Section 2. 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 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.
How courts have applied section 2
- Section 2 empowers a court to order sale where physical division is not possible; such an order does not affect the finality of the preliminary decree.1,2
- Once the Partition Act applies, courts must comply with its provisions and a commissioner cannot devise his own procedure.3
- An application under Sections 2 and 3 cannot be dismissed without recorded reasons for why the applicant lacked a preferential right.4
- Where a claim of procedural violation in an auction was already rejected and attained finality, courts refuse to interfere.5
- A final decree in a partition suit, where physical partition is impossible, is a final order effecting a partition exigible to stamp duty.6
- Before issuing a possession warrant, a court may appoint a commissioner to ascertain the actual situation on site.7
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The judgements here mostly concern the application of Section 2 of the Partition Act, 1893 in final decree and execution proceedings, where courts most often directed a sale after a commissioner reported that physical division of the property was not possible. Courts repeatedly held that where a property cannot be divided by metes and bounds, the court is empowered under Section 2 to order a sale to satisfy the shares declared in a preliminary decree, and that such an order does not revisit the preliminary decree or affect the finality of the rights adjudicated.8,1,9,10,2
Several judgements show courts insisting on procedural compliance and reasoning before ordering a sale under Section 2. Where the Partition Act applies, a court must comply with its provisions and the commissioner cannot devise his own procedure. An order dismissing an application under Sections 2 and 3 without giving reasons for why the applicant lacked a preferential right was held unsustainable and remanded. Before issuing a possession warrant in execution, the court may appoint a commissioner to ascertain the actual situation on site.3,4,7
Courts also addressed the consequences of a sale directed under Section 2. A sale was restored in favour of the largest shareholder for an enhanced amount, rather than accepting a higher offer from a subsequent assignee, because delay precluded equity in the assignee's favour. Where an auction process was challenged for alleged violations, courts refused to interfere where the claims had already been rejected and had attained finality. A final decree directing that a commissioner's plan and a conveyance be part of the decree, in a situation where physical partition was impossible, was held to be a final order effecting a partition for stamp duty purposes.11,5,6
In a few matters, the courts directed that the sale and auction process be completed, fixing timelines or directing a fresh sale proclamation, but did not decide the merits of the Section 2 application. One matter was dismissed as infructuous given a subsequent event, and in another, the court set aside disposal of a suit on an alleged admission and remitted it for trial while upholding an interim order directing sale.10,12,13,14
By court
Outcomes
Judgements applying section 2
Supreme Court holds that the High Court erred in treating the decree as a simple preliminary decree; the decree is both preliminary and final, determining rights to possession, mesne profits, and mode of partition; execution proceedings restored; trial court to complete auction within 2 months.
AllowedOpenThe Supreme Court set aside judgments below that disposed of a partition suit on a purported admission regarding a will, which the court found was never admitted or proved. The matter was remitted for trial.
Appeals against confirmation by the Calcutta High Court of a Commissioner's auction of three joint family properties in a partition suit. The Supreme Court held that the Partition Act's requirements of valuation and reserved price are mandatory, notices to all co-sharers were imperative, and fraud/collusion required…
AllowedOpenA partition suit involving co-sharers where a preliminary decree could not be implemented by metes and bounds. The Supreme Court held that the court below erred in allowing a belated offer from a subsequent assignee to override a confirmed sale in favour of the larger shareholder.
AllowedOpenThis Single Judge Writ Bench dismissed a petition challenging the Final Decree Proceeding (FDP) Court's order directing sale of indivisible land under the Partition Act and rejecting an application to reopen a preliminary decree.
DismissedOpenNandkumar Shankarrao Rasne Vs Jamnadas Prabhudas Bhagwani Died Thr Lrs Bai Jamnadas Bhagwani and Ors.
Outcome: DisposedThe High Court of Bombay allowed a writ petition whereby the petitioner, a judgment debtor aggrieved by the rejection of his application to object to the executability of a decree requiring demolition, sought relief.
DisposedOpen
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Two writ petitions challenging orders directing the sale of indivisible partitioned property. The High Court found no procedural error, allowed parties to participate in the sale, and directed the lower court to re-issue the proclamation for a fresh sale.
DisposedOpenArticle 227 supervisory jurisdiction Karnataka HC; recall of order dated 11.11.2011 directing public auction; fresh public auction of schedule 'B' property; I.A.No.5 under Section 151 CPC rejected 04.07.2025 by XXII Additional City Civil and Sessions Judge (CCH-7) Bengaluru in FDP No.88/2006;
DismissedOpenWrit petition (Article 227, GM-CPC) by plaintiff-side sharers in O.S.No.87/1991 against the order dated 22.07.2024 of the II Addl. Senior Civil Judge & CJM, Mangalore in FDP No.6/2004, whereby the Commissioner's report dated 19.01.2023 — finding physical partition of the ~18.36-acre 'A' Schedule agricultural land at…
DisposedOpenSubrata Nundy Vs the Collector of Kolkata Stamp and Revenue Office of the Collector and Ors.
