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11. The decision in Pannalal Dutt's case, (1950) 86 Cal LJ 144 was relied on by counsel for the respondent. At page 147 of the report S. B. Sinha, J., said that it is well known that before the passing of the Partition Act the Court had no alternative but to make a decree for partition even though such a decree was ruinous to the party. It is also said there that the Partition Act directed a sale of the property when it appeared to Court that it could not be reasonably or conveniently partitioned. Section 2 of the Partition Act provides that an order for sale can only be made on the request of shareholders interested in a moiety of the property to be partitioned. In Pan-nalal Dutt's case the learned Judge said that the procedure laid down by the Partition Act could not be taken advantage of in that case and there was no jurisdiction to direct a sale of the property and distribution of the proceeds in the absence of a request from shareholders interested individually or collectively to the extent of one moiety in the said property. Reference was made to the decisions in (1911) 15 Cal WN 552 and 52 Cal LJ 68=(AIR 1930 Cal 616) which followed Debendra's case, (1911) 15 Cal WN 552 and it was said that the authorities indicated that apart from and independently of the provision of the Partition Act there was no jurisdiction to order a sale of the properties between the parties. It is manifest that if there was no jurisdiction before the Partition Act to direct a sale of the properties there could not be the inherent jurisdiction of the Court to direct a sale.

13. The question which was raised a3 to whether there can be any sale apart from the Partition Act is answered in the negative by the Bench decision in . The other question is whether in directing sale the Court can confine it only to co-sharers. Reference to Section 6 of the Partition Act will indicate as to what the character and nature of sale is as contemplated by Section 2 of the Partition Act. In the case of (1948) 52 Cal WN 739 the quesion was whether a sale which was directed in that case was a sale under the Partition Act or not. One of the contentions was that the sale was not a sale under the Partition Act because it was a sale by private treaty and not a sale by public auction as required by Section 6. Dealing with that contention Chakravartti, J., said, "The other ground is seemingly a more substantial one, for Section 6 of the Act uses the words "bid" and "bidding" and does indicate that where the sale is not to co-sharers under Section 3, it must be a sale by public auction." Counsel for the respondent submitted that this was not the view expressed; but was merely taking notice of arguments. I am unable to read the decision in that manner. Further the provisions contained in Section 6 of the Partition Act and, in particular the provisions that when there would be a bidding and of the two bidders one would be a shareholder certain relief would apply in regard to payment of price by such a shareholder bidder indicate that the sale that is contemplated in Section 2 of the Partition Act is a public sale open to shareholders and outsiders. See Durgamba v. Lakshminara-simhaswamy Rice Factory, AIR 1946 Mad 299.

14. The authorities reviewed in the Bench decision of Nritya Gopal Samanta indicate, as has been laid down in that decision, that a sale can be only under the Partition Act. If a sale is only under the Partition Act and if provisions contained in Section 2 are attracted, any co-sharer willing to bid will have opportunities provided by Section 3 of the Partition Act. The reason why a public sale is contemplated in Section 2 is furnished by the language of the section. The words enjoined in Section 2 of the Partition Act are, first that where the Court by reason of the nature of the property or of the number of shareholders or of any other special circumstance finds that a division of the property cannot reasonably or conveniently be made and secondly that a sale of the property and distribution would be more beneficial for all the shareholders the Court has the discretion to order a sale. The words 'more beneficial for all the share-holders' are to be kept in the forefront. It will appear in Halsbury's Laws of England, 1st Edition, Volume 21, paragraph 1579, page 844 that in determining whether a sale is more beneficial than a partition, the Court considers only the pecuniary results disregarding matters of sentiment and has regard to the interest of all parties interested as a whole. The reason why reference has been made to the first Edition of Halsbury's Law of England is because the Partition Act in England has gone out of statutory field and is now replaced by other statutes. The present provisions of the Law of Property Act which are a substitution of some of the provisions of the English Partition Act have been dealt with in Halsbury's Laws of England, Third Edition, Volume 32 and it will appear from paragraph 543 pages 344 and 345 that the words beneficial for all the shareholders are to be judged in terms of pecuniary gain to all the parties interested as a whole.

31. In and although no requests were made for sale under Section 2 of the Partition Act, the Court ordered sale of the property among the co-sharers. No reasons were given in those judgments for the orders. In (1950) 86 Cal LJ 144 to which reference has already been made, S. B. Sinha, J., relied on and and held that apart from the Partition Act the Court has power to direct sale among the co-sharers in exercise of its inherent jurisdiction.

32. These cases, as has been seen, do not lay down expressly or impliedly the proposition of law which S. B. Sinha, J., thought they did, and we respectfully agree with the views expressed in that "there is no current of authority which would establish that in a suit for partition the Court possesses a power to direct a sale apart from the Partition Act. The effect of the Partition Act cannot be whittled down by drawing upon some undefined and uncertain inherent powers in courts to direct a sale in lieu of partition where the invitation of the parties to the Court is merely to make a partition between the co-sharers inter se. The power of the Court to direct a sale in a suit for partition must be held to be limited to the cases provided for by the Partition Act." It only remains for me to add that soon after S. B. Sinha, J., had delivered his judgment, Chakravartti. J., in (1948) 52 Cal WN 739 described an order for sale by private treaty or public auction made in a partition suit as a wrong direction or too wide a direction and held that an order for sale can be made in a partition suit only under the Partition Act or by consent and if consent is excluded, the only other source of authority which remains is the Act. It is not a little unfortunate that this case was not cited before Bachawat, J., in (1952) 90 Cal LJ 147 or before the Division Bench in .