Case Summary
| Citation | V.N. Sarin v. Ajit Kumar Poplai AIR 1966 SC 432: (1966) 1 SCR 349 |
| Keywords | sec 5 TPA, transfer of property |
| Facts | A joint family comprised of father and his two sons. The coparcenary property included a bungalow that was partitioned, and each of the coparceners got one-third of it. The portion, that came to one of the sons, A, was in occupation of a tenant, previously inducted into the premises by the father, who was the karta. A filed a suit for eviction against the tenant T, on the ground of bona fide necessity for personal use. The tenant resisted his claim and contended, amongst other grounds, that A had acquired the premises through a transfer. The implication of this contention is, that under s. 14(6) of the Delhi Rent Control Act, 1958, where a landlord/person acquires the tenanted premises by a transfer, no application for the recovery of possession of such premises shall lie on ground of bona fide possession, unless a period of five years has elapsed from the date of acquisition. In other words, if it is held that the property here was acquired by A through a transfer, then he has to wait for a period of five years before he can institute a suit for eviction against him. Thus, the present suit would become premature and would be dismissed. |
| Issues | Whether partition of coparcenary property; or acquisition of property through partition amounts to a ‘transfer’ within the meaning of section 5 of the TP Act? |
| Contentions | |
| Law Points | ➢ The court held that the joint family property is owned, enjoyed and can even be sold by all of them jointly. When the property is partitioned, there is a division of all these rights that they possessed, collectively into individual or specific rights. ➢ The property which he acquired by partition did in a sense belong to him before such transfer. ➢ In a Hindu joint family, the coparceners collectively have the ownership of the coparcenary property. Each coparcener has an antecedent title to the property, but community of interest and unity of possession being the essential features of a coparcenary, all coparceners jointly possess the title to the property, a right to possess and enjoy it and a collective right to alienate it. ➢ After partition, the share of each coparcener is specified and instead of collective rights, they acquire individual rights over the property. Partition, therefore, involves a division of the rights in the property and does not involve any divesting or vesting of rights in favour of or against the owner. |
| Judgement | Court’s view was that the partition of the coparcenary property does not amount to transfer within the meaning of section 5 of the TP Act. |
| Ratio Decidendi & Case Authority | S.5 “Transfer of property” defined—In the following sections “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, and one or more other living persons; and “to transfer property” is to perform such act. [In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.] |
Full Case Details
P.B. GAJENDRAGADKAR, C.J.- The short question of law which arises in this appeal is
whether the partition of the coparcenary property among the coparceners can be said to be “an
acquisition by transfer” within the meaning of Section 14(6) of the Delhi Rent Control Act, 1958 (“the
Act”). This question arises in this way. The premises in question are a part of a bungalow situate at
Racquet Court Road, Civil Lines, Delhi. The bungalow originally belonged to the joint Hindu family
consisting of Respondent 2, Mr B.S. Poplai and his two sons, Respondent 1, Major Ajit Kumar Poplai
and Vinod Kumar Poplai. The three members of this undivided Hindu family partitioned their
coparcenary property on May 17, 1962, and as a result of the said partition, the present premises fell
to the share of Respondent 1. The appellant V.N. Sarin had been inducted into the premises as a tenant
by Respondent 2 before partition at a monthly rental of Rs 80. After Respondent 1 got this property by
partition, he applied to the Rent Controller for the eviction of the appellant on the ground that he
required the premises bona fide for his own residence and that of his wife and children who are
dependent on him. To this application, he impleaded the appellant and Respondent 2.
2. The appellant contested the claim of Respondent 1 on three grounds. He urged that Respondent
1 was not his landlord inasmuch as he was not aware of the partition and did not know what it
contained. He also urged that even if Respondent 1 was his landlord, he did not require the premises
bona fide; and so, the requirements of Section 14(1) (e) of the Act were not satisfied. The last
contention raised by him was that if Respondent 1 got the property in suit by partition, in law it meant
that he had acquired the premises by transfer within the meaning of Section 14(6) of the Act and the
provisos of the said section make the present suit incompetent.
3. The Rent Controller held that Respondent 1 was the exclusive owner of the premises in suit by
virtue of partition. As such, it was found that he was the landlord of the appellant. In regard to the plea
made by Respondent 1 that he needed the premises, bona fide as prescribed by Section 14(l)(e), the
Rent Controller rejected the case of Respondent 1. The point raised by the appellant under Section
14(6) of the Act was not upheld on the ground that acquisition of the suit premises by partition cannot
be said to be acquisition by transfer within the meaning of the said section. As a result of the finding
recorded against Respondent 1 under Section 14(l)(e) however, his application for the appellant’s
eviction failed.
4. Against this decision, Respondent 1 preferred an appeal to the Rent Control Tribunal, Delhi.
The said Tribunal agreed with the Rent Controller in holding that Respondent 1 was the landlord of
the premises in suit and had not acquired the said premises by transfer. In regard to the finding
recorded by the Rent Controller under Section 14(1) (e), the Rent Control Tribunal came to a different
conclusion. It held that Respondent 1 had established his case that he needed the premises bona fide
for his personal use as prescribed by the said provision. In the result, the appeal preferred by
Respondent 1 was allowed and the eviction of the appellant was ordered.
