1. This appeal is from the decree passed by Datta, J., on 15th June, 1966.
2. The appeal raises an important question. The question is whether the learned Judge was right in directing sale of the premises in suit to the parties or co-owners only.
3. The importance is because of certain provisions in the Partition Act 1893 and also of certain decisions of this Court.
4. The premises forming subject-matter of the Suit, 24, Guruprosad Chowdhury Lane, Calcutta are owned by several sharers. The real importance of this matter is whether the Court in directing a sale under Section 2 of the Partition Act 1893 is entitled to order a sale among co-sharers only and not direct a public sale. The provisions contained in the Partition Act and which are material for the purposes of the present appeal are to be found in Sections 2 and 6 of the Partition Act. In Section 2 it is enacted as follows:
'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 the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be 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.'
Section 6 is as follows:
'(1) Every sale under Section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think fit and may be varied from time to time.
(2) On any such sale any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase money or any part thereof instead of paying the same as to the Court may seem reasonable.
(3) 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'.
5. Section 3 (Sub-section 1) of the Partition Act contains provisions that if in any case in which the Court is requested under Section 2 to direct a sale any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, If two or more shareholders severally apply for leave to buy as provided in Sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court. If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incidental to the application or applications. These are the provisions of Section 3 of the Partition Act.
6. There are certain provisions of the English Partition Act of 1868 which may be kept in view in order to appreciate certain differences between the English Partition Act and our Partition Act. To illustrate, Section 3 of the English Partition Act contains a provision to the effect that if it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly and may give all necessary or proper consequential directions. According to the English Act any one of the co-sharers may move the Court and if the Court, in the exercise of its discretion, thinks that a sale is more advantageous than a partition, it may cause a sale to take place. There is no such provision in the Indian Act.
7. The reason why some reference has been made to the provisions of the English Partition Act is because of certain words and phrases which are common to both the Acts and which will be referred to hereinafter.
8. Before the introduction of the Partition Act in India there was no power to direct sale under the Indian Law. That is why the Partition Act was enacted. There are also provisions to enjoin safeguards in regard to preservation of property as also preservation of certain sharers' interest in the property,
9. The learned Judge in the present case did not deliver any judgment but directed sale among co-sharers and the decree is sought to be upheld by the respondents by placing reliance on the Bench decisions in Debendra Nath v. Hari Das, (1911) 15 Cal WN 552, and Mo-hit Krishna v. Pranab Chandra : AIR1930Cal616 and the decision of S, B. Sinha, J., in Pannalal Dutt v. Hrishikesh Dutt, (1950) 86 Cal LJ 144 and the decision of Bachawat, J., in Na-rendranath Das v. Jnanendra Nath Das, (1952) 90 Cal LJ 147. Counsel for the appellant, on the other hand, contended that the decree in the present case cannot be sustained and reliance was placed on the decision of Chakravartti, J., in Rani Bala Bose v. Hirendra Chandra Ghose, (1948) 52 Cal WN 739 and the Bench decision in Nritya Gopal Samanta v. Pran Krishna Dau : AIR1952Cal893 . In Debendra Nath Bhattacharjee's case reported in (1911) 15 Cal WN 552 it was an appeal in a suit which was described in the report as one for partition of joint property, but the true object of the suit was also said to enable the plaintiff-respondent to compel the appellant to transfer his share to them at a valuation. There was a previous suit for partition of the joint properties. All properties were divided except a property which formed the subject matter of the decision in that appeal. That property covered land and buildings. The plaintiffs in that suit asked for a decree for possession of the property and a valuation of the share of the defendant and possession of the share of the defendant upon payment of compensation to the defendant proportionate to his share. It was held that the procedure adopted by the Court below in giving the plaintiffs a decree and directing to pay the defendant one-third of the value of the property could not be supported either on principle or on the authorities. The Bench decision further referred to well-known English decision in Turner v. Morgan, (1803) 8 Ves 143 and expressed the opinion that where the nature of the property was such