PARTITION of PROPERTY And its relation to Transfer of Property

INTRODUCTION:
Section 5 of Transfer of Property Act 1882 (hereinafter, TPA) defines transfer of property as an act of present or future conveyance of property inter-vivos; wherein property has been held to be used in its widest and most generic sense to refer to not only the corpus (i.e. the concrete or corporeal thing) but also the owners rights and interests therein,1 for e.g. a house (or any other corporeal thing), corresponding rights to own, use, possess or dispose it off, etc. and such interests therein are collectively referred to as property within the realm of S.5 of TPA. Therefore, unless any real right or interest is passed onto from one living person to another, or to himself, the act cannot qualify as transfer of property. It is with this perspective that in this term paper, the real nature of partition of property and whether it may be classified as transfer of property would be analyzed.

IS PARTITION TRANSFER OF PROPERTY?

Partition isnt Transfer: In partition (whether effected orally or through registered partition deed), co-sharers of property (who neednt have absolute or equal rights therein) mutually decide as to the specific portions to be allotted to each to the extent of their shares, wherein exclusive ownership rights would be thereafter exercisable as against the general rights over the entire property; i.e., after partition, as against the joint title in property, its joint possession and use, right to collectively alienate it, etc., co-sharers would now have exclusive right to own, use, enjoy and alienate the specific portion allotted to them.2 In this regard, there were two different approaches which came to be followed by HCs: firstly, to regard partition as combination either of exchange and surrender,3 or of conveyance and surrender,4 and thus as transfer within the meaning of S.5; and secondly, to regard partition as not a transfer. Therefore, while in Soniram v. Dwarkabai, Bombay HC held that "Whatever be the process [be it exchange, or surrender or mutual renunciation or conveyance] which may be said to bring about this result of the coowner or co-sharer, to whom the property is allotted by the partition, getting the property for his sole
1

it is well recognised that rights of ownership of a property may be split up into a right to the "corpus" and another to the "usufruct" of the property: Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakar and Ors. [1974] AIR 1728 (SC); The word property may be used in the objective sense of the concrete thing which is the subject of ownership or other lights, or it may be used in the sense of the rights and interests of the owner or other person in that property. : Umrao Singh v. Khacheru Singh [1939] AIR 415 (All) 2 See generally G.C. Bharuka, Mulla, the transfer of Property Act 1882 (10th, Lexis Nexis, New Delhi 2006) 76-77 3 Atrabannessa Bibi v. Safatullah Mia [1916] AIR 645 (Cal) 4 Waman Ramakrishna v. Ganpat Mahadeo [1936] AIR 10 (Bom) followed in Raman Pillai Gopala Pillai and Ors. v. Madhavan Pillai Aiyappan Pillai and Ors. [1959] AIR 235 (Ker)

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;5 in Indoji v. Ramacharlu, Madras HC held that A partition is a division or an agreement among co-owners to make a division of their joint property in severalty. 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.6 Furthermore, even after SC judgment in V.N. Sarin v. Ajit Kumar Poplai holding that partition doesnt vest or divest any title in the property, and thus cannot be taken as transfer,7 Bombay HC in Jagannathpuri v. Godabai, while interpreting Sarin judgment to only mean that a partition in joint [ownership or coparcenary] does not create new title and parties to that partition do not acquire title and observations therein limited only to Delhi Rent Control Act with which SC was concerned with in aforementioned case; held that, in view of applicability of S.53 to partition and the compulsory registration of partition deed u/s 17(1)(b) of Registration Act 1908 for its purporting to create or extinguish title, partition may be a transfer for the purpose of certain acts, such determination to depend on the object aimed to be achieved through that statute; and thus, further held applicability of S.10 of TPA on partition of property on its being transfer within the purview of S.5. 8 However, it is now well settled that partition is not transfer of property as u/s 5 of TPA because, firstly, co-sharers already had an antecedent right in entire property to the extent of their respective shares such that there was no creation of any new right/ interest after the partition, and hence, no conveyance of property was involved;9 and secondly, because partition isnt equivalent to selling of a share in joint property to a person who doesnt have such share; it is merely a division of pre-existing rights of cosharers by defining their respective portions in property by metes and bounds wherein exclusive rights could now be exercised without the interference of other joint owners. 10 The Courts have therefore, interpreted partition of property as merely a process bringing about an alteration in mode of enjoyment of joint propertyfrom collective or joint enjoyment to enjoyment in severalty11wherein by mutually renouncing their existing common unspecified rights with respect to the entire property in consideration of getting exclusive title to the properties allotted to them, co-

