V. N. Sarin Vs. Major Ajit Kumar
Poplai  INSC 148 (9 August 1965)
09/08/1965 GAJENDRAGADKAR, P.B.
(CJ) GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 432 1966 SCR (1) 349
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.
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 'acquisition 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
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
[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 by partition 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
[355 E-H; 356 B] Commissioner of Income-tax
Gujarat v. Lallubhai Patel. 55 I.T.R,. 657, relied on.
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
A. V. Viswanath Sastri and B. N. Kirpal, for
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. 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 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 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
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 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 cosharers".
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 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 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 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 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
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.
(1) 1965 2 S.C.R. 100.