1. This is an appeal against an order passed under the Partition Act IV of 1893. The plaintiff, who is the appellant before us, one of the co-parceners of a family consisting of three co-parceners, brought a partition suit for his share. When the decree was passed in that suit we find an order passed by the learned trial Judge by consent of parties that the property in suit, a house, should be sold under the Partition Act unless the Official Referee found it convenient to divide it by metes and bounds. This was a consent order. The Official Referee afterwards found that it was not convenient to divide the house into two halves and give one half share to the plaintiff and the other half to the defendants. It was therefore decided to sell the property under the Partition Act, but in the order made for this purpose, the learned Judge, Coutts Trotter, J., did not make it clear under what section of the Partition Act the sale was to take place. An application was subsequently made by the plaintiff under Section 3 of the Partition Act claiming to buy the property at a valuation fixed by the Court. This was disallowed by Coutts Trotter, J., but, on appeal to the Appellate Court, the late learned Chief Justice Sir Walter Salis Schwabe and Wallace, J., reversed that order and sent the case back to be disposed of according to law. In remanding the case they did not order that action should be taken under Section 3 of the Partition Act but simply directed that the case must be disposed of according to law.
2. It is clear to our minds that Section 3 of the Partition Act cannot be applied after the Court had already directed a sale and in this case the sale was with the consent of all parties. The sale which was directed was a sale under Section 2 of the Partition Act. Section 3 begins by saying, ' If, in any case where the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or the shares of the party or parties asking for a sale, the Court shall order a valuation.' It seems to us, therefore, that the proper time to apply under Section 3 is before a Court makes an order under Section 2, and after the request had been made by one of the parties that the property should be sold. Unless we construe the two sections in this manner there will be much difficulty in applying them. Once a final order is made as between the parties that the property should be sold under Section 2 and that means a sale open to the public when anybody might bid for the property unless it is expressly restricted to be between the parties only no order can be made under Section 3, as it is too late then to apply under that section. Section 3 contemplates that, when the application is made by one of the parties to direct a sale of the property and before the Court makes the order, any other party who is entitled to a share in the property may at once apply for leave to buy at a valuation and when such an application is made, the Court is bound under the section to direct a valuation of the share of the party asking for sale and to find out what its proper value is, and the party who has offered to buy is entitled to buy that share at that valuation. If he fails to do so, his application would be dismissed and he will be made responsible for costs under Clause (3) of Section 3. Clause (2) provides for more than one party applying at the same time for leave to buy as provided in Sub-section (1) of Clause (3). There is no difficulty in construing the section in this manner. We are not able to agree with the construction/put on Section 3 by Courts Trotter, J., where he says that when an application is made for buying by one of the shareholders, any shareholder can ask that the property should be sold to him at the valuation arrived at; if that view is taken, there will be no end of trouble between competing shareholders. It is clear that the shareholder who offers to buy and at whose instance the valuation is made by the Court is the person who is entitled to buy. The words ' such shareholders 'occurring in the latter part of Clause (1) of the section must necessarily mean the shareholder who applied for leave to buy. In this case Section 3 does not apply. The parties have already agreed that the properties should be sold under Section 2 and that consent has not been set aside by any order and is still in force.
3. One further difficulty in applying Section 3 in this case is that it is not shown that the defendant applied for the sale, for it is only then that his share can be valued and dealt with under Section 3. The fact seems to be that both parties were present at the time when the decree was passed and agreed to the sale being ordered and neither party actually made the application for sale. In these circumstances we direct that the property be sold by public auction under Section 2 of the Partition Act'. Both parties will be at liberty to bid and set off their respective shares if they become purchasers. The public will also have a right to bid at the auction.
4. It was argued that the plaintiff should be compelled to adhere to the bid that he made once before to the Official Referee of Rs. 10,000 for this property ; but we think that that cannot be insisted upon, because the bid was made when it was not clear as to what the rights of the parties were.
5. The decree will be modified as above stated and the case, will go back to the Official Referee for disposal in the light of the above observations. The appellant will pay to the respondent half of the taxed costs.