ABDULLA HAJI Vs. KUNHAMINA

JUDGEMENT

(1.) THIS appeal, by the 2nd plaintiff and the 4th defendant in the suit, is against an order of remand passed by the lower appellate court on appeal by defendants 2 and 3 against a direction for sale made by the trial court under S. 2 of the Partition Act, 1893.

(2.) BY the preliminary decree the property in suit, a double-storied house standing in 22 cents of land, has to be divided between six groups of sharers. The 4th defendant, who stands by himself, is entitled to a 681/1008th share of the property, and he made an application for a sale of the property on the score that a division could not reasonably or conveniently be made. Of the several sharers, defendants 2 and 3 alone opposed the application. Both are individual sharers and while the 2nd defendant is entitled to a 142/1008th share, the 3rd defendant is entitled to a 71/1008th share. It was their contention that the house could be conveniently divided between the several groups, but their alternative prayer that the house should be dismantled and the materials shared between the several sharers is a true measure of the faith they themselves reposed in that contention. In fact, the commissioner, whose report was considered by the trial court before it made the order for sale, and who had been directed by that court to effect a division if that was at all possible, made a clear and definite report to the effect that a division was impracticable. The only contention that was pressed by defendants 2 and 3 before the trial court at the hearing of the application (after making and forthwith withdrawing an offer to purchase the whole house at the value fixed by the commissioner) was that if the house was sold in public auction, the 4th defendant who alone among the sharers could afford to buy the whole house, would knock it off for a very low price. The trial court found that the house could not be conveniently divided; and with regard to the apprehension that the 4th defendant might knock off the house for a small price, it thought that the fixing of a reasonable amount as the upset price would be a sufficient safe- guar d. Accordingly it fixed the upset price at rs. 10,000/ -. At the hearing of the appeal it was conceded by counsel for defendants 2 and 3 (who after the preliminary decree had decided to ask fora joint allotment, the better to urge their claim for a portion of the house)that the house could not be conveniently divided into six portions. Nevertheless he pressed for the allotment of a portion to his clients, representing more or less their combined 213/1008th share. And, it was for considering whether this request could not be granted without causing serious hardship to the remaining sharers that the lower appellate court remanded the matter to the trial court. In effect, the order of the lower appellate court amounts to this that while, if possible, defendants 2 and 3 should be allotted roughly 1/5th of the house, with regard to the remaining 4/5th, the direction for sale will stand. It seems to me apparent that this must cause serious hardship to the remaining sharers, for , it is obvious that their 4/5th will not fetch a proportionate price.

(3.) ALLOW the appeal, set aside the order made by the lower appellate court and confirm that of the trial court. The appellants will get their costs throughout from defendants 2 and 3. Allowed.