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Report No. 86

IV. Partition Acts of 1868 and 1876 in England

Section of the earlier Act analysed.- It may be mentioned that in the (English) Partition Act of 1868, the power of sale could be exercised under three sections applicable to three different situations. Though the Act has been repealed, an analysis of these sections might be useful from various points of view.

Under section 3 of the English Act of 1868, if it appears to the Court, that by reason of the nature of the property or the number of the parties interested or presumptively interested, or the absence or disability of some of the parties, or of any other circumstance, a sate of the property would be more beneficial for the parties interested than a division, the Court may, if it thinks fit, on the request of any of the parties interested and notwithstanding the absence or disability of any of the other parties, direct a sale of the property and make all necessary or proper consequential directions.

Under section 4 of the Act of 1868, it a party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, request the Court to direct a sale of the property etc. instead of a division, the Court shall, unless it sees good reason to the contrary, direct a sale of the property.

Power to order sale under section 5.- Under section 5 of the English Act of 1868 if any party interested in the property requested the court to direct a sale of the property etc., the court might, if it thinks fit, unless the other parties interested in the property or some of them undertake to purchase the share of the party requesting a sale, direct a sale of the property and give all necessary or proper consequential directions, and in case of such undertaking being given, the court may order a valuation of the share of the party requesting a sale in such manner as the court thinks fit and may give all necessary or proper consequential directions.

Position in England as to sale.- Generally1 in determining whether2 a sale was more beneficial than a partition, that court considered only the pecuniary results, disregarding matters of sentiment, and had regard to the interest of all parties interested as a whole. But the court could, and would, order a sale where in its discretion it thought fit, unless the parties opposing a sale undertook to purchase the shares of those desiring sale. It may be added that a party asking for sale was not compellable to part with his share at a valua tion.1

All these sections applied only where there was a suit for partition in which a decree for partition could have been made "if the Act had not been passed". The following analysis will show the points of difference between the three sections:-

Section 3 (1868 Act)

Section 4 (1868 Act)

Section 5 (1868 Act)

(i) Sale ordered be-cause of the nature of the property etc. Sale ordered because of request of parties interested in a moiety. Sale ordered on the request of a party, irrespective of any consideration of nature of the property etc. or desire of persons interested in moiety of the interest etc.
(ii) Sale discretionary. Sale obligatory, unless good reasons to the contrary. Sale discretionay.
(iii) Request of any interested party is enough. Request of parities interested in moiety is necessary. Request of any requested party is enough.
(iv) No right to other co-sharers to purchase the share of the party requesting a sale and thus to avert a sale. No right to other co-sharers to purchase and thus to avert a sale. Other con-shares can purchase the share of the party requesting sale

1. Halsbury's, 3rd Edn., Vol. 32, p. 346, para. 543.

2. Section 5, Partition Act, 1868 (31 & 32 Vict., C. 40).

3. Pitt v. Jones, (1880) 5 App Cas 651.



The Partition Act, 1893 Back




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