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

2. Raja V. Rajeswara Rao the respondent herein and Raja V. Maheshwara 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 and Bros. In 1965 Raja Maheshwara 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 and 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 1/2 share in the net proceeds, the sale being subject to the lease in favour of Isherdas Sahni and 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 bounds and it was averred that such a division was not only possible but it 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 belowThe 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.7. 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 plaintiffs share in the suit property and prays that this Honourable Court may be pleased to order a valuation of the plaintiffs 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 plaintiffs12 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 saidsubmission would therefore be that though the property could be divided in the manner desired by the defendant 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 theis 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 had invoked the 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 O. 23, R. 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 saidif 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 freshsuit was dismissed as withdrawn.3. 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 and Brothers (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.4. The Division Bench of the High Court considered that the following questions arose forWhether 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 plaintiffs half share to him at a valuation and prevent the plaintiff from withdrawing thethe 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 held 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 S. 3 (1) of the Partition Act must be inquired into by 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 S. 3 (1) of the Act in accordance with law. The present appeal has been brought against that judgment.5. 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. Smt. J. Padmini wife of M. Jayaraj filed C. M. P. 2227/72 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 petitioner C. M. P. 1781/72 was filed in this Court by Isherdas Sahni and 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 and Bros. (P) Ltd. The company was, however, allowed to intervene in the appeal.

Reasoning: 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.