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1 - 9 of 9 (0.48 seconds)Section 2 in The Partition Act, 1893 [Entire Act]
Section 3 in The Partition Act, 1893 [Entire Act]
The Hindu Succession Act, 1956
The Code of Civil Procedure, 1908
Section 17 in The Registration Act, 1908 [Entire Act]
Badri Narain Prasad Choudhary And Ors. vs Nil Ratan Sarkar on 10 March, 1978
19. The learned counsel also cited a decision of the Hon'ble Apex Court reported in AIR 1978 SC 845 (Badri Narain Prasad Choudhary and others v. Nil Ratan Sarkar). An excerpt from it would run thus:
Mrs. Malati Ramchandra Raut And Ors vs Mahadevo Vasudeo Joshi And Ors on 20 December, 1990
(emphasis supplied)
A bare perusal of the said judgment would clearly indicate that the concerned co-sharer is at liberty to move the Court for bringing the property for sale among the co-sharers in the event of the Court finding that the property concerned was incapable of division. No doubt, the learned counsel for the appellant/plaintiff No.3 would place reliance on para No.13 of the written statement and contend that already D1 clearly stated that the property was indivisible and that there was nothing more to be decided about indivisibility and hence this Court could straight away order for auctioning the first item of the suit property among the co-sharers. There is no dictum in the Hon'ble Apex Court decision to the effect that even while the High court hearing the appeal as against the preliminary decree could invoke the provisions of the Partition Act and direct an Advocate Commissioner to be appointed to conduct auction among the co-sharers relating to an item of suit property is concerned.
Yandapalli Venkataraju vs Hussain Shah And Ors. on 18 July, 1952
A mere reading of it would highlight that the said decision is on a different point as in that case, the lower court misunderstood the High Court's order as though the High Court directed the lower Court to effect the division and not to conduct auction. Thereupon, His Lordship the then Hon'ble Chief Justice Rajamannar, clarified the position and highlighted that despite High Court directed for division of the property, the lower court could entertain an application for auction under Section 2 of the Partition Act. As such, the said cited decision is also not applicable to the facts and circumstances of this case.
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