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Report No. 86

5.5. First view.-

The ,first view, namely, that independently of the Act, the Court can order sale by public auction, is illustrated by a decision of the High Court of Andhra Pradesh1 which so held, giving the following reasons:-

(1) The power existed under Hindu law. Certain texts of Hindu law show that clothes and ornaments are divided by distributing the proceeds after selling them,2 and that, in some cases, where joint enjoyment or enjoyment by turns is not possible, the sale of some of items and distribution of the proceeds between the members of the family3 is authorised. Besides this, many texts emphasise the proposition that species of property, such as, water, right of way, vehicles, cooked food, female slaves etc. are indivisible.

(2) There are several judicial decisions to the effect that independently of the Partition Act, the Court has inherent power to refuse to divide a property by metes and bounds and to direct its sale.

(3) Serious hardship would be caused if such a power was not recognised. The Court would be powerless to make an equitable distribution of the property when one or other of the properties could not be equitably partitioned, or when all the parties, colliding together, create a deadlock. The very process of partition would be retarded.

(4) The Partition Act was designed only to meet a particular contingency, and did not in any way, affect the power of the Court to make an equitable distribution of the properties.

1. Ramaprasada Rao v. Subbaramaiah, ILR 1957 Andhra 566: AIR 1958 AP 647 (Subba Rao, C.J. and Ansari, J.), (approved on another point in Badri Narain v. Ni! Ratan, AIR 1978 SC 845.

2. Brihaspathi, as stated by Smritichandrika VII, 41.

3. Katyayana, cited in Smritichandrika VII, 47.

The Partition Act, 1893 Back

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