R. RAMAMURTHI IYER versus RAJA V. RAJESWARA RAO

R. RAMAMURTill IYER

RAJA V. RAJESWARA RAO

August 22, 1972

[A. N. GROVER AND D. G. PALEKAR, JJ.]

Partition Act •· 2 &: 3-Code of Civil Procedure O. 23 R. 1-Plain-tiO In suit for partition applying to court for sale o/property-De/endant 11greelng 1to buy at valu«tion ·made under direction of Cow·t-P/alntiD whither can withdraw suit and have liberty to file fresh suit.

In suit for partition of property between two joint owners the plainllif made an application to the Court under 1. 2 of the l>artltion Act that as one of the properties namely, cinema house with its appurten- anc:ca, was incapable of division by metes and bounds, the same be aold and the proceeds divided between tbe parties. The defendant contend-ed that it was possible to divide the propertv by metes and bounds but offered, if the Court took tlje contrary view, to purchase it at valui:.tion made by the Court, under the provisions of s. 3 of the Act. The Court app:)ioted. Commissioner whose report showed that be bad consider-able difficulty in suggesting 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 fresh 1ui1. The Judge held !bat the suit could be withdrawn because. no preliminary decree had been passed and that fresh suit could be brouaht under the provi•ions of Order Z3 Rule I of the Code of Civil Procedure. The suit was dismissed as wiihdrawn. In appeal the Division Bench held that the defendant bad vested right to purchase the property and re•"ersed the judgment of !be trial Court In this Court it was ur&e<I on behalf of the plaintiff's legal representatives that under Order 23 Rule I there was an unqualifieJ right to withdraw suit except that in certain limited circumstances where the defendant had acquired vested interest, the Court was not bound to allow withdrawal.

Dismissir.g the appeal,

HELD : The true position under ss. 2 and 3 of !he Partition Act ao far as 0. 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 large body of judicial opinion to support it. It was observed by Crump J. that on wider cousiderations it mnot be held that plaintiff could not withdraw so as to defeat the defendant's claim. He further pointed out that in partition snit def en· dant oeeking share is in the position of plaintiff and one plaintiff can-not withdrnw without the permission of another. [914B, DJ

Under ss. 2 and 3 of the Partition Act, the various stages in proceedings would be as follows :

the

1. In snit for partition if, it appears to the Court that for the reasons. stated in s. · 2 ·division of the property cannot reaaonably and · ¢onveniently be made and that sale of .property .would be more bene-fidal it <:an direct sale.· This can be done, however, only on the request of the shareholders interested individually or collectively to the extent of one moiety pr upwards. (2) When request is made under •-. 2 to the court to direct .ale any other shareholder can apply under a. 3 for leave to buy at valuation the share of the other party asking for sale. (3) The court has to order valuation of the share of the partv

asking for sale. ( 4) After the valuation has been made the court has to olfer to •ell the share of the party asking for sale to the shareholder applying for leave to buy tmder s. 3. (5) two or more shareholders severally .apply for leave to buy the court is bound to order •ale 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 under s. 3 shall be dismissed, the applicant being liable to pay all the costs. [914E-915A]

& sOQn as shareholder applies for leave to buy ~t valuation· the at.are of the party asking for ;i, sal~ under s. 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order valuation and · after getting the same done to offer to sell the same to such shareholder ~t the valuation so made. This advantage, which may or may not fulfil the juridical meaning of right, is nevertheless pri" vilege or 1l benefit which the Jaw confers on the shareholder. If the plaintiff is allowed to withdraw the •uit after the defendant has gained or acquired the advantage o'r 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. inall:ad of partjti<oning ~t. Apar:t from these considerations it would al:!o enable the plaintiff in partition suit to withdraw that suit and defeat the defendant's claim which, according to Crump, J. Tukaram's C2!le cannot be dbne even in Suit where the provisions of the Partition Act have not been invoked. [915G-916A]

The trial court had prbna facie come to the conclusion that divi~­sion by metes and bounds was not possible. That was sufficient so far as the proceedings in the jiresent c'ase were concerned.. The language of •.3 of the Partition Act does not appear to make it obligatory on the court to give positive finding that tb.e property is incapable of di\ision by met.eS and· bonnds. It should only 'appear' that it is not. so capable· of division. [9 l 6C] Section 3 (1) does not contemplate formal application being filed. in every case. The word8 employed therein simply mean that the other shareholder has to inform the court or notify to· it that he is prepared to buy· at valuation the share of. the party asking for sale. In the written statement of the defendant in the present case it was sud 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 valuation· to ~e made in such n1an11er as the· court might think proper. That was sufficient compliance with the' requirements of s. 3 of the Partition Act. [916F-G]

Tukaram Mahadu Tande/ v. RamchandrG Nahadu Tande/, l.L.R. 49 Born. 672, applied.

Bijayananda Patnaik v. Satrughna Sahu & Others [1964] S.C.R. 538, llulas Ral Baii Nath v. Firm K. B. Dass & Co. [1967] 3 S.C.R. 886, Jhamandas Li/aram v. Mulchand Pahulma 244 Jndcdn Cases 273. Jharan-B Chandra Ghosh v .. Promoda Kumar Ghosh, I.L.~ . [1953] X.J\1. [1]1['§419 ]243 at page 247, llasan Badsha v. Sultan Raziah Begum. . . Mad. 772, and Peter Pill & Others v. Thomas Webb Jones, 5 A.C. 651, referred to.

Observed t.h•t the prov_isio~s of the English Partition Act did not a-r. to b(: m pare mate~za with those of the Indian Partition Act and ~o assJStan~ could be donved from the English law on the points to be uetermmed m. the present case. [917B]

C1v1L ·APPELATE Ju&1so1cnoN: Civil Appeal No. 871 J 971.

