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Virbhadra Devaru Gokak Vs. Gajanan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 28 of 1970
Judge
Reported inAIR1972Kant207; AIR1972Mys207
ActsPartition Act, 1893 - Sections 4; Transfer of Property Act - Sections 2 and 123
AppellantVirbhadra Devaru Gokak
RespondentGajanan and anr.
Appellant AdvocateS.L. Benadikar, Adv.
Respondent AdvocateK.I. Bhatta, Adv.
DispositionAppeal dismissed
Excerpt:
.....are required to be satisfied are that a share belonging to an undivided family had been transferred to a person who is not a member of the family and such transferee sues for partition and in such event it is open to the other share-holder to undertake to buy the share of such transferee and make an application for valuation as provided therein. 6. in the result both the contentions raised by the learned advocate for the appellant fail and the appeal therefore fails and the same is dismissed......are inapplicable. it was further contended that in any event as a result of the transfer of the property in favour of the appellant, the property became inalienable and since the property became inalienable it could not be directed to be sold under section 4 of the partition act.3. under the provisions of section 4 of the partition act of 1893 the conditions that are required to be satisfied are that a share belonging to an undivided family had been transferred to a person who is not a member of the family and such transferee sues for partition and in such event it is open to the other share-holder to undertake to buy the share of such transferee and make an application for valuation as provided therein. in mt. gangi v. atma ram, air 1936 lah 291 it has been held that the word.....
Judgment:

H.B. Datar, J.

1. One Venkatesh Anantrao Mutalik Desai appears to have transferred his l/3rd interest in the C. T, Survey Numbers situated at Gokak. Thereafter a suit was filed on behalf of Virabhadra Devaru by its Shebait and Mukhatyar for declaration that he is entitled to l-3rd share of the suit schedule properties and for partition. A decree was passed reserving liberty to the judgment-debtors to make an application under the provisions of the Partition Act. Accordingly, on behalf of the judgment-debtors, an application was filed on 18-7-1966 under the provisions of Section 4 of the Partition Act, offering to purchase l/3rd share of the decree-holder. The learned trial Judge considered that application and granted the same. He ordered that a Commissioner should be appointed to make valuation of the property and permitting the judgment-debtors to purchase the share of the decree-holder in the property. The correctness of this order was challenged before the Civil Judge, Belgaum in Execution Appeal No. 532 of 1967, who, by the Judgment dated 16-12-1969 affirmed the order of the trial court. It is the correctness of these judgments that is challenged in the present execution second appeal.

2. Two submissions are advanced by the learned Advocate appearing for the appellant. The first is that there has been no transfer and since there is no transfer of the rights of the original owner in favour of the plaintiff-decree-holder, the provisions of Section 4 of the Partition Act are inapplicable. It was further contended that in any event as a result of the transfer of the property in favour of the appellant, the property became inalienable and since the property became inalienable it could not be directed to be sold under Section 4 of the Partition Act.

3. Under the provisions of Section 4 of the Partition Act of 1893 the conditions that are required to be satisfied are that a share belonging to an undivided family had been transferred to a person who is not a member of the family and such transferee sues for partition and in such event it is open to the other share-holder to undertake to buy the share of such transferee and make an application for valuation as provided therein. In Mt. Gangi v. Atma Ram, AIR 1936 Lah 291 it has been held that the word 'transfer' is of the very widest import and it is not confined only to a transferee from the judgment-debtor. Similarly in the case of Chintaharan De v. Kadambini Ran : AIR1938Cal171 it has been stated that Section 2 (d) of the T. P. Act does not govern the meaning of the word 'transfer' in Section 4, Partition Act which term includes not only transfers inter vivos but also transfers by operation of law. It is thus clear that the word 'transfer' used in the provisions of the Partition Act has a very wide import- It cannot be disputed and it has been disputed that a trust was' created in the name of Virabhadra deity, and Venkatesh has given all his l/3rd share in the properties in dispute in favour of the Trust. It may be that surrender or transfer of interest in the present case has not been by a registered instrument or it may be that he is not required to execute a registered deed as stated by the learned Author Mulla in Mulla's Hindu Law at page 438. But, whether a document is required to be executed or whether it is to be registered as provided under Section 123 of the Transfer of Property Act are not the questions which are required to be determined. The question is as to whether there has been an assignment or transfer of interest of the previous owner in favour of the Trust. It is clear that there has been a complete assignment of all the rights which the previous owner had in favour of the Trust which he created. So, In my view, it is a transfer within the meaning of the provisions of Section 4 of the Partition Act.

4. Once it is held that it is a transfer, then the question that arose is as to whether the conditions as laid down in Section 4 of the Partition Act have been complied with. In the present case it has been found by both thecourts below that the dwelling house belonged to the family and the transfer of interest was to a person who is not a member of the family of the transferor and the transferee has sued for partition. If all the conditions laid down by the provisions of Section 4 of the Partition Act have been complied with, in my view it was proper to have granted the application.

5. It was however sought to be argued that as a result of the creation of the Trust in the Virabhadra Devaru, the property became an endowed property and was inalienable. It was important to note that it was not contended in either of the courts below that the property was inalienable and therefore the provisions of Section 4 of the Partition Act are not applicable. I am also of the view that as all the conditions laid down in the provisions of Section 4 of the Partition Act have been complied with, the present respondents Judgment debtors will be entitled to an order as provided under Section 4 of the Partition Act. It has not been provided under Section 4 of the said Act that a property which is required to be transferred must be alienable property as what is transferred to the plaintiff was the interest of the person who was the previous owner and that interest could not be transferred but could be repurchased as provided under Section 4 of the said Act-In my view, even assuming that it was inalienable as the right which the decree holder acquired was subject to the provisions of Section 4 of the said Act, there was no bar to pass an order.

6. In the result both the contentions raised by the learned Advocate for the appellant fail and the appeal therefore fails and the same is dismissed. No costs.


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