1. This is a second appeal by the original defendant No. 6 in the suit. In order to appreciate the contentions of defendant No. 6 it will be necessary to set out briefly the history of previous litigation pertaining to survey No. 32 in Mharul, taluka Kavir in District Kolhapur.
2. Some time after the year 1900 there was litigation between one Rajopadhye and one Deshpande with regard to this land. Deshpande was helped in this litigation by two persons Govinda Chougule and Santu Mhakavekar. By an agreement made some time in 1909, Deshpande in lieu of the services of Chougule and Mhakavekar agreed to give them southern half share in survey No. 32. The entire survey No. 32 measured 4 acres 14 Qunthas. The half share agreed to be given to Chougule and Mhakavekar measured 2 acres 15 Gunthas and was sub-divided and marked survey No. 32/2. It appears that possession of survey No. 32/2 was also given to these two persons.
3. In 1923 Deshpande appears to have filed against both Govinda Chougule and Santu Mhakavekar, suit No. 215 of 1923 for recovery of possession of survey No. 32/2. The trial Court decreed the suit. The defendants filed in the Kolhapur High Court a first appeal, being First Appeal No. 12 of 1926. On January 22, 1929, the decree of the trial 'Court was reversed, but the Kolhapur High Court held that Govinda Chougule and Santu Mhakavekar had become owners by adverse possession of survey No. 32/2.
4. The system of maintaining record of rights appears to have been introduced in Kolhapur in 1937 and the name of Deshpande appears to have been entered in the record of rights with regard to this property as Kabjedar. This entry continued up to 1947 when Tukaram son of Rau descendent of Govinda Chougule gave a Vardi on August 9, 1947, and in accordance with the Vardi, a five annas one pie's share was entered in the name of Tukaram Chougule and a four annas share was entered in the name of Mhakavekar.
5. On October 13, 1958, the present plaintiffs claiming to succeed to the share of Rau Chougule instituted the present suit for declaration that they are the owners of the suit land, namely, 30 Gunthas to the south of survey No. 32/2 which, according to them, came to five annas one pie's share in the entire survey No. 32/2. The plaintiffs also sued for declaration that they were in possession of this land. The suit -was instituted against defendants Nos 1 to 5 as successors of Govinda Chougule and against defendant No. 6 as successor of Mbakavekar. In the plaint it was claimed that a partition had taken place in 1945 and according to the said partition, a five annas one pie's share measuring 30 Gunthas on the south of survey No. 32/2. came to the share of the plaintiffs. In the alternative the plaintiffs claimed for partition by metes and bounds in accordance with the alleged 1945 partition. Defendants Nos. 1 to 5 filed their written statement exh, 19 and defendant No. 6 filed the written statement exh. 12 contending that no partition had taken place in 1945. Defendant No. 6 also contended that he should get an eight annas share in the property being the successor of one of the co-owners. The learned Civil Judge, Junior Division, Kolhapur dismissed the suit. Thereafter an appeal was filed in the District Court at Kolhapur. The learned Assistant Judge who heard the appeal allowed the appeal, set aside the decree of the trial Court and passed a decree in terms of the judgment, declaring that the plaintiffs had an exclusive title to ownership of the southernmost strip of 30 Gunthas in the land bearing revenue survey No. 32/2 and they were in exclusive possession as such owners. The defendants were restrained by a permanent injunction from interfering with or in any way obstructing the peaceful possession and enjoyment of the said strip of land by the plaintiffs. It is against this decree that the present second appeal has been filed.
6. Before me, Mr. Shrikhande appearing for defendant No. 6 has taken three contentions. Firstly, that there can be no oral partition of property between co-owners and therefore the alleged partition of 1945 is not valid and binding on his client. Secondly, that the District Court has held that the plaintiffs proved that they were allotted the southernmost strip of 30 Gunthas in revenue survey No. 32/2 for their share in a private partition as set up in the plaint and that the said finding was based on inadmissible evidence and apart from such evidence there was no evidence to support it. Mr; Shrikhande thirdly contended that there was a presumption that between co-owners each has an equal share in the property and defendant No. 6 ought therefore to be allotted an eight annas share in the property....
7. The second point argued by Mr, Shrikhande was that a partition of immovable property between joint owners or co-owners can only be done by a document in writing which must under Section 17 of the Indian Registration Act be registered. He therefore contended that the oral partition of 1945 cannot be upheld. He conceded that a partition between members of a joint Hindu family may be made orally, but, according to him, a partition between co-owners who are not members of the family must be in writing. He contended that the partition was after all an exchange of some interest in the whole property for whole interest in a part of the said property and therefore a partition was an exchange within the meaning of Section 118 of the Transfer of Property Act and as required by Section 54 of the Transfer of Property Act, it must be by an instrument in writing.
