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(13) The question, as formulated and referred to by the Division Bench does not require us to consider whether the instrument in question is an instrument of partition between the first party and the second party. Further, the latter question is settled by the following pronouncement of a Full Bench of this Court in Nanjunda Setty v. State of Mysore 1963(2) Mys LJ 75(AIR 1964 Mys 124):--
".......Where the release results in the releaser getting exclusive right to a portion of the common property, what happens in reality is a division of the common property. If, on the other hand, the releaser gets as consideration for the release cash or other property which does not form part of the common property, such a release does not results in any division of the common property, such a release does not result in any division of the common property into exclusive shares. Such would be the case where the releases pays from out of his separate funds the consideration for the release........................"
(33) When a co-owner sells his undivided interest in a common property to another co-owner, there is necessarily a release of the interest of the transferor co-owner But this only means that every transaction of sale between two co-owners, is a transaction of release also just as every transaction of partition between two co-owners is, as explained in Nanjunda Setty's case 1963(2) Mys LJ 75: (AIR 1964 Mys 124 (FB), also a transaction of mutual release.
(34) Every sale may not involve a release. A sale between two persons who had no prior common interest in a property sold, will not involve a release, a generally speaking, a release like a partition, pre-supposes the existence of common interest of the parties to the transaction (Vide Nanjunda Setty's case, 1963(2) Mys LJ 75: (AIR 1964 Mys 124)(FB). But if, the seller and the purchaser have a prior common interest in the property, there a necessarily a release by the seller of his interest in the property.
(35) Similarly every release may not result in a conveyance or sale. A release may relate to a settlement of a doubtful claim. A release may be of a right which is not capable of being transferred in law, like the right to maintenance, or the mere right to sue. A release may be of a debt by the creditor, in which case the debt is not transferred from the creditor to the debtor. A doubt or multiple release accompanied by the acquisition of the full right by such co-owner in the portion of the property allotted to him, may amount to a partition between the co-owner. But where release is by a co-owner of his share in the common property which is legally capable of being transferred, in favour of another co-owner, for a consideration of a sum of money coming outside the common property the transaction amounts to a sale of the undivided share.

(56) The correctness of the decision of the Full Bench of the Madras High Court in (1895) ILR 18 Mad 233 was doubted by this Court in Nanjunda Setty's case 1963(2) Mys LJ 75:(AIR 1964 Mys 124) (FB).This court was inclined to regard the transaction in (1895) ILR 18 Mad 233(FB)as a partition. Nittor Sreenivasa Rao, C.J. who delivered the opinion of the Full Bench of this Court observed that it was difficult to see why the conferment of the life interest itself could not be regarded as an allocation of property since such interest also was property and was cared out of the family property and the other members were deprived of it. His Lordship added "the true principle is whether the transaction results in allotting exclusive shares from the common property and where the release results in the releasor getting exclusive right to a portion of the common property, what happens in reality is, a division of the common property."