RASA GOUNDAN Vs. ARUNACHALA GOUNDAN

JUDGEMENT

(1.) IN the lower appellate Court this case was argued only with reference to limitation. We agree that Art. 120 is applicable, because there is no necessity for the plaintiff, a stranger to the document in question, to have it set aside and no obstacle to his limiting his claim to a declaration of its validity.

(2.) THE failing, it is contended that the lower Courts Were wrong in applying Section 53 of the Transfer of Property Act to the transaction in question before them, because that transaction is a partition and partitions are not transfers within the meaning of Section 53. We are unable to understand how a partition is not a transfer of property within the meaning of that section, since it must be regarded, as it is described in Altabannessa Bibi V/s. Saftulla Mia I.L.R. 43 Cal. 504 at p. 509, "as signifying the surrender of a portion of a joint right in exchange for a similar right from the co-sharer." THE argument attempted has in fact been supported only by reference to the words in that decision preceding those quoted: "THE object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners," and the dictum of Spencer, J. in Indoso Jithiaji V/s. Kothopalli Ramacharlu 10 L.W. 498 at p. 507; "It effects a change in the mode of enjoyment of property, but it is not an act of conveying property from one living person to another." In reply to those citations we need observe only that one of the objects of a suit for partition is to alter the form of enjoyment of joint property, without at the same time depriving the partition of its character as a transfer, and that we have been shown no other authority in agreement with the opinion of Spencer, J. Holding that a partition is a transfer of property, to which Section 53 is applicable, we reject this ground of appeal. THE second appeal fails and is dismissed with costs of the plaintiff-2nd defendant.