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PETITIONER: V. N. SARIN

       Vs.

RESPONDENT: MAJOR AJIT KUMAR POPLAI

DATE OF JUDGMENT: 09/08/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  432            1966 SCR  (1) 349

ACT: Delhi  Rent  Control Act, 1958 (Act 59 of 1958),  s.  14(6)- ’Acquisition by transfer’, meaning of-Allotment of share  on partition of Hindu undivided family-Whether transfer  within meaning of section.

HEADNOTE: The  appellant became tennant of premises owned by  a  Hindu undivided family of which respondent No. 2 was the head.  On partition of the family property, the said premises fell  to the share of respondent No. 1. An application was thereafter made  to  the Rent Controller by respondent No. 1  under  s. 14(1)(e) of the Delhi Rent Control Act, 1958, seeking on the ground of personal need, the eviction of the appellant  from the premises.  The appellant resisted the application, inter alia,  on the ground that as respondent No. 1  bad  acquired premises by ’transfer’ within the meaning of s. 14(6) of the Act he was precluded from taking advantage of s. 14 (1 ) (e) of the Act.  After passing through various stages the matter went  to the High Court which held that a share acquired  on partition  of a Hindu undivided family was not an  ’acquisi- tion by transfer’ contemplated by s. 14(6) of the Act.   The appellant came to the Supreme Court by Special Leave. It was contended on behalf of the appellant that under s. 53 of  the  Transfer of Property Act, and s.  17(1)(b)  of  the Indian Registration Act it had been held that partition of a Hindu  undivided family was transfer within the  meaning  of those  sections. and the same construction should be  placed on the word ’transfer’ in s. 14(6) of the Delhi Rent Control Act. HELD : (i) 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 co-parceners  in  respect  of several  items  of  properties allotted  to them respectively.  If that be the true  nature of  partition  it  cannot  be  held  that  partition  of  an undivided  Hindu  family  property  must  necessarily   mean transfer  of  the property to the  individual  co-parceners.

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[354 D-E] Girja  Bai  v. Sadashiv Dhundiraj and-Others, 43  I.A.  151, relied on. (ii)Cases  decided under s. 53 of the Transfer of  Property Act ;and s.    17(1)(b)  of the Indian Registration Act  are not  decisive  of  the  meaning to  be  given  to  the  word ’transfer’  in s. 14(6) of the Delhi Rent Control Act.  [355 D-E] Soniram  Raghushet  &  Others v.  Dwarkabai  Shridharshet  & Another   A.I.R.  1951  Bom.  94;  Naramsetti   Venkatappala Narasimhalu  and  Anr. v. Naratmetti Someswara  Rao,  A.I.R. 1943   Madras  505  and  Gutta  Radhakrishnayya   v.   Gutta Sarasamma, A.I.R. 1951 Madras 213, referred to. (iii)Having  regard to the object of s. 14(6) which  is to prevent landlords from using transfer of leased  premises as a device for obtaining Sup.CI/65-8      350 advantage under s.14(1) (e)it cannot be held that a person who acquired property bypartition can fall within the scope of its provisions even though the property which he acquired by  partition  did  in a sense belong  to  him  before  such transfer.   ’Me  transfer contemplated by s. 14(6) is  to  a person  who had no title to the premises and in  that  sense was  a stranger.  The High Count was right in coming to  the conclusion  that s. 14(6) was not a bar to  the  application filed by respondent No. 1 for the eviction of the appellant. [355 E-H; 356 B] Commissioner  of Income-tax Gujarat v. Lallubhai  Patel.  55 I.T.R,. 657, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 468 of 1965. Appeal  by special leave from the judgment and  order  dated March  1. 1965 of the Punjab High Court at Delhi  in  Second Appeal from Order No. 235/D of 1963. Parushottam Trikamdas and D. Goburdhan, for the appellant. A.   V.  Viswanath  Sastri  and  B.  N.  Kirpal,   for   the respondents. The Judgment of the Court was delivered by 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 s. 14(6)  of the  Delhi  Rent  Control Act, 1958 (Act  No.  59  of  1958) (hereinafter  called  ’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 No. 2, Mr. B. S. Poplai and his two sons,  respondent No. 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  No.  1.  The appellant V. N. Sarin had been inducted into the premises as a  tenant by respondent No. 2 before partition at a  monthly rental of Rs. 80.  After respondent No. 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  No.