Outcome: DismissedSubrata Nundy v. Collector of Kolkata, Stamp and Revenue, WPO 506 OF 2025 (High Court at Calcutta, Om Narayan Rai, J., judgment dated 18.02.2026): final decree in a partition suit incorporating the Commissioner's partition plan and accepted by the parties is a 'final order for effecting a partition' under Section…
DismissedOpenPandurang Rajaram Inamdar v. Accelya Solution India Pvt. Ltd., Bombay HC, Writ Petition No. 1931 of 2024, decided 18-03-2025 by N.J. Jamadar J. — withdrawal of suit / abandonment of part of claim, Order XXIII Rule 1(1), (3) CPC; unfettered right at trial stage but not at appellate stage;
DismissedOpenPartition suit — final decree dated 8.12.1997 of the trial Court concerning Shop Nos. 6, 6/1, 6/2, Northbrook Terrace, The Mall, Shimla — Regular First Appeal dismissed by the High Court of Himachal Pradesh (Bipin Chander Negi, J.).
DismissedOpen
Art. 227 Karnataka HC: reasoned order required before rejecting application under Ss. 2 & 3 Partition Act 1893 for purchasher's preferential right in FDP; remand to XXXI Addl. City Civil & Sessions Judge, Bengaluru; consideration in light of WP.No.15176/2020 auction first-preference order;
AllowedOpenKarnataka High Court RFA 882/2023 (decided 25.04.2026) — partition suit final decree proceedings (FDP 181/2014); court commissioner appointed for Feasibility Report submitted only valuation report;
DisposedOpenArticle 227 writ petition (GM-CPC) dismissed as infructuous on account of subsequent event; FDP No.03/2006; application under Sections 2 and 3 of the Partition Act, 1893; direction sought to trial court (V Addl. City Civil and Sessions Judge, CCH-13); prayer not surviving for consideration;
DismissedOpenPartition suit O.S.No.288 of 2005, Mahila Court Chengalpattu; preliminary decree 17.04.2008; final decree application I.A.No.136 of 2014 under Section 2 Partition Act 1893 for court-auction of suit properties; Article 227 direction expediting auction within twelve weeks;
DisposedOpenHigh Court of Karnataka, S.R. Krishna Kumar, J., 19.01.2026, WP No. 20143 of 2025 (GM-CPC). Article 227 petition by judgment debtor No.2 in Ex.31/2017 against rejection of applications under Order XXI Rule 89 CPC and Sections 2 and 3 of the Partition Act, 1893 for valuation of execution schedule item No.3 (compromise…
DisposedOpenKarnataka HC upholds trial court order allowing applications under Ss.2 and 3 Partition Act 1893 for public auction of indivisible residential property in FDP No.125/2023 following final preliminary decree in O.S.No.3452/2015; commissioner reported property not divisible by metes and bounds;
DisposedOpen
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High Court of Karnataka (S Vishwajith Shetty, J.; decided 10.12.2025) dismisses an Article 227 writ petition challenging the order dated 05.12.2020 of the V Addl. City Civil and Sessions Judge, Bengaluru, in FDP No.3/2006, arising out of partition suit OS No.3721/1985 (decreed 28.01.2002;
DismissedOpenPartition Act, 1893 — Sections 2 and 3 — Final decree proceedings (FDP.No.181/2011, flowing from O.S.No.6294/2003) — Residential house in Koramangala held incapable of division by metes and bounds per coordinate bench order dated 11.01.2021 in RFA 1988/2013 c/w 70/2014 restoring the FDP — Trial Court accepted second…
DismissedOpenWrit Petition (Art. 227) against rejection of IA.no.3 in FDP.No.90/2018 — dismissed. The Trial Court, having already ordered sale of the suit house under Section 2 of the Partition Act, 1893, rejected the objecting co-sharers' Section 3 application for leave to buy the other shareholders' shares but reserved their…
DismissedOpenPartition/final decree; Madras HC second appeal dismissed 03.12.2025 (T.V. Thamilselvi, J.) in S.A.No.718 of 2025 confirming Final Decree dated 26.10.2016 in I.A.No.553 of 2012 in O.S.No.74 of 2000 (Subordinate Judge, Gobichettipalayam), itself confirming preliminary decree dated 30.04.2009;
DismissedOpen