Partition suits unfold in two key steps. First, a Preliminary Decree determines everyone’s legal percentages. Second, a Court-appointed Commissioner inspects the property to see if it can be physically split. With compact or complex structures—like a single house, a tight commercial shop, or an irregular plot—a physical division is rarely practical.
Once the Commissioner’s report confirms that a split by ‘metes and bounds’ is impossible, the court can legally proceed into a property sale when one party pleads for it.
Who Can Request the Sale?
Under Section 2 of the Partition Act, 1893, any shareholder or group of shareholders holding 50% or more (“one moiety or upwards”) of the total property shares can formally request a sale.
For that, the legal counsel must file a formal application under Section 2, requesting the court to bypass physical division and order a sale instead. The application should rely heavily on the Commissioner’s report as the primary piece of evidence.
The court must be satisfied that a sale is more beneficial for all shareholders than an awkward, value-destroying physical split.
In R. Ramamurthi Iyer v. Raja V. Rajeswara Rao [1973 AIR 643], the Supreme Court clarified that it is not mandatory for the court to find absolute physical impossibility. It should merely “appear” to the court that the property is incapable of convenient division to justify ordering a sale.
The Section 3 Buy-Out Right for the Other Party
The moment a Section 2 application for a sale is filed, it triggers a powerful protective right for the remaining co-owners under Section 3 of the Partition Act. The law detests forcing families out of their property through a public auction if it can be avoided.
If any other co-owner does not want a public auction, they can apply to the court to buy the requesting party’s share instead.
Once a valid Section 3 application is made, the court cannot proceed to a public auction. It is legally bound to offer the share to the requesting co-owner.
The court will appoint an independent valuer to determine the exact market value of that specific share.
In R. Ramamurthi Iyer v. Raja V. Rajeswara Rao [1973 AIR 643], the Supreme Court held that once a shareholder invokes Section 2 requesting a sale, and another shareholder reacts by applying under Section 3 to buy that share, the right of the buying shareholder becomes vested. The party who initially requested the sale cannot suddenly withdraw their suit to defeat the other person’s right to buy them out.
The judgment in Malati Ramchandra Raut v. Mahadevo Vasudeo Joshi [1991 AIR 700] settled the critical question of when the property value should be calculated. The Supreme Court ruled that the valuation of the property for a buyout must be determined as of the date the right under Section 3 accrues (i.e., the date the buyout is sought), ensuring price fairness against market fluctuations during a long trial.
If more than one co-owner steps up wanting to buy the share, the court will organize a private auction restricted only to those co-owners. The share will be sold to whichever co-owner bids the highest price.
Public Auction and the Final Decree
If no co-owner steps forward to exercise their Section 3 buy-out rights, or if they lack the financial capacity to pay for the share, the court moves to a public auction.
Then the Court orders the property to be sold via a public auction managed by an officer of the court.
The proceeds from the auction, minus court and auction fees, are deposited into the court.
The court passes a Final Decree, distributing the cash to each party according to the precise percentages established all the way back in the Preliminary Decree.
