KAMAL KRISHNA DHUR Vs. ASHUTOSH DHUR

JUDGEMENT

(1.) This is the application on behalf of Ashutosh Dhur, Defendant No. 1, for direction of this Court under Sec. 3 of the Partition Act, 1893, in connection with the sale of premises No. 7B Beniatolla Street, Calcutta. The two Plaintiffs, Kamal Krishna Dhur and Promoda Kanta Dhur, the Petitioner Ashutosh Dhur and Santosh Kumar Dhur, the Defendant No. 2, being four brothers governed by the Dayabhaga school of Hindu Law, are the absolute owners of the said premises. The said property is the dwelling house belonging to the undivided family consisting of the said co -sharers. The said Ashutosh Dhur and Santosh Kumar Dhur are each entitled to an undivided the share in the said property and the Plaintiffs are the share -holders interested collectively to the extent of an undivided £ share therein. In the plaint Kamal Krishna Dhur and Promoda Kanta Dhur have stated that, if it appears to this Hon'ble Court that division of the said property cannot reasonably or conveniently be made, the Hon'ble Court be pleased to direct a sale of the said property and to distribute the proceeds thereof. Similarly, Ashutosh Dhur in para. 6 of the present petition has stated that if it appears to the: Court that a division of the said property cannot reasonably or conveniently be made and that a sale of the said property would be more beneficial for all share -holders, the Petitioner should be allowed to buy the shares of the Plaintiffs at a valuation of the property to be determined by the Court. In the premises, the Petitioner has asked for an order to the effect, that the said premises be offered for sale to him at the price ascertained by valuation of the said property. Santosh Kumar Dhur has stated in pari. 4 of his affidavit that he is also ready and willing to buy the shares of the Plaintiffs Kamal Krishna Dhur and Promoda Kanta Dhur in the suit property at a price to be; fixed by the Court. The Learned Counsel for Santosh Kumar Dhur has submitted that under Sec. 3(2) of the Partition Act, 1893, a sale of the suit property should be directed between him and Ashutosh Dhur so that the highest bidder among them be allowed to buy the same on payment of the proportionate shares of the sale price to the other parties. Kamal Krishna Dhur and Promoda Kanta Dhur have stated in para. 8 of their joint affidavit that they have no, objection that the property might be sold if it is found that the same cannot be effectively partitioned. The property should be sold by public auction subject to a reserve price with liberty to set off their shares of sale proceeds against the price. According to them, there are many ready buyers who are willing to purchase the said property at a price of Rs. 55,000 and that they would suffer irreparable loss if sale by public auction is not ordered. In the affidavit -in -reply Ashutosh Dhur has denied, that there are buyers willing to purchase the whole property at a price of Rs. 55,000.

(2.) Mr. S. Deb, counsel for Ashutosh Dhur, has submitted that his client has a legal right to purchase the said shares of the property under Sec. 3(1) and (2) of the Partition Act, 1893 and that the provisions of the said Act do not authorise this Court to direct a sale of the said premises by public auction. In support of his contention reliance has been made by Him on Jageshwar Singh and Ors. v/s. Kandhaiya Bux Singh and Anr. : A.I.R. 1949 All. 753 and Hari Charan Bera and Ors. v/s. Fakir Chandra Sao , (1936) 40 C.W.N. 955 . Mr. M.B. Shrkar, on behalf of Santosh Kumar Dhur, has adopted the said, argument of Mr. Deb and added that his client is also willing to buy the said property under Sec. 3(2) of the Partition Act.

(3.) Mr. R.N. Das, counsel for Kamal Krishna Dhur and Promoda Kanta Dhur, has strenuously opposed the present application and has referred me to Rule Ramaprasada Rao v/s. R. Subbramaiyah and Ors. : A.I.R. 1958 A.P. 647 in support of his contention that the property should be sold by public auction so that the parties might get the highest value of the said property. He has added that, in the alternative, the sale should be restricted to all the share -holders including his clients inasmuch as they are also keen to retain the ancestral property. Relying on Athappa Chettiar v/s. Somasundaram : A.I.R. 1944 Mad. 428 he has urged that this application is not maintainable as no application has been made by his clients requesting the Court to sell the property by public auction. According to him, request should be made in a formal application and that statement in the plaint by his clients cannot be construed as a 'request' within the meaning of Sec. 2 of the Partition Act. In any event, he has submitted that his clients are willing to withdraw their earlier request. I may now examine the contentions of the counsel for both the parties Sec. 2 of the Partition Act reads as follows: