TaxTMI 
TaxTMI 
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1961 (8) TMI 38
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....tween them, but the land not being susceptible of division into exactly equal shares, such payment is required to make the portions respectively assigned to them of equal value. 2. (Owelty of services) ............... 3. Owelty of exchange is a sum of money given, when two persons have exchanged lands, by the owner of the less valuable estate to the owner of the more valuable, to equalize the exchange." Ballentirie's ''Law Dictionary" (1948 Edn., page 923) defines : "Owelty of partition, A sum paid or secured, in the case o partition in unequal proportions, by him who has received the larger portion to him who has the less, for the purpose of equalizing the portions; it is pecuniary compensation decreed, by the court in actual partition to adjust an inequality of the shares not justified by the interests of the parties in the, estate. The application of the term is confined to the partition of lands." Freeman in "Co-tenancy and Partition'' describes owelty thus ; "Owelty : When an equal partition cannot be otherwise made, Courts of equity may order that a certain sum be paid by the party to whom the more valuable property has been assigned. The sum thus ....
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....npaid price. But to attract the charge, it is not necessary that the transaction concerned should be a formal sale. In Somu Acbari v. Singara Achari, AIR 1945 Mad 407, Somayya J. had to consider the availability of a vendor's charge for the unpaid consideration of a release. The learned Judge observed : "......the lower Courts have held that the document is only a release and not a sale and that therefore the provisions of Section 55, T. P. Act, are not applicable. I am unable to agree with this conclusion. The document which has been set Out clearly says that in full quit of the executant's right to a share he was to be paid Rs. 150. The definition of the sale contained in Section 54, T. P. Act, is satisfied in this case. Under Section 54, "sale" is a transfer of ownership in exchange for a price paid or promised or part-paid or part-promised. In the present case a sum of Rs. 150 promised to be paid is the price. The price must no doubt be in money and that requirement is satisfied in this case. The answer would have been different if what was promised to the plaintiff under the document was some other property or something which is not money. Here, it is Rs. 150 whic....
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....r properties gives a part of his share to the other co-sharer in consideration of a sum of money which is called 'owelty'. In other words, owelty represents the unpaid price of the excess land taken from one co-sharer and given to another on partition; it is as if a portion of the property that really belonged to B has been assigned to A, and A is made to pay the price therefor to B. B is therefore entitled to a vendor's share for the price remaining unpaid. 5. Strictly speaking, the above-mentioned charge ought to have been on the excess land of which owelty is the price, But, in the deed of partition there will invariably be no indication of the specific property which is the excess taken from one and given to another. Any one property in his share may well be within, but the aggregate of all be above his due share. The allocation may indicate only that the share given to A is in excess of his due share to the extent of so much value, that the share allotted to B is deficient to that extent, and that therefore A has to give to B the value of the excess, so as to equalise the value that each gets on partition. It is as if the excess property has merged in A's shar....
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....rtition, owelty is a debt in the general sense of the term. 7. The word 'debt' is defined in the Kerala Agriculturists Debt Relief Act thus ; "Debt means any liability in cash or kind whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes..........., but does not, include : "1 ....................... .. "(vii) any liability for which a charge is provided under Sub-clause (b) of Clause (4) of Section 55 of the Transfer of Property Act, 1882; ................................ As we have found owelty to be the price of land taken from one co-sharer & allotted to another on a partition', and that the charge for owelty is in substance, a vendor's charge for unpaid price, it is within the exception (vii) in the above definition and is therefore outside the purview of the Kerala Agriculturists Debt Relief Act, 1958. 8. The amounts concerned in A. S. No. 610 of 1958 and A. S. No. 47 of 1959 are owelties awarded to co-sharers for equalising the shares, in a final decree in partition of immovable properties. T....
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....d brother. For the same reasons my conclusion in C. M. A. No. 218 of 1958 is that it also relates to owelties and therefore the pro visions of the Kerala Agriculturists Debt Relief Act have no application to that case either, with the result that the C. M. A. has to be dismissed with, costs. 12. The facts of the cases are not in dispute and therefore I do not propose to recapitulate them, According to me, there are clear and sufficient indications in the judgment of Bhagwati J. in the decision of the Supreme Court in (S) AIR 1957 SC 577 in support of the view I am taking in these cases. J therefore confine my discussions to a consideration of those indications in the judgment of Bhagwati J. 13. The term "owelty'' means equality and it is used in law in several compound phrases, of which 1 am concerned with the expression "owelty of partition". Bhagwati J. in the Supreme Court decision already referred to quotes passages from Story on Equity, Lawrence on Equity Jurisprudence, Freeman's Co-tenancy and Partition and Corpus Juris Secundum. I shall extract only two of those passages, the first being from Corpus Juris Secundum, Vol. 68, Section 15 : "Section 15. Owelty an....
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....is construed as a lien which the co-sharer who is awarded owelty is deemed to acquire on an excessive allotment of property to the other co-sharer and that the lien for owelty has priority over previous mortgages existing against such co-sharer. 15. Now I would advert to another passage in the judgment of Bhagwati J. in paragraph 18, which reads: "The member to whom excessive allotment of property has been made on such partition cannot claim to acquire properties falling to his share irrespective of or discharged from the obligation to pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to the obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share." The same idea is repeated by the learned Judge in paragraph 28 in the following terms : "Even if no express charge was created there-was in equity a lien or a charge created on the properties falling to the share of the third defendant'....
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....tion. At the date of the partition there was a mortgage, executed by some of the sharers, subsisting on a partition of the property, which was the subject-matter of the partition and the learned Judges of the Calcutta High Court held that the provision for owelty had priority over the prior mortgage. The reasoning of the learned Judges appears in the following two passages, which have been extracted with approval in the Supreme Court decision. The passage from the judgment of Maclean C. J. runs. "Then arises the question of priority. To determine that question it becomes necessary to ascertain what was the substituted property which the mortgagor took under the partition.. It is clear that all he took was the house No. 52-2 Park Street, subject to the charges of Rs. 37,000/- and Rs. 9,500/- in favour of the appellants; and it can only be upon that, that the Roy mortgagees can rank as mortgagees, that is upon No. 52-2 Park 'Street subject to the charges created by the decree.'' And the passage from the judgment of Stephen J, is; "It is quite plain that the appellants' claim which is a charge upon the property, constitutes a deduction from the corpus of the prope....