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Report No. 86

5.16. Section 2-Need for amendment.-

The hardship1 under section 2 discussed above obviously calls for amendment of the law. In our opinion, having regard to the situations2 that have arisen in the various decided cases in India,3 it is desirable to keep the provision wide so as to empower the Court to act suo motu. On the existing section, such a situation would not be covered,4 unless its language is unduly stretched. Parties sometimes avoid taking the position that the partition is impossible or extremely inconvenient, and pray only for partition by metes and bounds; but the Court itself finds it difficult to divide the joint property into separate specific allotments.5 The Court then feels helpless. This is certainly a situation that must be avoided. The proper course would, therefore be to give to the Court a power as above. Our recommendation in this context is twofold:-

(i) In the first place any shareholder should have a right to demand sale if the other conditions are satisfied. The law should not (as at present) insist on the application of shareholders of at least a moiety. Of course, the other conditions given in the section must be satisfied. Once that is established, any share-holder should have the right to demand sale.

(ii) Secondly, a discretion should be given to the Court to order a sale of the property in a partition suit, even of its own motion, where, because of the nature of the property or other considerations already mentioned in the section, a partition would not be convenient and a sale would be more beneficial. Reasons, however, must be recorded for such an order6 passed by the Court of its own motion.

1. See para. 5.15, supra.

2. See paras. 5.6 to 5.10, supra.

3. Cf the facts in Ramaprasada Rao v. Subbaramaiah, AIR 1958 AP 647.

4. Probhat Kumar v. Ram Mohan, AIR 1958 Cal 177, para. 6.

5. For suggested re-draft, see para. 5.20, infra.

6. For suggested re-draft, see para. 5.20, infra.

The Partition Act, 1893 Back

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