D.K. Mahajan, J.
(1) This second appeal under section 39 of the Delhi Rent Control Act 1958 (hereinafter referent as the Act) came up for hearing before P. D. Sharma J. on 13th August, 1964. The learned Judge by an order of the same date directed that in view of the general importance of the question involved in the appeal the matter should be decided by a larger Bench. Accordingly the papers were laid before Hon'ble Chief Justice and the matter has been placed before us for decision.
(2) The question that presented some difficulty to the learned Single Judge was whether the partition of the coparcenary property amount the coparceners could be said to be 'an acquisition by transfer' within the meaning of section 14(6) of the Act.
(3) The facts so far a they are relevant for our purposes may now be stated: The premises are part of bungalow situate at Racquet Court Road, Civil Lines Delhi. This bungalow belonged to the joint Hindu family consisting of father (B. S. Poplai) and his two sons (Major Ajit kumar Poplai and Vinod Kumar Poplai). The members of the joint Hindu family partitioned the coparcenary property. The premises in dispute which are under the tenancy of V. N. Sarin appellant fell to the share of Major Ajit Kumar Poplai. Shri V. N. Sarin has been inducted into the premises as a tenant by the father B. S. Poplai before the partition at a monthly rental of Rs. 80/- Ajit Kumar Poplai brought an application for the eviction of the appellant on the ground that he required that premises bona fide for his own residence and that of his wife and two children who are dependent on him. He impleaded his fatter as a second petitioners with him.
The petition was contested by the appellant-tenant on three grounds:--
(1) that major Ajit Kumar Poplai was not his landlord in as much as the tenant was not aware of the partition and, therefore, he could not file the petition;
(2) that even if Ajit Kumar was the landlord he did not bona fide require the premises for his own use or for the use of his family members as he was serving in the Army and was posted at Delhi and the serving in the Army authorities were required to proved residence to the petitioners; and
(3) that in any case the pt having acquired the premises by partition which amounted to transfer of premises to him could not maintain the present petition in view of the provisions of S. 14(6) of the Act within a period of five years of the acquisition of the premises by transfer.
(4) The Rent Controller held that Major Ajit Kumar Poplai was the exclusive owner of the premises in dispute by reason of the partition. It was further held that he was the owner and thus the landlord of the respondent. With regard to the second contention it was held that at the time when the petition was filed that is on 17th May, 1962. Major Ajit Kumar was posted in Jammu and Kashmir. would have been entitled to the possession of the premises by eviction of the tenant for residence of his wife and children. But during the course of the trial of the petition the situation had changed. Major Ajit Kumar was posted to Delhi in October, 1962. He is living with his parents. It is also the responsibility of the military authorities to provide him with accommodation. It as only if he was not given any accommodation that he could evict the tenant from his own property and live there. The petitioners had failed to produce any writing by the military authorities refusing accommodation to him on the ground that he owns a house. The petitioners was offered accommodation in Khyber Pass but he refused to accept it. On this basis it was concluded that the application for eviction of the tenant was mala fide and the landlord had failed to prove that he bona fide required the premises for his residence or for the residence of his family members.
With regard to the third contention it was held that a partition of the premises did not amount to transfer by one co-share of his interest in the property to the others and therefore the provisions of S. 14(6) of the Act did not stand in the way of the petitioners in seeking judgment tenant within a period of five years of the partition. In this connection reliance was placed on the decision of the Madras High Court in Venkatappala Narasimhalu v. Someswra Rao AIR 1948 Mad 505.
(5) Against this decision the petitioners Ajit Kumar went up in appeal to the Rent Control Tribunal, Delhi. The Rent Control Tribunal affirmed the decision of the Rent Controller on the first and the third grounds. He, however, reversed the decision on the second ground and the reasons for the at reversal may better be stated in his own words:--
'It was further urged that Ajit Kumar Poplai is a military officer posted at Delhi and, therefore, he must be provided with accommodation by the military authorities that he was offered accommodation but he refused to accept the same and therefore the application was not made bona fide. In support of this contention the tenant examined Jagdish Rai R. W. 1. Assistant in the office of the Chief Administrative Officer Ministry of Defence, New Delhi who deposed that the petition was offered accommodation on 31st October, 1962, in Khyber Pass but he refused in Khyber Pass but he refused without giving any reason. He also deposed that he could be straight away allotted accommodation in Rama Krishnapuram, but the offer was also refused by him. However in this cross-examination this witness admitted that four suits were available in Khyber Pass which were offered to 24 officers and that the number of Ajit Kumare Poplai appellant was 14th that list that the accommodation was refused by all these officers and therefore it was offered to junior officers. He could not give the names of the officers to whom that accommodation was allotted. He could not state whether any accommodation is likely to fall vacant in Khyber Pass. As regards the accommodation in Ramakrihsan Puram he simply deposed that the offer was made to Ajit Kumar but he did not send reply and it amounted to refusal. However, he admitted that as regards the offered houses the position of Ajit Kumar was 19th on the list and for New Delhi hostel his position was 200th and for the regular accommodation his position was 110th. It is thus clear from the statement of his witness that the refusal of Ajit Kumar was not without any reasons. It appears that the accommodation which was not suitable was offered to him and like other senior officers he refused the same. Moreover, no question was put to Ajit Kumar appellant. No. 1 in his cross examination as to whether any accommodation was offered to him and if so whether he refused the same and on what grounds. Further, his senior officers were also offered that accommodation refusal of that accommodation by Ajit Kumar was immaterial. Consequential the aforesaid contention of the counsel for the respondent is rejected as devoid of force.
