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Report No. 86

2.2. Statement of Objects and Reasons.-

This lacuna caused a difficulty which was thus explained in the Statement1 of Objects and Reasons to the Bill which led to the Act of 1893-

"Instances, however, occasionally occur where there are insuperable practical difficulties in the way of making an equal division; and in such cases the Court is either powerless to give effect to its decree, or is driven to all kinds of shifts and expedients in order to do so. Such difficulties are by no means of very rare occurrence, although in many cases where the parties are properly advised they generally agree to some mutual arrangement, and thus relieve the Court from embarrassment. It is proposed in the present Bill to supply this defect in the law by giving the Court, under proper safeguards, a discretionary authority to direct a sale where a partition cannot reasonably be made and a sale would, in the opinion of the Court, be more beneficial for the parties.

But having regard to the strong attachment of the people of this country to their landed possessions, it is proposed to make the consent of the parties interested at least to the extent of a moiety in the property a condition precedent to the exercise by the Court of this new power. In order at the same time to prevent any oppressive exercise of this privilege, it is proposed to give such of the share-holders as do not desire a sale the right to buy the others out at a valuation to be determined by the Court. The power, moreover, which it is proposed to give to the Court, will be a discretionary one, to be exercised on a consideration of all the circumstances of the case. It should be added, that where the Court is obliged to direct a sale, a right of pre-emption is given by the Bill to the parties similar to that conferred on share-holders by section 310 of the Code of Civil Procedure, 1882."

1. Statement of Objects and Reasons to Bill No. 8 of 1892, Gazette of India, 1892, Part V, p. 46 (portion relating to sections 2 and 3).

The Partition Act, 1893 Back

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