Report No. 86
5.6. Second view.-
The second view, namely, that the Court can, even apart from the Act, order sale amongst the co-sharers, seems to have been taken in earlier decisions of the Calcutta High Court.1 The case most often cited is one decided by Sir Asutosh Mookherjee, J.,2 where the plaintiffs suing for partition prayed that they might be allowed to retain exclusive possession of the property on payment to the defendant of compensation (at a valuation to be made by the Court), proportionate to the share of defendant's property.
The lower courts concurrently found that the property could not be conveniently partitioned, and ordered the plaintiffs to pay to the defendant one-third of the value as determined by the Commissioner-plaintiff thereafter retaining possession. On appeal by the defendant, the High Court held that the defendant was not bound do transfer his share to a plaintiff at a valuation, and in the absence of a statutory provision, the Court could not compel him to do so. Since it was admitted that the property could not be conveniently partitioned, the proper course was to direct a sale of the property amongst the co-sharers and to give the property to the highest bidder among the co-sharers.
1. The earlier cases are collected in Panna Lal v. Hrishikesh, ILR (1949) 1 Cal 192 (S.B. Sinha, J.).
2. Debendra Nath v. Hari Das, (1910) 15 CWN 552.