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Report No. 86

2.11. Views of Dr. Rattigan and Mr. Evans.-

However, before taking its final decision, Government sought the advice of two legal experts, namely, Dr. W.H. Rattigan and Mr. G.H.P. Evans. Dr. Rattigan was in favour of the Bill, notwithstanding the objections received thereon. He traced the history of the Law of Partition and observed that there was authority for saying that even in Hindu Law, in the case of property indivisible by nature, partition was to be effected according to vukti or equity, and one of the modes expressly recognised in such a case was by selling the property and dividing the proceeds.1 He noted that according to Muslim Law,5 money compensation could be ordered while dividing, for instance, a house with a piece of ground attached.

He referred to the Indian statute law as it then existed (i.e., sections 265 and 396 of the Code of Civil Procedure, 1882) and expressed the view that while those sections authorised money compensation for equalisation, they did not contain a provision to meet cases of partition of a single property (like a dwelling house) which could not be divided. Dr. Rattigan also referred to the observations made in a Punjab case3 where the want of a law enabling the Court to deal properly with cases where a house could not be divided was noted, and it was pointed out that the parties were left either to buy one another out or to devise the most extraordinary shifts and contrivances of screening off their respective shares from one another. He pointed out that the apprehension that richer persons would harass the poorer co-sharers under clause 4 as proposed was not justified, as the Court had a discretion. However, to inspire greater confidence in the public, he supported the proposal that the previous sanction of the District Court should be required before a sale was ordered.

1. Dr. W.H. Rattigan Comment on the Partition Bill, citing Jolly's Tagore Law Lectures, (1888), p. 93.

2. Hidayah, Book 39, Chapter III, cited.

3. Punjab Record case No. 15 of 1878-observations of Sir Dennis Fitzpatrick, J.

The Partition Act, 1893 Back

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