AIR 2007 KARNATAKA 91 ::2007 (4) ALJ (NOC) 578 (KAR.) = AIR 2007 KARNATAKA 91 ::2007 (4) All LJ NOC 578 ::2007 (4) ALJ 578 ::2007 (3) AJHAR (NOC) 893 (KAR.) = AIR 2007 KARNATAKA 91 ::2007 (3) AJHAR (NOC) 893 (KAR) ::2007 (1) AIR Kar R 516 ::2007 A I H C 1356 ::(2007) ILR (Kant) 339 ::(2007) 4 CivLJ 645

Karnataka High Court

Hon'ble Judge(s): N. Kumar , J

(A) Transfer Of Property Act (4 of 1882) S. 5 — “Transfer” defined — Partition is not ‘transfer’ — Reason being, no conveyance is involved and in partition every one has antecedent title {" 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. 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. (Para 21) "}

(B) Specific Relief Act (47 of 1963) S. 34 — Suit for declaration of ownership — Suit based on partition deed — By virtue of partition deed there is no conveyance of property involved, and partition is not transfer of property — Plaintiff not in possession of properties and does not seek relief of possession — Bare suit for declaration, is not maintainable {" In a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public,....