The main legal point established in the judgment is that owelty, as the price of land taken from one co-sharer and allotted to another on partition, is not considered a debt within the purview of the Kerala Agriculturists Debt Relief Act, 1958.

1. These appeals have been referred to a Full Bench because of a common question arising in them viz , whether owelty is a debt within the purview of the Kerala Agriculturists' Debt Relief Act, 1958.

2. "Owelty" is defined in Black's "Law Dictionary" (2nd Edn., page 865) thus: Owelty. Equality. This word is used in law in several compound phrases, as follows:

1. Owelty of partition is a sum of money paid by one of two coparceners or co-tenants to the other, when a partition has been effected between them, but the land not being susceptible of division into exactly equal shares, such payment is required to make the portions respectively assigned to them of equal value.

2. (Owelty of services)

3. Owelty of exchange is a sum of money given, when two persons have exchanged lands, by the owner of the less valuable estate to the owner of the more valuable, to equalize the exchange."

Ballentine's "Law Dictionary" (1948 Edn., page 923) defines:

"Owelty of partition. A sum paid or secured, in the case of partition in unequal proportions, by him who has received the larger portion to him who has the less, for the purpose of equalizing the portions; it is pecuniary compensation decreed by the court in actual partition to adjust an inquality of the shares not justified by the interests of the parties in the estate. The application of the term is confined to the partition of lands."

Freeman in "Co-tenancy and Partition" describes owelty thus:

"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 more valuable property has been assigned. The sum thus directed to be paid to make the partition equal is called 'owelty'. It is a lien on the property 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 above summary by Freeman is quoted with approval and adopted by our Supreme Court in T.S. Swaminatha Odayar v. Official Receiver of West Tanjore (AIR. 1957 S.C. 577). Their Lordships observed further:

"While effecting a partition of joint family properties it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might go to one member and properties of a smaller value to another and therefore there would have to be an adjustment of the values by providing for the payment by the former to the latter by way of equalisation of their shares. This position has been recognised in law and a provision for such payment is termed 'a provision for owelty or equality of partition'

It therefore follows that when an owelty is awarded to a member on partition for equalisation 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."

3. Owelty, therefore, represents the value of the excess of landed property allotted on partition to a co-sharer over his due share, and enures to the person who was given less properties than are due to him on an equal division. In Freeman's words, it is 'the sum directed to be paid to make the partition equal'. It is virtually the price of property 'taken from one and given to another' at partition; as such, in general law, it is always a charge on the share that has the excess. The observation of the Supreme Court in the passage quoted above is also that 'owelty awarded on partition of immovable properties creates a charge on the land taken.'

4. In English law the security given to an unpaid vendor is an equitable lien; in Indian law a charge (See Webb v. Macpherson - 30 I. A. 238). The charge provided under S.55 (4) (b) of the Transfer of Property Act is the vendor's charge for unpaid price. But to att