1. This petition under Section 115, Civil P. C, arises out of an order passed by the learned Subordinate Judge of Sivaganga, directing the sale of two houses under the following circumstances. The suit was filed for partition by alienees who were strangers to the family and after granting a preliminary decree for the division and separate possession of their share, the learned Subordinate Judge found that the houses were incapable of equitable division and must therefore be sold amongst the sharers. The sale was then held, at which the plaintiffs were permitted to bid and the learned Subordinate Judge then directed that in lieu of taking their shares in the property they were to be paid the proportionate share of the highest bid reached for these two items. It is against this order that some of the members of the family have now come up in revision.
2. One of the difficulties in the case is the absence of any accurate information as to whether there were formal applications made under Section 2 or Section 4, Partition Act. On behalf of the plaintiffs Mr. Sesha Ayyangar denies the existence of any such application and defends the procedure of the lower Court on the ground that it had inherent jurisdiction to sell the property in the interests of the share-holders if it is incapable of equitable division. On behalf of the share-holders Mr. Sitarama Rao, while unable to say whether or not there was a formal application under the Partition Act, suggests that in view of the learned Judge's directions for sale of the property there must necessarily have been an. application under Section 4.
3. Let it first be assumed for the purposes of argument that there was an application under Section 4, Partition Act. In that case the procedure adopted by the learned Subordinate Judge was clearly wrong, because Section 4 lays upon the Court the duty of fixing the valuation of the share which the share-holder proposes to buy in. It) must be obvious that by holding an auction of the property, of which the plaintiffs were not to-be allowed to take possession because it was incapable of equitable division, it would be open to the plaintiffs to force up the value to a prohibitive height, safe in the knowledge that they could never be called upon to pay the price and confident that one-sixth of this price would have to be paid to them by the share-holder concerned in hard cash. Under Section 4 it is for the Court to fix the valuation in such manner as it thinks fit and then to order the sale accordingly.
4. Next, let it be assumed for the purposes of argument that there was no application under Section 2 or Section 4 of the Act, then it is clear from the contents of the Commissioner's report that the Court had no jurisdiction to impose a forced sale upon the members of the family. Although the learned Subordinate Judge came to the conclusion on 13th August 1941 in I.A. No. 562 of 1938 that items 3 and 4 were incapable of equitable division, there is the report of the Commissioner dated 21st October 1940 that he had divided the house property into six equal parts, the details of his division being contained in his report accompanied by a detailed plan. The house is therefore capable of physical division, and all that the plaintiffs were entitled to was possession of one share according to lots to be cast. If the members of the family wished to buy out the plaintiffs' share, it was for them to apply under Section 2 or Section 4, Partition Act, and for the learned Subordinate Judge to proceed accordingly.
5. Therefore, viewed from either aspect, it seems clear that the learned Subordinate Judge had No. jurisdiction to hold the sale by auction. If there were an application under Section 4, he should have proceeded in accordance with the directions therein contained; if no application were made, then partition must be made in accordance with the report of the Commissioner and there is no jurisdiction to force a sale upon the other members of the family in respect of the shares which they are entitled to hold.
6. In the result the petition is allowed and the, order of the learned Subordinate Judge is set aside and he is directed to dispose of the petition, afresh in the light of these observations. Each party will bear his own costs.