SOMNATH BOSE Vs. MANASENDRA NATH BOSE

JUDGEMENT

(1.) This interlocutory application has come up before us for final disposal. The appeal herein is against the order dated 16th March, 1982 made by D. K. Sen, J. whereby the learned Judge directed the Commissioner of Partition to make a valuation of the shares of all the parties and to sell the shares to the shareholder offering the highest price above the valuation made by the Commissioner of Partition. There were also other directions.

(2.) The application made in the court below, out of which the present appeal arises, was made under Section 3 of the Partition Act by the appellant Somnath Bose.

(3.) Mr. T. C. Dutt, learned Advocate for the petitioner appellant urged that the said order made by the court below should be staved inasmuch as in an application under Section 3 of the Partition Act such order could not be made by the learned Judge. Either the application should have been dismissed or an order as prayed for should have been made. Mr. Nirmal Mitter, learned Advocate appearing for the respondents Nos. 1 and 2, the plaintiff in the suit, urged that the application which was made by his clients in the court below was not under S. 2 of the Partition Act, therefore the appellant had no right to make an application under Section 3 of the said Act. Mr. Mitter urged that his clients have only l/4th share in the property and an application for sale under Section 2 of the said Act could be made by a co-sharer having a moiety or above in the property. Therefore, Section 2 could have had no application to the application of his clients Mr. Mitter also urged that the said application was a combined application for sale of the property amongst the co-sharers failing which the same to be sold by public auction to outsiders. Therefore, Section 2 of the said Act could not strictly be applicable to the said application. Under Section 2 of the partition Act a share could have been sold only to an outsider by that was not the case here. Mr. Gour Roy Chowdhury, learned Advocate for the respondent No. 6, supported Mr. Mitter and submitted that his client did not agree to sale of the property to outsider nor did he request the court to make a sale to outsider. Mr. Dutt has costradicted such submission of Mr. Roy Chowdhury and contended that the respondent No. 6 also requested the court to sell the property to outsider as made by the respondents Nos. 1 and 2 in their application in the court below.