(1.)DEFENDANTS 1 to 4 in O. S. No. 245 of 1956 of the munsiff's Court of Kozhikode have filed this civil revision petition for quashing the order dismissing their petition for review of the order accepting the Commissioner's report in the case. The suit was one for partition of property consisting of a plot of land, 54 cents in extent, and a three-storied building therein. The three plaintiffs are entitled to three shares, defendants 1 and 2 to one share each, defendants 3 and 4 one share jointly and defendants 5 and 6 to one share jointly. A preliminary decree was passed in the suit and the commissioner who was deputed to divide the property reported that it was not possible to divide the same into seven shares. Notice of the filing of the report was given to counsel and the case was posted for filing objections. Though there were several postings for this, defendants 5 & 6 alone objected claiming part of the land as their share. The learned Munsiff directed that the share of defendants 5 & 6 should be given from the western side of the property and the rest of the land and building should be sold in auction. Thereafter defendants 1 to 4 filed a petition for reviewing the order. The petition was dismissed by order dated 17 1961 which has given rise to this civil revision petition.
(2.)THE ground on which review was sought was that the trial court did not advert to the provisions of S. 2 of the Partition Act and that the court had no jurisdiction to pass an order for sale as sharers owning a majority of the shares had not requested sale of the property. S. 2 is as follows: "2. 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 share-holders, the Court may, if it thinks fit, on the request of any such share-holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. "
Assuming that this is a valid ground for review, the position may be examined. The High Court of Calcutta has held in the decisions reported in AIR. 1952 Cal. 893 and AIR. 1958 Cal. 177 that a sale is incompetent in the absence of a request by sharers interested to the extent of a moiety or upwards. It was also held that apart from the Partition Act the court has no power to direct a sale of the property in a suit for partition. In an earlier decision reported in AIR. 1930 Gal. 616 whore the property was incapable of division, Ghose, J. , held that even though the request made by the plaintiff did not fall within the scope of S. 2, the proper course was to direct the property to be sold to the party offering the highest price above the valuation of the court. The decisions on this point are not uniform. In ramaprasada Rao v. Subbaramaiah (AIR. 1958 A. P. 647) Subba Rao, C. J. (as he then was), held: "the court in directing a sale and dividing the proceeds between the sharers, does nothing more than cany out its duty to divide the properties equitably between the members of the family. Where in a particular contingency, a property is indivisible, or, by the partition, it loses its inherent worth, or, it cannot be equitably divided between the members, the Court for the purpose of equitable distribution sells the said property, so that the proceeds which represent the property can be divided between the members. The power of sale for realising the proceeds is inherent in the process of partition and is only exercised in aid of partition. " After extracting S. 2,3 and 9 of the Partition Act, His lordship observed: "the question is whether the Act is intended to exhaust the power of the Court to direct the sale of the property where, for one reason or other, the said property cannot be divided by metes and bounds. As we have already stated, the exercise of the power of the court to direct the sale of a property which cannot be divided in specie is inherent in the process of partition. The Partition Act, for the first time, conferred a right on a larger sharer to request the court to sell the property subject to the correlative right of the smaller sharer to insist upon the larger share being sold to him at the" valuation fixed by the Court. The Act was designed only to meet a particular contingency and did not, in any way. affect the power of the court to make an equitable distribution of the properties. Before the Act, the Court could refuse to sell the property, even if the conditions laid down in S. 3 were fully satisfied. The court, instead of selling the property, could have allotted the property not capable of equitable division to one of the sharers whether he is a smaller or larger sharer, and direct compensation to be paid to the other. But after the Act, if the conditions laid down therein are satisfied, the court has no option but to direct the sale. Therefore, the power of the court to sell the property under the different circumstances is consistent with the tight of the party to insist upon a sale under specified conditions. When the right under S. 2 or 3 is exercised, the court cannot exercise its power in derogation of the right. On the other hand if the provisions of the Act are construed to be exhaustive of the powers of the court to sell a property, the court would be powerless to make an equitable distribution of the properties when one or other of the properties could not be equitably partitioned or all the parties colluding together could create a dead-lock. The Act which was intended to protect the smaller sharers in the family, should not be so read as to obstruct and retard the process of the partition itself. We, therefore hold that the Partition Act is not inconsistent with the general power of the court to sell any item of property for its equitable distribution. "
The case law on the subject has been considered exhaustively in this decision and, with great respect, I prefer to follow the above dictum in preference to the view expressed in the decisions of the calcutta High Court. To hold otherwise would lead to the result that the majority of the sharers may effectively obstruct partition when the property is incapable of being divided, by withholding their consent to a sale.
(3.)IN view of the above conclusion it is unnecessary to consider whether the ground urged is a valid one for review.
Counsel for the petitioners and defendants 5 and 6 urged that all the defendants were prepared to take their shares jointly and that it may not be impossible to divide the property on this basis. This is an aspect which should have been urged in the court below at the time of consideration of the report. What happened at that time was that defendants 5 and 6 alone wanted a part of the land as their share in the property. The petitioners who were defendants 1 to 4 did not care to appear and raise objection to the course suggested by the Commissioner. The Commissioner reported that the plaintiffs as well as defendants 1 to 4 represented that they wanted the building and that it was not feasible to divide the building between the two groups. The petitioners did not choose to attack the report even though the case was adjourned from time to time for their objections, if any. In these circumstances I do not consider it proper to direct the court below to consider afresh the submission now made that defendants 1 to 6 will take their shares jointly.