A joint family comprised of father and his two sons. The coparcenary property included a bungalow that was partitioned, and each of the coparcener 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 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.
On the other hand, if the mode of acquisition, i.e., the partition does not amount to a transfer within 5 of the TP Act, then the suit would not be premature, and can be decided on merits.
ISSUE
Whether the partition of co-parcenary property among the coparceners under Hindu Law is a transfer within the meaning of S. 53 of the Transfer of Property Act, 1882, and therefore, can it said to be "an acquisition by transfer" within the meaning of s. 14(6) of the Act?
HELD
CJ Gajendragadkar has observed that “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”.
The Supreme Court in that case was considering the provisions of a Rent Control Act, and did not express any opinion on the correctness of certain decisions holding that a partition is a transfer within the meaning of section 53.
Many of the provisions of the TP Act, 1882 may govern partition as embodying rules of justice, equity and good conscience.
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. Thus, partition of joint family property does not amount to a transfer within the meaning of the Act.