G.N. Das, J.
1. This is an appeal by defendant 1 against a decision of Sri J. M. Bir, learned Subordinate Judge, Burdwan directing that the disputed property which consists of a tank and its banks, be sold amongst the co-sharers. The disputed property was recorded in C. S. dag 1205 of mouza Rasuikhand, P. S. Raina, District Burdwan. The plaintiffs claim 13 annas 12 gandas 2 kara 2 kranti share in the disputed property. The share of defendant 1 is stated to be 1 anna 12 gandas 1 kara 1 kranti 14 tils, that of defendants Nos. 2 to 4, 4 gandas 1 kara 1 kranti 16 tils and that of defendant No. 5, 10 gandas 1 kara 10 tils. The plaintiffs allege that defendant 1 has been exercising acts of possession in the tank and its banks and has not taken any care about the tank and that it is not convenient and possible to possess the disputed property jointly with the defendants, that the defendants refused to have the tank amicably partitioned though the plaintiffs requested the defendants to do so. The plaintiffs accordingly filed the present suit for partition. There was a further prayer in the plaint that in case the Court was of opinion that the tank could not be conveniently partitioned and that a partition of the tank would affect the intrinsic value thereof, necessary orders in accordance with law might be passed.
2. The defence of defendant 1, appellant in this Court, was that the plaintiffs are benamdars of defendants 2 to 4 and as such the suit was not maintainable by them. The defendants further alleged that the tank was capable of partition and if the suit was maintainable at the instance of the plaintiffs, the disputed property might be partitioned among the parties in accordance with their shares. The trial Court was of opinion that the disputed property cannot be conveniently partitioned and directed a sale thereof amongst the co-sharers. The trial Court also found that the allegation of benami was not true and that the suit was maintainable.
3. Against that decision defendant 1 preferred an appeal to the lower appellate Court. The lower appellate Court reversed the finding of the trial Court that the plaintiffs were not benamdars of defendants 2 to 4 and found that the plaintiffs were benamdars for some of the defendants. The lower appellate Court, however, held that the suit was maintainable at the instance of the plaintiffs though they were benamdars. The lower appellate Court then proceeded to consider the question whether the disputed property was capable of partition. The lower appellate Court was of opinion that it was not convenient to possess the disputed property jointly by the co-sharers as there were constant frictions between the parties and various litigations had cropped up. The lower appellate Court further found that the suggestion of defendant 1 that the tank should be partitioned cannot be accepted. It also found that a partition would affect the intrinsic value of the property and in that view directed a sale of the property amongst the co-sharers. In the result the lower appellate Court affirmed the decree' passed by the trial judge.
4. Defendant 1 has preferred this appeal to this Court. Mr. Apurbadhan Mukherjee, learned Advocate appearing in support of the appeal has contended that the direction given by the lower appellate Court for a sale amongst the co-sharers was contrary to law and should be set aside. He has further contended that there is no power in Court apart from the Partition Act to direct a sale of joint property. He has submitted that as the conditions required by the Partition Act did not exist in this case, the Court was not justified in directing a sale of the disputed property amongst the co-sharers. He has further contended that in view of the facts of this case the Court should have at any rate directed a partition of the banks of the disputed tank reserving the watery portion of the tank as joint between the parties.
5. We have heard Mr. Mukherjee for the appellant and Mr. Chatterjee for the respondents at considerable length, and have given our. best consideration to the matter. The principal question is whether the Court has a power of sale apart from the Partition Act, in eases where the disputed property is not capable of partition.
6. The principle is well settled that joint owners have a right to enjoy the joint property in specie. A co-sharer as such has in a suit for partition, a right to his undivided share in the property divided into a specific allotment and not merely to the money value of his share in the property. The object of a suit for partition is merely an invitation to the Court to convert the joint possession and title of all the owners into possession in severalty of the different portions of the joint property in accordance with the shares of the co-owners.
