Supreme Court of India

R. Ramamurthi Iyer vs Raja V. Rajeswara Rao on 22 August, 1972

Equivalent citations: 1973 AIR 643, 1973 SCR (1) 904

Author:
A.N. Grover

Bench:
A.N. Grover
,
D.G. Palekar

PETITIONER:
R. RAMAMURTHI IYER

Vs.

RESPONDENT:
RAJA V. RAJESWARA RAO

DATE OF JUDGMENT22/08/1972

BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
PALEKAR, D.G.

CITATION:
1973 AIR 643 1973 SCR (1) 904
1972 SCC (2) 721

ACT:

Partition Act
s. 2
& 3-Code of Civil Procedure O. 23 R. 1-
Plaintiff in suit for partition applying to court for sale
of property-Defendant agreeing to buy at valuation made
under direction of Court-Plaintiff whether can withdraw suit
and have liberty to file fresh suit.

HEADNOTE:
In a suit for partition of property between two joint owners
the plaintiff made an application to the Court under
s. 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
s. 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that the suit could be withdrawn because no preliminary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 The suit was dismissed as withdrawn.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
ss. 2
and
of the Partition
Act so far as O. 23, r. I
C.P.C
. 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 ss. 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
s. 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 s. 2 to the court to direct a sale any other
shareholder can apply under
s. 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
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

s. 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
s. 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
s.
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
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
s.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. [916C]

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 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
s. 3
of the Partition Act. [916F-G]
Tukaram Mahadu Tandel v. Ramchandra Nahadu Tandel, I.L.R. 49
Bom. 672, applied.
Bijayananda Patnaik v. Satrughna Sahu & Others [1964] S.C.R.
538, Hulau Rai Baij Nath v. Firm K. B. Dass & Co. [1967] 3
S.C.R. 886, Jhamandas Lilaram v. Mulchand Pahulma 244 Indian
Cases 273. Jharan Chandra Ghosh v., Promoda kumar Ghosh,
I.L.R. [1953] Vol. 1 Cal. 243 at page 247, Hasan Badsha v.
Sultan Raziah Begum. A.I.R. 1949 Mad. 772, and Peter Pill &
Others v. Thomas Webb Jones, 5 A.C. 651, referred to.
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]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 871 of 1971.

Appeal by certificate from the judgment and decree dated
December 21, 1970 of the High Court of Madras in O.S. Appeal
No. 108 of 1966.

S. V. Gupte, P. Kothandaraman and G. N. Rao, for the
appellant.

S. 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
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."

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 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
provisions of
s. 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
s. 2
of the aforesaid Act.
(2) Whether the plaintiff having invoked the
jurisdiction of the court under
s. 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
s. 2 be made and
(4) Has the defendant who has invoked the
jurisdiction of this Court under
s. 3
of the
Partition Act an indefeasible right to compel
the plaintiff to sell the, plain-
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
s. 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 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 s. 3(1) 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. 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 petition C. M. P. 1781/72 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 C.P.C
., 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
"O.23, 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.

R. 2. Where the Court is satisfied-

(a) that a suit must fail by reason of some
formal defect, or
(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 v. Satrughna Sahu & Others
(1) 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 O.23, 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 v. Firm K. B. Dass &
Co.
(2) 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 e.g., where a set off might have been claimed
under O.8
of the C.P.C
. 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 O.23, 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 i.e., 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) [1964] 2 S.C.R. 538.

(2) [1967] 3 S.C.R. 886.
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
are as follows :-

S. 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.

S. 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 ascertained,and
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."
The scheme of
ss. 2
and
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
S.
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

S. 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
S. 3
the
other shareholder who has requested the court to exercise
its power under
s. 2
of ordering sale can withdraw the suit
under Order 23, Rule 1 of the Civil Procedure Code. The-
answer to this question will
depend on the nature of the right or privilege which vests
in the co-sharer to seek to derive benefit of the provisions
of s. 3. In some of the decided cases a choice or option
given to the shareholder under
s. 3
has been treated as a
right or a privilege. See Jhamandas Lilaram v. Mulchand
Pahlumal(1) and Nitish Chandra Ghosh v. Promode Kunwr Ghosh.
(2) It was argued on behalf of the appellant that even if a
right or privilege is conferred by
s. 3
on a shareholder
once the other shareholder has invoked the procedure
prescribed by
s. 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 v. 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
s. 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
s. 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 273. (2) I.L.R. 19531 Vol. 1 Cal.
243 at p. 247.

(3) A.I.R. 1949 Mad. 772.

9--L172 Sup.CI/73.
share partitioned. The, following observations of Crump J.,
in
Tukaram Mahadu Tandel v. 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 1(4)
)".

It has further been emphasised that in a partition suit the
plaintiff is not wholly dominus litis and even on the
assumption that
s. 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
ss. 2
and
of
the Partition Act so far as O. 23, r. 1
C.P.C
., 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 ss. 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
S. 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.

2. When a request is made under
s. 2
to the
court to direct a sale any other shareholder
can apply under
S. 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 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 shareholder
applying for leave to buy under
S. 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) I.L.R. 49 Bom. 672.
6. If no shareholder is willing to buy
such share or shares at the price so
ascertained the application under
s. 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 s. 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
s. 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
s. 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
s. 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
ss. 2
and
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
s.
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. '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 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
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
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
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 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 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 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.

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 v. Thomas Webb Jones(1)
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) ss. 3 and 5 are similar in terms to

ss. 2
and
of the Indian
(1) 5 A.C. 651.
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.

G.C,
Appeal dismissed.