AI Structured Summary
Not yet generated for this judgment
Judgment
Ramanujam, J.—In proceedings initiated under S. 9(2)(b) of the Tamil Nadu Act 58 of as amended by Act 17 of 1970 (herein after
referred to as the Act) the petitioned holding was proposes to be determined as on 15th February, 1970, date of commencement of the Act, at
that stage, the petitioner wanted that his wife and two minor unmarried daughters should not be taken to be the members of his family, as certain
lands have been transferred to them by him voluntarily on account of natural love and affection under a document, dated 26th September, 1970,
and as such they have to be excluded from the family under. Explanation (2) to S. 3(14), which defines the family. The Authorized Officer rejected
the said objection. Of the petitioner, and after making a local enquiry, determined, the holding of the petitioner a family as 48.06 standard acres as
on 15th February, 1970. As regards the objection taken by the petitioner that the lands transferred in favor of his wife, Neenambikai Ammal and
unmarried daughters Chellamal and Gomathi Ammal should be excluded from the holding of the family, it took the view that notwithstanding the
voluntary transfer said to have been made by the petitioner under the document, dated 26th September, 1970, the transferees have to be taken as
members of the family and the holding of the family should be determined only on that basis. As the document, dated 26th September, 1970 styled
as a partition deed will fall only under clause (a) of S. 21(A) of the Act and not under clause (b) of S. 2(B) and that divided unmarried daughters
and wife cannot be excluded from the family under Explanation 1 to S. 3(14) of the Act. In that view, the Authorized Officer held that the wife and
minor daughters in whose favor the priorities have been given under the document dated 20th September, 1970 cannot be excluded from the
definition of the family. Thus, the Authorized Officer nettled the wife and two minor unmarried daughters in whose favor the said documents have
been executed at member of the family and clubbed the extent transferred to them under the document along with other extents held by the
petitioner and determined the extent of the lands held by the family as 33.35 standard acres. Aggrieved against the decision of the Authorized
Officer refusing to exclude the lands given to his wife and two minor daughters from the holding of the family, the petitioner filed an appeal before
the Land Tribunal. The Land Tribunal also took the view that the document, dated 26th September 1970 can only be treated as a partition deed
and if not so treated, it will fall under clause (a) of S. 21(a), and on that basis, there is no scope for exclusion of wife and children from S. 3(14) of
the Act, which defines the family. In this view, it upheld the decision of the Authorized Officer.
In this revision learned counsel for the petitioner contends that the view taken by the Authorized Officer as well as the Tribunal that the
document can only be treated as a, partition deed, cannot be sustained in law. It is the submission of the learned counsel that the nomenclature
given to a document, cannot be material and decisive and that only the substance of the transaction which is evidenced by the document, should be
taken as the deciding and conclusive factor. It is urged by the learned counsel that though the document is styled as a partition deed, it cannot in
law amount to partition. Firstly, the petitioner is the only sole surviving coparcener and there is no joint family as such, which necessitated a division
of the properties between the members is of the family, secondly, in any event all the properties owned by the petitioner were not taken for division
under the document and that the petitioner has chosen to give sore items of the properties possessed by him to the three persons reentered to in
the document. Even as regards the properties given to the three persons mentioned therein, there is no equal allotment, which will be case if the
document is a partition. The document has; therefore, to he treated only as a voluntary transfer by the petitioner under which some properties had
been given to the wife and daughters and not as a partition deed.
