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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.

The Partition Act, 1893 Back

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