Masud, J.@mdashThis is the application on behalf of Ashutosh Dhur, Defendant No. 1, for direction of this Court u/s 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 u/s 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 u/s 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
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
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 property to which the suit relates, or of the number of the share-holders 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 share-holders, the Court may if it thinks fit, on the request of any 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.
The marginal heading of the section states "Power to Court to order sale instead of division in partition suits." Under this section the Court may, if it thinks fit, on the request of any share-holder or share-holders, interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribution of the sale proceeds in a case where the division of the property cannot reasonably or conveniently be made and also where a sale of the property would be more beneficial for all the shareholders. Thus the conditions necessary for sale u/s 2 may be stated to be:
(a) A partition suit is pending.
(b) A decree for partition would have been passed if the suit would have been instituted prior to the commencement of the present Act.
(c) By reason of the nature of the suit property, of the; number of share-holders, of any other special circumstances, such a division of the property cannot reasonably or conveniently, be made and a sale of property and distribution of the proceeds would be more beneficial for all the share-holders.
(d) There is a request by any share-holder or share-holders who are individually or collectively holders of share in the suit property to the extent of one moiety or upwards.
In this connection reference may be made to
(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other share-holder applies for leave to buy at a valuation the share or shares of the party or parties asking for a 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 share-holders at the price so ascertained and may give all necessary and proper directions in that behalf.
(2) If two or more share-holders 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 share-holder who offers to pay the highest price above the valuation made by the Court.
(3) If no such share-holder 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 incidental to the Application or applications.
Before an order u/s 3 is made the following conditions are to be complied with:
(a) A request by a share-holder or share-holders who are holder of shares to the extent of one moiety or upwards has been made to the Court to direct a sale of suit property at a valuation to be fixed by the Court, and,
(b) An application has been made by a share-holder or share-holders other than the share-holders who have made the request u/s 2 of the Partition Act to buy the shares of the parties requesting the Court to direct sale of the suit property.
If these conditions are satisfied, it is the mandatory duty of the Court to order a valuation of the share in such manner as it thinks fit and offer to sell the same to the Applicant at the price so fixed. It is also provided u/s 3(2) that the Court shall order a sale of the suit property to the share-holder who offers to pay the highest price in excess of the reserve price, accepted by the Court where two or more share-holders severally applied for leave to buy as provided in Section 3(1). On a construction of Section 3, read with Section 2, it appears to me that if two or more share-holders apply to the Court for leave to buy the suit property in a case where the Court has already been requested by other share-holders who are the owners of one moiety or upwards, the Court shall riot direct a sale of suit property by public auction. It is significant that Section 2 contains the words "on the request of any such share-holder and not on the application of any such share-holder". Such request has to be made in the partition suit. It is not stated in Section 2 that such request has to be made in a substantive application before the Court after the institution of the suit. If the Court is satisfied that a request has been made otherwise than by an independent or separate application there is no bar to invoke Section 2. In the present case, the request has been made by the Plaintiffs Kamal Krishna Dhur and Promoda Kanta Dhur not only in the plaint but also in the affidavits before, me to the effect that if the property cannot be divided by metes and bounds the Court should direct a sale of the property. In fact, a letter written by the Solicitor for the Plaintiffs has been shown to me to which objection has been raised by Mr. Das for not being an annexure to any affidavit on record But the contents of which have not been denied by him or his Solicitor. According to this letter it is the Plaintiffs who wanted the Defendants to purchase their shares. Be that as it may, on a plain construction of Section 2 and Section 3 of the Act, in my opinion, it is not necessary to make the request in a formal application. The word ''request'' in Section 2 may be inferred from all the surrounding circumstances, including