On a due consideration of the matter, I am of the view that the document should be taken to be a voluntary transfer by the petitioner of some of
his land to his wife and two miner unmarried daughters, not without holding the non enclosure given to the document as a partition deed, it is well
established that the non enclosures given to a document is not determinative of the nature of the transaction, covered by the document Its natural as
to be gathered from the content of the document. It may be. In very many cases the parties may. Without proper appreciation of the nature of the
transaction. Give a name to the transaction, which may not be consistent with the true nature of the transaction. In this case, the petitioner who is
the able surviving Coparcener, cannot be said to have effaced a partition with his wife and minor daughters who are admittedly not entitled to claim
any partition in the lands held by the petitioner as such sole coparcener. Apart from this, all the properties of the petitioner have not come up for
division, which would be the case if actual partition is sought to be effected of the properties in the Hans of the petitioner, The operative portion of
the document dots not say that all the properties of the family bad been partitioned. It merely records a transfer of certain properties by the
petitioner to his wife and minor daughters out of love and affection. A transfer on account of love and affection can never be treated as a transfer in
recognition of a right to claim for partition. Therefore, under any circumstances, I am not inclined to treat the document, dated 26th September,
1970 as a partition between the petitioners on the one hand and his wife and minor daughters on the other. I am also not inclined to agree with the
authorities below that since the document is termed as partition deed, it cannot be treated as a voluntary transfer. In fact, the document is nothing
but, a voluntary transfer of the petitioner''s property in favor of his wife and minor daughters on account of love and affection.
Then, the next question is whether as a result of this voluntary transfer, the transferees under the document will go out of the family at defined in
S. 3(14) of the Act. S. 3(14) defines family as the person, the wife or husband as the case may be, of such person and his or her minor sons and
unmarried daughters and minor grandsons and unmarried grand-daughters in the male line whose father or mother is dead. Explanation (1),
however, excludes from the family in these case of persons governed by Hindu Law, minor sons and minor grandsons between whom and the
other members of the family, these has been a registered partition in respect of those family properties, a preliminary decree for partition has been
passed before the notified date. Explanation (2) to the said section says that in the case of persons governed by Hindu Law, unmarried daughters
and unmarried granddaughters in whose favor, any land had been voluntarily transferred by either of whose Parents or grandparents on account of
natural love and affection, cannot come within the definition of the family.
The authorities below take the view that the document in question being a partition deed and a division in respect of unmarried daughters not
being contemplated either by Explanation (1) and Explanation (2) to S. 3(14), the transferees cannot be taken to be outside the definition of the
family. However, now that the document has been taken to be a voluntary transfer by the petitioner in favor of his wife and unmarried daughters
the question is whether by virtue of Explanation (2) they can be considered to be outside the definition of family. Explanation (2) talks of unmarried
daughters and unmarried granddaughters. Therefore, it will not apply to a case of wife in whose favor the land has been voluntarily transferred by
the petitioner. In any event the petitioner''s wife who is one of the transferees under the document in question cannot claim to have been excluded
from the definition of family. Her inclusion in the family cannot, therefore, be questioned. The position of unmarried daughters to whom properties
have been voluntarily given under the document, will be different. They will have to be taken to be covered by the Explanation (2), for; the
explanation specifically says that unmarried daughters in whose favor any land has been voluntarily transferred by their parents have to be taken
outside the purview of the definition. If unmarried daughters are excluded from the definition of family in view of the petitioner''s voluntary transfer
in their favor, in view of Explanation (2) to S. 3(14), the lands transferred to them after the commencement of the Act and before the notified Date,
cannot be clubbed while determining the extent of the lands held by the family. A perusal of S. 21(1) will make it clear. Any voluntary transfer
made by the father in favor of minor daughters will come within its scope. S. 21(A) specifically protects the voluntary transfers of land by a parent
or a grand-parent in favor of unmarried daughters or unmarried granddaughters on account of love and affection, if such transactions take place
between the date of commencement of the Act and the notified date. Therefore, the minor daughters of the petitioner to whom voluntary transfer
has been made under the document will get the benefit of Explanation (2) to S. 3(14) as also S. 21(A) . The wife will not get the benefit of either of
these sections. In this view, the order of the Tribunal in so far as it permits the clubbing of the extents conveyed to the minor daughters by the
petitioner under the document with the petitioner''s holding will be set aside. The civil revision petition is, therefore, party allowed and there will be
no order at to costs.