The Courts below have not paid the slightest attention to the Sections of the Partition Act which they profess to apply. Sect. 3 of that Act has always been a source of trouble, but even that fact cannot excuse the total disregard by the lower Courts of even the other provisions of the Act.

The facts may be briefly stated. The joint family to which these appeals relate consists of six members, the father, the 1st defendant, and the sons, Defendants 2 to 6. The 2nd defendant, conveyed his sixth share in some items to the Plaintiff in O. S. No. 267 of 1922 for Rs. 200. He similarly sold his interest in certain other items to the Plaintiff in O. S. No. 268 of 1922 for Rs. 800-0-0. Each alienee has filed a suit claiming his share in the items alienated. In their written statement, the Defendants offered to buy the Plaintiff's share at a valuation. In each case, the lower Courts, purporting to apply the Partition Act, have fixed the price of the Plaintiff's interest and directed her to receive the amount in lieu of her share in the items conveyed. The Plaintiffs question the correctness of this order.

I shall first consider the various Sections of the Act before examining whether the orders can be sustained. In the first place, there is a broad distincition between Sects. 2, 3 and 6, forming a group, on the one hand, and Sect. 4 on the other. Cl. 1 of the last mentioned Section runs thus:—

“Where a share of a dwellling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee, sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf.”

It applies to the case of a dwelling-house, a share of which has been transferred to a stranger. Three conditions must be fulfilled before Sect. 4 comes into operation.

(1) the suit must relate to a dwelling-house of an undivided family:

(2) some share in it must have been transferred to a stranger: and

(3) the stranger transferee must have sued for partition.

In the case of the other sections, one of the parties to the dispute may or may not be a stranger. Even if the subject of the dispute is a dwelling-house, unless there be a stranger transferee, Sect. 4 does not apply.

Having adverted to this important distinction, I shall now refer to the group consisting of Sects. 2, 3 and 6. Sect. 2 says that if it appears to the Court that for certain reasons, selling the property is more beneficial than dividing it by metes and bounds, the Court, on the request of the 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. Then comes the question, who can claim the benefit of Sect. 3? It expressly enacts that when the request mentioned in Sect. 2 proceeds from a certain party, some share-holder other than that party, may apply under Sect. 3. It is difficult to understand why the rule has been so enacted. Mr. Justice Coutts Trotter refers to “the practical inconvenience, almost the absurdity, of the results” following from such a rule. (See O. S. No. 750 of 1919 on the file of the High Court). In Ramprasad v. Mukandi , the learned Judges rightly point out that the effect of this Section is to favour the smaller share-holder at the expense of the larger. The fact of a person owning a large share, is by this Section made a disability and he is precluded from offering to buy the interest of the party owning the smaller share. For instance, if A owns nine-tenths and B one-tenth of an item, the Section regards A as being a person under disability although if, of the two persons, one should be favoured, A would appear to have a much better claim than B. But strangely the Section enacts quite the contrary. The Courts naturally, whenever possible, strove to avoid this result. For instance, it has been held that an application under Sect. 3 is too late, if made after the sale has been ordered under Sect. 2. (See Angamuthu Mudaliar v. Batna Mudaliar which reverses the decision of Mr. Justice Coutts Trotter, already referred to). Again, where a plaintiff owning two-thirds share offered to buy up the share of the defendant on payment of a stated sum, it was held that this was not a request strictly falling within Sect. 2 and, therefore, the terms of the Sect. 3 did not come into play at all: [Ramprasad v. Mukandi already cited]. What Section 3 contemplates is a request by a party for the sale of the whole property. In the case just cited, the party applied not that the whole property should be sold but that his co-sharer's interest might be sold to him at a valuation. These two cases show how strictly Sects. 2 and 3 have been construed. In my opinion, the rulings, with great respect, are perfectly correct. I may remark in passing, that in Angamuthu Mudaliar v. Ratna Mudaliar the learned Judges overlooked that the order for sale being one by consent, cannot rightly be described as one covered by Sect. 2. It seems to me with great deference, that the judgment would have been more correct (though the result would not have been different) had the sale been deemed as one falling entirely outside the Partition Act. In the other case mentioned above, viz., Ramprasad v. Mukandi the learned Judges finding that the application did not conform to the provisions of Sect. 2, held, as I have just observed (and in my opinion rightly), that the Partition Act did not apply. It is well to bear in mind in this connection that independent of the Partition Act. the Court has an inherent power to refuse to divide a property by metes and bounds and to adopt such other means as may appear equitable, for effecting a just partition. [Basantakumar v. Moti Lal (3)].