7. The question is whether this principle can be departed from by the Courts in cases where the Court finds that it is either inconvenient or difficult to divide the joint property into separate specific allotments. The question has to be considered from a historical perspective. It is well settled that in England before the passing of the Partition Act in 1868, there was no power at common law to direct a sale in lieu of partition. This matter is fully discussed in Halsbury's Laws of England, Hailsham Bdn. vol'. 24, paras. 744 to 745 to which Mr. Mukherjee has drawn our attention. He has also referred us to the case of Turner v. Morgan, (1803) 8 ves. Jun. 143, Watson v. Duke of Northumberland, (1805) 11 yes. Jun. 153 at p. 157; 14 ves, Jun. 9 (sic) which illustrated the rigours of the common law rule in a suit for partition and held that the Court was disentitled to direct a sale even though the partition in specie led to impossible results. In England the rule was-modified in cases of rights in water by allotting the water rights at different seasons of the year or by rotation, but apart from this modification of the common law rule, the Court consistently held that, it was powerless to direct a sale even if the Court found that a partition by metes and bounds was extremely inconvenient and affected the intrinsic value of the property. The difficulty occasioned by the common law rule was removed to a large extent by the passing if the Partition Act 1868 (31 and 32 Victoria, chap. 40). What was the position in this country before the passing of the Indian Partition Act (Act 4 of 1893) has been the subject of debate in this Court. I shall refer to the authorities to which reference has been made by the learned Advocates after I have referred to the opinion current in this province.
8. Mr. R. C. Mitter in his Tagore Law Lecture 1895 in the treatise entitled 'Joint (?) and Partition' observed that in a suit for partition Courts had no jurisdiction to sell but were bound to direct a partition-however inconvenient or destructive of the subject-matter it might be (p. 364, Edn. l). The learned Author referred to Sections 396 to 400, Civil P. C, 1882, and- opined that these sections, in particular Section 396 (2), regulate the power of the Commissioner in the matter of making allotments. The opinion of Dr. Bash Behary Ghose, as he then, was, in his speech while introducing the Bill which became law as Act 4 of 1893, was the same (vide Fort St. George Gazette, dated 12-4-1892).
9. I observe in passing that the power of sale was extremely limited in the Hindu Law (vide Brihaspati's Text, Digest v, 366) as also in Mahomedan Law (vide Hedaye Book 39, chap. 3).
10. The question remains how far the case law as is to be found in the books have declared that Anglo Indian Courts possess the power of sale in suits for partition. I shall refer to the cases which were decided before the Partition Act of 1893.
11. The earliest case to which our attention was drawn is the case of Hamada Mukherjee v. Ramnath Mukherjee, Walker Marshall's Rep. P. 35. This is a decision of Steer and Morgan JJ. At p. 36 the Court observed that in a case where each of the co-sharers has an equal share in the property, the right of each co-owner is a right to a moiety share of the property in severalty and that the difficulty of making a partition is 'clearly not a valid ground for refusing a partition'. This observation is similar to the observation which was made in Turner v. Morgan, (1803-8 ves. Jun. 143) already referred to. The decision therefore shows that a mere difficulty in effecting a partition was no ground for refusing a prayer for partition.
12. The case of Raj Coomaree Dassee v. Gopal Chunder Bose, 3 Cal. 514 to which Mr. Mukherjee referred us does not really decide the point now before us. That was a case where the plaintiff wanted to have a partition of a Puja Dalan and the Court-yard. This Court was of opinion that as in that case some of the co-sharers desired the property to be valued and compensation paid, a direction was given that the disputed property should fee valued and compensation paid to the co-sharers who did not desire to remain joint.
13. This decision was followed by a Bench decision of this Court in Ashanulla v. Kali Kinkar, 10 Cal. 675. In that case the disputed properties consisted of 9 houses. The plaintiff who had a two-third share brought a suit for partition. The lower appellate Court was of opinion that as the plaintiff wanted a partition, compensation might be paid to the plaintiff. On appeal to this Court the decision was reversed and the ease was remitted to the Court below for effecting a partition. The decision itself is of no assistance in this case. But reliance is placed on behalf of the respondents on an observation of Mr. Justice Field to the effect that where the effect of 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.
