1. This is a plaintiff's appeal in a suit for partition. The subject of partition was a house of which the plaintiff is a transferee of a two thirds share and the defendants of a one third. It has been found concurrently by both the Courts that the house is small and is incapable of partition.
2. The Courts below held that the provisions of Section 3, Partition Act; of 1893, applied and that the defendants were entitled to get the whole house at the valuation arrived at by the Court, the Court of first instance having valued the whole house at Rs. 2,100 and the lower appellate Court at Rs. 1,500. It appears that the plaintiff, who is the appellant before us, offered in the Court of first instance and in the lower appellate Court to buy over the share of the defendants on payment of Rs. 1,700. Mr. P.L. Banerji appearing on behalf of the appellant repeats that offer in Court, but the defendants have not accepted that offer. We have therefore to decide in this case whether the Partition Act applied and whether the statement of the plaintiff in para. 5 of the plaint amounts to a request to the Court that the property be sold under Section 2, Partition Act.
3. Section 2, Partition Act (4 of 1893) provides:
Whenever in a suit for partition it appears to the Court that by reason of the nature of the property a division of the property cannot reasonably or conveniently be made and that a sale of that property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested, to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
4. We have omitted the unnecessary words in this section which do not apply to the case. We are of opinion that in order to see whether any request by a party amounts to a request for sale under Section 2 we must consider the exact request made by the party. In the present case the request made by the plaintiff, who is a two-thirds sharer, is that a sale may be held and that whoever among the co-sharers offers the highest bid may be given the property. It clearly does not contemplate a sale at which any outsider could bid and the plaintiff should have no option at any time whatsoever and under any circumstance whatsoever to retain possession of or buy in the whole property. If such a request is treated as a request under Section 2 it is apparent from Section 3, Partition Act, that if the shareholder of a smaller interest chooses he can ask for leave to buy the property at a Valuation by the Court, and if he does not do so, then the property is to be sold under the provisions of Section 6, Partition Act, when the plaintiff can bid for the property to ensure that a proper price is obtained for the property at the sale. In our opinion the Partition Act must be construed strictly as the provisions of the Act, especially Section 3, exclude the right of the majority shareholder to acquire the property the subject of partition at the option of the minority shareholder. On a reference to para. 5 of the plaint it is clear that there was no unconditional request by the plaintiff to sell the property, and we cannot accept the contention of the other side that when a conditional offer is made by the holder of the majority shares of the property, the plaintiff's request to buy at any valuation can be ignored at the mere will of the minority shareholder. Under these circumstances we are of opinion that the provisions of the Partition Act did not apply to the facts of this case and that this appeal must be allowed. We therefore set aside the decree of the Court below and remand the case to the Court of first instance in order that the Court may proceed to hold the sale of the property among the cosharers, namely the plaintiff and the defendants, and direct that the property should be given to that party who offers to pay the highest price above the valuation made by the Court. The appellant is entitled to the costs of this Court and that of the lower appellate Court. The costs of the Court of first instance will abide the result.