Report No. 86
5.10. Views of Dr. Rash Behary Ghose.-
Reference was made in the judgment to the speech of Dr. Rash Behary Ghose who, while introducing the Bill,1 made the following observations:-
"but the strong attachment of any countrymen to landed property, specially when it is ancestral, should make us extremely cautious in replacing in any particular case the usual remedy of an equal partition by a sale of the property and a division of the proceeds. We cannot therefore proceed too warily, and accordingly the power with which it is proposed to invest the Court is only given subject to very stringent conditions and only to the extent necessary to meet the acknowledged evil."
It was also observed in the judgment that if the Court had power to direct a sale, there would have been no necessity for enacting the Act of 1893. Primarily, a co-sharer, in a suit for partition, has a right to have his undivided share in the property divided into specific allotment, and not to the money value of his share. A partition suit is merely an invitation to the Court to convert the joint possession into possession in severally of the different portions in accordance with the shares. At common law, there was no power to direct a sale in lieu of partition. Even in the Hindu law, the power of sale was extremely limited,2 and same was the position in Muslim law,3 it was stated.
1. Dr. Rash Behary Ghose: Speech on Introduction of the Partition Bill, Fort St. George Gazette, dated 12th April, 1892.
2. Brihaspati's text, Digest V, 366, cited.
3. Hedaya, Book 39, Chapter 3, cited.