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Report No. 86

5.20. Opening works to be revised.-

We have also certain comments to offer as to the opening words of section 2 which read-

"In any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made."

The wording is not very happy. Presumably, the object underlying these words seems to be this. The legislature was legislating only for cases where a right to partition is available under the general law. This pre-supposes that certain conditions should be satisfied. For example, there must be concurrent interests in the property in dispute, and the property must not, by reason of any statutory or other legal prohibition, be impartible.

In other words, if by the general law, there is no right to claim partition, then a party cannot invoke the provisions of the Act as to sale. This seems to be the dominant idea. But this intention is expressed in words which appear to be somewhat confusing. The reader is mentally taken back to the period before the passing of the Act and gets the impression-inaccurate though it may be-that he is expected to conduct research into the law of partition as it existed in 1893. Such, however, could not be the intention. The dominant idea (as explained above) is that there must be a right to claim partition. This idea could, and should, be expressed in better language. Accordingly, we would recommend that the portion of section 2 in question should be suitably revised. The re-draft of section 2 which follows1 later will indicate concretely what we have in mind.

1. See para. 5.21, infra.

The Partition Act, 1893 Back

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