that a division could not reasonably or conveniently be made the plaintiff did not have any right to claim that the defendant should be compelled to transfer his share to the plaintiff at a valuation. Reference was made to an earlier Bench decision in Basanta Kumar Ghosh v. Moti Lal Ghose which is also reported in the foot-note at page 555 of (1911) 15 Cal WN 555 FN where it was laid down that when it was inconvenient to divide a property that property must be left in the possession of the person in occupation and the other person who could not conveniently get possession should be compensated. Basanta Kumar's case, (1911) 15 Cal WN 555 FN was distinguished on the ground that the person was a stranger to the family. In Debendra's case, (1911) 15 Cal WN 552 it was said that it would be arbitrary and unjustifiable interference with the rights of the owner of the property if one of the parties were compelled to transfer his share to another co-owner. The Bench decision in Debendra's case, (1911) 15 Cal WN 552 expressed the opinion that both the parties agreed that the nature of the property was such that a division among the shareholders could not be reasonably or conveniently made. There is an observation that the proper course to follow is to direct a sale of the property among the co-sharers. This observation is not supported by any authority nor are any reasons assigned for that view. On the contrary, it is stated in the Bench decision that the defendant cannot be compelled to transfer his share at a valuation to the plaintiff and the decisions in Williams v. Games, (1875) 10 Ch A 204 and Pitt v. Jones, (1880) 5 AC 651 are referred to.
10. In (1875) 10 Ch A 204 the plaintiffs who were owners of one seventh of an estate filed a bill praying for partition or sale. The owners of five sevenths opposed sale. Under the English Partition Act any sharer might ask for sale. Owners of a moiety might also ask for sale. Under the English Act unless the parties interested in the property or some of them undertake to purchase the property the Court may direct a sale and if undertaking is given the Court may order a valuation. It was held that there was nothing in the Act to compel a man to sell his share. It was held that under Section 5 of the English Act nothing was to be done except at the request of the person who wanted a sale. A partition decree was ordered. In (1880) 5 AC 651 owners of three sixteenths of a property sought to have sale while owners of thirteen sixteenths objected to a sale. Under the English Partition Act any party could ask for a sale under Section 3 of the English Act. Section 4 of the English Act provided that one half or more of the owners could ask for sale. Section 5 of the English Act enacted that if any opposing party undertook to buy at a valuation the interest of the party proposing the sale the Court would direct such valuation. Malins V. C. ordered valuation under Section 5 of the English Act. The Court of Appeal decided that the case fell under Section 3 of the Act and directed a sale. The House of Lords held that a party asking for sale was not compellable to part with his share on a valuation. Lord Blackburn in (1880) 5 AC 651 made the distinction between a sale by valuation and an open sale and said that a party asking for sale could accept a valuation but could not be compelled to do so. Lord Watson in the same case said that a party asking for sale could retract from accepting a valuation unless it became a judicial contract. These decisions are not authorities for holding a sale confined only to co-sharers.
11. The decision in Pannalal Dutt's case, (1950) 86 Cal LJ 144 was relied on by counsel for the respondent. At page 147 of the report S. B. Sinha, J., said that it is well known that before the passing of the Partition Act the Court had no alternative but to make a decree for partition even though such a decree was ruinous to the party. It is also said there that the Partition Act directed a sale of the property when it appeared to Court that it could not be reasonably or conveniently partitioned. Section 2 of the Partition Act provides that an order for sale can only be made on the request of shareholders interested in a moiety of the property to be partitioned. In Pan-nalal Dutt's case the learned Judge said that the procedure laid down by the Partition Act could not be taken advantage of in that case and there was no jurisdiction to direct a sale of the property and distribution of the proceeds in the absence of a request from shareholders interested individually or collectively to the extent of one moiety in the said property. Reference was made to the decisions in (1911) 15 Cal WN 552 and 52 Cal LJ 68=(AIR 1930 Cal 616) which followed Debendra's case, (1911) 15 Cal WN 552 and it was said that the authorities indicated that apart from and independently of the provision of the Partition Act there was no jurisdiction to order a sale of the properties between the parties. It is manifest that if there was no jurisdiction before the Partition Act to direct a sale of the properties there could not be the inherent jurisdiction of the Court to direct a sale.
