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Report No. 86

5.4. Jurisdiction to order sale apart from the Act.-

Since the requirement that there must be an application by persons holding a moiety has, in practice, been found to be rather harsh, attempts have from time to time been made to take the stand that the Court can order sale even apart from the provisions of section 2. Rulings on the subject are conflicting, and, an analysis would show that the following views have been taken on the question:

(i) The Court can order sale of the property independently of the Act and such a sale can be ordered not only among the co-sharers but also (to the public) by public auction.

(ii) Such a power exists to a limited extent-sale must be limited only amongst the co-sharers.

(iii) The sale can be ordered by the Court only with the consent of all the co-sharers.

(iv) No such power exists, and a sale cannot be ordered apart from section 2, either by public auction or among the co-sharers.

This particular question has not yet been decided by the Supreme Court,1 though it has recognised the power of the Court to effect partition by such equitable means as may be appropriate. Case law which supports one or other of the four possible views stated above may now be examined.

1. Badri Narain v. Nil Ratan, AIR 1978 SC 845.

The Partition Act, 1893 Back

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