L RAM PRASAD Vs. MTMUKANDI

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for partition. The subject of partition was a house of which the plaintiff is a transferee of a two thirds share and the defendants of a one third. It has been found concurrently by both the Courts that the house is small and is incapable of partition.

(2.) The Courts below held that the provisions of Section 3, Partition Act; of 1893, applied and that the defendants were entitled to get the whole house at the valuation arrived at by the Court, the Court of first instance having valued the whole house at Rs. 2,100 and the lower appellate Court at Rs. 1,500. It appears that the plaintiff, who is the appellant before us, offered in the Court of first instance and in the lower appellate Court to buy over the share of the defendants on payment of Rs. 1,700. Mr. P.L. Banerji appearing on behalf of the appellant repeats that offer in Court, but the defendants have not accepted that offer. We have therefore to decide in this case whether the Partition Act applied and whether the statement of the plaintiff in para. 5 of the plaint amounts to a request to the Court that the property be sold under Section 2, Partition Act.

(3.) Section 2, Partition Act (4 of 1893) provides: Whenever in a suit for partition it appears to the Court that by reason of the nature of the property a division of the property cannot reasonably or conveniently be made and that a sale of that property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested, to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.