Under Clause (e) of the proviso to S. 14(1) of the Delhi Rent Control Act, we have to see the existing accommodation in possession of the landlord and not the accommodation which might be acquired or offered to him for residence. At present he has no and he is entitled to an order for eviction. It is not the duty to military employees posted at Delhi. However, when the accommodation becomes available it is offered to the officers according to rules and they may or may accept the same.'
(6) The tenant who is dissatisfied with the decision of the Rent Control Tribunal has come up in second appeal to this Court under S. 39 of the act. This appeal, as already stated came up before P. D. Sharma J and the learned Judge referred this appeal for decision by a larger Bench for the reasons that have already been stated above. That is how the matter has been placed before us.
(7) It may be stated that so far as the first ground before the Rent Control Tribunal concerned, no arguments have been addressed to us. We have, therefore, proceeded on the basis that the bungalow in dispute of which the premises in dispute formed a part was joint Hindu Family property of the father and two sons. This property was partitioned and the premises in dispute tell to the share of respondent Ajit Kumar Poplai. According to the definition of the landlord in S. 2(e) of the Act it cannot be disputed that the petitioners has become the landlord vis-a-vis the tenant that is the appellant. Therefore, he could maintain the present petition.
(8) With regard to the second ground there is a clear finding by the Rent Control Tribunal that the landlord requires the premises bona fide for his own use and for the use of his family members, who are dependent upon him. This is a finding of fact and is not open to review in second appeal under S, 39 of the Act. Section 39 provides for a second appeal and it only lies if it involves some substantial question of law. No substantial question of law is involved so far as the second ground is concerned. Principally, the matters requiring determination in relation to the second ground are matters of fact. This the leaned counsel for the appellant did not dispute. All that he urged before us was that the finding on the second ground was not based on any evidence. We were taken through the evidence and after going through it were are clearly of the view that there is ample evidence on the record on which the findings of fact arrived at by the Rent Control Tribunal are based. The being so, the attack of the learned counsel to the decision of the Rent Control Tribunal on this part of the case cannot be sustained.
(9) This bring us to the consideration of the principal question on the basis of which the reference to a larger Bench was necessitated. Shortly put the question that requires determination is whether partition of coparcenary property amounts to a transfer or to use the phraseology of S. 14(6) of the act is an acquisition of property by transfer.
(10) The contention of the learned counsel for the appellant is that partition of joint Hindu family property per separate amounts to transfer of property. The only decisions where this question was considered and decision where this question was considered are decisions under the Transfer of Property Act or the Registration Act. There is no direct decision so far as the act is concerned. The decision under the Transfer of Property act are not of much assistance. Section 5 of the Act defines 'transfer' in the following terms:--
'In the following section '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 an one or more other living person; and 'to transfer property' is to perform such act.
Whenever a question arises with reference to any of the provisions of the Transfer of Property Act, the word 'transfer' must be interpreted in the light of its definition of S. 5. This is but a truism. The decisions relied upon by the learned counsel for the appellant are decisions either under S. 36 or S. 35 or S. 53A of the Transfer of Property Act. or the Registration Act which uses a different phraseology. There is no uniformity even in these decision. In some of them, it has been held that partition of coparcenary property does not amount to transfer. but in a majority of such decisions, a contrary view has been taken.
(11) In AIR 1948 Mad 505, Patanjali Sastri J (as he then was), held that 'the true nature of a partition is that each co-owner gets a specific property in lieu of his rights in all the joint properties; that is to say each co-sharer renounces his rights in the other common properties in consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounced their rights. It is thus a renunciation of mutual rights and does not involve any transfer by one co-sharer of his interest in the properties to the others.' the same view was taken in a later decision of the same High Court in Radhakristnayya v. Sarasamma, AIR 1951 Mad 213, Subba Rao J (as he then was) held that:
'Partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and therefore no convenience is involved in the process as a conferment of new title is not necessary. A partition, therefore, is not a transfer within the meaning of S. 53A of the transfer of Property Act.'
