D.K. Kapur, J.
(1) Two applications under the Partition Act, 1893, have led to this Regular First Appeal which has been filed under Section 8 of the Partition Act read with Section 96 of the Code of Civil Procedure.
(2) The facts giving rise to the two applications can first be shortly stated. Shrimati Radha Rani was the plaintiff in a suit for partition in which she claimed half share in the property in question being No. 6-7 ward No. Xi, Matia Mahal, Delhi. The defendants were Shri Faquira and Shri Amrit Lal. By a preliminary decree dated 28th August, 1982, the trial Court held that the plaintiff was entitled to a half share in the property and the defendants were entitled to a one-fourth share each. A Local Commissioner was appointed who found that several persons were in occupation of the property including the plaintiff Shrimati Radha Rani and Shri Amrit Lal. The report was to the e:fect that the property cannot be conveniently partitioned.
(3) Before dealing with the two applications which form the subject- matter of the order under appeal, it is convenient to note an order passed on 28th August, 1981, by the trial court. It is noted therein that a portion of the property is occupied by defendant No. I and Iftikhar Ahmed appears to be in possession of a mezzanine. The Court ordered that the property should be sold by an auction amongst the co-owners only and parties were directed to appear on 4th September, 1981, for giving their bids. This order appears to have been passed without any application or request by the parties.
(4) Then the two applications mentioned above were filed. Defendant No. I stated he may be allowed to buy the share of defendant No. 2 at a valuation to be fixed by the court. The plaintiff also wanted to purchase the share of defendant No. 2. The plainti.f also applied stating that she be given the whole property at a valuation to be fixed by the Court.
(5) Both applications were rejected by the trial court holding that there was no application under Section 2 of the Act and, thereforee, no application could be filed under Section 3. There is little doubt the order of the Court is right in so far as the applications are concerned but, learned counsel for the appellant contends that this does not mean that the Court can on its own direct an auction between the co-owners as was done by the order dated 28th August, 1981, and hence, the necessity of the present appeal.
(6) On hearing the learned counsel, we find that there has been a complete misunderstanding of the procedure to be followed under the Partition Act, 1893, in the particular case Section 2 of the Act is as :
'2Power to Court to order sale instead of Division in partition suits.- Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently made, and that a sale of the 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 individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.'
This section clearly states that the Court can order a sale if one is demanded by the shareholders interested individually or collectively to the extent of hall' the property or more. Thus, the Court can only order a sale if requested to do so by the owners of 50 per cent share in the property or more and cannot order the same on its own. There seems to be a general belief that property subject to a partition suit can be sold even without any such a request, in this connection, it may be recalled that the Partition Act of 1893 was passed only with the object of giving the court power to sell the property, if necessary. The following quotations from the statement of objects and reasons in the Act are self-explanatory :-
'THATsection, however only authorises the Court to divide the property, and in some exceptional cases where an equal division is not practicable to award a money compensation for the purpose of equalising the value of the shares. But as the law now stands, the court must give a share to each of the parties and cannot direct a sale and division of the proceeds in any case whatever. Instances, however, occasionally occur where there are insuperable practical difficulties in the way of making an equal division ........'
Then the statement continues with the following passage :-
'IT is proposed in the present Bill to supply this defect in the law by giving the court, under proper safeguards, a discretionary authority to direct a sale where a partition cannot reasonably be made and a sale would, in the opinion of the Court, be more beneficial for the parties. But, having regard to the strong attachment to prevent any oppressive exercise of this privilege, it is proposed to give such of the shareholders as do not desire a sale the right to buy the others out at a valuation to be determined by the Court'.
These quotations from the statement of object and reasons show that in 1893 at least, every one was aware that the Court had no power to sell property against the wishes of the co-sharers. It was only after the Act was passed that the power to sell came to be exercised by the Court but subject to the specific conditions contained in Section 2.
(7) We are, thereforee, of the view that the order of the Court to direct an auction amongst the co-sharers which was passed without any request by any one was absolutely wrong.