5. This decision was challenged by the appellant by preferring a second appeal before the Punjab
High Court. The High Court upheld the findings recorded by the Rent Control Tribunal on the
question of the status of Respondent 1 as the landlord of the premises and on the plea made by him
that his claim for eviction of the appellant was justified under Section 14(1)(e). In fact, these two
findings could not be and were not challenged before the High Court which was dealing with the
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matter in second appeal. The main contention which was raised before the High Court was in regard
to the construction of Section 14(6); and on this point, the High Court has agreed with the view taken
by the Rent Control Tribunal and has held that Respondent 1 cannot be said to have acquired the
premises in suit by transfer within the meaning of the said section. It is against this decree that the
appellant has come to this Court by special leave. Mr Purshottam for the appellant argues that the
view taken by the High Court about the construction of Section 14(6) is erroneous in law. That is how
the only point which arises for our decision is whether the partition of the coparcenary property
among the coparceners could be said to be an acquisition by transfer under Section 14(6) of the Act.
6. The Act was passed in 1958 to provide, inter alia, for the control of rents and evictions in
certain areas in the Union Territory of Delhi. This Act conforms to the usual pattern adopted by rent
control legislation in this country. Section 2(e) defines a “landlord” as meaning a person who, for the
time being, is receiving or is entitled to receive, the rent of any premises, whether on his own account
or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or
receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the
premises were let to a tenant. It has been found by all the courts below that Respondent 1 is a landlord
of the premises and this position has not been and cannot be disputed in the appeal before us.
7. Section 14(1) of the Act provides for the protection of tenants against eviction. It lays down
that notwithstanding anything to the contrary contained in any other law or contract, no order or
decree for the recovery of possession of any premises shall be made by any court or Controller in
favour of the landlord against a tenant. Having thus provided for general protection of tenants in
respect of eviction, clauses (a) to (l) of the proviso to the said section lay down that the Controller
may, on an application made to him in the prescribed manner, make an order for the recovery of
possession of the premises on one or more of the grounds covered by the said clauses; clause (e) of
Section 14(1) is one of such clauses and it refers to cases where the premises let for residential
purposes are required bona fide by the landlord for occupation as therein described. The Rent Control
Tribunal and the High Court have recorded a finding against the appellant and in favour of
Respondent 1 on this point and this finding also has not been and cannot be challenged before us.
8. That takes us to Section 14(6). It provides that where a landlord has acquired any premises by
transfer, no application for the recovery of possession of such premises shall lie under sub-section (1)
on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed
from the date of the acquisition. It is obvious that if this clause applies to the claim made by
Respondent 1 for evicting the appellant, his application would be barred, because a period of five
years had not elapsed from the date of the acquisition when the present application was made. The
High Court has, however, held that where property originally belonging to an undivided Hindu family
is allotted to the share of one of the coparceners as a result of partition, it cannot be said that the said
property has been acquired by such person by transfer; and so, Section 14(6) cannot be invoked by the
appellant. The question which we have to decide in the present appeal is whether this view of the
High Court is right.
9. Before construing Section 14(6), it may be permissible to enquire what may be the policy
underlying the section and the object intended to be achieved by it. It seems plain that the object
which this provision is intended to achieve is to prevent transfers by landlords as a device to enable
the purchasers to evict the tenants from the premises let out to them. If a landlord was unable to make
out a case for evicting his tenant under Section 14(l)(e), it was not unlikely that he may think of
transferring the premises to a purchaser who would be able to make out such a case on his own behalf;
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and the legislature thought that if such a course was allowed to be adopted, it would defeat the
purpose of Section 14(1). In other words, where the right to evict a tenant could not be claimed by a
landlord under Section 14(l)(e), the legislature thought that the landlord should not be permitted to
create such a right by adopting the device of transferring the premises to a purchaser who may be able
to prove his own individual case under Section 14(1)(e). It is possible that this provision may, in some
cases, work hardship, because if a transfer is made by a landlord who could have proved his case
under Section 14(l)(e), the transferee would be precluded from making a claim for the eviction of the
tenant within five years even though he, in his turn, would also have proved his case under Section
14(l)(e). Apparently the legislature thought that the possible mischief which may be caused to the
tenants by transfers made by landlords to circumvent the provisions of Section l4 (l)(e) required that
an unqualified and absolute provision should be made as prescribed by Section 14(6). That, in our
opinion, appears to be the object intended to be achieved by this provision and the policy underlying
it.
10. Mr Purshottam, however, contends that when an item of property belonging to the undivided
Hindu family is allotted to the share of one of the coparceners on partition, such allotment in
substance amounts to the transfer of the said property to the said person and it is, therefore, an
acquisition of the said property by transfer. Prima facie, it is not easy to accept this contention.
