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16. The Supreme Court in the case of The Commissioner of Income Tax, Gujarat, v. Keshavlal Lallubhai Patel dealing with the question whether the partition is a transfer, has held that, "it is not".

17. The Supreme Court in the case of V.N. Sarin v. Ajit Kumar Poplai and Anr. , has held that having regard to the basis character of joint Hindu family property, each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively.

18. Again the Supreme Court in the case of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate after reviewing the entire case law on the point has held that Section 5 contemplates transfer of property by a person who has a title in the said property to another person who has no title. A family arrangement, on the contrary, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a "conveyance of property" from a person who has title to it to a person who has no title. However, if a partition of the joint family property takes place by act of parties, it would not be treated as 'transfer' within the meaning of Section 5 of the Act.

20. Therefore, contending that even if the plaintiffs had no subsisting right in the property on the date of partition, when they, along with their father effect partition of the joint family properties purport to be the co-owners, then the said document would come within the definition of an instrument, of partition and the plaintiffs have a right to the property that has fallen to their share.

21. The word "Vibhaga" in Sanskrit, "Bhaga" in Kannada is usually rendered into English by the words "Partition". It denotes adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. It is a process by which the joint enjoyment of a property is transformed into an enjoyment in severalty. It may be by the agreement between the parties or by a decree of the court. However, in either of the cases, the parties to the partition possess an antecedent title in the property and through the process of partition, the antecedent title is specifically defined. Before partition, the property was enjoyed jointly and after partition, they would enjoy the property in severalty. Therefore, in the partition no party gets the title for the first time. In other words, partition does not give title or create title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form, Section 5 of the Transfer of Property Act contemplates transfer of property by a person whose title in the said property, to another person who has no title. In a partition, no one transfers title which he possesses in favour of a person who does not possess a title. Every one has an antecedent title. Therefore, no conveyance is involved, in the process as conferment of a new title is not necessary. It does not amount to transfer. Therefore, partition is not a transfer and by partition no body acquires title to any property for the first time. Consequently the partition deed only recognises an existing right, which each party to the deed has in the joint property and no right spring from the deed of partition.

22. In the light of the admitted facts in this case that the plaintiffs did not have any antecedent title in the suit schedule property, they did not acquire any title under the partition deed for the first time. Their suit, is based on the partition deed. They are seeking declaration that they have become owners of the suit schedule property by virtue of this partition deed. If partition is not a transfer, if partition conveys nothing, the plaintiffs get nothing for the first time under this deed of partition. Therefore, they are not entitled to the relief of declaration sought for.