P.T. Raman Nayar, J.
1. This appeal, by the 2nd plaintiff and the 4th defendant in the suit, is against an order of remand passed by the lower appellate court on appeal by defendants 2 and 3 against a direction for sale made by the trial court under Section 2 of the Partition Act, 1893.
2. By the preliminary decree the property in suit, a double-storied house standing in 22 cents of land, has to be divided between six groups of sharers. The 4th defendant, who stands by himself, is entitled to a 681/1008th share of the property, and he made an application for a sale of the property on the score that a division could not reasonably or conveniently be made. Of the several sharers, defendants 2 and 3 alone opposed the application.
Both are individual sharers and while the 2nd defendant is entitled to a 142/1008th share, the 3rd defendant is entitled to a 71/1008th share. It was their contention that the house could be conveniently divided between the several groups, but their alternative prayer that the house should be dismantled and the materials shared between the several shares is a true measure of the faith they themselves reposed in that contention.
In fact, the Commissioner, whose report was considered by the trial court before it made the Order for sale, and who had been directed by that court to effect a division if that was at all possible, made a clear and definite report to the effect that a division was impracticable. The only Contention that was pressed by defendants 2 and 3 before the trial court at the hearing of the application (after making and forthwith, withdrawing an offer to purchase the whole house at the value fixed by the Commissioner) was that If the house: was sold in public auction, the 4th defendant who alone among the sharers Could afford to buy the whole house, would knock it off for a very low price.
The trial court found' that the house could not be conveniently divided; and with regard to the apprehension that the 4th defendant might knock off the house for a small price, it thought that the fixing of a, reasonable amount as the upset pricewould be a sufficient safe-guard. Accordingly it fixed the upset price at Rs. 10,000/-, At the hearing of the appeal it was conceded by counselfor defendants 2 and 3 (who after the preliminary decree had decided to ask for a joint allotment,the better to urge their claim for a portion of the house) that the -house could not be convenientlydivided into six portions.
Nevertheless he pressed for the allotment of portion to his clients, representing more or less their combined 213/1008th share. And, it was forconsidering whether this request could not be granted without causing serious hardship to the remaining sharers that the lower appellate court remanded the matter to the trial court. In effect, the order of the lower appellate court amounts to this thatwhile, if possible, defendants 2 and 3 should be allotted roughly 1/5th of the house, with regard to the remaining 4/5th, the direction for sale willstand. It seems to me apparent that this mustcause serious hardship to the remaining sharers, for, it is obvious that their 4/5th will not fetch a proportionate price.
3. I do not think that the order made by the lower appellate court is warranted by the provisions of the Partition Act. It seems to me that what Section 2 means is that if a property cannot be conveniently divided between all the sharers, then theprocedure laid down in it may be followed ineffecting the partition. It cannot be, as has been argued on behalf of the defendants 2 and 3, that if it is possible to divide the property between 2or more sharers, though not between all the sharers,then the section has no application.
Indeed, counsel for defendants 2 and 3 has gone further and said that if it is possible to allotthe property, or a portion thereof, to even one of the sharers leaving the rest to share the value, thecondition required by the section for a sale would mot be satisfied. I do not think that this can be the true construction of the section, for, if it were, there would be no case to which the section would apply.
I can Scarcely conceive of a case where it is not possible to allot a property or a portion thereof to one of the sharers, and cases in which itcannot be divided between at least two must bevery rare. I have little doubt that the section isattracted in every case where a division of the property between all the share-holders cannot reasonably or conveniently be made and where a sale of the property and distribution of its proceeds would be most beneficial for all the shareholders'.
The section proceeds on the footing that, while the proper way of effecting a partition is to giveeach sharer a portion of the property, where thatis not practicable, the fair course would be to sell the property to the best advantage and divide the proceeds, not to give the property or a portion thereof to some alone of the sharers and let the test be content to share the proceeds. That the division contemplated by the section is a division between all the shareholders is apparent from the fact that it mentions the number of the shareholdersas a circumstance which might render a division impracticable. Surely, the number of shareholderswould be immaterial if a division could be effected between some alone.
(4) My attention has been drawn to Section 9 of the Partition Act and I am told that that section warrants the order made by the lower appellate court. But the scope of that section was considered in Jadu Nath v. Haran Chandra, AIR 1923 Cal 221, a case which is practically on all fours with the present case. This is what the learned Judges said with reference to sections 2 and 9:
'It is plain that this section (Section 2) contemplates a sale of the entire property in suit. No doubt, the section has to be read along with Section 9 which provides that in any suit for partition the court may, if it shall think fit, make a decree for a partition of part of the property to which the suit relates and a sale of the remainder under the Act, The case hereby contemplated is plainly of this description, namely, where there are two parcels, one capable of division, but the other incapable of division. The court is competent to direct a partition of the one parcel and the sale of the other. Section 9, in our opinion dots not support the order made by the Subordinate Judge. What he directed in essence was not a sale of part of the property in suit, but a partition of the property in suit and at sale of one of the allotments obtained after partition. This is not authorised by Section 2 or by Section 9.'
This, namely, a partition of the entire property in suit, an allotment of a portion thereof to defendants 2 and 3, and sale of the rest is precisely: what the order of remand made by the lower appellate court contemplates. And, with great respect, I am in complete agreement with the view taken in the case just referred to, that this is not authorised by Section 2 or by Section 9.
5. I allow the appeal, set aside the order made by the lower appellate court and confirm that of the trial court. The appellants will get their costs throughout from defendants 2 and 3.