TaxTMI 
TaxTMI 
1961 (8) TMI 38
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....enants to the other, when a partition has been effected between 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....
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....he charge provided under Section 55(4)(b) of the Transfer of Property Act is the vendor's charge for unpaid 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 prom....
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....lty is, in our view, very similar to the consideration for a release of the kind mentioned above. The co-sharer who accepts the lesser 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 v....
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....appeal to us. Being a liability in a definite sum due from the co-sharer who took excess property to another who was given less than his due on partition, 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 c....
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.... Nair J., and I agree with his conclusion regarding A. S. Nos. 616 of 1958 and 47 of 1959, that they are to be allowed with costs, but on grounds different from those which weighed with my learned 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, F....
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....g it to another without an equivalent, or a sufficient security for it.' The lien for owelty has precedence over prior mortgages and other liens existing against the co-tenant against whom the owelty was awarded." This passage also shows that the provision for owelty 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 pro....
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.... the Calcutta High Court in Shahebzada Mohomed Kazim Shah v. R. S. Hills. SLR 55 Gal 388, which has Been approved by the Supreme Court in the aforesaid judgment of Bhagwati J. In that Calcutta case two sums of Rs. 37,000/- and Rs. 9,500/- had been awarded to the appellants by way of owelty on partition. 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 ran....