12. The decisions which were relied on by Counsel for the respondent in support of the contention were discussed in the Bench decision in : AIR1952Cal893 . The decision in De-bendra Nath Bhattacharjee and the decisions in (1950) 86 Cal LJ 144 as also other cases which were cited at the Bar were reviewed in the Bench decision of : AIR1952Cal893 . Das, J., said, 'The result of the above discussion in my opinion is that there is no current of authority which would establish that in a suit for partition the Court possesses a power to direct a sale apart from the Partition Act. In my opinion, in the absence of clear authority which binds us, it is open to us to come to a conclusion based on the terms of the Act looked at from the historical perspective. In my opinion the effect of the Partition Act cannot be whittled down by drawing upon some undefined and uncertain inherent powers in Court to direct a sale in lieu of partition where the invitation of the parties to the Court is merely to make a partition between the co-sharers inter se. The power of the Court to direct a sale in a suit for partition must be held to be limited to the cases provided for in the Partition Act'.
13. The question which was raised a3 to whether there can be any sale apart from the Partition Act is answered in the negative by the Bench decision in : AIR1952Cal893 . The other question is whether in directing sale the Court can confine it only to co-sharers. Reference to Section 6 of the Partition Act will indicate as to what the character and nature of sale is as contemplated by Section 2 of the Partition Act. In the case of (1948) 52 Cal WN 739 the quesion was whether a sale which was directed in that case was a sale under the Partition Act or not. One of the contentions was that the sale was not a sale under the Partition Act because it was a sale by private treaty and not a sale by public auction as required by Section 6. Dealing with that contention Chakravartti, J., said, 'The other ground is seemingly a more substantial one, for Section 6 of the Act uses the words 'bid' and 'bidding' and does indicate that where the sale is not to co-sharers under Section 3, it must be a sale by public auction.' Counsel for the respondent submitted that this was not the view expressed; but was merely taking notice of arguments. I am unable to read the decision in that manner. Further the provisions contained in Section 6 of the Partition Act and, in particular the provisions that when there would be a bidding and of the two bidders one would be a shareholder certain relief would apply in regard to payment of price by such a shareholder bidder indicate that the sale that is contemplated in Section 2 of the Partition Act is a public sale open to shareholders and outsiders. See Durgamba v. Lakshminara-simhaswamy Rice Factory, AIR 1946 Mad 299.
14. The authorities reviewed in the Bench decision of Nritya Gopal Samanta : AIR1952Cal893 indicate, as has been laid down in that decision, that a sale can be only under the Partition Act. If a sale is only under the Partition Act and if provisions contained in Section 2 are attracted, any co-sharer willing to bid will have opportunities provided by Section 3 of the Partition Act. The reason why a public sale is contemplated in Section 2 is furnished by the language of the section. The words enjoined in Section 2 of the Partition Act are, first that where the Court by reason of the nature of the property or of the number of shareholders or of any other special circumstance finds that a division of the property cannot reasonably or conveniently be made and secondly that a sale of the property and distribution would be more beneficial for all the shareholders the Court has the discretion to order a sale. The words 'more beneficial for all the share-holders' are to be kept in the forefront. It will appear in Halsbury's Laws of England, 1st Edition, Volume 21, paragraph 1579, page 844 that in determining whether a sale is more beneficial than a partition, the Court considers only the pecuniary results disregarding matters of sentiment and has regard to the interest of all parties interested as a whole. The reason why reference has been made to the first Edition of Halsbury's Law of England is because the Partition Act in England has gone out of statutory field and is now replaced by other statutes. The present provisions of the Law of Property Act which are a substitution of some of the provisions of the English Partition Act have been dealt with in Halsbury's Laws of England, Third Edition, Volume 32 and it will appear from paragraph 543 pages 344 and 345 that the words beneficial for all the shareholders are to be judged in terms of pecuniary gain to all the parties interested as a whole.
