Case: R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao

of his share and offer to sell the same to such shareholder at a price to be ascertained.12. Coming back to the question of withdrawal of a suit in which the provisions of Ss. 2 and 3 of the Partition Act have been invoked we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under S. 2 of the Partition Act and the defendant has applied to the court for leave to buy at a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 S. 3. 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 S. 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 S. 3 (1) it would only enable the plaintiff to defeat the purpose of S. 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 S. 2 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 defendants claim which, according to Crump J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked.13. In the argument of the learned counsel for the appellant emphasis 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 S. 2 of the Partition Act had not been satisfied and S. 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 S. 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 S. 3 (sic S. 2) 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 S. 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 plaintiffs 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 S. 3 of the Partition Act. Section 3 (1) 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 (sic) capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of S. 3 of the Partition Act.14. 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 v. Thomas Webb Jones, (1880) 5 AC 651 and the statement in Halsburys 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) Ss. 3 and 5 are similar in terms to Ss. 2 and 3 of the Indian Partition Act. The statement in Halsburys 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 pari materia 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.15

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. 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 v. Thomas Webb Jones, (1880) 5 AC 651   and the statement in Halsburys 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) Ss. 3 and 5 are similar in terms to Ss. 2 and 3 of the Indian Partition Act. The statement in Halsburys 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 pari materia 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.