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Report No. 86

5.18. Section 2 and mode of sale.-

This takes care of the major problem created by section 2. We may note that a partition of the entire property in suit, and then the allotment of a portion thereof to some of the parties and sale of that portion, is not authorised1 by section 2 or by section 9. The reason for the narrow scope of the Act on this point is obvious. If the whole property is not sold and only a part of a house or a part of land is sold, then the part to be sold would not fetch a reasonable price and this would cause hardship to the sharers to whom it has been notionally allotted. The section is attracted in every case where a division of the property between all the sharers cannot reasonably or conveniently be made. Otherwise, the section would lose its application in most cases, as it would always be possible to allot a property or portion thereof to one of the co-sharers.2

1. Jadunath v. Haran Chandra, ILR 49 Cal 1043: AIR 1923 Cal 221.

2. Abdulla Haji v. Kunamina, AIR 1961 Ker 201 (202), para. 3.



The Partition Act, 1893 Back




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