Report No. 86

The Partition Act, 1893

Contents
Chapter I	Introductory
1.1	Scope of the Report
2.	Function of law as peaceful resolution of conflicts
3.	Act not concerned with technicalities
4.	Defective machinery
5.	Conflict of decisions
6.	Law of property and law of partition
7.	Need for revision
8.	Scheme of the Report
Chapter 2	History
2.1	History of the Act
2.	Statement of Objects and Reasons
3.	History of provision conferring power of sale
4.	Draft Bill
5.	Opinion on the Bill
6.	Comment of Government of Bombay
7.	View of the High Court of Calcutta
8.	Views of Mr. Knox and British India Association
9.	Mr. Seal's comment
10.	Decision as to equalisation
11.	Views of Dr. Rattigan and Mr. Evans
12.	Views of Mr. Evans-Weakening of joint family not favoured
13.	View of Sir A.R. Scoble, Q.C
14.	Speech of Dr. Rash Behari Ghose
15.	Proceedings of Governor-General-in-Council
Chapter 3	Scheme of The Act and Analogous Provisions
3.1	Concurrent interests
2.	Partition
3.	Scope of the Act of 1893
4.	Scheme of the Act
5.	Provisions briefly summarised
6.	Kinds of sales under the Act
7.	Analogous laws
8.	Section 22, Hindu Succession Act
9.	Order 21, rule 88, C.P.C
10.	General power to award monetary compensation
Chapter 4	English Law
4.1	Evolution of English law
2.	Position in India
Chapter 5	Power of Sale: Sections 1-2
5.1,2.	Sections considered
3.	Section 2 and inherent power of sale
4.	Jurisdiction to order sale apart from the Act
5.	First view
6.	Second view
7.	Subsequent case law
8.	Third view-sale with consent
9.	Fourth view
10.	Views of Dr. Rash Behary Ghose
11.	Need for reforms for various reasons
12.	Concrete situations
13.	English Act
14.	History-Reasons for existing narrow scope of section 2
15.	Hardships revealed in practical working
16.	Section 2-Need for amendment
18.	Section 2 and mode of sale
19.	Sale amongst co-sharers
20.	Opening works to be revised
21.	Section 2 to be revised
Chapter 6	Sale to Shareholder: Section 3
6.1	Section 3-A source of trouble
2.	The anomaly of favouring small shareholders
3.	Controversy as to rights of share-holders
4.	Anomaly caused by narrower view
5.	Illustrative case as to hardship resulting from narrower view
6.	Anomaly created by section 3
7.	Recommendation regarding section 3(1)
8.	Sale of property
9.	Section 3 and question of time for applying
10.	Conflict of views
11.	Bombay view
12.	Practical aspects considered
13.	Difficulty caused by narrower view
14.	Section 3-Recommendation as to time
15.	Section 3(2)-Amendment recommended
Chapter 7	Share of Dwelling House: Section 4
7.1	Section 4-Principle of
2.	Section 44, Transfer of Property Act
3.	Principle underlying section 44
4.	Section 4 analogous to section 44, Transfer of Property Act
5.	Section 4-Constitutional validity of
6.	Section 4-Interpretation of "dwelling house"
7.	Case law on various expressions-"undivided"
8.	Meaning of "family"
9.	Calcutta case as to "family"
10.	Summary of decisions
11.	Section 4, available only against strangers
12.	Section 4(1) and the expression "sues for partition"
13.	Views of three High Courts referred to by way of illustration
14.	Three interpretations of section 4(1)
15.	First view-the narrower one
16.	Second view-every party a plaintiff
17.	Third view-the widest one
18.	Analysis of cases-High Court-wise
19.	Wider scope of section 4 favoured
20.	Justification for legislation adopting wider approach
21.	Semantics not considered
22.	Need for clarification
23.	Recommendation regarding section 4(1)
24.	Recommendation to revise section 4(1)
25.	Section 4(1) and cases of Muslim females marrying into another family
26.	Need for clarification
27.	Actual residence not necessary
28.	Stage for Applying Under Section 4
29.	Later case law
30.	Section 4(1) and form of the decree-Earlier case
31.	Subsequent cases-Allahabad view
32.	Nagpur view
33.	Later Nagpur case
34.	Madras case
35.	Stages to be reflected in the decree
36.	Decree analogous to specific performance of contract for sale
37.	New provision not recommended
38.	Valuation of share how done
39.	Date of valuation-Calcutta view
40.	Orissa view
41.	Need for clarification as to date of valuation
42.	Recommendation to add new sub-section in section 4
Chapter 8	Miscellaneous: Sections 5 To 10
8.1	Scope of the Chapter
2.	Section 5
3.	Section 6
4.	Section 6(1) and upset price
5.	Section 6(3)
6.	Section 7
7.	Section 7(a)-High Courts with original civil jurisdiction-Recommendation
8.	Section 7 and sale among co-sharers-Recommendation
9.	Section 7 and appeals against orders passed in the course of sale
10,11.	Case law
12.	Revised Section 7
13.	Section 8-Appeals
14.	Section 8 and order for sale passed outside the Act
15 to 17.	Section 9
Chapter 9	Summary of Recommendations
	Chapter 5-Power of Sale: Sections 1-2
	Chapter 6-Sale to Shareholders: Section 3
	Chapter 7-Share of Dwelling House: Section 4
Appendix 1	Partition Act, 1868*
1,2.	Short title
3.	Power to Court to order sale instead of Division
4.	Sale on Application of certain Proportion of Parties interested
5.	As to Purchase of share or Party desiring sale
6.	Authority for Parties interested to bid
7.	Application of Trustee Act (13 & 14 Vict., C. 60)
8.	Application of Proceeds of Sale (19 & 20 Vict., C. 120)
9.	Parties to Partition Suits
10,11,12.	Costs in Partition Suits
Appendix 2	The Partition Act, 1876
1.	Short title
2.	Application of Act
3.	Power to dispense with service of notice of decree or order in special cases
4.	Proceedings where service is dispensed with
5.	Provision for case of successive sales in same action
6,7.	Request by married woman, infant, or person under disability
Appendix 3	Present English Law and its Evolution
I.	General Partition in English law
II.	Compensation
III.	Sale
IV.	Partition Acts of 1868 and 1876 in England
V.	Legislation of 1925
VI.	Statutory trust for sale-The machinery