Appeal No 871 of 1971
Appeal by certificate from the judgment and decree dated December 21 1970 of the High Court of Madras in OS Appeal No 108 of 1966
section V Gupte P Kothandaraman and G N Rao for the appellant
section T Desai A subhashini and 4
V Ranagam for the respondent
M Natesan N C Raghvachari and K Javaram for the intervener
The Judgment of the Court was delivered by Grover J
This is an appeal by certificate from a judgment of the Madras High Court arising out of a suit for partition instituted on the original side of that court
Raja V Rajeswara Rao the respondent herein and Raja V Maheswara Rao deceased who were brothers owned the cinema known as Odeon at Woods Road Madras in equal shares
This property was leased out by them to Isherdas Sahni  Bros
In 1965 Raja Maheswara Rao filed a suit in which it was stated that apart from other properties owned by the two brothers Odeon Cinema which consisted of land buildings theatre furniture talkie equipment etc
was owned by them in equal shares
The lease in favour of Isherdas Sahni  Bros was to expire on April 30 1967
As we are concerned only with the cinema property in the present case it is unnecessary to refer to the pleadings relating to other properties belonging to the two brothers
In para 11 of the plaint it was pleaded that having regard to the nature of the property it was not possible or feasible or convenient to divide it into two halves by metes and bounds
It was prayed that the court in exercise of its inherent jurisdiction should direct the property to be sold by public auction and pay the plaintiff his I share in the net proceeds the sale being subject to the lease in favour of Isherdas Sahni  Bros In the written statement filed by Raja Rajeswara Rao it was denied that the Odeon Cinema property was not capable of division into two halves by metes and bound and it was averred that such a division was not only possible but
it 907 would be also just and proper
The right of the plaintiff in the suit to invoke the inherent powers of the court for a decree for sale was denied
Paras 6 and 7 are reproduced below  6
The defendant submits that the suit property is very easily capable of division by metes and bounds into two shares
The defendant wants to retain his share of the suit property and he does not want to sell or Part with the property
The plaintiff is not entitled to a decree for sale of the suit property
In the event of this Honourable Court holding that the suit property is incapable of division into two shares the defendant submits that he is ready and willing to buy the plaintiff s share in the suit property and prays that this Honourable Court may be pleased to order a valuation of the plaintiff s share to be made in such manner as this Honourable Court may think fit and proper and offer to sell the said share to the defendant at the price so ascertained with suitable directions in that behalf
The defendant is willing to buy the plaintiff s share 
Para 12 was to the effect that in the event of the court ordering sale of the suit property a decree might be passed in favour of the defendant for the purchase of the plaintiffs share at a valuation determined by the court
On July 26 1965 the Court appointed a Commissioner for the purpose of determining various matters which would enable the court to decide whether the property was capable of division by metes and bounds
It appears that before the Commissioner the defendant consistently pressed for a scheme being suggested by which division of the property in dispute could be effected
The report of the Commissioner dated August 27 1965 indicates that he had considerable difficulty in suggesting a division
This is what he said   My submission would therefore be that though the property could be divided in the manner desired by thedefendant the space which is shown as GI  its situation is such that business of the type contemplated by the defendant could not be started therein without detriment to the functioning of the theatre 
It is clear from the order of the learned Single Judge that the prima facie impression which he had formed after inspection of the property was that it was not capable of division by metes and bounds
He had given no final decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit
An objection was raised before the trial judge that because the defendant bad invoked the 908 provisions of section 3 of the Partition Act the plaintiff could not be permitted to withdraw the suit
The trial judge however took the view that so long as a preliminary decree had not been passed in the partition suit it was open to the plaintiff to withdraw the same
Considering the question whether liberty should be granted to bring a fresh suit under Order 23 Rule 1 the trial judge treated it to be axiomatic that in a suit for partition or redemption when a plaintiff withdraws his suit he will be entitled to file a fresh suit as the cause of action is  a recurring one
This is what the trial judge said  Even if the plaintiff is not granted permission under Order 23 rule 1 Civil Procedure Code he will nevertheless have a right to file a suit for partition at any time he pleases
In view of this obvious right of the plaintiff it has to be held that the plaintiff is entitled particularly in terms of Order 23 Rule 1 to bring a fresh suit
 The suit was dismissed as withdrawn
On October 14 1966 Raja Maheswara Rao sold his half share in Odeon to N C Subramaniam and his sons who in their turn sold that share to Isherdas Sahni  Bros P Ltd on January 19 1970
Raja Rajeswara Rao who was defendant in the original suit filed an appeal to the Division Bench of the High Court
During the pendency of the appeal the plaintiff died leaving a will and by an order passed by the court on October 13 1967 the executor appointed by the plaintiff under the will was impleaded as second respondent in the appeal
