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Report No. 86

6.5. Illustrative case as to hardship resulting from narrower view.-

The hardship caused by a narrow construction of section 3(1) may be illustrated by taking the facts of an actual case from Calcutta.1 A holds a 14 anna share in a tank, and B holds a 2 anna share. If A applies for sale under section 2, then B can purchase A's share under section 3. But A cannot, in such proceedings, offer to purchase B's share. The Court cannot even direct a sale of the property among the co-sharers.2 The result is that A, even though he is holding a very large share, must either-

(a) tolerate the joint possession of B (however inconvenient it may be), until B applies for sale, or

(b) apply under section 2 and allow the property to go out of his hands, since, according to the narrower view, he cannot apply under section 3.

This, in effect, means that the largest co-sharer cannot have peaceful and effective enjoyment of his share.

1. Atul Chandra v. Bhushan Chandra, AIR 1926 Cal 1190.

2. Atul Chandra v. Bhushan Chandra, AIR 1926 Cal 1190.



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