1967 (2) TMI 113

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....ents on this matter, and apart from the facts to which we shall presently refer, and which are explicit and clear, the question also involves the interpretation of what amounts to a release in law as distinguished from a conveyance or transfer of property for value; there are one or two leading authorities available on this aspect to which also we shall make a brief reference. 2. In order to have a clear picture of the preceding facts we might immediately take up the settlement deed dated 5-4-1955 which is among the papers and which involves on N.K. Patel & his two sons K.N. Patel (first son) and R.N. Patel (second son). Under this settlement deed, it is recited that there are certain Immovable properties, of which the settlor (N.K. Pate....

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....mittedly, the entire estate was acquired for a much less amount several years earlier, and both the co-owners claim to have spent moneys on the estate, resulting in a considerable enhancement of its value. 4. The question that falls to be decided by us is whether this instrument must necessarily be construed as amounting to a conveyance, and assessed for stamp as such, or could be accepted as a release under Article 55 of Schedule I. It is not in dispute that the nomenclature is not decisive nor the language which the parties may choose to employ, in framing the document. What is decisive is the actual character of the transaction and the precise nature of the rights created by means of the instrument. 5. Of the several authorities th....

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....een co-owners. Finally, the learned Judges held that the document was a release, not liable to be charged either as a deed of dissolution of partnership or as a conveyance. 7. Another very relevant decision is that of the Supreme Court in Kuppuswami Chettiar v. Arumuga Chettiar. C. A. No. 521 of 1964 [1967] 1 SCR 275 , (not report din full text so far) Their Lordships were concerned with the nature of a document of release and they approbated the observations that "a release deed can only feed title but cannot transfer title" and also that renunciation must be in favour of a person who had already title to the estate, the effect of which is only to enlarge the right Their Lordships further proceeded to observe with great s....

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....la's Hindu law. The other line of reasoning is that upon the actual phraseology of Article 55 of Schedule I such a document as this cannot amount to a release. 9. We have carefully examined these arguments and we do not find them to be substantial. No doubt, there is a well understood distinction between tenancy in common and a joint tenancy, and our attention has been drawn to the relevant passage or entry in Jowitt's Dictionary on English law, page 1728. It is pointed out there:-- Tenancy in common differs from joint tenancy, in that joint tenants have one interest in the whole and no interest in any particular part. Tenants in common have several and distinct interest in their respective parts-tenants in common held b....