Then the question arises, if a sale is directed under Sect. 2 and Sect. 3 does not apply, what is the position? The sale is nevertheless one governed by the Partition Act and Sect. 6 relates to such a sale. Clause 3 of that Section runs thus:—

“If two or more persons, of whom one is a share-bolder 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 share-holder,”

Incidentally, this shows beyond all doubt that share-holders and strangers alike may bid at the sale: (See Angamuthu Mudaliar v. Ratna Mudaliar .

To elucidate the points to which I have referred, I may notice three further cases cited at the bar. In Atul Chandra v. Bhusan Chandra , the Plaintiff was the 14 annas sharer and the defendant, the 2 annas residue co-sharer. The plaintiff applied that he might be allowed to buy Up the defendant's share at a valuation, or, in the alternative, that the property might be sold to the highest bidder and the proceeds distributed. The defendant thereupon asked under Sect. 3 for leave to buy at a valuation the plaintiff's share. The question arose as to who could apply under the last mentioned Section, the plaintiff or the defendant. The Court rightly held, reversing the judgment of the District Judge, that the defendant had the right. But with respect, the decision seems on another point to be wrong. The plaintiff's application was not of the kind contemplated by Sect. 2 and it should have been held that the Partition Act did not apply to the case. In Jamnadas v. Mulchand , the plaintiff was interested in two-thirds of the property and applied for a sale under Sect. 2. It was held (and this is correct) that the right to buy out, was vested under Sect. 3 in the defendant. Having held this, the Court directed the property to be sold but added by way of a rider, that the defendant's right was unaffected to apply under Sect. 3 to buy up the plaintiff's share at a valuation. This is the comment I wish to make on this case. Either the defendant applied before or after the sale was directed under Sect. 2. If before, he possessed the right, if after, he was too late. But the learned Judge ordered a sale, which course would have been Tight, had the defendant not applied; but at the same time, the Judge gave him leave to buy out, which pre-supposes that he made a valid application. In Mahabir v. Mahadev , the plaintiffs owned two-sevenths and the defendants five-sevenths of a certain house. The latter applied under Sect. 2. The former thereupon made a request under Sect. 3. The learned Judge, having stated these facts, observes:

“It became imperative on the Courts below to follow the procedure enjoined by Sect. 3, Cl. 2, Partition Act.”

This is intelligible only upon the footing that disputes arose among the plaintiffs inter se, as otherwise Cl. 2 could have no operation: [See Angamuthu Mudaliar v. Ratna Mudaliar (4), already cited].

Now, let me deal with the facts of the present case. Judged by these principles, the terms of the defendants' request, do not fulfil the requirements of Sect. 2. The lower Courts ought therefore to have held that the Partition Act does not apply. Let us grant that their request was a valid one. Even then, the Courts below ought not to have given them leave to buy up the plaintiff's share, for the right to buy out (if it did exist) would vest in the latter and not in the defendants. But as a matter of fact, the plaintiff did not apply under Sect. 3. Even granting, therefore, that the action of the lower Courts was otherwise justifiable, the only order they could have made was one under Sect. 6. Moreover, the Courts below entirely ignored the distinction that exists between the items which form the dwelling-house and the other items in the suit. They applied the same rule to both sets of properties. In every respect, they thus disregarded the provisions of the Partition Act.

I shall now deal separately with each of the items to which the two suits relate. (Here his Lordship directed the preparation of a scheme of partition with reference to those items).

N. R. R.Ordered accordingly.