 'Whatever be the process which may he said to bring about this result of the co -owner or co -sharer to whom the property is allotted by the partition getting the property for his sole use, the result is that the person who gets the property on partition is constituted the sole owner of that property and he acquires in that particular property not only his own share, right, title and interest therein which he erstwhile enjoyed but also the share, right, title and interest of the other co -owners or co -sharers in that property. This certainly would be a transfer of property within the meaning of Section 5 of the Transfer of Property Act.