KALAKKATHANKANDI CHATHAN Vs. VALIA PARAMBATH CHEERU AND ORS.

JUDGEMENT

(1.) THE petitioner is the plaintiff in a partition suit in which a decree was passed for the division of a small house situated in a paramba or garden about ten cents in extent, into two shares, the plaintiff being entitled to one half and defendants 2 to 6 who are strangers but who took an assignment of the other half share from the first defendant, who is plaintiff's brother, being entitled to the other half. Complications ensued in effecting a partition of this small house and garden, as may well be expected. Two commissioners appear to have been appointed - -for what reason neither of the learned advocates can say - -who appear to have divided the garden itself into two portions one of which they proposed to be allotted to the plaintiff and the other to defendants 2 to 6. They valued the house itself at Rs. 1,495 -4 -2 and proposed its allotment to the defendants. It would appear that defendant No. 1 and defendants 2 to 6 are all residing in this house. The Commissioners proposed equalisation on the defendants paying the plaintiff half the value of the house. The learned advocate for the respondents say that they are poor and are unable to pay the half share of the valuation of the Commissioner, quite apart from its being very excessive. The plaintiff filed a previous -application, I. A. No. 1021 of 1947 for the sale of the entire house and garden and a division of the sale proceeds into two. This however appears to have been dismissed by the learned District Munsiff on the insistence of the defendants to a half share in the land itself to which they contended they were entitled under the preliminary decree. The next stage was the application under revision filed under Section 151 of the Civil Procedure Code by the defendants 2 to 6 for a Court direction to the commissioner to auction the house as between the two sharers; and to re -allot the garden plots among them in modification of the commissioner's proposals. The learned District Munsiff allowed this petition, in substance on grounds which I am not able to appreciate.

(2.) EVEN on the showing of the learned advocate for the respondents, even if they purchased the house put up for auction as between the sharers, they are too poor to pay a half share of the purchase money to the plaintiff. The simple fact of the matter and one which explains all these unnecessary complications in the partition of this small house is that it is really incapable of any equitable or practicable partition into two shares in the circumstances. It is eminently a case to which Section 2 of the Partition Act should be applied in which a division of this house cannot reasonably or conveniently be made and in which on the request of the plaintiff who reiterates it again here, the Court should direct a sale of the entire property and a distribution of the sale proceeds amongst the sharers. It is regrettable that Section 2 of the Partition Act is so frequently ignored by executing Courts in seeking to give effect to family partition decrees and in trying to fragment land and houses into impracticable impossible and uneconomic segments. I am wholly unable to see how any partition of this small house on ten cents of land can by any stretch of language be reasonably or conveniently made in these circumstances. The only course and one which the learned District Munsiff should have given effect to in the previous application was an order for the sale of the house and the entire garden in Court auction under Section 2 of the Partition Act read with Section 6. This course will now be adopted. It will be open of course, to the sharers to bid, but provided they are in a position to deposit immediately half the purchase money for payment to the other sharer if successful. The lower Court will, after hearing the parties, fix a suitable upset price as required by Section 6 of the Partition Act. I direct the parties on this petition to bear their own costs.