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2. The  appellant  contested the claim of respondent No.  1  of three  grounds.  He urged that respondent No. 1 was not  his landlord  inasmuch as he was not aware of the partition  and did                             351 not  know  what it contained.  He also urged  that  even  if respondent  No. 1 was his landlord, he did not  require  the premises bona fide; and so, the requirements of s.  14(1)(e) of  the Act were not satisfied.  The last contention  raised by him was that if respondent No. 1 got the property in suit by  partition,  in  law it meant that he  had  acquired  the premises by transfer within the meaning of s. 14 (6) of  the Act and the provisions of the said section make the  present suit incompetent. The  Rent  Controller  held that respondent No.  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 No. 1 that he needed the premises bona fide as prescribed by s.  14  (1) (e), the Rent Controller rejected  the  case  of respondent No. 1. The point raised by the appellant under s. 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 No. 1 under s. 14(1) (e) however, his application for the appellant’s eviction failed. Against this decision, respondent No. 1 preferred an  appeal to  the  Rent Control Tribunal, Delhi.   The  said  Tribunal agreed  with the Rent Controller in holding that  respondent No.  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 s. 14(1) (e), the  Rent Control Tribunal came to a  different  conclusion. It  held that respondent No.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 No. 1 was allowed and the  eviction of the appellant was ordered. 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 No.  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 s. 14(1)(e).  In fact, these two findings could not be and  were  not challenged before the High  Court  which  was dealing  with  the  matter  in  second  appeal.   The   main contention  which  was raised before the High Court  was  in regard  to the construction of s. 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 No. 1  cannot be said to have acquired 352 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 s. 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 s. 14(6) of the Act. The  Act was passed in 1958 to provide, inter alia, for  the

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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 No.  1 is a landlord of the premises and this  position  has not been and cannot be disputed in the appeal before us. 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 (1) 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 s.  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 No.  1 on this point and this finding also has not been  and cannot be challenged before us. That  takes  us  to  s. 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                             353 acquisition.   It is obvious that if this clause applies  to the  claim  made  by  respondent  No.  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, s. 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. Before construing s. 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 s. 14 (1) (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;  and  the legislature thought that  if  such  a course  was  allowed  to he adopted,  it  would  defeat  the purpose  of  s. 14(1).  In other words, where the  right  to

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evict  a tenant could not be claimed by a landlord under  s. 14 (1) (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 s.  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 s. 14 ( 1 )  (e),  the transferee  would  be preluded 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 s.  14  (1) (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 s. 14  (1) (e)  required  that an unqualified  and  absolute  provision should  be  made as prescribed by s. 14(6).   That,  in  our opinion, appears to be the object intended to be achieved by this provision and the policy underlying it. 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 354 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 Bal v. Sadashiv Dhunadiraj and  Others.(1) "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". 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 s. 53 of the Transfer of Property Act.  It will be  recalled

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that the decision of the question as to whether a  partition under  Hindu Law is a transfer within the meaning of s.  53, naturally depends upon the definition of the word "transfer" prescribed by s. 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 (1)  43 I.A. 151 at p. 161.                             355 himself  and one or more other living persons.  It  must  be conceded that in a number of cases, the High Courts in India have  held that partition amounts to a transfer  within  the meaning  of s. 53, vide, for instance, Soniram  Raghushet  & Others v. Dwarkabai Shridharshet & Another(1), and the cases cited therein.  On the other hand, there are some  decisions which   have   taken  a  contrary  view,   vide   Naramsetti Venkatappala  Narasimhalu and Anr. v.  Naramsetti  Someswara Rao  and  Anr.,  (2 ) and  Gutta  Radhakrishnayya  v.  Gutta Sarasamma(3). In  this connection, Mr. Purshottam has also relied  on  the fact  that under s. 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 s. 17 (1) (b) of  the Registration Act as well as for the purpose of s. 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 s. 14(6) of the Act. 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 s. 14(6).  What  s. 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  s. 14(6) refers.  In  regard  to  cases falling  under  s. 14(6), a person who had no title  to  the premises and in that sense, was a stranger, becomes a  land- lord  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 No. 1,  his father  and  his brother.  After partition, instead  of  the undivided Hindu family, respondent No. 1 (1)  A.I.R. 1951 Bom. 94.                        (2)  A.I.R. 1943 Mad. 505. (3)  A.I.R. 1951 Mad. 213. 356 alone bad 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

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acquisition  of  the said property by transfer by  the  said coparcener within the meaning of s. 14(6).  In our  opinion, the High Court was right in coming to the conclusion that s. 14  (6) did not create a bar against the institution of  the application by respondent No. 1 for evicting the appellant. In  this  connection, we may refer to a recent  decision  of this  Court  in the Commissioner of Income-tax,  Gujarat  v. Keshavlal  Lallubhai Patel.(1) In that case, the  respondent Keshavlal had thrown all himself-acquired property into  the common  hotchpotch  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 s. 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  s.  1 6 (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 s. 14(6) of the Act. In the result, the appeal fails and is dismissed with costs. Before  we part with this appeal, we would like to add  that on  the  appellant undertaking to vacate the  suit  premises within  three  months from the date of  this  decision,  Mr. Sastri for respondent No. 1 has fairly agreed not to execute the decree during the said period. Appeal dismissed. (1) 1965 2 S.C.R. 100. 357