the statements or averments, in the plaint, written statement, affidavit or other admitted documents. Further, it should be remember that the Partition Act uses different words in different sections in asking the Court to act in a particular way; u/s 2 a party is required to make a ''request'' and u/s 4 the share-holder must ''undertake to buy the share'' of transferee, but in Section 3(1) and (2) the Legislature has specifically mentioned the word ''apply'' or ''applies''. In the present case, not only Kamal Krishna Dhur and Promoda Kanta Dhur have expressed their desire for sale of the property in the plaint and their affidavit-in-opposition, but also Mr. Das on their behalf has made such request to this Court on the ground that a sale by public auction would fetch higher price and would be beneficial to his clients. Further, Section 2 does not state that such request has-to be made, in a proceeding subsequent to the institution of the suit as submitted by Mr. Das. Mr. Das has further added that if however, the. Court directs the sale it should not be limited to Ashutosh Dhur and Santosh Kumar Dhur arid that his clients should also be allowed to bid in the sale of the said property. According to him, although his clients consented to the sale of the said premises by public auction, such consent may be withdrawn. In my view, his clients cannot be allowed to approbate and reprobate. There would have been some force in this submission if such consent or the request was withdrawn by his clients before the filing of this application. Further, it is not stated on oath by Mr. Das''s clients that they have withdrawn their consent to sell the property by public auction or that the sale should be restricted to the share-holders only including his clients. In the premises, I hold that the Plaintiffs Kamal Krishna, Dhur and Promoda Kanta Dhur have made, the request to the Court for sale of the said property. The Petitioners, Ashutosh Dhur and also the Respondent Santosh Kumar Dhur are not parties who made the said request and as such, the present application on behalf of Ashutosh Dhur is maintainable u/s 3(1). The Respondent Santosh Kumar Dhur has not made a separate application for leave to buy the said property u/s 3(1). But in the affidavit filed by Santosh Kumar Dhur to the present proceedings he has also prayed for leave to buy the property. In fact, Mr. Sirkar, counsel on behalf of Santosh Kumar Dhur, has joined the Petitioner in his prayer for leave to buy the said property. The objection that both Ashutosh Dhur and Santosh Kumar Dhur will have to make separate applications for leave to buy the said property is, an objection more of a form than of substance. The said Ashutosh and Santosh have not made out inconsistent case. In the case cited by Mr. Das Attappa Chettiar v. Somasundaram Chettiar Supra it has not been contended there that the request u/s 2 need not be made by an independent application as contended by Mr. Deb here. Nor it has been decided that such request cannot be made otherwise than by way of an independent application. Further, in that case, there is nothing to show that an application u/s 2 or Section 4 was made. I, therefore, hold that where the Court is satisfied that a sharer or sharers to the extent of one moiety, or upwards have requested or required the Court to sell the suit property by public auction and two or more other share-holders oppose such prayer and want leave of the Court to buy the shares of the parties making the request, it is the mandatory duty of the Court u/s 3(2) to order a sale of such share or shares in the suit property to the share-holders who oppose sale by public auction and offers to pay the highest price in excess of the valuation made by the Court.
4. Applying the said principles to the facts of the present case I find that it is a fit case where order u/s 3(2) should be made. Mr. K.C. Paul, a surveyor appointed under the order of the Court, has valued the said property at Rs. 38,186: vide his report dated January 4, 1969. It is not contended by the counsel for Kamal Krishna Dhur and Promoda Kanta Dhur before me that the said valuation is bad in law or in fact, admittedly, the property cannot be divided be metes and bounds. In the premises, I direct that the Commissioner of Partition should accept the said valuation and allow Ashutosh Dhur and Santosh Kumar Dhur to bid for sale subject to a reserve price of Rs. 38,186 which sum the Court finds to be reasonable. The highest bidder between the said Ashutosh Dhur and Santosh Kumar Dhur would be allowed to buy the shares of the other three branches. The Commissioner is directed to call a meeting of the parties and hold a sale of the shares in the suit property, but the said sale shall be restricted to Ashutosh Dhur and Santosh Kumar Dhur for the purpose of finding out the highest bidder among them, above the said reserve price. He is further directed to take all steps for completing the conveyance and to distribute the sale proceeds within six months from today. The costs of this application will be cost as in a partition Suit. The Commissioner and all parties are to act on signed copy of the minutes. Certified for counsel. The remuneration of the Commissioner is settled at 50 gold mohurs.
