Venkatasubba Rao, J.
1. The Courts below have not paid the slightest attention to the sections of the Partition Act which they profess to apply. Section 3 of that Act has always been a source of trouble, but even that fact cannot excuse the total disregard by the Lower Courts of even the other provisions of the Act.
2. The facts may be briefly stated. The joint family to which these appeals relate consists of six members, the father, the 1st defendant and the sons, defendants 2 to 6. The 2nd defendant conveyed his sixth share in some items to the plaintiff in O.S. No. 267 of 1922 for Rs. 200. He similarly sold his interest in certain other items to the plaintiff in O.S. No. 268 of 1922 for Rs. 800. Each alienee has filed a suit claiming his share in the items alienated. In their written statement, the defendants offered to buy the plaintiff's share at a valuation. In each case, the Lower Courts, purporting to apply the Partition Act, have fixed the price of the plaintiff's interest and directed her to receive the amount in lieu of her share in the items conveyed. The plaintiffs question the correctness of this order.
3. I shall first consider the various sections of the Act before examining whether the orders can be sustained. In the first place, there is a broad distinction between Sections 2, 3 and 6, forming a group, on the one hand, and Section 4 on the other. Clause (1) of the last mentioned section runs thus:
Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is: not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
4. It applies to the case of a dwelling-house, a share of which has been transferred to a stranger. Three conditions must be fulfilled before Section 4 comes into operation:
(1) the suit must relate to a dwelling-house of an undivided family,
(2) some share in it must have been transferred to a stranger, and
(3) the stranger transferee must have sued for partition.
5. In the case of the other sections, one of the parties to the dispute may or may not be a stranger. Even if the subject of dispute is a dwelling-house, unless there be a stranger transferee, Section 4 does not apply.
6. Having adverted to this important distinction, I shall now refer to the group consisting of Sections 2, 3 and 6. Section 2 says that if it appears to the Court that for certain reasons, selling the property is more beneficial than dividing it by metes and bounds, the Court, on the request of the 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. Then comes the question, who can claim the benefit of Section 3 It expressly enacts that when the request mentioned in Section 2 proceeds from a certain party, some shareholder other than that party may apply under Section 3. It is difficult to understand why the rule has been so enacted. Mr. Justice Coutts Trotter refers to 'the practical inconvenience, almost the absurdity, of the results' following from such a rule. (See Original Suit No. 750 of 1919 on the file of the High Court.) In Ramprasad v. Mukandi (1929) 116 I.C. 851 (A.) the learned Judges rightly point out that the effect of this section is to favour the smaller shareholder at the expense of the larger. The fact of a person owning a large share is by this section made a disability and he is precluded from offering to buy the interest of the party owning the smaller share. For instance, if A owns nine-tenths and B one-tenth of an item, the section regards A as being a person under disability although if, of the two persons, one should be favoured, A would appear to have a much better claim than B. But strangely, the section enacts quite the contrary. The Courts naturally, whenever possible, strove to avoid this result. For instance, it has been held that an application under Section 3 is too late, if made after the sale has been ordered under Section 2. (See Angamuthu Mudaliar v. Ratna Mudaliar I.L.R. (1925) 48 M. 920 : 49 M.L.J. 411 which reverses the decision of Mr. Justice Coutts Trotter, already referred to.) Again, where a plaintiff owning two-thirds share offered to buy up the share of the defendant on payment of a stated sum, it was held that this was not a request strictly falling within Section 2 and, therefore, the terms of Section 3 did not come into play at all. (Ramprasad v. Mukandi (1929) 116 I.C. 851 (A.) already cited.) What Section 3 contemplates is a request by a party for the sale of the whole property. In the case just cited, the party applied not that the whole property should be sold but that his co-sharer's interest might be sold to him at a valuation. These two cases show how strictly Sections 2 and 3 have been construed. In my opinion, the rulings, with great respect, are perfectly correct. I may remark in passing, that in Angamuthu Mudaliar v. Ratna Mudaliar I.L.R. (1925) 48 M. 920 : 49 M.L.J. 411, the learned Judges overlooked that the order for sale being one by consent, cannot rightly be described as one covered by Section 2. It seems to me, with great deference, that the judgment would have been more correct (though the result would not have been different) had the sale been deemed as one falling entirely outside the Partition Act. In the other case mentioned above, viz., Ramprasad v. Mukandi (1929) 116 I.C. 851 (A.), the learned Judges finding that the application did not conform to the provisions of Section 2, held, as I have just observed (and in my opinion rightly), that the Partition Act did not apply. It is well to bear in mind in this connection that independent of the Partition Act, the Court has an inherent power to refuse to divide a property by metes and bounds and to adopt such other means as may appear equitable for effecting a just partition. (Basanta Kumar v. Moti Lal (1907) 11 I.C. 370 (C).)
