MAHABIR RAI Vs. MAHADEO

JUDGEMENT

(1.) This appeal must be allowed. Exceptions to the general rule that a sharer in immovable property has a right to claim separate possession by partition of his share are provided for by Secs.2 and 4, Partition Act (Act 4 of 1893).

(2.) The principle underlying Section 2 of the Act is that a partition ought not to be made if by partition the intrinsic value of the property sought to be partitioned would be destroyed, and, in such a case, money compensation should be given in lieu of the share to which a share-holder may be entitled. Section 4 of the Act has application only to those cases in which a share in a "dwelling house belonging to an undivided family" has been acquired by a stranger to that family, and that stranger claims partition of his share. To the present case, as would appear from the facts to be presently stated, Section 4 has no application.

(3.) The plaintiffs claimed partition of two houses marked A and B. They were granted a decree for partition of house B and there is no controversy with respects to that house in the present appeal. It is also common ground that the plaintiffs share is two-sevenths and the defendants share is five-sevenths in house A. The defendants maintained that house A was too small to admit of partition, and as they were sharers to the extent of five sevenths they were entitled to purchase the plaintiffs share. This contention of the defendants has been upheld by both the Courts below, though on different grounds. The trial Court was of opinion that Section 2, Partition Act, was enacted for the benefit of persons owning more than a half share, and as the defendants owned a five-sevenths share in the house, they were entitled to purchase the plaintiffs share. The lower appellate Court was of opinion that the defendants were, in view of the provisions of Section 4, Partition Act, "in equity entitled" to buy the plaintiffs share.