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Report No. 86

5.7. Subsequent case law.-

Subsequently, however, this decision was explained1 by the same High Court as limited to the facts of the case, and not intended to lay down a general principle of law that in a suit for partition the Court possesses a power of sale apart from the Partition Act. In a later case,2 the conclusion reached was, that the effect of the Partition Act could not be whittled down by drawing upon some undefined and uncertain inherent powers in the Court to direct a sale where the invitation of the parties is merely to make a partition between the co-sharers. It was held that a sale of the disputed property could not be ordered even among the co-sharers (there being no prayer to that effect in the case). A still later Calcutta decision3 re-affirms the view that the power to direct a sale must be limited to the cases provided for in the Act.

1. Atul Chandra v. Bhusan Chandra, AIR 1926 Cal 1190 (Cuming and Page, JJ.).

2. Nritya Gopal v. Pran Krishna, AIR 1952 Cal 893: 57 CWN 439 (G.N. Das and Guha Ray,

3. Probhat Kumar v. Ram Mohan, AIR 1958 Cal 177 (178), para. 9 (Mullick, J.).

The Partition Act, 1893 Back

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