To the same effect is the decision of the Oudh High Court in Ramman Singh, v. Dilla Singh AIR 1929 Oudh 334 and the decision of the kerala High Court in W. N. Mammad Kaunhi v. w, N. Ibrayani Haji : AIR1959Ker208 .
(12) The contrary view has been taken in Panchpagesa Ayyar v. Kalyanasundaram Ayyar AIR 1957 Mad 472, in Soniram Raghushet v. Dwarkabai : AIR1951Bom94 . in Sadju Ram v. Prithi Singh & Court. AIR 1936 Lah 220, in Banarsiala v, Shri Bahagwan AIR 1955 Ran 167 and in Raman Pillai v, Madhavan Pillai : AIR1959Ker235 .
(13) In Pachapagesa's case AIR 1957 Mad 472 the question that arose for determination was whether an instrument of partition of immovable properties between coparceners required registration. While disposing of this question it was observed as follows:
'A partition of immovable properties between coparcerners or co-owners is not required to be in writing at all. But it is a mixture of surrender and conveyance of rights in property and is transfer of conveyance of rights in property and is transfer of property within the meaning of Transfer of Property Act. It partly extinguishes a right to the joint property and partly creates a right to it. Consequently, an instrument effecting a partition is compulsorily registrable under Clause (b) of S. 17.'
If a reference is made to S. 17(1)(b) of Registration Act which is in these terms:
'17. (1) The following documents shall be registered if the property of which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No. XIV of 1864 or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) * * * *
(b) other non-testamentary instruments which purport or operate or create, declare, assign, limit or extinguish whether in present or in further, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
* * * * *
it is apparent hat language of this provisions is wide enough to include the instrument of partition irrespective of the fact whether it amounts to transfer or not. Moreover, the learned Judges while deciding the question of registration referred to S. 5 of the Transfer of Property act which defined a 'transfer'. There could be no tow opinions that if the definition of 'transfer' as embodiment in S. 5 o the Transfer of Property act is to be taken into consideration the partition of coparcenary property would be a transfer within the meaning of S. 5. So far as the Act is concerned the words 'acquitting or transfers have not been defined. The question that arises whether we would be justified in importing the definition of 'transfer' as embodied in S. 5 of the Transfer of Property Act while constructing that phrase in S. 14(6) of the Act. Panchpagesa's case AIR 1957 Mad 472 will only be good authority if this course is permissible. The learned Judges of the Madras High Court in the aforesaid case imported the definition of 'transfer' in S. 5 of the Transfer of Property Act, are complementary to one another. The fact how ever remains that decision in the Panchapagesa's case AIR 1957 Mad 472 proceeded on the basis of the definition of 'transfer' as embodied in S. 5 of the Transfer of Property Act.
(14) So far as the decision in Soniram's case : AIR1951Bom94 is concerned Bhagwati J (as he then was), who delivered the judgment of the Court pointed out that the definition of 'transfer of property' contained in S. 5 of the Transfer of Property act is to be taken as the definition of 'transfer of property' for the purposes of determining what is a transfer within the meaning of the term as used in proviso to S. 2 of the Bombay Act. it was in this context that the following observations were made be learned Judge:
'A partition by metes and bound between the members of a joint Hindu Family amounts to transfer within the meaning of S. 5 of the Transfer of Property Act, Hence it is also a transfer within the meaning of S. 2 of proviso of the Bombay Act XVII(17) of 1942.'
Therefore, this authority is of no assistance so far as the present case is concerned.
(15) In Sadhuram's case AIR 1936 Lah 220 which is a Single Bench decision of the Lahore High Court Beckett J merely relied on the two earlier decision of the Madras High Court in Rasa Goundan v, Arunchella Goundan AIR 1923 Mad 577 and in Ramaswami Chettiar v, Kathamuthu Thevar 97 IC 70 (Mad) and observed:
'It seems now to be generally accepted that a partition is a transfer as defined in the Transfer of the Property Act.'
This decision also is of no assistance and is clearly distinguishable because like the decision of the Madras High Court already discussed it proceeds on the basis of the definition of transfer in s. 5 of the Transfer of Property Act.
(16) In Banarsilal's case AIR 1955 Raj 167 the learned Single Judge of the Rajasthan High Court held that the terms 'transfer of property' is wide enough to include a 'partition and the provisions of enough to include a' partition and the provisions of S. 109 of the Transfer of Property Act can be applied to a person who receives the property leased in his share by partition. This case against is analogous to the case of K. Panchapagesa AIR 1957 Mad 472 case this case is clearly distinguishable and is of no assistance.
