Document Fragment View

Matching Fragments

" 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 most valuable purpartly has been assigned. The sum thus directed to be paid to make the partition equal is called "owelty". It is a lien on the' purparty on account of which it was granted. "The law cannot contemplate the injustice of taking property from one person and giving 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 cotenant against whom the owelty was awarded."

It is significant to note that this 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. Owelty in general and lien therefor are thus described in Corpus Juris Secundum, Vol. 68, s. 15:"Section 15. Owelty and Lien Therefor

(a) In General.

(b) Liens.

(a) In General.

The parties to a voluntary partition may agree to pay owelty to equalise the shares allotted.

Owelty is the. difference which is paid or secured by one coparcener or co-tenant to another for the purpose of equalizing a partition. The power to award owelty has, from the earlier times, been regarded as necessary to the act of partitioning property; and the parties to a voluntary partition may agree to the payment of owelty in order to equalize the shares allotted; and, where the matter of making the partition is delegated to commissioners, they have the power to award owelty as a necessary incident to the partition.

(b) Liens.

An agreement for owelty in a voluntary partition of land ordinarily creates a lien or charge on the land. An agreement for owelty ordinarily creates a lien or charge on the land taken under the partition, and this lien may exist because of an express agreement between the parties providing for it or it may be implied in the absence of such express agreement."

It therefore follows that when an owelty is awarded to a member on partition for equalization of the shares on an excessive allotment of immovable properties to another member of the joint family such a, provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may be created in express terms by the provisions of the partition decree itself. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf. 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 discharied 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 following passage from Mitra on the Law of Joint Property & Partition in British India, Second Edition, page 414, enunciates the above position:
" You will note that sums directed to be paid for the purpose of equalizing the values of the shares are in legal language called " owelty." The Commissioners have no authority without express authorization by the Court to award this compensation. (See Rule 14, 0. XXVI, C. P. Code). Where in a suit for partition the decree of the Court declares that any sum of money should be paid as owelty by one co-sharer to another the court may direct such sum to be a charge on the share allotted. In such a case should the co-sharer before partition have created any mortgage in respect of his undivided 'interest prior to the partition, the charge for the owelty will have precedence over the mortgage. Shahebzada Mohammed Kazim Shah v. R. S. Hill (1907) I.L.R. Cal. 388."