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TMI Blog1950 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 effect-ing 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration Act. A perusal of the present document leaves no doubt in our minds that it creates an interest in prasenti in tbe 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 severa 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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) 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: (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: (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) in Venkataramayya v. Raghava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and when the parties divide it among themselves their action must be considered to refer to the righta 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 : (A. I. R. (23) 1936 Bom. 10), 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) 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 : (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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Mookerjee J. in that case, as indicating, contrary to the opinion expressed by him in Satyakumar Banerjee's 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) and the Bombay case of Waman Ramakrishna 60 Bom. 34 : (A. I. R. (23) 1936 Bom. 10), 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. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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-aharer. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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