S.1 Title, extent and saving

       (1) This Act may be called the Partition Act, 1893.
       (2) It extends to the whole of India 1[except the State of Jammu and Kashmir] 2[***].
       2[***]
       (4) But nothing herein contained shall be deemed to affect any local law providing for the partition of immovable property paying revenue to Government.
        
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        1. Subs. By Act 3 of 1951, sec. 3 and Sch. for “except Part B States”.
        2. The word “and” at the end of sub-section (2), and sub-section (3) omitted by Act 10 of 1914, sec. 3 and Sch. II.
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Legal Commentary on Partition Act, 1893 - Section 1

Introduction

The Partition Act, 1893, was enacted to provide a legal framework for the partition of property among co-owners, particularly in cases where the property is a dwelling house belonging to an undivided family. The Act aims to prevent the intrusion of strangers into the family dwelling and to facilitate the process of partition among family members.

What Section 1 Says

Section 1 of the Partition Act, 1893, outlines the title and extent of the Act, stating that it applies to all of India and is intended to amend the law relating to partition. It emphasizes the need for a structured approach to partitioning property, especially in familial contexts.

Essential Ingredients

• The Act applies to dwelling houses belonging to undivided families.
• It provides rights to co-owners to buy out shares from strangers.
• It establishes procedures for valuation and sale of shares in partition suits.

Scope of Section

The scope of Section 1 is broad, covering all partition suits involving undivided family properties. It sets the stage for subsequent sections that detail the procedures and rights of co-owners in partition scenarios.

Punishment for Section

Section 1 does not prescribe any punishment; rather, it serves as an introductory provision that lays the groundwork for the rights and obligations established in subsequent sections of the Act.

Legal Comments

• "Legislative Intent" - The legislative intent behind the Partition Act is to protect the rights of family members in their dwelling houses and prevent the intrusion of strangers. - [ Satbeer VS Dharambeer]
• "Right of Pre-emption" - Section 4(1) provides a right of pre-emption to co-owners, allowing them to purchase shares from strangers to maintain family integrity. - [ Saira w/o Mohd. Ishaq VS Mariyam Sattar (deceased by L. Rs. )]
• "Applicability" - The Act applies to all families, not limited to Hindu families, thus promoting equitable treatment across different communities. - [ Alekha Mantri VS Jagabandhu Mantri]
• "Definition of Dwelling House" - A dwelling house is defined as a property used for residential purposes, and its status as such is crucial for the application of the Act. - [ TEIPAL KHANDELWAL VS PURNIMA BAI]
• "Market Value Determination" - The valuation of shares under Section 4 is based on market value, ensuring fairness in transactions. - [ Kashi Nath Bhatt VS Atma Ram]
• "Judicial Precedents" - Courts have consistently interpreted the Act to favor the rights of co-owners, reinforcing the protective measures intended by the legislation. - [ Alekha Mantri VS Jagabandhu Mantri]
• "Execution Stage" - Applications under Section 4 can be made even at the execution stage, highlighting the ongoing nature of rights under the Act. - [ Ghulam Kuddus VS S. K. Amjad Ali]
• "Equitable Considerations" - The courts are guided by equitable considerations when applying the provisions of the Partition Act, ensuring just outcomes for all parties involved. - [ Abinash Chandra Chakraverty VS Sm. Kamala Devi]
• "Transfer of Shares" - The Act specifically addresses the transfer of shares to non-family members, providing a mechanism for family members to reclaim their rights. - [ Ram Bilas Tewari VS Shiv Rani]
• "Pre-emption Rights" - The right of pre-emption under Section 4 is a significant aspect that allows co-owners to maintain control over their dwelling houses. - [ BIRENDRA NATH BANERJEE VS SNEHALATA DEVI]
• "Final Decree" - The provisions of the Act remain applicable until a final decree is passed, ensuring that the rights of co-owners are preserved throughout the legal process. - [ Ghulam Kuddus VS S. K. Amjad Ali]
• "Judicial Discretion" - Courts have discretion in determining the valuation of shares, allowing for flexibility based on the circumstances of each case. - [ Kashi Nath Bhatt VS Atma Ram]
• "Family Unity" - The Act aims to preserve family unity by preventing the fragmentation of family properties through the intrusion of outsiders. - [ Ram Bilas Tewari VS Shiv Rani]
• "Non-joinder of Parties" - The Act does not require all co-owners to be present in a partition suit, allowing for practical resolutions even in complex family structures. - [ Abinash Chandra Chakraverty VS Sm. Kamala Devi]
• "Equitable Relief" - Courts may grant equitable relief in partition suits, considering the interests of all parties involved. - [ Abinash Chandra Chakraverty VS Sm. Kamala Devi]
• "Stranger Purchasers" - The Act provides specific protections against stranger purchasers, ensuring that family members retain their rights in the dwelling house. - [ Ram Bilas Tewari VS Shiv Rani]
• "Historical Context" - The Partition Act was enacted in response to the need for a structured approach to property disputes among family members, reflecting the socio-legal context of the time. - [ Alekha Mantri VS Jagabandhu Mantri]
• "Legal Framework" - The Act serves as a crucial legal framework for resolving disputes related to partition, balancing the rights of co-owners and the interests of justice. - [ Alekha Mantri VS Jagabandhu Mantri]

S.2 Power to 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.

S.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 a sale, the court shall order a valuation of the share or shares in such manner as it may think fir 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 pa

Legal Commentary on Partition Act, 1893 - Section 3

Introduction

The Partition Act, 1893, was enacted to provide a legal framework for the partition of property among co-owners. Section 3 specifically addresses the rights of co-sharers to purchase shares from one another when a sale is directed by the court under Section 2. This section aims to facilitate equitable distribution and prevent the property from falling into the hands of third parties.

