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TMI Blog1961 (8) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... y of partition, A sum paid or secured, in the case o partition in unequal proportions, by him who has received the larger portion to him who has the less, for the purpose of equalizing the portions; it is pecuniary compensation decreed, by the court in actual partition to adjust an inequality of the shares not justified by the interests of the parties in the, estate. The application of the term is confined to the partition of lands. Freeman in Co-tenancy and Partition'' describes owelty thus ; Owelty : When an equal partition cannot be otherwise made, Courts of equity may order that a certain sum be paid by the party to whom the more valuable property has been assigned. The sum thus directed to be paid to make the partition equal is called 'owelty'. It is a lien on the property on account of which it was granted. The law cannot contemplate the injustice of taking property from one person and giving it to another without an equivalent, or a sufficient security for it. The above summary by Freeman is quoted with approval and adopted by our Supreme Court in Swaminatha Odayar v. Official Receiver of West Tanjore, (S) AIR 1957 SC 577. Their Lordships observed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to agree with this conclusion. The document which has been set Out clearly says that in full quit of the executant's right to a share he was to be paid ₹ 150. The definition of the sale contained in Section 54, T. P. Act, is satisfied in this case. Under Section 54, sale is a transfer of ownership in exchange for a price paid or promised or part-paid or part-promised. In the present case a sum of ₹ 150 promised to be paid is the price. The price must no doubt be in money and that requirement is satisfied in this case. The answer would have been different if what was promised to the plaintiff under the document was some other property or something which is not money. Here, it is ₹ 150 which is the consideration and this part of the definition is therefore satisfied. Then it is said that the, expression used is, release and that a release is a mere relinquishment and does not operate as a transfer. It has been pointed out repeatedly by this Court that what we have to do is to see all the terms of the document and consider whether there is not an intention that what was till then the right of the executant is being conveyed to the person in whose favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining unpaid. 5. Strictly speaking, the above-mentioned charge ought to have been on the excess land of which owelty is the price, But, in the deed of partition there will invariably be no indication of the specific property which is the excess taken from one and given to another. Any one property in his share may well be within, but the aggregate of all be above his due share. The allocation may indicate only that the share given to A is in excess of his due share to the extent of so much value, that the share allotted to B is deficient to that extent, and that therefore A has to give to B the value of the excess, so as to equalise the value that each gets on partition. It is as if the excess property has merged in A's share and become unidentifiable; As the specific property which is the counter-part of owelty is not knowable, a charge thereon is in the nature of things, impossible. The charge for Qwelty is therefore spread over the entire share that comprises the excess property; but that does not, in our opinion, change the basic nature of the charge. Owelty is, therefore, a liability for which a charge as provided in Section 55 (4) (b) of the Transfer of property Act do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .................. .. (vii) any liability for which a charge is provided under Sub-clause (b) of Clause (4) of Section 55 of the Transfer of Property Act, 1882; ................................ As we have found owelty to be the price of land taken from one co-sharer allotted to another on a partition', and that the charge for owelty is in substance, a vendor's charge for unpaid price, it is within the exception (vii) in the above definition and is therefore outside the purview of the Kerala Agriculturists Debt Relief Act, 1958. 8. The amounts concerned in A. S. No. 610 of 1958 and A. S. No. 47 of 1959 are owelties awarded to co-sharers for equalising the shares, in a final decree in partition of immovable properties. The Subordinate Judge has held that owelty is a debt within the purview of Act 31 of 1958. As we have held the eontrarywise, the order impugned in these appeals have to be reversed and the decree-holders held entitled to realise the entire owelties unaffected by the provisions of Sections 4 to 7 of the Act 31 of 1958. 9. Turning to C. M. A. No; 218 of 1958, the debts have arisen in the course of a partition in a joint family. An elephant, that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sufficient indications in the judgment of Bhagwati J. in the decision of the Supreme Court in (S) AIR 1957 SC 577 in support of the view I am taking in these cases. J therefore confine my discussions to a consideration of those indications in the judgment of Bhagwati J. 13. The term owelty'' means equality and it is used in law in several compound phrases, of which 1 am concerned with the expression owelty of partition . Bhagwati J. in the Supreme Court decision already referred to quotes passages from Story on Equity, Lawrence on Equity Jurisprudence, Freeman's Co-tenancy and Partition and Corpus Juris Secundum. I shall extract only two of those passages, the first being from Corpus Juris Secundum, Vol. 68, Section 15 : Section 15. Owelty and Lien therefor. (a) In General (b) Lieng (a) In General. The parties to a voluntary partition may agreo to pay owelty to equalise the shares allotted. Owelty is the difference which is paid or secured by one coparcener or co-tenant to another for the purpose of equalising a partition. The power to award owelty has, from the earlier times, been regarded as necessary to the act of partitioning pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty has been made on such partition cannot claim to acquire properties falling to his share irrespective of or discharged from the obligation to pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to the obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share. The same idea is repeated by the learned Judge in paragraph 28 in the following terms : Even if no express charge was created there-was in equity a lien or a charge created on the properties falling to the share of the third defendant's branch and he did not acquire the properties which fell to his share on such, partition irrespective of or discharged from the obligation to make payment of such sum out of the same'. (underlining (here into ' ' is mine). 16. The aforesaid passages clearly indicate that what the member, to whom a smaller allotment, is made, gets by way of owelty is not the price of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been extracted with approval in the Supreme Court decision. The passage from the judgment of Maclean C. J. runs. Then arises the question of priority. To determine that question it becomes necessary to ascertain what was the substituted property which the mortgagor took under the partition.. It is clear that all he took was the house No. 52-2 Park Street, subject to the charges of ₹ 37,000/- and ₹ 9,500/- in favour of the appellants; and it can only be upon that, that the Roy mortgagees can rank as mortgagees, that is upon No. 52-2 Park 'Street subject to the charges created by the decree.'' And the passage from the judgment of Stephen J, is; It is quite plain that the appellants' claim which is a charge upon the property, constitutes a deduction from the corpus of the property and is not affected by any dealings with the possession of the property on which the decision of file Judge of the Court of the first instance is based.'' These two passages show that the priority for the charge for owelty is not based on the Owelty being the unpaid purchase money for the sale of the excess of allotment to one of the sharers; but it is based o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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