Soniram Baghushet v. Dwarkabai [1950] 53 Bom.L.R. 325 upheld in Dayabhai Nathubhai v. The State of Bombay [1960] 62 BOM.L.R. 348 (Bom) 6 Indoji v. Kothapalli Rama Charlu [1919] 54 Ind Cas 146 (Mad) 7 V.N. Sarin v. Ajit Kumar Poplai [1966] AIR 432 (SC) 8 Jagannathpuri Guru Kamaleshwarpuri v. Godabai and Anr. [1968] AIR 25 (Bom) 9 Gutta Radhakristnayya v. Gutta Sarasamma [1951] AIR 213 (Mad); Smt. Zaveri v. Jitu [1954] AIR 46 (Guj); Vasantiben Prahladji Nayak and Ors. v. Somnath Muljibhai Nayak and Ors. [2004] 3 SCC 376 (SC) 10 K. Shanmukham, Sanjiva Row's Transfer of Property Act (7th, Universal, New Delhi 2011) 81-83; Halsburys Laws of India, Property and Easement PARTITION AND FAMILY ARRANGEMENT 240.127 (Vol.12, LexisNexis, Delhi 2008) 95 11 Vasantiben Prahladji Nayak and Ors. v. Somnath Muljibhai Nayak and Ors. [2004] 3 SCC 376 (SC)

sharers transform the property into estates in severalty for their own sole use and ownership.12 In Mohar Singh v. Devi Charan, SC held partition to signify the surrender of a portion of a joint right in exchange for a similar right from the other co-sharer or co-sharers.13 This interpretation has been held as applicable also to the partition of joint family property amongst coparceners.14 Therefore, in Sarin v. Poplai, SC held that the true effect of the partition is that each coparcener gets a specific property in lieu of his undivided right in respect of totality of the property of the family. 15 However, unlike in tenancy-incommon, in case of partition of joint family property, even where division of property by metes and bounds dont immediately follow the disruption in joint family status brought about by definite and unequivocal intention of such separation, the claim to enjoy property in severalty becomes enforceable and right of survivorship extinguishes thenceforth, thus bringing partition in operation.16

No applicability of Doctrine of Part Performance: Furthermore, since partition of property doesnt amount to transfer, doctrine of part performance as u/s 53A of TPA has been held inapplicable to it, such that if the partition hasnt been made in the manner prescribed by law or is inadmissible as evidence, the same will be held to be void and inoperative, even for purpose of S.53A of TPA, notwithstanding any act done by co-sharers in pursuance of that partition.17 Therefore, in Gutta v. Gutta18 [wherein in accordance with an unregistered partition deed (which was thus held to be in contravention of the requirements of Registration Act 190819), defendant was put in possession of certain properties, and plaintiff later sought decree from Court for partition of the erstwhile joint family property], Mad HC while disapproving of the contention of defendant-appellant with respect to applicability of doctrine of part performance and resultant inadmissibility of plaintiffs suit for partition, held partition of property as not amounting to transfer for consideration as u/s 53A of TPA. The same approach was followed in Chandervati v. Lakhmichand20and also in Zaveri v. Jitu.21
12

V.N. Sarin v. Ajit Kumar Poplai [1966] AIR 432 (SC); Gutta Radhakristnayya v. Gutta Sarasamma [1951] AIR 213 (Mad); Indoji v. Kothapalli Rama Charlu [1919] 54 Ind Cas 146 (Mad) 13 Mohar Singh v. Devi Charan [1988] AIR 1365 (SC) 14 V.N. Sarin v. Ajit Kumar Poplai [1966] AIR 432 (SC); Commissioner of Income Tax, Gujarat v. Keshavlal Lallubhai Patel [1965] AIR 866 (SC): partition of joint family property doesnt amount to a direct or an indirect transfer strissima juris; Indoji v. Kothapalli Rama Charlu [1919] 54 Ind Cas 146 (Mad) 15 [1966] 1 SCR 349 (SC) 16 Appovier v. Rama Subba Aiyan [1866] MANU 0013 (PR); See also Sanjiva Row's Transfer of Property Act (7th, Universal, New Delhi 2011) 81 17 Smt. Zaveri v. Jitu [1954] AIR 46 (Guj); See G.C. Bharuka, Mulla, the transfer of Property Act 1882 (10th, Lexis Nexis, New Delhi 2006) 76 18 Gutta Radhakristnayya v. Gutta Sarasamma [1951] AIR 213 (Mad) upheld by SC in Commissioner of Income Tax, Gujarat v. Keshavlal Lallubhai Patel [1965] AIR 866 (SC) 19 See Chandervati v. Lakhmi Chand *1988+ AIR 13 (Del) (A document which merely acknowledges or makes an admission, as to a prior partition, is not compulsorily registerable. But if there is an instrument effecting a partition of immovable property, as in the present case, it falls under Section 17(1)(b) of the Registration Act 1908 and is compulsorily registered under that clause) 20 Chandervati v. Lakhmi Chand [1988] AIR 13 (Del)