(8) It is well to keep in mind the problems that arise in partition suits which can easily be lost sight of. In some cases, the number of co-owners is not many, as in this case but, in others, there may be many co-sharers with smaller or larger shares. There a possibility that the smaller shareholder who is in occupation of his share can be thrown out and thus rendered homeless by the sale of the property. To guard against this possibility, the Court is given the power to direct a sale only at the instance of the owners of a 50 per cent share or more. Even if such an application is made, the Court refuse to sell the property because Section 2 states that the sale may be ordered when it would be more beneficial for all the shareholders. thereforee, if the court finds that the sale is likely to create hardship and difficulties for the minor shareholder or small shareholder, the Court can decline to make an order of sale. One can visualise situations which commonly arise more often in Mohammaden Law or under Dayabhaga Law was applicable to Hindus, where there are many shareholders who are all in occupation of their portions of a joint property. If a sale takes place, these persons are liable to be displaced and thus rendered homeless. So, the Legislature has guarded their interest by giving the Court the power of refusing a sale. In the present case also, though the share-holders are few, it appears that if the property is sold at a public auction, the co-sharers may be rendered homeless. This is the reason why the appellant opposes the sale. It was stated at the end of the hearing that perhaps all the co-sharers would consent to a sale by a public auction, but we have left this open as per directions at the end of the Judgment.
(9) The real point to be kept in view by the Court is that a suit for partition is meant to give the property to the Co-sharers, i.e., the aim is division of the property and not sale. If the property cannot divided, the parties can if they so desire keep the property intact by becoming tenants-in-common, i.e., they are owners of their respective shares specified in the preliminary decree, but prefer to remain joint in the sense that the property remains with all of them. A sale of the property would mean that they would all have to leave the property and find other places to live which are not very easy in even normal circumstances, and indeed the difficulty has increased rather than decreased at the present moment. We want to indicate that partition is for the convenience of the parties and not for the convenience of the Court and, thereforee, it has to be the option of the parties to select their own method for dealing with a particular property. That is why we have left the choice entirely with the parties in the present case.
(10) Coming back now to the order passed in the present case, it has already been indicated above that the order dismissing the two applications is absolutely correct. The power to sell can only be exercised by the Court under Section 2 of the Act if there is a request for a sale by the owners of 50 per cent share or more. According to the preliminary decree, the plaintiff owns a 50 per cent share, but defendants I and 2 own 25 per cent share each. The application of defendant No. I was not maintainable as he was not owner of a 50 per cent share. Consequently, the application of the plaintiff to buy the property at a valuation was also not maintainable. This latter question could only arise if there was a prior application under Section 2. The learned counsel for. the appellant has not seriously challenged this conclusion. He, however, submits that the property can also not be sold by auction amongst the co-owners unless they all agree
(11) One of the questions raised before us was whether an appeal lay in the present case. We were first of the view that no appeal lay because of the provisions of Section 8 of the Act which are to be following effect :-
'8.Orders for sale to be deemed decree. - Any order for sale made by the Court under Section 2, 3 or 4 shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure. At the hearing of the appeal, it was stated before us that there was no order directing sale under Sections 2, 3 or 4 and thereforee, we initially came to the view that no appeal was competent in this case. On reserving judgment, we found that the Court had ordered a sale without complying with Section 2, 3 and 4 and was, thereforee, selling the property entirely without any authority of law. We, thereforee, directed re-hearing of the appeal. In our view, the Act enables the property to be sold only in accordance with Sections 2, 3 and 4 or by agreement amongst the parties. The Court has no power to sell the property in any other way. If the Court chooses to pass an order for sale contrary to law, it is nevertheless a sale which is illegal and, thereforee, capable of being challenged under Section 8.
(12) The way we have understood the Section (Section 8), is as follows : The court can only pass an order directing sale of the joint property under the provisions of the Partition Act. It had no power to sell the property except as provided in the Act. Whenever the Court passes an order of sale, an appeal lies under Section 8. This section does not mean that the Court has power to sell the property otherwise than in accordance with the Act and no appeal will then be competent. If such an order is passed, it is an invalid order under Sections 2, 3 and 4 of the Act and is, thereforee, capable of being attacked in appeal. We, thereforee, come to the conclusion that this appeal is competent.
(13) As the order directing sale is illegal, the property cannot be sold and the order dated 28th August, 1981, has to be set aside and we allow the appeal to this extent.
(14) At the hearing of this appeal, we asked the parties as to what should be done with the property in view of the absence of an application under Section 2 and, in view of the fact that even under Section 3 no order could be passed without an application under Section 2. Learned counsel for the parties as well as the parties informed us that they were agreeable that the property should be sold by auction. In order that there should be no misunderstanding on this issue, we direct them to apply to the trial Court or, if they want to retain the property as it is, they need not get the same sold. The option is left to the parties in this appeal. The appeal is disposed of accordingly. As we are setting aside an order passed by the Court on its own volition, we leave the parties to bear their own costs.
(15) The parties are directed to appear in the trial court in this appeal on 14-9-1983 for further orders and directions.