15. The result, in my opinion, is that if any sale is directed it has to be a sale first, in accordance with the provisions of the Partition Act and secondly, if a sale is directed under Section 2 of the Partition Act it has to be a sale by public auction. A sale confined only to co-sharers is not warranted by the provisions of the Partition Act.
16. For all these reasons I am of opinion that the decree cannot be sustained in the form of directing sale only among co-sharers. I agree with my Lord as to the form of the Order.
S.K. Mukherjea, J.
17. The question which has to be decided in this appeal is whether in a partition suit, the Court has power, except by consent, to direct sale of the property among the co-sharers only. It is not in dispute that the parties, as also the Court, have found that it will be inconvenient to divide the property. The parties have, therefore, asked the Court to order a sale. On June 15, 1966 Mr. Justice S. K. Datta passed a preliminary decree by which the property was directed to be sold by private treaty to the best purchaser or purchasers confining the sale to the members of the families of the parties. The defendant No. 1 has come in appeal.
18. The appellant contends that the learned Judge had no power or jurisdiction to direct a sale among the co-sharers and the order ought to have been for a public sale. Some of the respondents claim that the order was made under Section 2 of the Partition Act 1893 or in the alternative, under the inherent power of Court to direct such a sale,
19. In order to dispose of the appellant's objections, it will be necessary togo to the source of the Court's power to order a sale in a partition suit and ascertain the limits of the power. It is common knowledge that English principles of law and equity have largely governed partition in this country and the Partition Act 1893 was inspired by the English Partition Act of 1868, Therefore, it will not be out of place to indicate briefly the legal position in England with regard to the power of Court to direct sale in a partition suit.
20. Before the Partition Act 1868, Courts of Common Law could only direct a mere partition or allotment of lands and other real properties between the parties, according to their respective shares having regard to the value of the properties. The Courts of Equity could, however, with a view to a more convenient and just partition, order payment of compensation to one of the parties for owelty or equality of partition, so as to prevent any injustice or avoidable inequality. (Story on Equity Jurisprudence, 3rd Edn. Article 654).
21. In England, before the Partition Act of 1868 came into force, the Court had no power at common law to direct a sale in lieu of partition even in cases where partition in specie was highly inconvenient and largely affected the value of the property. A classic example is provided by the case of (1803) 8 Ves 143, 11 Ves 157 where a decree was passed for partition of a house among three persons. The Commissioner allotted to the plaintiff the entire stock of chimneys, all the fire places, the only staircase in the house and all the conveniences in the yard. On appeal, Lord Eldon, the Lord Chancellor, in overruling the objections, said that 'he did not know how to make a better partition for the parties; that he granted the commission with great reluctance; but was bound by authority; and it must be a strong case to induce the Court to interpose; as the parties ought to agree to buy and sell.'
22. By the Partition Act 1868, jurisdiction was conferred on the Court to order a sale, if any party, however, small his interest might be, made a request for a sale and it appeared to the Court that it would be more beneficial for the parties to direct a sale by reason of the number of parties interested or of the nature of the property or by reason of absence or disability of some of the parties or any other circumstances. Moreover, the party or parties individually or collectively interested to the extent of a moiety or upwards in the property could force a sale by a request to the Court to direct a sale instead of a division of the property and a sale and distribution of the proceeds was to be ordered unless the Court saw good reason to the contrary. By an Amendment made in 1876, it was provided that an action for partition was to include action for sale and distribution of proceeds. The Partition Acts of 1868 and 1876 have been repealed and partition in default of agreement is now governed by the Law of Property Act, 1925.