Community of interest and unity of possession are the essential attributes of coparcenary property;
and so, the true effect of partition is that each coparcener gets a specific property in lieu of his
undivided right in respect of the totality of the property of the family. In other words, what happens at
a partition is that in lieu of the property allotted to individual coparceners they, in substance, renounce
their right in respect of the other properties; they get exclusive title to the properties allotted to them
and as a consequence, they renounce their undefined right in respect of the rest of the property. The
process of partition, therefore involves the transfer of joint enjoyment of the properties by all the
coparceners into an enjoyment in severality by them of the respective properties allotted to their
shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that
each coparcener has an antecedent title to the said property, though its extent is not determined until
partition takes place. That being so, partition really means that whereas initially all the coparceners
have subsisting title to the totality of the property of the family jointly, that joint title is by partition
transformed into separate titles of the individual coparceners in respect of several items of properties
allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the
broad contention raised by Mr Purshottam that partition of an undivided Hindu family property must
necessarily mean transfer of the property to the individual coparceners. As was observed by the Privy
Council in Girja Bed v. Sadashiv Dhundiraj [AIR 1916 PC 104 ] “Partition does not give him (a
coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite
and specific form for purposes of disposition independent of the wishes of his former co-sharers.”
11. Mr Purshottam, however, strongly relies on the fact that there is preponderance of judicial
authority in favour of the view that a partition is a transfer for the purpose of Section 53 of the
Transfer of Property Act. It will be recalled that the decision of the question as to whether a partition
under Hindu law is a transfer within the meaning of Section 53, naturally depends upon the definition
of the word “transfer” prescribed by Section 5 of the said Act. Section 5 provides that in the following
sections, “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 other living
persons.
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12. In this connectipn, Mr Purshottam has also relied on the fact that under Section 17(1)(b) of
the Indian Registration Act, a deed of partition is held to be a non-testamentary instrument which
purports to create a right, title or interest in respect of the property covered by it, and his argument is
that if for the purpose of Section 17(1)(b) of the Registration Act as well as for the purpose of Section
53 of the Transfer of Property Act, partition is held to be a transfer of property, there is no reason why
partition should not be held to be an acquisition of property by transfer within the meaning of Section
14(6) of the Act.
13. In dealing with the present appeal, we propose to confine our decision to the narrow question
which arises before us and that relates to the construction of Section 14(6). What Section 14(6)
provides is that the purchaser should acquire the premises by transfer and that necessarily assumes
that the title to the property which the purchaser acquires by transfer did not vest in him prior to such
transfer. Having regard to the object intended to be achieved by this provision, we are not inclined to
hold that a person who acquired property by partition can fall within the scope of its provision even
though the property which he acquired by partition did in a sense belong to him before such transfer.
Where a property belongs to an undivided Hindu family and on partition it falls to the share of one of
the coparceners of the family, there is no doubt a change of the landlord of the said premises, but the
said change is not of the same character as the change which is effected by transfer of premises to
which Section 14(6) refers. In regard to cases falling under Section 14(6), a person who had no title to
the premises and in that sense, was a stranger, becomes a landlord by virtue of the transfer. In regard
to a partition, the position is entirely different. When the appellant was inducted into the premises, the
premises belonged to the undivided Hindu family consisting of Respondent 1, his father and his
brother. After partition, instead of the undivided Hindu family, Respondent 1 alone had become
landlord of the premises, We are satisfied that it would be unreasonable to hold that allotment of one
parcel of property belonging to an undivided Hindu family to an individual coparcener as a result of
partition is an acquisition of the said property by transfer by the said coparcener within the meaning of
Section 14(6). In our opinion, the High Court was right in coming to the conclusion that Section 14(6)
did not create a bar against the institution of the application by Respondent 1 for evicting the
appellant.
14. In this connection, we may refer to a recent decision of this Court in the CIT. v. Keshavlal
Lallubhai Patel [AIR 1965 SC 866]. In that case, the respondent Keshavlal had thrown all his selfacquired property into the common hotch-pot of the Hindu undivided family which consisted of
himself, his wife, a major son and a minor son. Thereafter, an oral partition took place between the
members of the said family and properties were transferred in accordance with it in the names of the
several members. The question which arose for the decision of this Court was whether there was an
indirect transfer of the properties allotted to the wife and minor son in the partition within the meaning
of Section 16(3)(a)(iii) and (iv) of the Indian Income Tax Act, 1922. This Court held that the oral
partition in question was not a transfer in the strict sense and should not, therefore, be said to attract
the provisions of Section 16(3)(a)(iii) and (iv) of the said Act. This decision shows that having regard
to the context of the provision of the Income Tax Act with which the Court was dealing, it was
thought that a partition is not a transfer. Considerations which weighed with the Court in determining
the true effect of partition in the light of the provisions of the said section, apply with equal force to
the interpretation of Section 14(6) of the Act.
15. In the result, the appeal fails and is dismissed with costs.
