BADRI NARAIN CHOUDHARY & ORS. versus NILRATAN SARKAR

Citation: [1978] 3 S.C.R. 467 · Decided: 10-03-1978 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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467 
BADRI NARAIN CHOUDHARY & ORS. 
v. 
N!LRATAN SARKAR 
March 10, 1978 
[R. S. SARKARIA AND P. S. KAILASAM, JJ.J 
Partition Act, 1893 Ss. 2 and 3, scope of-Interpretation of J~e pleadings-
Equity jurisdiction of the Courts-Powers of Court dehors provisions of Act. 
Jn a suit for partition of the suit property, which was very small in dimen-
sion measuring .013 acres only filed by the plaintiffs-appellants, the trial Court 
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by its judgment dated 14-8-1961, decreed the suit and in doillg so took recourse 
to the provisions of S. 3(2) of the Partition Act, 1893 as it could not be c_on-
veniently partitioned. _ The trial judge fixed the valuaition of the suit pre~1.ses 
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at Rs. 11,250/- and directed "that the suit premises being- incapable of partition 
shall be put to sale between the plaintiffs and the defenda.nt, and the Same 
shall be sold to that party who offers to pay the highest price above the valua-
tion of Rs. 11,250/-". Since the highest bid iin the last auction held by the 
Court in JL1ne 1965, \Vas Rs. 50,000/- and by the plaintiffs the dcfehdant \Vas 
given an option to purchase the property at that price and depoSit the sa-le 
money by July 1965. On his failure, the Court accepted the highest bid of the 
plcliintiffs. 
Accepting the defendant-respondent's appeal, the High Court, held, 
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"by making the averments in paragraphs 8 and lO(c) of this plaint, the plaintiffs 
have clearly made out a case to be dealt with u/s. 2 of the Act", and therefore, 
equity had to be worked out between the parties by allowing the defendant who 
woo residing in the 1st floor and havi•.lg a shop in the ground floor to purchase 
the share of 'the plaintiffs under the· provisions of S. 3(1) r/w S. 2 of the /~ .. ct. 
Taking Rs. 11,250/- as the price of the whole property in suit which \Vas the 
valuation fixed by the trial Court, the High Court worked out the value of the 
plaintiffs' share as Rs. 9,000/-, and that of the defe'Ildant as Rs. 2,250/- and 
further directed that the defendant be allowed to purchase the pla.liitiffs' shire 
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in the suit property. 
Allowi'.lg the appeal by special leave and remitting the case to the 
trial 
Court, the court 
HELD : 1. Under s. 3 r /w S. 2 of the Partition Act, the Court can exercise 
the power u/s 3; y(i) there is. a request of any of the shareholders interested 
individually or collectively to the extent of one moiety or upwards, for sale of 
the property and its distribution and (ii) it reaches an opinion that by reason 
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of the naiure of the property or the number of shareholders or some special 
circun1stances, a division of the property cannot reasonably or conveniently be 
n1ade and that a sale of the property and distribution. of the proceeds would be 
more beneficial for all the shareholders. From the \VOrd "1nay" it is clear that 
even when both the canditions are satisfied, the Court has discretion to direct 
·or not to direct a .sale of the property and distribution of the proceeds. 
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reque~t contemplated is a sine qua non for directing a sale because such a 
request necessarily signified his willingness to have his share convertetl 
into 
money so that the co-shairers may, by means of the procedure provided in s. 3, 
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buy them out.. rfhe request for sale envisaged by s. 2 must be one for public 
sale. If no such· request has been made to the Court s. 3 cannot be brought 
'into operation. 
In the instant case, it is clear from pleadings, that neither in substance nor 
in form a'ily request within the purview of s. 2 had been made by any of the 
parties (co-sharers). That condition precedent for invoking s. 3(1) was lxking. 
The provisions o'f Ss. 2 and 3 of the Partition Act are therefore not applicable 
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to the peculiar circumstances of the case. [470 F-H, 471 A-B, F-G] 
2. In cases, not covered by Sections 2 and 3 of the Partition Act, the po\ver 
of the Court to _partition property by any equitable method is not affected by 
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468 
SUPREME COURT REPORTS 
(1978] 3 S.C.R. 
the said Act. 
In a situation where it is found 2.s a fact, that the suit property 
is so small that it cannot be conveniently and reasonably partitioned by n1ete~ 
and bounds without destroying its intrinsic worth, the Court can <levies such 
other feasible method for affecting partitio'Il as may appec.r to it to be just and 
equitable, in the circumstances of the case. 
In ·the instant case the suit pre· 
party, being incapable of division

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