(17)Raman Pillia's case AIR 1950 Ker 235 a Division Bench of the Kerala High Court took a view that where immovable property has been partitioned amount co-shares by metes and bounds there is an transfer, This decision against preceded on the basis of the definition of 'transfer as embodied in S. 5 of the T. P. Act and for the reasons already stead in Pachappagesa's case AIR 1957 Mad 472 it is clearly distinguishable and to of such assistance. It is also judges to the earlier decision of that Court to the contrary in W. N. Mamad Kunhi's case : AIR1959Ker208 .
(18) It will be apparent from the decisions already discussed that partition has not been held to be transfer of property where the provisions of S. 5 of T. P. Act were not adverted to. But where they were adverted to partition of coparcenary where they were adverted to partition of coparcenary property has been held to be a transfer. The question which then arises is whether we are justified in adverting to the definition of 'transfer of property' in S. 5 of the T. P. Act. The Rent Control Act does not define the word 'transfer'. It does not make the definitions of the Transfer of Property Act applicable to it. It cannot be disputed that S. 5 of the T. P. Act defines 'transfer of property' for the purposes of that special definitions should be taken into account for the purposes of the Rent Control Act. It is significant that the definition was not imported to construe that the word 'transfer' on S. 16(3)(a)(iii) or S. 16(3)(a)(iv) of the Income-tax act 1922. In this connection reference may be made to a recent decision of the Supreme Court in Commissioner of Income-tax Gujrat v. Keshavlal Lallubhai, C. A. No. 1o22 of 1963, D/- 9-11-1964: : 55ITR637(SC) . The question that fell for determination in this case was whether a partition of joint Hindu family property is a transfer in the strict sense. Their Lordships of the Supreme Court held that it was not an for this reliance was placed on Radhakrishtnayya's case AIR 1951 Mad 213 already referred to. Their lordships also relied upon another decision of the Madras High Court in M. K. Stremann v. Commr. of Income-tax Madras : 41ITR297(Mad) and also on the decision of Punjab High Court in Jagan parity of reasoning it must be held that there is no basis to import the definition of the word 'transfer of property' into S. 14(6) of the Act.
(19) Apart form what has been stated above one cannot lose sight of the fact that in coparcenary property each one of the coparceners is an owner of the entire property. By partition he does not acquire any new title to the property but what he gets is a right to enjoy his share of the property in severity. In other words a joint tenancy is put an end to an either a tenancy-in-common is created or the joint tenants have a right in serveralty to enjoy the property that falls to the share of each one of them. There is no question of a transfer of title. The joint owner was the owner of the property before after partition. The change is only brought about in his status. Therefore it cannot be said that in fact there is a transfer of property by partition.
(20) Moreover, even if it be assumed that partition amounts to a transfer the requirements of S. 14(6) are that the property is acquired by transfer and mere transfer will be of no consequence. Therefore, a further question arises whether a joint owner acquires property assuming that partition amounts to a transfer. There is no question of a joint owner acquiring property. He is the owner of the property and it cannot be said that an owner of the property, and it cannot be said that an owner acquires this property for all acquisition supposes some one else from whom the property is acquired and not only that the title after the acquisition he having no title to the property before acquisition. This result does not follow in the case of partition of coparcenary property.
(21) Before parting with this judgment, we may mention another additional reason which has commended itself to use for placing a strict construction on the words 'transfer' in S. 14(6) of the Act. The provisions of S. 14(1)(e) of the act entitle the landlord in case of his bona fide requirement for his residence or for the residence of any member of his family, dependent on him, to recover the possession of the premises from the tenant. This provision clearly indicates that a transfer has to be to person other than the family members of the landlord dependent on him. The statute gives a right to the landlord to get the premises vacated from the tenant landlord for the purposes of the residence of any one of the family members dependent on him. If instead of himself proceeding in the matter, the landlord transfers those premises to the dependent member can it be said that such a transfer would be hit by S. 14(6) of the Act? In our view, S. 14(6) will not stand in the way of such transfer, for only those transfers are hot by S. 14, which offend against the provisions of the Act. In other words, it is only where the premises are transferred to a person for whose benefit land lord could not evict of tenant, the provisions of S. 14(6) will come into play at once. The scheme of the Act fully supports the view we have taken of the matter, so far as this additional consideration is concerned.
(22) After giving our careful consideration to the third ground we are clearly of the view that there is no acquisition by transfer of property by reason of a family partition. Therefore, the Rent Control Tribunal as well as the Rent Controller were right is coming to the conclusion that the provisions of S. 14(6) of the Act did not debar the petitioners-respondent from maintain the petition for eviction the tenant.
(23) For the reasons given above, this appeal fails and is dismissed. There will be no order as to costs. The tenant is given tow month's time to vacate the premises.
S.K. Kapur, J.
(24) I agree.
(25) Appeal dismissed.