Power to court to order sale instead of division in partition suits
Section 2 of the Partition Act, 1893 deals with power to court to order sale instead of division in partition suits. Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the properly to which the suit relates, or of the number of the shareholders therein, or of any othe The Act came into force on 09 Mar 1893.
Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the properly to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
Section 2, The Partition Act, 1893 (Act 4 of 1893).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Saheb Khan vs Mohd. Yusufuddin
Court's Decision & Legal Precedent
For setting aside a court-ordered sale under Order XXI Rule 90(2) CPC, the applicant must establish both a material irregularity or fraud in publishing or conducting the sale AND substantial injury sustained by the applicant as a result of such irregularity or fraud. The presence of either element alone is insufficient. Allegations of fraud or irregularity must be made with specific particulars supported by material facts; bald allegations are impermissible. 'Wide publicity' directed by the court does not necessitate newspaper advertisement unless specifically ordered. Compliance with Order XXI Rules 54(2) and 67(1) through local notices, pamphlet distribution, and affixation on property constitutes adequate publicity. An alleged prospective purchaser's unperformed offer, without actual deposit or appearance despite multiple opportunities, cannot justify setting aside a duly executed auction sale where the actual purchaser has fully complied with payment obligations.
On this section: High Court held that notice under these sections must be given to parties before sale; Supreme Court found this requirement immaterial when the party had not expressed intention to purchase
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B. Sripada Rao v. Champaka
Court's Decision & Legal Precedent
Before directing public auction sale under s.2 in FDP, the executing court must follow the linked procedure in ss.2, 3 and 6 (including shareholder buy-at-valuation / reserved bidding). Ordering auction merely because a house "cannot be divided" without that procedure is unsustainable; matter remanded.
On this section: s.2 sale-instead-of-division power is the triggered provision; the Court insists on statutory procedure before exercise.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 2
What have the courts held on Section 2 of the Partition Act?
Saheb Khan vs Mohd. Yusufuddin (17 Apr 2006) is the leading judgment on this section among those set out below: High Court held that notice under these sections must be given to parties before sale; Supreme Court found this requirement immaterial when the party had not expressed intention to purchase. Another 1 judgment on this section is set out below, 1 of them from the Supreme Court. They run from 2006 to 2019.
How do I find court cases under Section 2 of the Partition Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Partition Act 1893 2, section 2 Partition Act 1893, section 2 of the Partition Act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 2 reported judgments on this section are set out on this page, beginning with Saheb Khan vs Mohd. Yusufuddin (17 Apr 2006).
What should I read with Section 2 of the Partition Act, and has it changed?
2 other provisions in this corpus refer back to it.
When did Section 2 of the Partition Act come into force?
Section 2 of the Partition Act, cited as Partition Act 1893 2, came into force on 09 Mar 1893, having been enacted on 09 Mar 1893. It is in force as at the date shown on this page.
Other sections of this Act
- 3. Procedure when sharer undertakes to buy170 words
- 6. Reserved bidding and bidding by shareholders131 words
- 4. Partition suit by transferee of share in dwelling-house127 words
- 7. Procedure to be followed in case of sales126 words
- 5. Representation of parties under disability84 words
- 1. Title, extent and saving45 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.