1. This second appeal raises a question under Bombay Act II of 1863, and the facts necessary to understand the question are these.
2. Plaintiff Vishwanath and his two brothers Keshav and Krishnaji were members of a joint Hindu family. These three brothers were possessed of considerable property consisting of houses, lands and a grocery shop. They had also an interest in ajaliagir village called Vadner and that interest was that they were to receive a sum of Its. 1,555-5-4 out of the revenues of the village. It appears that in 1938 there was a dispute between them about the division of the ancestral and jointly acquired properties and the dispute was referred to arbitration. The arbitrator made an award and an award decree was passed on October 25, 1937. That decree was registered on January 8, 1938. It appears that the award decree was to some extent modified by a compromise between the parties in suit No. 210 of 1936. After the award decree the two brothers Keshav and Krishnaji made an application to have their names entered in the revenue records and their names were accordingly entered. From that order plaintiff Vishwanath preferred an appeal to the Commissioner, Central Division, and on September 17, 1938, he made an order imposing upon the plaintiff a penalty equal to the amount of the nazrana of both the brothers for his failure to inform the Government of what was said to be a transfer, as required by Section 5, Clause (3), of the Act. The plaintiff preferred an appeal to the Revenue Tribunal, but his appeal was unsuccessful.
3. The plaintiff, therefore, filed the present suit against the Province of Bombay alleging that the order made by the Commissioner on September 17, 1938, was illegal, unjust and ultra vires. He also asked for refund of part of the amount of the penalty already paid by him and for an injunction restraining the defendant from recovering the remaining amount of penalty from him. The Province of Bombay filed a written statement, contending, inter alia, that there was a transfer in favour of the plaintiff's brothers within the meaning of Bombay Act II of 1863, that the plaintiff failed to give notice as required by Section 5, Clause (3), of the Act, and that the Commissioner was competent to make the order.
4. Both the Courts have taken the view that there was a transfer within the meaning of the Act and that the Commissioner's order was, therefore, legal. In accordance with that view the plaintiff's suit has been dismissed. It is from the decision of the appellate Court that the plaintiff has preferred the present appeal.
5. Upon this appeal it is contended that the lower Courts were wrong in holding that there was in this case a transfer within the meaning of Section 16, Clause (G), of Bombay Act II of 1863. In order to understand this contention it is necessary to set forth the material part of the consent decree. It is as follows :..
The whole village of Mouje Vadner Dumala, taluka Nasik is a jahagir village and therein that is to say in the amount of Rs. 2,460, a share of Rs. 1,555-5-4 belongs to the parties, viz. the three brothers, the same being made up of Rs. 1,463-5-4 and Rs. 92 under the mortgage in possession.--------------------Out of Rs. 1,555-5-4 which the said village would yield to them as vasul, Rs. 92 in respect of the jahagir under mortgage should be independently taken by Vishvanath. Plaintiff and defendant No. 2 have no right over the same. The balance of the amount should be equally distributed by the three brothers Vishvanath Ganesh, Keshav Ganesh and Krishnaji Ganesh amongst themselves and arrangements should be made by Vishvanath Ganesh by ordering the village Patil talathi to pay Keshav Ganesh and Krishnaji Ganesh their respective shares by separate (Potebandi).
This part of the decree has been construed to mean an alienation within the meaning of Section 16, Clause (G), of Bombay Act II of 1863. Section 16, Clause (G), runs as follows:-
The word 'transfer' shall, for the purposes of this Act, be taken to mean the permanent alienation of land by assignment, gift, sale, deed or other instrument, or otherwise howsoever, and also mortgage of the same under which possession shall have pased or is to pass to the mortgagee.