The Division Bench of the High Court considered that the following question arose for determination  1 Whether the court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such an inherent power and not the power under section 2 of the aforesaid Act
2 Whether the plaintiff having invoked the jurisdiction of the court under section 2 of the Partition Act is entitled to withdraw the suit under Order 23 Rule 1 of the Civil Procedure Code at the same time reserving his right to file a fresh suit on the same cause of action
3 At what stage should the request under section 2 be made and 4 Has the defendant who has invoked the jurisdiction of this Court under section 3 of the Partition Act an indefeasible right to compel the plaintiff to sell the plain 909 tiff s half share to him at a valuation and prevent the plaintiff from withdrawing the suit  On the first question the High Court expressed the view that the Partition Act conferred on the court in a suit for partition a power of sale in certain specified circumstances
No general power of sale could be spelt out from the provisions of that Act
It was hold that section 2 of the Partition Act had been invoked by the plaintiff and the plaintiff could not withdraw a suit in the circumstances of the present case
It was further held that the request of the defendant under section 31 of the Partition Act must be inquired into by the trial judge
Accordingly the appeal was allowed and the trial judge was directed to restore the suit to his file and frame the necessary additional issue and proceed to dispose of the request made by the defendant under section 31 of the Act in accordance with law
The present appeal has been brought against that judgment
During the pendency of the appeal in this Court Ramamurthi Iyer the executor appointed by the will of late Raja Maheswara Rao who had filed the appeal here died on December 24 1971
J Padmini wife of M Jayaraj filed C M P 222772 for being brought on record as the second appellant on the ground that she was the only person competent to represent the estate of the deceased Raja Maheswara Rao
Another petition C M P 178172 was filed in this Court by Isherdas Sahni  Bros P Ltd on the ground that the said company was the assignee of late Raja Maheswara Rao and was still his legal representative and should be impleaded in his place
On July 18 1972 this Court allowed Smt
Padmini to be impleaded as appellant but declined the prayer for substitution as appellant of Isherdas Sahni  Bros P Ltd The company was however allowed to intervene in the appeal
Learned counsel for the parties agreed before us that the only question which survives and which requires our decision is whether in the circumstances of the present case the trial court could allow withdrawal of the suit
This involves the determination of the correct position under Order 23 Rule 1 of the CPC in respect of a suit for partition of joint property in which the provisions of the Partition Act have been invoked or are sought to be applied
Order 23 Rule 1 of the C P C to the extent it is material is as follows O23 R 1
At any time after the institution of the suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim
Where the Court is satisfied a that a suit must fail by reason of some formal defect or 910 b that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim
it may on such terms as it thinks fit grant the plaintiff Permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim
R 3   
In Bijayananda Patnaik vs Satrughna Sahu  Others1 in which an election appeal was sought to be withdrawn it was observed that where an application for withdrawal of a suit is made under O23 R 1 1 the court has to allow that application and the suit stands withdrawn
It is only under sub rule 2 where a suit is not being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject matter that the permission of the court for such withdrawal is necessary
In Hulas Rai Baij Nath vs Firm K B Dass  Co2 a suit for rendition of accounts had been filed
The defence was that the accounts had been settled before any preliminary decree for rendition of accounts was passed
The plaintiff applied for withdrawal of the suit
This Court held that there was no ground on which the court could refuse to allow withdrawal of the suit because no vested right in favour of the defendant had come into existence at the point of time when withdrawal was sought
Certain situations were envisaged where different considerations might arise eg where a set off might have been claimed under O8 of the CPC or a counter claim might have been filed
Even if the defendant in a suit for rendition of accounts could claim a decree for the amount due to him after rendition of accounts no such right could possibly he held to exist before the court passed a preliminary decree for rendition of accounts
It was particularly noted that in the case of a suit between principal and agent it was the principal alone who normally had the right to claim rendition of accounts from the agent
Counsel for both sides have sought to derive support from the above decisions of this Court
On behalf of the appellant it has been contended that under O23 R 1 there is an unqualified right to withdraw the suit if the plaintiff does not wish to proceed with it
It is conceded that if any vested right comes into existence before the prayer for withdrawal is made the court is not bound to allow withdrawal but it is suggested that this can happen only in very limited circumstances ie where a Preliminary decree had been passed or in those cases whether a set off has been claimed or a counter claim has been made
According to the appellant no preliminary decree bad been passed in the present suit and 1  2  911 thus no vested right had come into existence in favour of the defendant