14. This observation is an obiter dictum of the learned Judge. Moreover, the observation does not imply that the Court can, in cases where the effect of partition would be to destroy the intrinsic value of the property, hold a sale. If that was the view of the learned Judge, the direction would have been for a distribution of the sale proceeds amongst the co-sharers. The observation, however, merely stated that the plaintiff who has sued for partition and was 'trying to disturb the joint enjoyment, would be paid compensation for his share in the property. These are all the cases to which our attention was drawn, to show the state of the law before the passing of the Partition Act. None of the cases cited support the position that the Court has an inherent power of sale in case the Court finds that the property cannot be conveniently partitioned or that the partition thereof would affect the intrinsic value of the property. On the other hand, the above discussion shows that there is no inherent right to sell the property of the co-sharers in a case where the Court is asked by the plaintiff to make a partition and distribute the property among the co-sharers in specie.
15. If the Court had such a power there would have been no necessity, for enacting a piece of legislation (Act 4 of 1893) conferring on the Courts a limited power of sale in cases provided for in the Act. The provisions of the Partition Act may be shortly referred to. Section 2 of the Partition Act provides that where the nature of the property or the number of the cosharers or any other special circumstances render a division of the property in specie unreasonable or inconvenient and that the sale is more beneficial, the Court can make an order for sale at the request of the co-sharers whose shares exceed a moiety.
16. In such a contingency if any other co-sharer offers to buy at a valuation the plaintiff's, share, the Court will make an order to that effect as provided for in Section. 3(l), but where more than one co-sharer applies for leave to purchase the-plaintiff's share at a valuation, the Court will under Section 3(2) direct a sale among the co-sharers, at a sum in excess of a valuation to be made by the Court. Section 4, Partition Act, deals with a special class of cases where a dwelling house has been purchased by a stranger. This provision is complementary to Section 44, Transfer of Property Act. Sections 6 and 7 deal with procedure to be followed at the sale which may be directed under: the Act. Section 8 provides for an appeal against an order under Sections 2, 3 or 4. Section 9 provides, that in a suit for partition the Court may, if it thinks fit, make a decree for partition of part of the property to which the suit relates and a sale-of the remainder under the Act. A conspectus of these sections clearly indicates that the Partition, Act conferred on the Court in a suit for partition a power of sale in certain specified cases. No general power of sale can be spelt out from the provisions of the Act. On the other hand the implication is that the legislation did not intend to confer on the Court a power of sale apart from the provisions of the Partition Act. The contrary view suggested on behalf of the respondents would make the Partition Act unnecessary.
17. In this connection I may refer to the speech of the author of the Bill at the time of its introduction. The learned Jurist in his speech, observed:
'... but the strong attachment of my countrymen to landed property, specially when it is ancestral, should make us extremely cautious in replacing in any particular case the usual remedy of an equal partition by a sale of the property and a division of the proceeds. . . We cannot, therefore proceed too warily and accordingly the power with which it is proposed to invest the Court is only given-subject to very stingent conditions and only to the extent necessary to meet the acknowledged evil.'
18. I have already referred to the provisions-of the Partition Act. In my view the clear intention of the Act was to prevent a request for sale-being made on insufficient grounds or from improper motives and to safeguard the rights of the co-sharers in joint properties by conferring on such co-sharers a right of pre-emption and a sale limited to the co-sharers themselves. Moreover the Act confers a wide discretion on the Court to exercise the power of sale conferred by the Act itself.
19. I may observe that in the recent case of Chiranjit Lal v. Union of India, 1951 S.C.R. 869 a reference was made by Fazl Ali J. to the-proceedings of the Legislative Council with a view to get at the intention of the Act.
20. I have, however, drawn my own conclusion as regards the intention underlying the Act from the Act itself apart from the speech of the learned author of the Act to which I have made reference.
21. In my opinion unless one is forced to come to a contrary conclusion by reason of the current of decisions, it is always safe to go by the terms of the Act and not to assume powers of sale which the legislature deliberately refrained from conferring on the Court.
22. I shall now refer to the cases which have clustered round Sections 2 and 3, Partition Act, and I shall try to show that there is no cursus curia, which compels us to hold 'that there is an inherent power in the Court to direct a sale in lieu of partition under certain circumstances.
