1. This appeal arises out of a final decree passed in a partition suit.
2. The respondents obtained a decree for partition of a house and a gonda as well as zamindari property and tenancy lands against the appellants. The house and the gonda were subject to division by metes and bounds. The appellants applied before the trial Court that it was not convenient to have the actual division of the house by metes and bounds and that the provisions of the Partition Act should be applied. Thereafter the plaintiffs applied that they were prepared to buy the shares of the defendants-appellants under the provisions of Section 3, Partition Act. In reply to this last application, the defendants pleaded that it was impossible to partition the house and they, therefore, prayed for action under Section 2, Partition Act, and it was further prayed that if it was impossible to proceed under the Partition Act then the Court might take action under its inherent powers and award compensation to the plaintiffs for their share or sell the house to such of the parties as offered the highest bid.
3. The trial Court appointed a receiver to make a valuation of the house and thereafter it sold the defendants' share to the plaintiffs at the price fixed by the Court.
4. As regards the gonda the trial Court divided it in accordance with the shares of the parties.
5. The defendants being aggrieved by the order of the trial Court appealed but their appeal was dismissed by the learned Additional Civil Judge of Unnao. They have now come up in second appeal and their learned Counsel contends that this case is governed by Section 3 (2), Partition Act, and that as more than one share-holder had offered to purchase the house, the sale should have been in favour of that shareholder who offered the highest price. A consideration of the provisions of Sections 2 and 3, Partition Act, show that this contention cannot be sustained.
6. Section 3, Sub-section (2), only applies if two or more share-holders severally apply for leave to buy under the provisions of Sub-section (1) of the section. Section 3, Sub-section (1), directs that
If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other share-holder applies for leave to buy at a valuation a share or shares of the party or parties asking: for sale, the Court shall order a valuation of the share or shares in such a manner as it may think fit and offer to sell the same to such share-holder at the price so ascertained and may give all necessary and proper directions in that behalf.
Thus under Section 3, Sub-section (1) the only person who may apply for leave to buy will be any shareholder other than the one who has applied under Section 2 of the Act. In the present case the two applications of the appellants dated 28th March 1942 and the 8th August 1942 clearly indicate that it is they who made an application to take action under the provisions of Section 2, Partition Act. It was, therefore, not open to them to apply for leave to buy under the provisions of Section 3, Sub-section (1), and the request which they made to be permitted to buy must be ignored since it was not a request which the law justified. It was only the plaintiffs-respondents who had applied for leave to buy as provided in Sub-section (1) of Section 3 and it is they alone who were entitled to purchase at the price ascertained by the Court. No question of ascertaining who the highest bidder was, arose. The view which I have taken receives support from kishen kishore v. Sardar Sahib Charan Singh A.I.R. (31) 1944 Lah. 32. In this view of the matter the Courts below have acted rightly in allowing the respondents to purchase the house.
7. With regard to the gonda, as the Courts below pointed out, there was no application for any action to be taken in respect of it under the provisions of the Partition Act. The trial Court was, therefore, bound to divide it in accordance with the shares of the parties and no objection can be taken to its action in having done so.
8. The appeal, therefore, fails and is dismissed with costs.