Charles Dickson Field, J.

1. The plaintiff in this case purchased two-thirds of aproperty consisting of ten houses. One of these houses has since fallen down,or otherwise been destroyed, and the present dispute concerns nine houses only.The plaintiff sued to have a partition, and he said that he intended to breakdown and remove those houses, of which he would obtain possession by thispartition.

2. The Munsif gave him a decree for six houses out of thenine, holding that this was the arithmetically proportionate share of theproperty. An appeal was then preferred to the Subordinate Judge, and theSubordinate Judge, evidently influenced by the idea that the case was a hardone, directed that the houses should be valued, and that two-thirds of thevalue, together with legal interest, should be given to the plaintiff.

3. The plaintiff now contends that the Subordinate Judge hadno right to give him the price of the houses instead of the houses themselves,and we think that upon this bare contention the plaintiff is entitled tosucceed. The principle in these cases of partition is that if a property can bepartitioned without destroying the intrinsic value of the whole property, or ofthe shares, such partition ought to be made. If, on the contrary, no partitioncan be made without destroying the intrinsic value, then a money compensationshould be given instead of the share which would fall to the plaintiff bypartition.

4. In the present case the defendant did not object beforethe Subordinate Judge that the nine houses could not be partitioned withoutdestroying the value of the property. He did not object that no three housescould be given to him which would bear a fairly proportionate value to thewhole of the property. We think, therefore, that the decree of the SubordinateJudge is erroneous and must be set aside.

5. We have, however, to point out that the Munsif committedan error in directing six houses out of the nine to be given to the plaintiffwithout specifying which six houses should be given. In other words, he shouldhave proceeded under the provisions of Section 396 of the Code of CivilProcedure, and we direct that having determined what portion of the propertyought to be given to the plaintiff as representing the two-thirds which heobtained by purchase, the Munsif do proceed to embody in his final decree theresult of the Commissioners investigation and report.

6. We do not think that this is a case in which we ought togive costs.

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Ashanullah vs. KaliKinkur Kur and Ors. (17.04.1884 - CALHC)