Applicability of S.53, S.109 and S.10 of TPA: Though partition isnt transfer as u/s 5 and therefore remains ungovernable by provisions of TPA (if construed strictly), yet, the principles of S.53, S.109 and S.10 are held applicable to partition as embodying rules of justice, equity and good conscience.22 Therefore, in Mohar Singh v. Devi Charan23 [wherein joint ownership, of some properties including a shop, stood partitioned by the decree of the Court and the transferee of one of the two joint owners (who now became the landlord of the shop) sought eviction of the tenant (who was the tenant of whole of the joint property with co-owners as the lessors) from shop thereof for his own bonafide need, the tenant having contested the suit contending impermissibility in law of splitting the integrity and unity of tenancy which was the subject matter of original lease, the appeal was filed by transferee], SC while interpreting true effect of the words 'shall possess all the rights...of the lessor as to the property or part transferred...'occurring in S.109 of TPA, disapproved of the contention of tenant by holding that S.109 which provides statutory exception to the rule of impermissibility of splitting the integrity of tenancy, enabling an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, is applicable to a case of partition also as the principle embodying justice and equity.24 Furthermore, S.53 has also been held as applicable to partition if the same is deceitfully intended to defraud or delay creditors.25 Thus, where no share of joint family property was allotted to indebted coparcener26 or where no provision for repayment of the coparceners debts was there,27 or where property was allotted in such a way that creditor couldnt realize his dues owing to such share being very meager;28 the partition was held to be voidable at the option of such creditor whose rights were impaired. Also, though S.10 doesnt in terms apply to the partition, but the principle therein rendering the absolute restraint on alienation void would be applicable.29 Therefore, in T.V.S. Ltd. v. Shanmugha

21 22

Smt. Zaveri v. Jitu [1954] AIR 46 (Guj) Ram Chandra Singh v. Ram Saran [1978] AIR 173 (All), Harihar Banerji v. Ramasashi Roy [1918] AIR 102 (PC): both upheld in Mohar Singh v. Devi Charan [1988] AIR 1365 (SC); See also G.C. Bharuka, Mulla, the transfer of Property Act 1882 (10th, Lexis Nexis, New Delhi 2006) 76-77; Sushilabehn and Ors. v. Anandilal Bapalal and Ors. *1983+ AIR 126 (Guj): partition and for that matter release deed does not amount to a transfer, within the meaning of the term 'transfer of property' as prescribed in Section 5 and, therefore, not within the purview of Section 53, the principle of that section can be invoked and would apply even though the section may not apply in terms since the principle underlying it is of wider application and Section 53 is not exhaustive. 23 Mohar Singh v. Devi Charan [1988] AIR 1365 (SC) 24 Same approach was followed by SC in Sk. Sattar Sk. Mohd. Choudhari v. Gundappa AMabadas Bukate [1997] AIR 998 (SC) 25 nd Dr. Poonam Pradhan Saxena, Property Law (2 , LexisNexis, New Delhi 2011) 247-248 26 Picha Mooppanar v. Vetu Pillai [1947] AIR 203 (Mad) 27 Official Assignee v. Belusami Ayyar [1928] AIR 735 (Mad) 28 Sushilabehn v. Anandilal Bapalal [1983] AIR 126 (Guj) 29 Halsburys Laws of India, Property and Easement PARTITION AND FAMILY ARRANGEMENT 240.127 (Vol.12, LexisNexis, Delhi 2008) 95

Sundaram, Madras HC held the covenant in partition deed absolutely restraining selling, mortgaging, or otherwise alienating the property allotted to be void.30

CONCLUSION:
Thus, partition of joint-ownership (or joint-family) property isnt transfer as u/s 5 of TPA, because coowners (or coparceners) had an antecedent title to the property such that there was no conveyance of title involved but only mutual renunciation or surrender of general unspecified rights in respect of entire property in lieu of specific ownership rights over the portions allotted thenceforth partition. Therefore, provisions of TP Act, if interpreted strictly, are held inapplicable to partition (like the doctrine of part performance as u/s 53A), albeit general principles of several other provisions like S.10, S.53, and S.109 of TPA have been held as applicable to partition as embodying rules of justice, equity and good conscience.

BIBLIOGRAPHY:
1. Halsburys Laws of India, Property and Easement PARTITION AND FAMILY ARRANGEMENT 240.127 (Vol.12, LexisNexis, Delhi 2008) 2. Dr. Poonam Pradhan Saxena, Property Law (2nd, LexisNexis, New Delhi 2011) 3. Sanjiva Row's Transfer of Property Act (7th, Universal, New Delhi 2011) 4. G.C. Bharuka, Mulla, the transfer of Property Act 1882 (10th, Lexis Nexis, New Delhi 2006) 5. Soli J. Sorabjee, Darashaw J Vakil's the transfer of property act: (4 of 1882) (3rd, Wadhwa and Company, New Delhi 2009) 6. S.P. Sen Gupta, B.B. Mitra on the transfer of property act 1882 (18th, Kamal Law House, Calcutta 2004)

30

The Trichinopoly Varthaga Sangam, Limited, by its Secretary A. Arulanandam Pillai v. T.N. Shanmughasundaram [1939] AIR 769 (Mad)