1. This is an appeal on behalf of the defendant in an action which has been described as one for partition of joint property, but the true object of which is to enable the plaintiffs-respondents to compel the appellant to transfer his share to them at a valuation. The two plaintiffs and the original defendant, who has died during the pendency of this litigation, were three brothers. In a previous suit for partition, their joint properties were divided, except the property now in dispute which, by consent of parties, was allowed to remain joint. This property covers a little more than three cottas ; part of it is covered by a Chandimandab, an Atchalla, a Baitakhana and a room while the remainder is open land. The plaintiffs allege that they are entitled to a two-thirds share of the disputed property, that it is not convenient to have joint possession thereof, and that it is of such a nature that if it is divided into three portions to be allotted to the three co-,sharers, its value would be considerably diminished. They consequently pray that it may be valued by the Court, and they may be allowed to obtain exclusive possession thereof upon payment of compensation to the defendant proportionate to his share of the property. The defendant concedes in his written statement that if the property is divided into three portions, it must become unfit for use. But he resists the claim on the ground that he is prepared to take the property at a valuation if the plaintiffs are not prepared to have it held and enjoyed jointly. The Courts below have concurrently held that a partition of such a small property, a part of which is covered with structures, cannot conveniently be effected, and they have made a decree in favour of the plaintiffs on the ground that as up to the date of the commencement of the suit, they were in possession of some of the structures on the land, they had a preferential claim to exclusive possession of the whole property. On this ground, the suit has been decreed in favour of the plaintiffs, and they have been directed to pay to the defendant one-third of the value of the property, which has been determined by a Commissioner to be Rs. 566. The defendant has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed on the ground that in the events which have happened, the Courts below ought to have directed a sale of the property so that each co-sharer might be afforded opportunity to retain the property. In our opinion, there is no room for controversy that the procedure adopted by the Courts below is supported neither by principle nor by the authorities.
2. It is an elementary principle that in ease of partition where several persons are co-owners or co-sharers of immovable property, partition should be effected between them by giving to each his share in specie as far as practicable. The right of each sharer is to his slice of the property, not merely its money value; and it is a matter of common experience that great importance is attached in this country to the possession of a share in specie by a co-sharer of property, which has belonged to the family of which he is a member or which has descended from an ancestor. The law gives effect to this sentiment as far as possible. This doctrine was recognised in the case of Ashanullah v. Kali Kinkur Kur 10 C. 675, where it was ruled 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 a party by partition [Mahomed Ibrahim v. Haii Muhamed Ibrahim 7 Bom. L.R. 482]. It may be observed that in earlier decisions [Hullodhur Mookerjee v. Ram Nath Mookerjee 1 Marshall 35 : 1 Hay 71], it was even maintained that the difficulty of making a partition was no valid ground for refusing a specific share to each of the parties. This, in fact, was the rule in England also, and the inconvenience which resulted from an actual division of a small property is well-known. Before the Partition Act of 1868, (31 and 32 Victoria Chapter 40), when the Court had no authority to compel a sale of the property, the only remedy of the co-tenants was to compel an actual partition irrespective of the loss and inconvenience it might occasion, or to buy or sell as best they could by their own voluntary agreement. In fact, the Courts were very often compelled to order a partition of the property itself even though such a course was clearly ruinous to the parties [Turner v. Morgan 8 Ves. 143; 11 Ves. 157 : 14 R.R. 9, Parker v. Garrard Ambler 236, Warner v. Baynes Ambler 589]. The illustration afforded by Turner v. Morgan 8 Ves. 143; 11 Ves. 157 : 14 R.R. 9 is familiar to all. There a decree was granted for partition of a single house among three persons. The Commissioner allotted to the plaintiff the whole stack of chimneys, all the fire places, the only stair-case and all the conveniences in the yard. The Lord Chancellor, in overruling an exception taken by the defendant, said that he did not know how to make a better partition for the parties, unless they agreed to sell as they ought to do. Results of this character were, indeed, sometimes avoided by devices, for instance, in soxe cases, specially in cases of partition of water