1. The petitioners in O. P. No. 52 of 1957 of the Court of the Munsif of Tellicherry -- the appellants in A. S. No. 134 of 1959 of the Court of the Subordinate Judge of Tellicherry -- are the petitioners in this Civil Revision Petition. Their prayer, negatived by both the Courts below, was for redelivery of property under Section 5(2) of Madras Act No. 22 of 1956.
2. Sub-section (4) of Section 5 of the Act provides that nothing contained in that section shall affect the rights of any bona fide transferee from the landlord. The sole question for determination in this case is whether a member of a marumakkathayam tarwad obtaining property in family partition can be considered to be a transferee within the meaning of Sub-section (4) of Section 5. It is common ground that if he can be so considered, the decision of the courts below has to be affirmed and that if he cannot be so considered, the decision of the Courts below has to be reversed and this petition allowed.
3.According to Section 5 of the Transfer of Property Act, 1882, 'transfer of properly' means 'an act by which a living person conveys property, in present or in future, to one or more other living persons, or to him-self or to himself and one or more other living persons.' That is a definition which we consider as useful and adequate for the construction of Sub-section (4) of Section 5 of Madras Act No. 22 of 1956.
4.Whether a partition amounts to a transfer or not has been the subject of controversy. One view is that it is; the other, that it is not Mulla states the controversy as follows:
partition has been said to be a surrender of a portion of a joint right in exchange for a similar right of a co-sharer. From this analogy it has been concluded in some cases that a partition amounts to a transfer of property. In some other cases, however, it has been held that a partition Is not an exchange and is not a transfer of property' (Transfer of Property Act, 4th Edition, Page 47).
5. The view that appeals to us is the view embodied in Venkatappala Narasimhalu v. Someswara Rao, AIR 1948 Mad 505. In that case Patanjali Sastri, J. had occasion to deal with the true nature of a partition. The learned Judge said:
'The true nature of a partition is that each co-owner gets a specific property in lieu of his rights in all thejoint 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.' (Head-note).
6. In Radhakrishnayya v. G. Sarasamma, AIR 1951 Mad 213 Subba Rao, J. surveyed the entire case-law on the subject and said:
'The aforesaid discussion of the case-law on the subject brings out two divergent views:
(1) Partition is a conversion of joint enjoyment into enjoyment in severally. The crucial test 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-sharer.
'In our view, the latter view of a partition as a conveyance of a joint right involves an introduction of a fiction and is also contrary to the fundamental conception of partition.
'Partition, therefore, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severally. Each one of the sharers had an antecedent title and therefore no conveyance is Involved in the process as a conferment of a new title is not necessary.'
7. it is true that the preponderance of authority is in favour of a partition being treated as a transfer for the purposes of Section 53 of the Transfer of Property Act, 1882. The correct view, as pointed out by Mulla, should be that a partition is not a transfer, and therefore, not strictly within that section; but that the principle of the section will apply to a fraudulent partition, the object of which is not merely to give a sharer his rightful shares in the family property, but to effect the partition in such a way that such sharer would be able to defeat the creditors (Transfer of Property Act, 4th Edition, Page 257).
8. Mammad Kunhi v. W. N. Ibrayani Haji, 1959 Ker LT 75 : (AIR 1959 Ker 208), held that a partition is not a transfer and Raman Pillai Gopala Pillai v. Madhavan Pillai Aiyyappan Pillai, AIR 1959 Kerala 235, that it is. In the view we take -- that a partition spells not a transfer but a transformation by a process of renunciation -- the former view has to be adopted, and the latter overruled.
9. Counsel for the respondents stated during the course of his submissions that the petition does not attract the revisional jurisdiction of this Court and that it should be dismissed on that ground. This is a contention which has not been raised before the learned Judge who made the reference. We are also not satisfied that it is justified on the facts and circumstances of the ease.
10. In the light of what is stated above we musthold that the partition with which we are concerned didnot spell a transfer, that Sub-section (4) of Section 5 of MadrasAct No. 22 of 1956 is not attracted, that the decisionof the Courts below should be reversed, and that thispetition should be allowed. We do so, though in thecircumstances of the case, without any order as to costs.