23. In India, the legal position appears to have been the same as in England. The Court had no power whatsoever to direct sale of a property in a partition suit except by consent of parties. The Partition Act of 1893 for the first time made it possible for the Court to direct a sale in certain circumstances, but the power conferred on the Court was a limited power. The Statement of Objects and Reasons, recited:
'As the law now stands the Court must give a share to each of the parties and cannot direct a sale and division of proceeds in any case whatever. Instances, however, occasionally occur where there are insuperable practical difficulties in the way of making an equal division, and in such cases the Court is either powerless to give effect to its decree, or is driven to all kinds of shifts and expedients in order to do so. Such difficulties are by no means of rare occurrence, although in many cases where the parties are properly advised they generally agree to mutual arrangement and thus relieve the Court from embarrassment.'
'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 the sale would, in the opinion of the Court, be more beneficial for the parties. But having regard to the strong attachment of the people in this country to their landed possessions, it is proposed to make the consent of parties interested at least to the extent of a moiety in the property a condition precedent to the exercise by the Court of this new power.'
24. It was therefore clearly recognised that the Court did not have any power to direct a sale except by consent of parties. Section 2 of the Partition Act for the first time conferred power on the Court to direct a sale. The conditions which have to be satisfied before the Court can exercise the power are:
(i) There has to be a request by a shareholder or shareholders interested individually or collectively to the extent of at least a moiety of the property.
(ii) The Court must be of opinion that by reason of the nature of the property or the number of shareholders or some special circumstance, a division of the property cannot reasonably or conveniently be made and a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders.
25. It will be noticed that under the Partition Act 1893, the scope for sale is far more restricted than under the English Partition Act of 1868.
26. If the Court did not have any inherent power or jurisdiction to direct sale in a partition suit, it is difficult to see how the Court can have inherent jurisdiction to do so independently of the Partition Act after the Partition Act came into force. It is clear that if the Court has no power apart from the Partition Act to direct a sale, it can have no such power to direct a sale among the parties only.
27. In (1950) 86 Cal LJ 144, S. B. Sinha, J., relying on certain orders for sale among co-sharers made in some cases for which no reasons were given by the learned Judges who decided those cases, expressly held that the Court has jurisdiction apart from and independently of the provisions of the Partition Act to order a sale of the property among the parties and directed such a sale. In (1952) 90 Cal LJ 147, Bachawat, J., agreed with S. B. Sinha, J. In : AIR1952Cal893 a Division Bench of this Court consisting of G. N. Das and Guha Roy, JJ., on a review of the law of partition and an elaborate analysis of decided cases, held that the Court has no Inherent power of sale even in cases where the Court finds that the property cannot be conveniently partitioned or that the partition will affect the intrinsic value of the property. So far as this Court is concerned, the matter might be said to have been concluded by the Division Bench judgment and it would not have been necessary for us to pronounce on this question afresh were it not for the submission made by counsel for the respondents that two earlier Division Bench judgments, one presided over by Rampini, J. and the other by Sir Ashutosh Mookerjee, J., had held to the contrary. Apart from these Division Bench judgments in (1911) 15 Cal WN 555 FN and (1911) 15 Cal WN 552, counsel relied on Ashanulla v. Kali Kinker, (1884) ILR 10 Cal 675, Ram Prasad v. Mt. Mukandi : AIR1929All443 : : AIR1930Cal616 and (1952) 90 Cal LJ 147.
28. In (1884) ILR 10 Cal 675 this Court reversing a decree of the Lower Appellate Court by which compensation was ordered to be paid to the defendant, directed a division of the property. There is however, an observation of Field, J., that 'where the effect of a partition would be to destroy the intrinsic value of the whole property or of the shares, the Court will pay to the plaintiff compensation for his share.' The case does not relate to sale at all and the observation, which is an obiter, was made not with reference to sale but with reference to payment of compensation in lieu of division.