or water-rights, the parties were directed to use and occupy the property for alternating periods of time. This, however, Was clearly impracticable in the case of every kind of property, and the inconvenience to which we have referred was removed in England by the Partition Act of 1868, the scope of which is nowhere better stated than in the judgment of Hatherley, L.C. in Pemberton v. Barnes (1871) L.R. 6 Ch. App. 685 : 40 L.J. Ch. 675 : 25 L.T. 577 : 19 W.R. 988, and so far as this country is concerned, the difficulty has been met by the provisions of the Partition Act of 1893 The plaintiffs, however, in the case before us, have not chosen to follow the procedure laid down in the Partition Act of 1893. They claim, as a matter of right, to acquire the whole property at a valuation : and they base their preferential right upon the circumstance that at the time of the commencement of the suit they occupied the disputed property exclusively though it was joint property. In our opinion, the position taken up by them is entirely indefensible. The defendant is not bound to transfer the property to them at a valuation. There is no statutory provision which compels' him to do so. That a claim of this character cannot be successfully put forward upon general principles is clear from the case of Dewar v. Spence (1836) 7 Wharton 211. There the Court allowed the plaintiff to take the whole property at a valuation on the ground that the Court was expressly empowered by Statute to determine to whom the lands and tenements should be conveyed, if it was found that their character was such as to make a partition undesirable or injurious to the parties. Where, however, there is no such statutory provision, a party cannot be compelled to transfer his share to the other co-owner at a valuation to be fixed by the Court. Much reliance was placed in the Courts below, as also here, upon the decision of this Court in the case of Basanta Kumar Ghose v. Moti Lal Ghose 6 C.L.J. 8 (Note), where it was laid down that when it is inconvenient to divide a property, that property must be kept in the possession of the person in occupation, and the other person, who cannot conveniently get actual possession compensated. That case, however, is clearly distinguishable, because the person who was compensated was a stranger to the family, and the property sought to be partitioned was the family dwelling house in which the stranger had acquired an interest. Consequently, under Section 4 of the Partition Act of 1893, the plaintiff could not claim a share of the dwelling house : much less could he claim to purchase the whole property at a valuation [Khiroda Chnnder v. Sarola Prasad 7 Ind. Cas. 436]. As was pointed out by this Court in the case of Raj Coomaree, Dassee v. Gopal Chunder Bose 3 C. 51 L, if one of the co-parceners wishes to keep the property entire, an opportunity should be afforded to him to do so, if ho can agree on the subject with, his co-parceners. This observation was made long before the Partition Act of 1893. Under that Act, if more than one parcener wishes to acquire the property at a valuation, the Court is directed to sell the property, and this is obviously the fairest course to adopt. To compel one of the parties to transfer his share to another co-owner, would, in our opinion, be arbitrary and unjustifiable interference with the rights of the owner in that property. If the Court were to accede to the prayer of the plaintiff's in the present case, the result would be that, under color of partition, the defendant would be compelled to sell his lands to the plaintiffs against his will: clearly the Court ought not to adopt such a course which might be justly deemed inconsistent with private rights and individual privileges. In the case before us, both the parties are agreed that the nature of the property is such that a division thereof amongst all the share-holders cannot reasonably or conveniently be made. The proper course, therefore, to follow is to direct a sale of the property among the co-sharers : and it should be given to that share-holder who offers to pay the highest price above the valuation made by the Court. The defendant cannot, in our opinion, be compelled to transfer his share at a valuation to the plaintiffs, merely because the latter happened to have possession of the property at the time when they commenced the present action. The view, we take, is supported by the principle which underlies the cases of Williams v. Games(1875) L. R. 10 Ch. App. 204, 44 L.J. Ch. 245 : 32 L.T. 414 : 23 W.R. 779, and Pitt v. Jones (1875) L.R. 10 Ch. App. 204, 44 L.J. Ch,. 245 : 32 L.T. 414 : 23 W.R. 779.
3. The result, therefore, is that this appeal must be allowed, the decrees of the Courts below discharged, and the case remanded to the Court of first instance in order that the Court may proceed to hold a sale under Section 3, Sub-Section 2 read with Sections 6 and 7 of the Partition Act of 1893. The appellant is entitled to his costs in this Court as also before the Subordinate Judge. The costs in the Court of first instance will be borne by the parties themselves.