There was no question of any counter claim or set off and therefore the trial court was fully justified in allowing withdrawal of the suit
If the matter were to be viewed only in the above light the appellant s contention would have a good deal of force
But the nature and incidents of a Partition suit and the consequences which ensue once the provisions of the Partition Act are invoked or sought to be applied must be considered before the contentions of the appellant s counsel can be accepted
The Partition Act was enacted to amend the law relating to partition
Sections 2 and 3 are as follows  section 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 reason 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 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 3 1 If in any case in which the Court is requested under the last foregoing section to direct a sale any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertainedand may give all necessary and proper directions in that behalf
2 If two or more shareholders severally apply for leave to buy as provided in sub section 1 the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court
3 If no such shareholder is willing to buy such share or shares at the price so ascertained the applicant or applicants shall be liable to pay all costs of or incident to the application or applications
 912 The scheme of sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made the court can in its discretion on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and distribute the proceeds among the shareholders
Now when a court has been requested under section 2 to direct a sale any other shareholder can apply for leave to by at a valuation the share or shares of the party or parties asking for sale
In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court
other words if a plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partiton suit under section 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it any it is bound to order a valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation
The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner
It would appear from the objects and reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds
There could be instances where there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to
its decree or was driven to all kinds of shifts and expedient in order to do so
The court was therefore given a discretionary authority to direct a salt where
a partition could not reasonably be made and the sale would in the opinion of the court be more beneficial to the parties
But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power
At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court
A question immediately arises whether after a shareholder has applied for leave to buy at a valuation under section 3 the other shareholder who has requested the court to exercise its power under section 2 of ordering sale can withdraw the suit under Order 23 Rule 1 of the Civil Procedure Code
The answer to this question will 913 depend on the nature of the right or privilege which vests in the co sharer to seek to derive benefit of the provisions of section 3
In some of the decided cases a choice or option given to the shareholder under section 3 has been treated as a right or a privilege
See Jhamandas Lilaram vs Mulchand Pahlumal1 and Nitish Chandra Ghosh vs Promode Kunwr Ghosh
2 It was argued on behalf of the appellant that even if a right or privilege is conferred by section 3 on a shareholder once the other shareholder has invoked the procedure prescribed by section 2 of the Partition Act it is not a vested right which can come into existence only if a preliminary decree has been passed by the court or if a mutual compromise has been effected between the parties
Our attention has been invited to the decisions of this court mentioned before in which the passing of a preliminary decree or a compromise being effected were treated as creating a vested right which prevented the plaintiff in a suit for partition from withdrawing it if the other share holders were not agreeable
According to the learned counsel for the appellant the only decision in
which the point under consideration has been directly considered is that of Viswanatha Sastri J in Hasan Badsha vs Sultan Raziah Begum
3 There both parties had conceded that the property was incapable of being divided by metes and bounds and that it should be sold under the provisions of the Partition Act
The defendant applied to Purchase the property under section 3
A Commissioner was also appointed to report whether the property was capable of division and lie reported that it could not be divided by metes and bounds
The plaintiff sought to withdraw the suit
It was held that he was entitled to do so because the court had not made a valuation and an order that the half share of the plaintiff should be conveyed to the defendant on the valuation determined by the court
It might be that an advantage had accrued to the defendant as regards the admissions made in the plaint about the impracticability of dividing the property
That did not clothe the defendant with any enforceable right and did not prevent the plaintiff from exercising the right of a suitor to withdraw the suit
This authority has also been strongly relied upon for the similarity of facts in the present case
Here also it is pointed out  the court had not come to the conclusion that the Property was incapable of division by metes and bounds nor had any valuation been made or order passed for its sale under section 3 of the Partition Act
On the other hand reliance has been placed by the learned counsel for the respondent on the night which inheres in other shareholder to claim partition once an action for partition has been instituted 
Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their 1 24 Indian Cases Vol
1 Cal
243 at p 247
3 AIR 1949 Mad
9 L172 Sup