29. In (1911) 15 Cal WN 555 FN, Rampini and Sharafuddin, JJ., affirmed a decision by which the defendant was allowed to buy up the share of the plaintiff at a proper valuation. The defendant was in possession of the property. It appears from the Report that what was really intended to be done, was to pay fair compensation to the plaintiff for his share. This is made clear in the observation of Rampini, J., that 'it is a well-known principle of equity, which must be adopted in all partition cases that when it is inconvenient to divide a property, that property must be left in the possession of the person in occupation, and the other person who cannot conveniently get possession must be compensated.' Therefore, it appears that the learned Judges were not directing a sale in exercise of any inherent jurisdiction but were directing payment of compensation by applying, what they considered to be principles of equity. This case is not, in my opinion, an authority for saying that apart from the Partition Act, the Court has any power to direct a sale. In (1911) 15 Cal WN 552 where this decision came up for consideration, Mookerjee, J., expressed the view that in the absence of a statutory provision, a party cannot be compelled to transfer his share to the other co-owners at a valuation to be fixed by the Court and the claim of a co-sharer to a preferential right to acquire the entire property at a valuation because he was in possession of the property at the commencement of the suit is indefensible. Mookerjee, J., sought to explain the decision in (1911) 15 Cal WN 555 FN on the ground that the property was a family dwelling house in which the plaintiff, a stranger had acquired an interest and consequently under Section 4 of the Partition Act, he could not claim a share in the property much less could he claim to acquire the property at a valuation. In these circumstances, and especially having regard to the fact that the question whether the Court has any inherent jurisdiction to direct a sale in a partition suit did not arise for determination, and the learned Judges did not pronounce on the question, I am of opinion that the case is of no assistance to the respondents.
30. In (1911) 15 Cal WN 552, the parties agreed that the property was incapable of partition. The plaintiffs who had a two-thirds interest in the property submitted that the property might be valued by the Court and the entire property allotted to them on payment of compensation to the defendant. The defendant also offered to take the property at a valuation. The Trial Court, by a decree, allotted the entire property to the plaintiffs, oh the ground that they were in possession and directed the plaintiffs to pay compensation. The learned District Judge affirmed the decree. On appeal, the Court rejected the contention of the plaintiffs that they had a preferential right by reason of their having been in possession, set aside, the decree and directed a sale of the property among the co-sharers. Mookerjee, J., made it clear that as the plaintiffs who had an interest in the property of more than moiety, had not requested for sale, the Partition Act had no application. The order for sale among the co-sharers was therefore not made and could not have been made under the Partition Act. The question therefore arises, under what power and jurisdiction was the order made? The judgment is silent on the point. No reasons have been given for the order. The question of inherent jurisdiction was neither raised nor decided. In Atul Chandra Kundu v. Bhusan Chandra Kundu, 44 Cal LJ 47 = (AIR 1926 Cal 1190) a Division Bench of this Court consisting of Cumming and Page, JJ., expressed the view that all that (1911) 15 Cal WN 552 decided was that the defendant could not be compelled to transfer his share to the plaintiffs at a valuation merely because the latter happened to have possession of the property. In : AIR1952Cal893 it was held that the decision was not intended to lay down a general principle of law that the Court possesses in a suit for partition, a power of sale apart from the Partition Act.
31. In : AIR1929All443 and : AIR1930Cal616 although no requests were made for sale under Section 2 of the Partition Act, the Court ordered sale of the property among the co-sharers. No reasons were given in those judgments for the orders. In (1950) 86 Cal LJ 144 to which reference has already been made, S. B. Sinha, J., relied on : AIR1929All443 and : AIR1930Cal616 and held that apart from the Partition Act the Court has power to direct sale among the co-sharers in exercise of its inherent jurisdiction.
32. These cases, as has been seen, do not lay down expressly or impliedly the proposition of law which S. B. Sinha, J., thought they did, and we respectfully agree with the views expressed in : AIR1952Cal893 that 'there is no current of authority which would establish that in a suit for partition the Court possesses a power to direct a sale apart from the Partition Act. The effect of the Partition Act cannot be whittled down by drawing upon some undefined and uncertain inherent powers in courts to direct a sale in lieu of partition where the invitation of the parties to the Court is merely to make a partition between the co-sharers inter se. The power of the Court to direct a sale in a suit for partition must be held to be limited to the cases provided for by the Partition Act.' It only remains for me to add that soon after S. B. Sinha, J., had delivered his judgment, Chakravartti. J., in (1948) 52 Cal WN 739 described an order for sale by private treaty or public auction made in a partition suit as a wrong direction or too wide a direction and held that an order for sale can be made in a partition suit only under the Partition Act or by consent and if consent is excluded, the only other source of authority which remains is the Act. It is not a little unfortunate that this case was not cited before Bachawat, J., in (1952) 90 Cal LJ 147 or before the Division Bench in : AIR1952Cal893 .