6. Now, the provisions under which the plaintiff was required to give notice of the transfer are contained in Section 5, Clause (3), which is as follows :-
It shall also be the duty of the holder of any land made subject under this section to the payment of occasional nazrana instead of to an annual nazrana of one anna in each rupee of the assessment, who shall transfer the same or any part thereof, to give to the Collector or Chief Revenue Officer of the District in which the lands so transferred are situate, notice in writing of such transfer, and of the nature and extent thereof, and of the person or persons to whom the same is made, within one month after such transfer has been made; and, in default of such notice, the person or persons so transferring as aforesaid shall forfeit a sum equal to the amount of the nazrana leviable on the occasion from the person to whom the transfer shall have been made.
7. In the present case the three brothers did not hold the lands as such. But that is immaterial because Section 16, Clause (B), provides :-
The word 'lands' shall for the purposes of this Act, be understood to include villages, portions of villages, shares of the revenues thereof, and landed estate of every description.
8. It is manifest from what has been mentioned above that the three brothers were entitled to the sum of Its. 1,555-5-4 which was the amount of the revenue of the village. It is clear, therefore, that so far as the sum of Rs. 1,555-5-4 is concerned it was the joint property of the three brothers. Now, partition of joint property, according to Mitakshara law, consists in denning the shares of the coparceners in the joint property. In this case the three brothers held the village of Vadner in inanl and the share in the revenue of Rs. 1,555-5-4 belonged to them all. This was before the partition. The effect of partition was that what was previously owned and enjoyed in common was replaced by separate enjoyment of specific shares in the joint property owned separately.
9. On behalf of the Province of Bombay it is argued, relying upon the case in Waman v. Ganpat : (1935)37BOMLR925 , I.L.R. 60 Bom. 34 s. c. that there was in this case a transfer and so Vishwanath was bound to give notice as required by Section 5, Clause (3), of the Act. It is true that it has been held in the above-mentioned ease that a partition by metes and bounds among the co-owners of immoveable property amounts to a 'transfer' within the meaning of that term in Section 53 of the Transfer of Property Act. But we are concerned in this case with the definition of the expression 'transfer' as occurring in Section 16, Clause (G), of Bombay Act II of 1863. The expression 'alienation', according to Stroud's Judicial Dictionary, Vol. I, p. 65, means 'to make a thing another man's.' It will appear from page 143 of Words and Phrases Judicially Defined by Roland and Burrows that alienation implies a transaction by which property is given to another person. In Wharton's Law Lexicon, 14th ed., p. 1006, 'transfer' means 'to convey; to make over to another.'
10. Question, therefore, arises as to whether in this case there was a transfer within the meaning of Section 16, Clause (G), of the Act. It is arguable that in this case what was previously enjoyed in common was replaced by separate enjoyment of specific portions of the joint property and to that extent it is possible to contend that there was a transfer. But to accept the construction contended for on behalf of the Province of Bombay that there was a transfer within the meaning of Section 16, Clause (G), is to hold that the two brothers were conveyed something to which they were not previously entitled. But that is an impossible construction. The two brothers to whom specific portions in the share of the revenue were given were entitled before the partition to the whole of the amount of the revenue as joint property. It cannot be said, therefore, that something was conveyed to the two brothers to which they were not previously entitled. Upon that construction we think, that the construction urged on behalf of the Province of Bombay cannot be accepted.
11. There is also another way of looking at the matter. In so fair as Section 5y Clause (3), enables Government to impose a penalty for failure to give notice of a transfer, the Act is obviously a taxing statute. According to Clause (3), an occasional nazarana has to be levied and it is leviable from the person to whom the transfer is made. Therefore, in case of a transfer what happens is that Government is in the first instance entitled to receive occasional nazarana from the transferees and also to receive a penalty from the transferor for his failure to inform Government of the transfer. In these circumstances, we think that the statute being a. taxing statute, it must be construed strictly and in favour of the subject.
12. It is argued on behalf of the Province of Bombay, relying upon the case in Woman Ramkrishna v. Ganpat Mahadeo, that partition constitutes a transfer. But we are unable to accept the contention. The result is that there was no transfer within the meaning of Section 16, Clause (G), of Bombay Act II of 1863.
13. The appeal will, therefore, be allowed, the decrees of the lower Courts set aside and the plaintiff's claim decreed with costs throughout.