8. Mr. Shrikhande Contended that a partition was a transfer of property within the meaning of Section 5 of the Transfer of Property Act. Section 5 provides that, in the sections of the Transfer of Property Act which follow Section 5, transfer Of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more living persons and to transfer property is to perform such Act. There appears to be some conflict between decisions of various High Courts in India with regard to the question whether partition is or is not a transfer of property, and consequently whether it is governed by the Transfer of Property Act or not. However, the Bombay High Court has consistently held in the case of Waman v. Ganpat (1985) 37 Bom. L.R. 625 in the case of Kisansing Mohansing v. Vishnu Balkrishna : AIR1951Bom4 , in the case of Soniram Raghushet v. Dwarkabai : AIR1951Bom94 , and in the case of Dayabhai v. State of Bombay (1959) 62 Bom. L.R. 348, that the partition is a transfer within the meaning of Section 5 of the Transfer of Property Act. In view of the fact that our High Court has consistently taken this view, I have no hesitation in coming to the conclusion that a partition is a transfer of property within the meaning of Section 5 of the Transfer of Property Act.
9. That, however, does not conclude the matter. All transfers of property are not required to be made in writing, for Section 9 of the Transfer of Property Act provides that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. Unless, therefore, there is some express provision in the Transfer of Property Act or some other law requiring that a partition must be made in writing-, it would appear that it would be made by oral transfer. The Calcutta High Court has taken a view in the case of Gyannessa v. Mobarakannessa I.L.R. (1897) 25 Cal. 210, that where no writing is required by the Act, the transfer may be made orally and thus a partition of the joint family property may be made orally. My attention has also been drawn to Section 2 of the Transfer of Property Act which provides that nothing contained in the said Act shall be deemed to affect any terms or incidents of any contract or constitution of property which are consistent with the provisions of the Transfer of Property Act and are allowed by the law for the time being in force. In Mulla's Commentary on Transfer of Property Act, 5th edn., at page 0, it is stated that a right of partition is an incident of property held in joint tenancy or tenancy in common which is not affected by the Act by virtue of Section 2(&) of the. Transfer of Property Act and partition may be made orally. In the Calcutta case reported in Gyannessa v. Mobarakannessa referred to above, some of the co-owners possessing an undivided share in several properties took by arrangement a specific property in lieu of their shares in all the properties. It was held that the transaction was not an exchange within the meaning of Section 118 of the Transfer of Property Act. But the completed transaction amounted to a partition which was not required by law to be effected by an instrument in writing. The Allahabad High Court has also held in Ram Kishen v. Sheo Sugar  A.I.R. All. 304, that a private partition could be effected without any written document. It would, therefore, appear that a partition whether of joint family property or between co-owners who are strangers could be made orally.
10. Mr. Shrikhande argued that the partition was an exchange within the meaning of Section 118 of the Transfer of Property Act. Section 118 provides that when two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called an exchange and that a transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale. Section 54 of the Transfer of Property Act provides that a sale or transfer of tangible immovable property of the value of Rs. 100 and upward can be made only by a registered instrument. Mr. Shrikhande, therefore, argued that the partition being an exchange of some interest in the whole property for whole of the interest in a part of the said property was hit by Section 118 read with Section 54 of the Transfer of Property Act. I am afraid, I cannot accept this argument. In order that there should be an exchange, the ownership of one party must be exclusive of the ownership of the other. In case of a partition, each party has some rights in the entire property and he exchanges his right in that part of the property which is given away to his co-owner, for the right of the co-owner in the part allotted to him. Neither of them was in exclusive ownership of any part before the transaction of partition took place. In my opinion, therefore, a partition is not an exchange. This argument of Mr. Shrikhande has also been negatived by the Calcutta High Court in. the ease of Gyannessa v. Mobarakannessa, referred to by me above.
11. I, therefore, hold that a right of partition is an incident of property held in joint tenancy or tenancy in common, -which by virtue of Section 2(b) of the Transfer of Property Act is not affected by the said Act, and partition of such property can by virtue of the said section and Section 9 of the Transfer of Property Act be made orally. This is true not only of partitions between members of joint Hindu families but also of partition between co-owners where property is held in joint tenancy or tenancy in common. The oral partition of 1945 alleged by the plaintiffs in this case and held to have been proved by the District Court is, therefore, valid.
12. [The rest of the judgment is not material to this report].