[Act No. 4 of Year 1893]
An Act to amend the law
relating to Partition
Whereas it is expedient to amend
the law relating to partition; It is hereby enacted as follows:
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1. Title, extent and
saving
(1) This Act may be called the Partition Act,
1893.
(2)
It extends to the whole of India except the State of Jammu and
Kashmir.
(3) [Omitted]
(4) But nothing herein contained
shall be deemed to affect any local law providing for the partition
of immovable property paying revenue to
Government.
2. Power of Court to
order sale instead of division in partition suits
Whenever in any suit
for partition in which, if instituted prior to the commencement of
this Act, a decree for partition might have been made, it appears to
the Court that, by reason of the nature of the property to which the
suit relates, or of the number of the shareholders therein, or of
any other special circumstance, a division of the property cannot
reasonably or conveniently be made, and that a sale of the 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 individually or collectively to
the extent of one moiety or upwards, direct a sale of the property
and a distribution of the proceeds.
3. Procedure when sharer
undertakes to buy
(1) If, in any case in which the Court is requested under
the last foregoing section to direct a sale, any other shareholder
applies for leave to buy at a valuation the share or shares of the
party or parties asking for sale, the Court shall order a valuation
of the share or shares in such manner as it may think fit and offer
to sell the same to such shareholder at the price so ascertained,
and may give all necessary and proper directions in that
behalf.
(2) If two or more shareholders severally apply for leave to
buy as provided in sub-section (1), the Court shall order a sale of
the share or shares to the shareholder who offers to pay the highest
price above the valuation made by the Court.
(3) If no such shareholder is
willing to buy such share or shares at the price so ascertained, the
applicant or applicants shall be liable to pay all costs of or
incident to the application or applications.
Comment: It is the duty of the Court to order the valuation of the shares of the party asking for a sale of the property under S. 2 and to offer to sell the shares of such party to the shareholders applying for leave to buy them in terms of S. 3 at the price determined upon such valuation. As soon as a request for sale is made by a shareholder under S. 2, any other shareholder becomes immediately entitled to make an application under S. 3 for leave to buv the shares of the former. The right to buy having thus arisen and become crystallised, the date with reference to which valuation of the shares in question has to be made is the date on which the right arose. Malati Ramchandra Raut v. Mahadevo Vasudeo Joshi, AIR 1991 SUPREME COURT 700
4. Partition suit by
transferee of share in dwelling-house
(1) Where a share of a
dwelling-house belonging to an undivided family has been transferred
to a person who is not a member of such family and such transferee
sues for partition, the Court shall, if any member of the family
being a shareholder shall undertake to buy the share of such
transferee, make a valuation of such share in such manner as it
thinks fit and direct the sale of such share to such shareholder,
and may give all necessary and proper directions in that
behalf.
(2) If in any case described in sub-section (1) two or more
members of the family being such shareholders severally undertake to
buy such share, the Court shall follow the procedure prescribed by
sub-section (2) of the last foregoing section.
5. Representation of
parties under disability
In any suit for partition a
request for sale may be made or an undertaking, or application for
leave, to buy may be given or made on behalf of any party under
disability by any person authorised to act on behalf of such party
in such suit, but the Court shall not be bound to comply with any
such request, undertaking or application unless it is of opinion
that the sale or purchase will be for the benefit of the party under
such disability.
6. Reserved bidding and
bidding by shareholders
(1) Every sale under section 2
shall be subject to a reserved bidding, and the amount of such
bidding shall be fixed by the Court in such manner as it may think
fit and may be varied from time to time.
(2) On any such sale any of the
shareholders shall be at liberty to bid at the sale on such terms as
to non-payment of deposit or as to setting off or accounting for the
purchase-money or any part thereof instead of paying the same as to
the Court may seem reasonable.
(3) If two or more persons, of
whom one is a shareholder in the property, respectively advance the
same sum at any bidding at such sale, such bidding shall be deemed
to be the bidding of the shareholder.
7. Procedure to be
followed in case of sale
Save as hereinbefore provided,
when any property is directed to be sold under this Act, the
following procedure shall, as far as practicable, be adopted,
namely:-
(a) if the property be sold under a decree or order of the
High Court of Calcutta, Madras or Bombay, in the exercise of its
original jurisdiction, the procedure of such Court in its original
civil jurisdiction for the sale of property by the
Registrar;
(b) if the property be sold under a decree or order of any
other Court, such procedure as the High Court may form time to time
by rules prescribe in this behalf, and until such rules are made the
procedure prescribed in the Code of Civil Procedure (14 of 1882) in
respect of sales in execution of decrees.
8. Orders for sale to be
deemed decrees
Any order for sale made by the Court under section 2, 3 or 4
shall be deemed to be as a decree within the meaning of section 2 of
the Code of Civil Procedure, 1908.
9. Saving of power to
order partly partition and partly sale.
In any suit for partition the
Court may, if it shall think fit, make a decree for a partition of
part of the property to which the suit relates and a sale of the
remainder under this Act.
10. Application of Act
to pending suits
This Act shall apply to suits instituted before the
commencement thereof, in which no scheme for the partition of the
property has been finally approved by the Court.