23. The earliest decision to which our attention was drawn by Mr. Mukherjee is the case of Basunta Kumar Ghose v. Motilal Ghose, 15 Cal. W. N. 555. That was a case which concerned a partition of certain lands and a tank, the tank being a bigha in area. The plaintiff's share in the tank was about one-twentieth. The dispute concerned the question of partition of this tank. In this Court in dealing with this question Rampini J. observed that whether Section 4 of Act 4 of 1893 applied or not, the well-known principle to be adopted is that when it is inconvenient to direct a partition, the property may be left in the possession of the person in occupation and the other parties who cannot conveniently get actual possession be compensated.
24. This observation in my opinion does not suggest that apart from Section 4 of Act 4 of 1893, any power of sale was inherent in the Court when the Court found it inconvenient to partition the property. This merely follows the general observation made by Field J.,in Ashanulla's 'case (10 Cal. 675) already cited.'
25. Strong reliance was placed by Mr. Chatter-jee on a Bench decision of this Court in the case of Debendra Nath v. Haridas, 15 Cal. W. N. 552 : 13 Cal. L. J. 322. The decision turned on the following facts. In a suit for partition both the parties agreed that the disputed property was not capable of partition. The lower appellate Court directed a sale of the plaintiff's share to the defendants. On appeal to this Court it was ruled that as both the parties agreed that the property was incapable of partition, the fairest order to make was to direct a sale under Section 3(2), Partition Act road with Sections 6 and 7. No reason appears to have been given as to why the proper order to make was to direct a sale under Section 3(2). From the facts of the case, it is apparent, that there was no request by the co-sharers who owned shares above a moiety, for a sale under Section 2. A direction under Section 3 can only be given where there is a request under Section 2. Mookerjee J. who delivered the judgment began by an enunciation of the general principle that in a suit for partition the Court was required to partition the property in specie and not to give to the co-sharers the money value of the shares.
The learned Judge then referred to the case of Haladhar Mukherjee v. Bamnath Mukherjee, (Walkar Marshall's Rep. 35) and Ashanulla v. Kalikinkar already cited and then proceeded to discuss the English law on the point and observed that in England there was no power to sell conferred on the Court in a suit for partition. The learned Judge then observed that the English rule has been modified by legislative enactments since 1868. The learned Judge did not deal specifically with the effect of the Partition Act of 1893 and the question whether the Courts in this country possessed a power of sale apart from the Act. In my opinion this 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. This decision was explained by a Bench of this Court in the case of Atul Chandra v. Bhusan Chandra, 44 Cal. L. J. 47. In that case Cuming and Page JJ. were of opinion that the decision in Debendra Nath Bhattachary's case must be read as limited only to the facts of that case.
26. The next decision to which our attention was drawn is the case of Ramprosad v. Mt. Mukandi, A. I. R. 1929 All. 443. This decision gave a direction similar to that in Debendra Nath Bhattacharya's case (is Cal. W. N. 552: 13 Cal. L. J. 322) but no reason whatsoever was given why the Court was granting a direction for a sale under Section 3(2) of the Partition Act. In a later decision of this Court viz. in the case of Mohit Krishna v. Pranab Chandra, 52 Cal. L. J. 68, S. K. Ghose J. also directed a sale among the co-sharers and in support of his decision merely referred to the decision of this Court in Debendra Nath Bhattacharya,'s case and that of the Allahabad Court in Bamprosad's case. No independent reasons were given by the learned Judge in support of the directions given by him.
27. It remains for us to discuss a recent decision of this Court in the case of Pannalal Dutt v. Hrishikesh Dutt, 86 Cal. L. J. 144. This was a decision of S. B. Sinha J. sitting on the Original Side. The decision of Sinha J. is clear authority for the proposition that independently of the Partition Act the Court has jurisdiction to direct a sale in a suit for partition where the partition cannot be conveniently made. Sinha J. seems to be of the opinion that support for this proposition is to be found in the observations of Field J., in Ashanulla's case (10 Cal. 675). I have already referred to Ashanulla's case and I have attempted to show that the observations of Field J. were obiter and did not go to the length suggested. Thus the basis of the decision of Sinha J. is not correct.
