Kadir Bacha Saheb and Others vs Abdul Rahiman Saheb

It is argued that it is not competent to the Court to apply the provision of Section 2 of the Partition Act, because a preliminary order defining the

share of the plaintiff and directing partition has been passed. We are unable to accept this view of the Act. There is nothing in Section 2 to limit its

operation to cases in which no order has been passed; and Section 10 makes it quite clear that the Act can be applied until the scheme of partition

has been finally approved, i.e., until a final decree has been passed u/s ''2 of the Act. It is for those who object to partition representing at least a

moiety of the interests in the property to show that partition cannot, by reason of the circumstances there stated, be reasonably or conveniently

effected, and that a sale of the property will be more beneficial for all the share-holders. Having regard to the nature of the property, namely, a

dwelling house, the size of the house and the number of shares. We cannot doubt that a partition must be inconvenient and unreasonable, and that a

sale will be more beneficial for all parties. Section 4, moreover, gives the defendants the right to purchase the plaintiff''s share, since he, being a

stranger, has bought a part of the family house, If the defendants exercise their option, the provision of Section 2 need not be applied.

We must reverse the orders of both Courts and remand the case for disposal according to law by the District Munsif. Costs in this and in the

lower Appellate Court will abide the result.