1. The plaintiff in this ease purchased two-thirds of a property consisting of ten houses. One of these houses has since fallen down, or otherwise been destroyed, and the present dispute concerns nine houses only. The plaintiff sued to have a partition, and he said that he intended to break down and remove those houses, of which he would obtain possession by this partition.
2. The Munsif gave him a decree for six houses out of the nine, holding that this was the arithmetically proportionate share of the property. An appeal was then preferred to the Subordinate Judge, and the Subordinate Judge, evidently influenced by the idea that the case was a hard one, directed that the houses should be valued, and that two-thirds of the value, together with legal interest, should be given to the plaintiff.
3. The plaintiff now contends that the Subordinate Judge had no right to give him the price of the houses instead of the houses themselves, and we think that upon this bare contention the plaintiff is entitled to succeed. The principle in these cases of partition is that if a property can be partitioned without destroying the intrinsic value of the whole property, or of the shares, such partition ought to be made. If, on the contrary, no partition can be made without destroying the intrinsic value, then a money compensation should be given instead of the share which would fall to the plaintiff by partition.
4. In the present case the defendant did not object before the Subordinate Judge that the nine houses could not be partitioned without destroying the value of the property. He did not object that no three houses could be given to him which would bear a fairly proportionate value to the whole of the property. We think, therefore, that the decree of the Subordinate Judge is erroneous and must be set aside.
5. We have, however, to point out that the Munsif committed an error in directing six houses out of the nine to be given to the plaintiff without specifying which six houses should be given. In other words, he should have proceeded under the provisions of Section 396 of the Code of Civil Procedure, and we direct that having determined what portion of the property ought to be given to the plaintiff as representing the two-thirds which he obtained by purchase, the Munsif do proceed to embody in his final decree the result of the Commissioner's investigation and report.
6. We do not think that this is a case in which we ought to give costs.