28. 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 Courts to direct a sale in lieu of partition where the invitations 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 within Partition Act.
29. In the light of the above decision we have to consider the facts of this case. In the present case the plaintiffs did not specifically pray for a sale of the property. Their main prayer was one for partition by metes and bounds. The defendants who filed written statements joined in the prayer for partition. In this case the pleadings show that neither of the parties took up the position that partition was impossible or extremely inconvenient. This fact of itself distinguishes this case from the facts which were the subject of decision in Debendra Nath Bhattacharya's case, (15 Cal. w. N. 552:13 Cal, L. J. 322) which was simply followed without discussion in the three later (decisions, two of this Court and one of the Allahabad Court, which I have referred. In this case, there was no request under Section 2 and Section 3 had therefore no application. The order of the Court for directing a sale amongst others was therefore not justified by the Act and must be set aside.
30. Nothing can be spelt out from the provisions contained in Section 37(2), Bengal, Agra and Assam Civil Courts Act 1887 to which Mr. Chatterjee referred us. The provision was not intended to get round the express terms of the Partition Act. The provision was intended for entirely different purpose to arm the Court with residuary powers in cases where either the Hindu Law or the Mahomedan Law is otherwise silent. I have already stated teat the Partition Act has a clear implication about the non-existence of inherent powers in the Court to direct a sale in lieu of partition in cases not covered by the Partition Act. Nor do the provisions of Section 396, Civil P. C, 1882 or the provisions contained in Order 26, assist the respondents. Section 396 of the Code of 1882 rather supports the position that under the then state of the law the Court had only power to partition, and not to direct a sale. The provisions of Order 26, Civil P. C., merely lay down the mode in which the Commissioner will do his, duty in making allotments. Nor can any inference be drawn from the general words of Order 20, rule, 18, which empowers the Court while passing a preliminary decree for partition to give further directions. Such directions mean directions which relate to the working out of the preliminary decree for partition and 1952 Cal/113 & 114 cannot be invoked as conferring on the Court a substantive power of sale apart from partition.
31. Mr. Chatterjee also referred us to the case of Hari Charan Bera v. Fakir Chandra Sao, 40 Cal. W. N. 955. The facts which led this Court to direct a sale under Section 3, cannot be gathered from the judgment which is somewhat cryptic and does not state all the facts. The decision merely dealt with the argument which was addressed to this Court.
32. The question then remains whether we should direct a partition of the banks keeping the watery portion of the tank joint between the parties.
33. I have already referred to Section 9, Partition Act, 1893. That section does not confer an independent power of sale. It is merely an enabling section and not an empowering section. It merely entitled the Court in a suit for partition to direct a partition of a portion of the property in suit and a sale of the remainder. Mr. Chatterjee referred us to the decision of Jadu Nath v. Haran Chandra, 36 Cal. L. J. 217. That case however turned on an entirely different set of facts, as Mookerjee J. rightly pointed out; in that case the Court had directed a sale of the allotment of one of the co-sharers. It did not decide the true meaning of Section 9, Partition Act. In my opinion, Section 9, Partition Act is sufficiently wide to enable the Court to direct a Sale of the banks if that is possible, keeping the watery portion of the tank joint between the parties.
34. The learned Subordinate Judge while repelling the contention of defendant 1, appellant before him, that the banks can be partitioned, has not given proper attention to the materials on record. We are therefore of opinion that the matter viz., whether the banks can be conveniently partitioned should be reconsidered by the lower appellate Court. If the lower appellate Court is of opinion that the banks can be partitioned amongst the co-sharers subject to certain directions for preservation of the watery portion of the tank, the Court will exercise its powers under Section 9, Partition Act, and direct a partition of the banks of the tank amongst the co-sharers. The Court will however direct the watery portion of the tank to be kept joint or if in its opinion the watery portion can be partitioned between the parties, the Court will direct such partition of the watery portion of the tank. On this question we express no opinion.
35. The result therefore is that the judgment and decree of the lower appellate Court must be set aside and the case remanded to the lower appellate Court for hearing of the appeal in the light of the observations made above.
36. Costs of this appeal will abide the result.
Guha Ray, J.
37. I agree.