CI73
914 share partitioned
The following observations of Crump J in Tukaram Mahadu Tandel vs Ramchandra Mahadu Tandel 1 have been cited in support of the above submission  But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants  claim
It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another Order XXIII Rule 14 
It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that section 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23 Rule 1
It seems to us that the true position under sections 2 and 3 of the Partition Act so far as O 23 r 1 CPC is concerned must be determined in the light of the rule enunciated by Crump I in the above case as that rule has seldom been doubted and there is a large body of judicial opinion to support it
See the cases at page 224 Law of Co Sharers by D N Guha
The various stages in the proceedings would be as follows under sections 2 and 3 of the Partition Act 1
In a suit for partition if it appears to the Court that for the reasons stated in section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale
This can be done however only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards
When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale
The court has to order valuation of the share of the party asking for sale
After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under section 3 5
If two or more shareholders severally apply for leave to buy the court is bound to order a sale of the share or shares so the shareholder who offers to pay the highest price above the valuation made by the court
1 ILR 915 6
If no shareholder is willing to buy such share or shares at the price so ascertained the application under section 3 shalt be dismissed the applicant being liable to pay all the costs
A question which presents a certain amount of difficulty is at what stage the other shareholder acquires a privilege or a right
under section 3 when proceedings are pending in a partition suit and a request has been made by a co owner owning a moiety of share that a sale be held
One of the essential conditions for the applicability of section 2 of the Partition Act is that it should appear to the court that a division of the property cannot reasonably or conveniently be made
To attract the applicability of section 3 all that the law requires is that the other shareholder should apply for leave to buy at a valuation
Once that is done the other matters mentioned in section 3  1  must follow and the court is left with no choice or option
In other words when the other shareholder applies for leave to buy at a valuation the share of the party asking for a sale the court is bound to order valuation of his share and offer to sell the same to such shareholder at a price so ascertained
Coming back to the question of withdrawal of a suit in which the provisions of sections 2 and 3 of the Partition Act have been invoked we find it is difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under section 2 of the Partition Act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under section J
In England the position about withdrawal has been stated thus in the Supreme Court Practice 1970 at page 334  Before Judgment
Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him
As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made
This advantage which may or may not fulfil the juridical meaning of a right is nevertheless a privilege or a benefit which the law confers on the shareholder
If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of section 31 it would only enable the plaintiff to defeat the purpose of section 3 1 and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under 916 S2 instead of partitioning it
Apart from these consideration it would also enable the plaintiff in a partition suit to withdrawal that suit and defeat the defendants claim which according to Crump cannot be done even in a suit where the provisions of the Partition Act have not been invoked
In the argument of the learned counsel for the appellant em phasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds
It is thus pointed out that the essential condition for the application of section 2 of the Partition Act had not been satisfied and section 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of section 2
This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by  metes and bounds was not possible
That was sufficient so far as the proceedings in the present case were concerned
The language of section 3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds
It should only appear that it is not so capable of division
It has further been contended that the respondent had maintained throughout that the property was capable of division
He could not therefore take advantage of the provisions of the Partition Act
Further he never made any proper application invoking the provisions of section 3 of the Partition Act and all that he said in his written statement was that in case the court held that the said property was incapable of division into two shares he Was ready and willing to buy the plaintiff s share in the suit at a valuation to be made in such a manner as the court might think proper
In our opinion this was sufficient compliance with the requirement of section 3 of the Partition Act
Section 31 does not contemplate a formal application being filed in every case
The words employed therein simply  mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale
In the written statement even if it was maintained that the property was not capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of section 3 of the Partition Act
Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt  Others vs Thomas Webb Jones1 and the statement in Halsbury s Laws of England vol
24 Second Edition Hailsham Edn paras 745 to 747
It has been pointed out that in the English Partition Act 1868 31 32 Victoriae Cap
