MANUEL JOSEPH Vs. THRESSY GEORGE

JUDGEMENT

(1.) THE second appeal arises out of a proceeding for passing the final decree is a suit for partition. THE first defendant is the appellant; and the plaintiff and the other defendants are the respondents. THE property consists of a building and its site having an extent of 16 cents; and the plaintiff is entitled to a fourth therein, the appellant to another fourth, defendants 2 to 8 to yet another fourth and defendants 9 to 16 to the last fourth. THE respondents filed an application (I. A. No. 4799 of 1960) under S. 2 of the Partition Act for sale of the house and site by public auction. That petition was allowed; but, before the sale took place the appellant filed another petition (I. A. No. 892 of 1961) under S. 3 of the same Act offering to purchase the shares of the other sharers at a price fixed by the court. THE trial court issued a commission; and the commissioner fixed the price of the building at rs. 1,400/- and the price of the site at Rs. 100/- per cent. THEre was some objection regarding the price of the site, but no objection regarding the price of the building. Ultimately, the trial court allowed the prayer of the appellant for purchase of the shares of the other sharers; and it also passed a final decree. THE matter went before the lower appellate court; and the lower appellate court has set aside the final decree and remanded the proceeding to the trial court for fresh disposal after taking additional evidence. THE lower appellate court has also set aside the order in I. A. No. 892 of 1961.

(2.) THE counsel of the appellant urges that the lower appellate court is in error in setting aside the order in I. A. No. 892 of 1951. He draws my attention to S. 2 and 3 of the Partition Act. If a petition is filed under S. 2 for public auction by one or more shares, any other sharer may file a petition under S. 3 offering to purchase the shares of the others at a price fixed by the court. Such a petition can be filed before the public auction under S. 2 takes place and before a third party comes into the picture. This position is fairly clear; and I need only refer to two or three decisions cited by the counsel of the appellant. THE decisions are Manik Lal Dutt v. Pulin Behari Pal (AIR. 1950 Cal. 431), Nitish Chandra v. Promode Kumar (AIR. 1953 Cal. 18) and Seth Chiranji Lal Jaiporia v. Hardwari Lal (ILR. 1964 (2)Punj. 321 ). THE counsel has also drawn my attention to a passage from Guba's law of Co-sharers regarding the purpose behind S. 3 of the Partition Act. Undoubtedly, the purpose is to prevent the property falling into the hands of third parties, if it can be prevented in a reasonable manner. THErefore, there can be no doubt in this case that the appellant was entitled to offer to purchase the shares of the other sharers at a price fixed by the court. I also reiterate that he could have exercised that right at any time prior to the auction sale contemplated by S. 2 of the Act. THE decision of the lower appellate court on this question is therefore erroneous.

(3.) IN the circumstances, I direct all parties to bear their respective costs so far incurred in these proceedings. Allowed.