The court has power to direct the sale of a joint family property and divide the proceeds between the members thereof, even in the absence of an application under Section 2 or 4 of the Partition Act, 1893.

K. SUBBA RAO, C.J. : -

This Second Appeal raises a question of law, namely, whether the Court has power dehors the provisions of the Partition Act, 1893, (hereinafter referred to as the Act) to direct the sale of a joint family property and divide the proceeds between the members thereof.

2. The suit out of which this appeal arises was filed by the appellant in the court of the Subordinate Judge, Rajahmundry, for partition of the plaint schedule property comprising of a house and a small adjoining site measuring 450 sq. yards. The plaintiff and the 1st defendant are both medical practitioners. The plaintiff has been practising his profession at Achanta since 1925 and the 1st defendant set up practice in the suit house at Rajahmundry in 1929. Both the courts found that the property, in its very nature, was not partible and was not capable of convenient or easy division. Whereas the learned Subordinate Judge directed the auctioning of the house between the plaintiff and the 1st defendant, the learned District Judge held that the auction should not be confined only to the parties to the suit. The plaintiff has preferred the above appeal against that direction.

3. Learned Counsel for the appellant contends that, as neither of the parties requested the court to sell the house within the meaning of section 2 of the Act, the Court had no jurisdiction to sell it but should have divided it into two parts and on the assumption that the court had such jurisdiction to sell it, it should have confined the auction to the brothers. Learned Counsel for the respondent on the other hand argues that the court has power dehors the provisions of the Act to direct the sale of the property in such a way as to get the best price in a case where the property cannot be equitably and conveniently divided between the parties and divide the proceeds between them and this power is not confined to an auction between the members of the family but, if the circumstances demand, it may be thrown open to the public.

4. Before we consider the question of law raised, we must discountenance the attempt made by the learned Counsel to reopen the concurrent findings of the courts below to the effect that the property was not capable of convenient or easy division. The finding is one of fact and there are no permissible grounds to reopen it. We accept the finding.

5. Adverting to the question of law raised, before we consider the scope of the provisions of the Act, it would be advantageous at the outset to notice the law on the question as disclosed in the Hindu Law texts and the decided cases of the various High Courts. The following views are found in the Hindu Law-texts :

Manu IX. 219.

A dress, a vehicle, ornaments, cooked food, water and female slaves, property destined for pious uses and sacrifices, and a pasture ground, they declare to be indivisible.

Mitakshara. I. iv. 21.

Water, or a reservoir of it, as a well or the like, not being divisible must not be distributed by means of the value; but it is to be used by the coheirs by turns.

Mitakshara. I. iv. 25.

The common way or road of ingress and egress to and from the house, garden or the like is also indivisible.

Brihaspathi as stated by Smritichandrika VII, 41.

Those by whom clothes and the like articles have been declared indivisible have not decided properly. The wealth of the rich depends on clothes and ornaments. Such wealth when withheld from partition will yield no profit; but neither can it be allotted to a single co-parcener. Therefore, it has to be divided with some skill or else it would be useless. Clothes and ornaments are divided by distributing the proceeds after selling them; a written bond concerning a debt is divided after recovering the sum lent; prepared food is divided by an exchange of an equal amount of unprepared food. The water of a well or pool shall be drawn according to need. Fields and embankments shall be divided according to their several shares.

Katyayana cited in Smritichandrika,