40 sections 3 and 5 are similar in terms to sections 2 and 3 of the Indian 1 5 AC 651
917 Partition Act
The statement in Halsbury s Laws of England and the law laid down in the decided cases it is urged do not support the view which has been pressed on behalf of the respondent
The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party if it appeared to the court that it would be more beneficial for the parties interested
The provisions of the English Partition Act do not appear to be in parimutuel with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us
In the result the appeal fails and it is dismissed
But in view of the entire circumstances we leave the parties to bear their own costs in this Court
GC Appeal dismissed


Summary:
In a suit for partition of property between two joint owners the plaintiff made an application to the Court under section 2 of the Partition Act that as one of the properties namely a cinema house with its appurtenances was incapable of division by metes and bounds the same be sold and the proceeds divided between the parties
The defendant contended that it was possible to  divide the property by metes and bounds but offered if the Court took the contrary view to purchase it at a valuation made by the Court under the provisions of section 3 of the Act
The Court appointed a Commissioner whose report showed that he had considerable difficulty in suggesting a division
The Single Judge had given no final decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit
The Judge held that the suit could be withdrawn because no preliminary decree had been passed and that a fresh suit could be brought under the provisions of Order 23 Rule 1 of the Code of Civil Procedure
The suit was dismissed as withdrawn
In appeal the Division Bench held that the defendant had a vested right to purchase the property and reversed the judgment of the trial Court
In this Court it was urged on behalf of the plaintiff s legal representatives that under Order 23 Rule 1 there was an unqualified right to withdraw a suit except that in certain limited circumstances where the defendant had acquired a vested interest the Court was not bound to allow withdrawal
Dismissing the appeal HELD  The true position under sections 2 and 3 of the Partition Act so far as O 23 r
I CPC is concerned must be determined in the light of the rule enunciated by Crump J in Tukarama s case as that rule has seldom been doubted and there is a large body of judicial opinion to support it
It was observed by Crump J that on wider considerations it must be held that Plaintiff could not withdraw so as to defeat the defendant s claim
He further pointed out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission
of another
914B D Under sections 2 and 3 of the Partition Act the various stages in the Proceedings would be as follows  1
In a suit for partition if it appears to the Court that for the reasons stated in section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale
Ibis can be done however only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards
2 When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale
3 The court has to order valuation of the share of the party 905 asking for sale
4 After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholders applying for leave to buy under section 3
5 If two or more shareholders severally apply for leave to buy the court is bound to order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court
6 If no shareholder is willing to buy such share or shares at the price so ascertained the application Linder section 3 shall be dismissed the applicant being liable to pay all the costs
914E 915A As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made
This advantage which may or may not fulfil the juridical meaning of a right is nevertheless a privilege or a benefit which the law confers on the shareholder
If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of s31 it would only enable the plaintiff to defeat the purpose of section 31 and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under s2 instead of partitioning it
Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant s claim which according to Crump J Tukaram s case cannot be done even in a suit where the provisions of the Partition Act have not been invoked
 915G 916A The trial court bad prima facie come to the conclusion that a division by metes and bounds was not possible
That was sufficient so far as the proceedings in the present case were concerned
The language of s3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds
It should only appear  that it is not so capable of division
916C Section 31 does not contemplate a formal application being filed in every case
The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale
In the written statement of the defendant in the present case it was said that even if the court held that the property was incapable of division into two shares the defendant was ready and willing to buy the plaintiff s share in the suit at a valuation to be made in such a manner as the court might think proper
That was sufficient compliance with the requirements of section 3 of the Partition Act
916F G Tukaram Mahadu Tandel vs Ramchandra Nahadu Tandel ILR  applied
Bijayananda Patnaik vs Satrughna Sahu  Others 1964 SCR 538 Hulau Rai Baij Nath vs Firm K B Dass  Co   Jhamandas Lilaram vs Mulchand Pahulma 244 Indian Cases 273
Jharan Chandra Ghosh vs Promoda kumar Ghosh ILR 1953 Vol
at page 247 Hasan Badsha vs Sultan Raziah Begum
AIR 1949 Mad 772 and Peter Pill  Others vs Thomas Webb Jones 5 AC 651 referred to
906 Observed that the provisions of the English Partition Act did not appear to be in pari materia with those of the Indian Partition Act and no assistance could be derived from the English law on the points to be determined in the present case
917B