What Section 3 Says

Section 3 of the Partition Act, 1893, outlines the procedure when a co-sharer applies to buy the share of another co-sharer after a request for sale has been made under Section 2. It mandates that the court must order a valuation of the shares and offer them to the applying co-sharer at that valuation.

Essential Ingredients

1. Request for Sale: A request must be made under Section 2 for the court to direct a sale.
2. Application to Buy: Any co-sharer can apply to buy the shares of the party requesting the sale.
3. Valuation: The court is required to order a valuation of the shares.
4. Right to Purchase: The co-sharer who applies has the right to purchase at the determined valuation.

Scope of Section

The scope of Section 3 is limited to situations where:- A request for sale has been made under Section 2.- The property cannot be conveniently divided.- The application to buy must be made before the confirmation of the sale.

Punishment for Section

Section 3 does not prescribe any specific punishment; rather, it provides a procedural framework for co-sharers to exercise their rights in a partition suit.

Legal Comments

• Request Requirement - "Request for Sale" - A request under Section 2 is a prerequisite for invoking Section 3, as it signifies the willingness of a co-sharer to convert their share into money. - [ YUNUS C. M. VS C. M. ABOOBACKER]
• Valuation Mandate - "Court's Obligation" - The court must order a valuation of the shares when a co-sharer applies to buy, ensuring transparency and fairness in the process. - [ YUNUS C. M. VS C. M. ABOOBACKER]
• Equitable Rights - "Owelty Principle" - The principle of owelty may apply, allowing a co-sharer to retain the entire property upon compensating the other sharers, promoting equity. - [ Manappurath Abdulla VS Assiya]
• Discretionary Power - "Court's Discretion" - The court has discretion in deciding whether to direct a sale or not, based on the circumstances of the case. - [ Jemma Anne Vassou VS Aurean Agnes Marine Rozario]
• Application Timing - "Timing of Application" - An application under Section 3 can be made even after an order under Section 2, provided the order is set aside. - [ Sarayakaran VS Perumal]
• Auction Process - "Public Auction" - If no co-sharer is willing to buy at the valuation, the property may be sold at public auction, allowing third parties to participate. - [ Jemma Anne Vassou VS Aurean Agnes Marine Rozario]
• Equities Consideration - "Third Party Equities" - The court must consider the equities in favor of third parties, such as auction purchasers, before passing orders under Section 3. - [ Taherbhai Abdulalli VS Nagindas Gokuldas Saraf]
• Final Decree Requirement - "Final Decree" - The court must ensure that the process leads to a final decree that resolves the partition effectively. - [ Jemma Anne Vassou VS Aurean Agnes Marine Rozario]
• Indivisibility of Property - "Indivisible Property" - Section 3 is particularly relevant when the property is found to be indivisible, necessitating a sale rather than a physical partition. - [ 02100112698]
• Legal Standing - "Legal Standing of Co-sharers" - Co-sharers have a pre-existing right in the property, which must be respected during the partition process. - [ Rajasekhar Andanuru @ R. B. Andanur S/o Late Andanuru Basappa VS A. Mohan S/o Andanuru Basappa]
• Judicial Oversight - "Judicial Oversight" - The court must oversee the auction process to ensure fairness and transparency, protecting the interests of all co-sharers. - [ Jemma Anne Vassou VS Aurean Agnes Marine Rozario]
• Non-Participation Consequences - "Consequences of Non-Participation" - A co-sharer who fails to participate in the auction may lose their right to claim the property later. - [ Shivraj Krishan Gupta VS Chander Krishan Gupta]
• Preemptive Rights - "Preemptive Rights" - The right of preemptive purchase under Section 3 arises only if the property cannot be divided during final decree proceedings. - [ Madhamohan VS Lakshmi]
• Equitable Distribution - "Equitable Distribution" - The court must strive for an equitable distribution of proceeds from the sale, ensuring that all parties benefit fairly. - [ 02100112698]
• Finality of Orders - "Finality of Orders" - Orders made under Section 3 must be treated with finality unless challenged, ensuring stability in property rights. - [ Baldev Raj Anand VS Dewan Chand Decd. Thr. Lr's]
• Burden of Proof - "Burden of Proof" - The burden of proof lies on the party claiming a right under Section 3 to establish their entitlement to purchase. - [ Panneer and Others VS Murugaiah Konar]
• Legal Framework - "Legal Framework" - The Partition Act provides a structured legal framework for resolving disputes among co-sharers, promoting harmony and fairness. - [ YUNUS C. M. VS C. M. ABOOBACKER]
• Judicial Interpretation - "Judicial Interpretation" - Courts have interpreted Section 3 to ensure that the rights of co-sharers are protected while also considering the interests of third parties. - [ Sarayakaran VS Perumal]
• Procedural Compliance - "Procedural Compliance" - Compliance with the procedural requirements of the Partition Act is essential for the validity of any sale or purchase under Section 3. - [ Rajasekhar Andanuru @ R. B. Andanur S/o Late Andanuru Basappa VS A. Mohan S/o Andanuru Basappa]
• Impact of Non-Compliance - "Impact of Non-Compliance" - Non-compliance with the provisions of the Partition Act can lead to the annulment of sales and other legal consequences. - [ Shantabai Bhimrao Dawane (deceased through L. Rs. ) VS Martand Keshav Dabhade]

This commentary provides a comprehensive overview of Section 3 of the Partition Act, 1893, highlighting its significance in partition suits and the rights of co-sharers.

S.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.

S.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.

S.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.

S.7 Procedure to be followed in case of sale

       Save as herein before 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, 1[***] 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 Procedure2 in respect of sales in execution of decrees.
        
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S.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 a decree within the meaning of section 2 of the Code of Civil Procedure, (14 of 1882).

S.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.