33. The next question which arises for decision is whether the decree under appeal could have been made under the Partition Act. The requirements of Section 2, it is conceded, have been satisfied. Co-sharers interested in more than a moiety have requested for sale. The parties other than the plaintiffs however did not agree to a sale among the co-sharers alone. In these circumstances, can such an order be made under Section 2? The section speaks only of 'sale' not of the mode of sale. The intention of the legislature, however, has not been left in doubt by Section 6 which provides:
(1) Every sale under Section 2 shall be subject to a reserve bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think fit and may be varied from time to time.
(2) On such sale any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of the deposit or as to setting off or accounting for the purchase money or any part thereof instead of paying the same as to the Court may seem reasonable.
(3) If two or more persons, of whom one is a shareholder in the property respectively advanced the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder.
34. It is clear from Section 6 that Section 2 does not contemplate sale by private treaty, because if it did. Section 6 should not have provided for reserve bidding in every sale under Section 2. The property therefore has to be sold by bidding and by no other mode. Can the Court in its discretion restrict the bidding to the co-sharers alone? Section 6(2) confers liberty on the shareholders to bid at every sale. The liberty is given by the statute and not left to the Court's discretion. Only some of the terms which enure to the benefit of the cosharers and to which the co-sharers may take recourse at the time of sale, have been left to the Court's discretion. In every sale under Section 2, the shareholders can therefore bid, as of right. Sub-section (3) of Section 6 again, necessarily implies that the sale contemplated in Section 2 is a sale from which per-sons other than co-sharers cannot be excluded.
35. It was contended before us that as the word 'sale' has been used in Section 2 without any qualification, there is no restriction on the power of Court to direct a sale confined to the co-sharers only. It was said that Sub-sections (2) and (3) of Section 6 merely provide for cases where a public sale is ordered. If the Court directs a sale confined to co-sharers alone. Section 6 or at least Sub-sections (2) and (3) of Section 6 will have no application.
36. The argument is not sound. Section 6(1) opens with the words 'every sale under Section 2 shall be subject to a reserve bidding.' Therefore Sub-section (1) is attracted to every sale. Subsection (2) says that 'on any such sale, any of the shareholders shall be at liberty to bid at the sale'. In the context of Sub-section (2) 'any such sale' means any sale to which Sub-section (1) is attracted. Sub-section (1) is attracted to every sale under Section 2. Sub-section (2) is therefore necessarily attracted to every sale under Section 2.
37. In my opinion, there is another reason why the sale contemplated by Section 2 should be held to be a public sale. Under Section 2 the Court may exercise the power to direct a sale only if the Court is of opinion that a sale will be more beneficial than a division of the property to all the co-sharers. In the scheme of the section, the relevant consideration for sale is not the benefit of some co-sharers or even the greatest good of the greatest number, but the benefit of all the co-sharers. It is true that the words 'more beneficial' have been used with reference to comparative advantages and disadvantages of division and sale and not with reference to sale by one mode and sale by another. Nevertheless, it is abundantly clear that the sale contemplated in Section 2 is intended to benefit all the co-sharers. A public sale in which the co-sharers have the right to bid, as they have under Section 6, is more beneficial to all the co-sharers than a sale among the co-sharers only, because a higher price is likely to be reached In such a sale which will enure to the benefit of all. If the property sells at a lower price, it will be more beneficial to the co-sharer whose bid is accepted but prejudicial to the other co-sharers who lose the benefit of a higher price.