7. Then the question arises, if a sale is directed under Section 2 and Section 3 does not apply, what is the position The sale is nevertheless one governed by the Partition Act and Section 6 relates to such a sale. Clause (3) of that section runs thus:
If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder.
8. Incidentally, this shows beyond all doubt that shareholders and strangers alike may bid at the sale (see Angamuthu Mudaliar v. Ratna Mudaliar I.L.R. (1925) 48 M. 920 : 49 M.L.J. 411.)
9. To elucidate the points to which I have referred, I may notice three further cases cited at the bar. In Atul Chandra v. Bhusan Chandra (1926) 44 C.L.J. 47 the plaintiff was the 14 annas sharer and the defendant the 2 annas residue co-sharer. The plaintiff applied that he might be allowed to buy up the defendant's share at a valuation, or, in the alternative, that the property might be sold to the highest bidder and the proceeds distributed. The defendant thereupon asked under Section 3 for leave to buy at a valuation the plaintiff's share. The question arose as to who could apply under the last mentioned section, the plaintiff or the defendant. The Court rightly held, reversing the judgment of the District Judge, that the defendant had the right. But with respect, the decision seems on another point to be wrong. The plaintiff's application was not of the kind contemplated by Section 2 and it should have been held that the Partition Act did not apply to the case. In Jamnadas v. Mulchand (1914) 24 I.C. 273 (Sindh) the plaintiff was interested in two-thirds of the property and applied for a sale under Section 2. It was held (and this is correct) that the right to buy out was vested under Section 3 in the defendant. Having held this, the Court directed the property to be sold but added by way of a rider that the defendant's right was unaffected to apply under Section 3 to buy up the plaintiff's share at a valuation. This is the comment I wish to make on this case. Either the defendant applied before or after the sale was directed under Section 2. If before, he possessed the right, if after, he was too late. But the learned Judge ordered a sale, which course would have been right, had the defendant not applied; but, at the same time, the Judge gave him leave to buy out, which presupposes that he made a valid application. In Mahabir v. Mahadev : AIR1927All686 the plaintiffs owned two-sevenths and the defendants five-sevenths of a certain house. The latter applied under Section 2. The former thereupon made a request under Section 3. The learned Judge, having stated these facts, observes:
It became imperative on the Courts below to follow the procedure enjoined by Section 3, Clause (2), Partition Act.
10. This is intelligible only upon the footing that disputes arose among the plaintiffs inter. se, as otherwise Clause (2) could have no operation. (See Angamuthu Mudaliar v. Ratna Mudaliar I.L.R. (1925) 48 M. 920 : 49 M.L.J. 411, already cited.)
11. Now, let me deal with the facts of the present case. Judged by these principles, the terms of the defendants' request do not fulfil the requirements of Section 2. The Lower Courts ought therefore to have held that the Partition Act does not apply. Let us grant that their request was a valid one. Even then, the Courts below ought not to have given them leave to buy up the plaintiff's share, for the right to buy out (if it did exist) would vest in the latter and not in the defendants. But, as a matter of fact, the plaintiff did not apply under Section 3. Even granting, therefore, that the action of the Lower Courts was otherwise justifiable, the only order they could have made was one under Section 6. Moreover, the Courts below entirely ignored the distinction that exists between the items which form the dwelling-house and the other items in the suit. They applied the same rule to both sets of properties. In every respect, they thus disregarded the provisions of the Partition Act. [His Lordship then gave directions to the Lower Court to prepare a scheme of partition with reference to the several items comprised in the suit.]