1. The only question raised in this appeal by the learned counsel for the appellant is that (1) the trial Court, in order to ascertain the correct value of the suit house, should have invited bids in public auction, and (2) that in spite of the objection of the appellant that the Court should refrain from appointing a Commissioner for that purpose, her objection was overruled without any satisfactory reason. --"6. (1) Every sale under section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think tit and may be varied from time to time.
(2) On any such sale any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase money or any part thereof instead of paying the same as the Court may seem reasonable.
(3) If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder. "
2. Subsection (1) ibid would show that section 6 of the Act would apply in a case in which the suit property has been the subject-matter of sale under section 2 of the Act. And in order to see, if the sale in this case would be covered by section 2, it may also be reproduced :- "2. 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 mason of the nature of the property 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 before 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."
3. Now, this section would, in view of the language in which it is couched, appear to apply in a case in which tie Court is of the view that by reason of the nature of the property or the number of the shareholders therein or of any special circumstance, a division of the property cannot be reasonably or conveniently made and that a sale of the property and dis--tribution of the proceeds would be more beneficial for all the shareholders, then the Court may, if thinks fit, on the request of any of such shareholders direct a sale of the property and the distribution of the proceeds between them. The present case is however, different ; for in the suit house there are only two shareholders, namely, the appellant and her husband, and consequently, they cannot be said to be "shareholders" within the meaning of section 2 of the Act, which expression would, in my view, apply in a case in which there are at least more than two shareholders. This appears to me to be the only reasonable construction of the expression "shareholders", because if there are only two shareholders in the property, no complications would, gas contemplated by section 2 of the Act, arise ; for one of them would be conveniently able to purchase the share of other shareholder and became the sole owner of the property. In any event, no request was made by the parties in this case to the trial Judge that the suit house was of the type of which mention has been made in section 2 of the Act, and, therefore, instead of dividing, ft should be sold and the proceeds distributed between them. In this view, section 6 of the Act would have no application and the contention of the learned counsel would appear to be misconceived.
4. As regards the second contention, it is factually based on incorrect premises. It is in the report of Commissioner that he had inspected the suit house in the presence of parties, had found the house to be entirely indivisible, the parties them--selves had agreed with his views and bad no objection that the house should be evaluated and the parties asked to purchase the share of the other. However, it was suggested by them that in the event of their disagreement, the house should be sold in auction and the parties paid their shares in cash. The order-sheet of the trial Court dated 20-7-64 would show that the counsel of parties were present in Court and they said to be having no objection to the report of Commissioner. On that date, respondent however, moved an application that he was willing to purchase the share of appellant in the suit house and on this the Court, in the presence of appellant's counsel, recorded the statement of appellant in which accepted she suggestion of respondent. The Court, therefore, directed the Commissioner to evaluate the suit house and submit his report before 7-9-64. It is not disputed that the entire proceedings had been conducted by the Commissioner on the spot in the presence of parties who then submitted his detailed report to the Court saying therein, that the value of the house was Rs.
5. 7,000. The order-sheet of the Court dated 17-9-64 would show that the counsel of appellant was present and he made statement that he had no objection to the report of Commissioner. The report in question was accordingly accepted and since the suit house was found by the Commissioner to be impartible, the Court ordered that respondent would pay to the appellant Rs.
6. 3,500 for her half share in the house and directed that decree be drawn accordingly. It seems to me that the learned counsel had, in view of these admitted facts, misconceived the factual position, as if in the face of objection raised by the appellant, she was not prepared to accept any such arrangement, the trial Court nevertheless decreed her suit in the manner to which exception has now been taken. I am, therefore, satisfied that whatever proceedings were taken by the Commissioner, they were taken in the presence of and with the consent of appellant, and consequently, it is too late in the day to take objection to the decree passed in her suit which was based on the report of Commissioner.
7. This appeal fails and is therefore dismissed. In view of the peculiar circumstances of the case, however, parties would bear their own costs.