38. It was contended by Mr. P. K. Das, learned Counsel for the respondents that 'benefit' does not mean financial benefit alone. Respect for the sentiment of co-sharers, he said, is equally beneficial to all. But then all the co-sharers may not share a sentiment. I am unable to agree that 'beneficial' in the context of the section means anything other than 'financially beneficial' to the co-sharers. In this connection, reference may be made to Drinkwater v. Ratcliffe, (1875) 20 Eq 528 where Sir George Jessel M. R. said: 'I am to direct a sale if I am of opinion that the sale would be more beneficial for the parties interested. What does that mean? It means in a pecuniary sense. I cannot go into questions of sentiment. I must look merely to the monetary results.'
39. In the view I have taken, I must hold that a sale under Section 2 of the Partition Act must be a public sale.
40. In holding that a sale under Section 2 must be a public sale, I have not been unmindful of the fact that in none of the reported cases where the Court directed a sale among the co-sharers, was tile order made under Section 2 of the Partition Act. Moreover, no reasons were given for the order except in (1950) 86 Cal LJ 144 and (1952) 90 Cal LJ 147 where the Court claimed to have made the order in exercise of its inherent jurisdiction, a jurisdiction, which we have held the Court does not possess. On the other hand, there are some precedents for holding that a sale under Section 2 must be a public sale. In AIR 1946 Mad 299 it was held by a learned Single Judge of the Madras High Court that a sale under Section 6 of the Partition Act must be open to the public as Sub-sections (2) and (3) of that section clearly contemplate the presence of bidders other than the shareholders at the sale. In (1948) 52 Cal WN 739 it was contended before Chakravartti, J., that an order for sale by private treaty was not an order for sale under the Partition Act as it is not by public auction as required by Section 6 of the Act. Chakravartti, J., remarked that the contention was 'seemingly a substantial one, for Section 6 of the Act uses the word 'bid' and 'bidding' and does indicate that where the sale is not to co-sharers under Section 3. it must be a sale by public auction'. It ought to be pointed out that the question as to whether a sale under Section 2 must he a public sale was not directly involved in that case. In 52 Cal LJ 68=(AIR 1930 Cal 616), S. K. Ghosh, J., recorded in his judgment, without a demur, an argument that a request for sale among the co-sharers is not a request for sale under Section 2 which read with Section 6 provides for a public sale. In (1950) 86 Cal LJ 144. S. B. Sinha, J., expressed the view that S. K. Ghose, J., held in that case that Section 2 provides for a public sale.
41. A decision of Mallick, J., Probhat Kumar v. Rammohan Dutt : AIR1958Cal177 was cited at the Bar. In that case, a question arose whether a family dwelling house which could not be conveniently partitioned by metes and bounds could be sold by an order of Court although no request had been made for sale under Section 2 of the Partition Act. Some of the co-sharers were living in the dwelling house and others had built houses of their own. The plaintiff submitted that the house should be sold to the highest bidder among the parties. The learned Judge found that the property could not be sold under the Partition Act, nor could he direct a sale in exercise of any inherent jurisdiction apart from the Partition Act. It appears from the Report that the learned Judge allotted the property to the co-sharers who were living in the house and directed payment of compensation to others. The case is not relevant for the purpose of the present appeal as in the case before us the property has been directed to be sold among the co-sharers and not allotted to some co-sharer or co-sharers with a direction for payment of compensation to others. It is not therefore necessary for us to express any opinion on the decision of Mallick, J., or on the course adopted by him.
42. In the view we have taken, theappeal succeeds. The order of the learned Judge directing sale of premises No24 Guruprasad Chowdhury Lane by private treaty to the best purchaser or purchasers confining the sale to membersof the family of the parties, is set aside.The decree is varied to the extent thatthe Commissioner of Partition is directed to sell the premises by public auctionin compliance with the provisions of Section 6 of the Partition Act. Time to filethe Commissioner's Return is extendedby six months from the date of the decreepassed herein. The appearing respondents will pay to the appellant the costsof this appeal.