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

decree dated

S. V. Gupte, P. Kothandaraman and G. N. Rao, for the appel-lant.

S. T. Desai, A. SubhashinLand A. V. Ranagam, for the res· pondent.

M .. Natesan, N. C. Raghvachari and K. Javaram~ for the inter· vener.

The Judgment of the Court was delivered by

Grover, J. This is an appeal by certificate from judgment of lhe Madras High Court arising out of 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 equai sha1~s. This property was leased out by them to Isherdas Sahni & .Bros. In 1965 Raja Maheswara Rao filed suit in which it was stated that apart from other properties owned by the two brothers Odoon Cinema which consisted of land, buildings, theatre, furniture. talkie equipment etc. was owned by them in equal sh:ires. 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 10 be sold by public auction and pay the plaintiff his ! share in the net proceeds, ~he sale bieing 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 m>t capable of division into two halves by metes and bounds and it was averred that such 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 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 seli or part with the property. The plaintiff is not entitled to 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 williQg 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 pro-per 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 orderiug

sale of the suit property decree might be passed in favour of the defendant for the purchase of the plaintiff's share at valuation determined by the court. On July 26, 1965 the Court appointed 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 scheme being suggested by which division of the property in dispute could be effected. The report of the Commissioner dated August 27, 1965 indicat"S that he "had considerable difficulty in suggesting division. This is what he said : :--

"My submission would therefore be that thou~ the property could be divided in the manmir desired by the defen<iant the space which is shown as GI. . . . . . . . its situation is such that business of the type eontemplated 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 fade impression which he had formed after inspection of t® 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 rumlication was. made by the plaintiff for withdrawing the suit with liberty to institute fresh suit. An objection was , raised before the trial judge that because the defendant had 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 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 fresh suit under Order 23, Rule 1, the trial judge treated it to be axiomatic that in suit for partition' or redemption when plaintiff withdraws his suit he will be entitled to file fresh suit as the cause of action is recurring one. This is what the trial judge said :-·

"Even if the plaintiff is not granted permission, under

Order 23, rule l, Civil Procedure Code, he will neverthe-less have right to file 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 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 Jitnuary 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 appea1 the plaintiff died leaving will and by an order passed by the court on October 13, 1967 the executor appointed b~ the plaintiff under the will was impleaded as second respondent m the appeal.

The Division Bench of the High Court consideted 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 whe-ther the plaintiff invoked only such an inherent power and not the power under s. 2 of the aforesaid Act.

( 2) Whether the plaintinff having invoked the

jurisdiction of the court under s. 2 of the Partition Act is entitled to withdraw the suit under Order 23, Rule I of the Civil Procedure Code at the same time resewing his right to file 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 inv<?ked the juris-diction of this Court under s. 3 of the Partition Act an indefeasible right to compel the plaintiff to sell the plain-

tiff's half sj)are to him at 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 suit for partition 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 s. 2 of the partition -Act had been invoked by the plaintiff and the plaintiff could not withdraw suit in the circum-stances 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 dis-pose 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 anc 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 lsherdas Sahni & Bros. (P) Ltd. The company was, however, allowed to intervene in the appeal.

L!larned .counsel for the parties agreed before us that the only

ques~on whlc_h survives and which requires our decision is whe-ther _ m the circumstances of the present case the trial court cou1d allow withdrawal of the suit. This involves the determina-!ion of the correct pcsition under Order 23, Rule 1 of the C.P.C., m rc:spect of smt f?~ partition of joint property in which the prov1S1ons. of the Partition Act have been invoked or are sought ~o be apPJI~~ Order 23, Rule l,.of the C. P. C., to the extent it is matenal, 1s as follows :-

. "0.23, ~· .1. At any time after ithe institution of the

suit the plamttlf may, as against all or any of the defen-dants, withdraw his suit or abandon Part of his claim.

R. 2. Where the Court is satisfied-

( a) that suit must fail by reason of some fonnal defect, or -

(b) that there are other sufficient grounds for allow-

ing the plaintiff to institute fresh suit for the subject matter of suit or part of claim. it Illll:Y,. on such. terms as it thinks fit, grant the plaintiff penmss1on to. with~ra"'. from such suit or .abandon such part of claim . with liberty to institute fresh suit in res~t of the subject-matter of such suit or such part of 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 suit is made under 0.23, R. 1 ( I), the court has to allow that application and the suit stands withdrawn. It is only under sub rule (2) where suit is not being withdrawn absolutely but is being withdrawn on con-dition that the plaintiff may be permitted to institute fresh suit for the same subject matter that the permission of the coun for such withdrawal is neceS6ary. In Hu/a9 Rai Baij Nath v. Firm K. B. Dass & Co.(') 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. Tue plaintiff applied for withdrawal of the suit. This Court held that there was no ground on which the court couP 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 set off might have been claimed under 0.8 of the C.P.C. or counter clainl might have been filed. Even if the defendant in suit for rendition of accounts could claim decree for the amount due to him after rendition of accounts no such right could possibly he held to exist before the court passed prelinlinary decree for rendition of accounts. It was particular1y noted that in the case of suit between principal and agent it was the principal alone who nor-mally 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 0.23, R. 1 there is an unqualified right to withdraw the suit if the plaintiff ~oes not ~h to p~ with it. It is conceded that if any vested nght comes '!1to exJStence before the prayer for withdrawal is made the ~ourt is not bound to allow withdrawal; but it is suggested that this can haj>pen only in very ltimited circumstances i.e., where preliminary dC:Cree had been passe4 orin.those cases weher set ?fi has been claimed or counter claim has been made. Acc.ordmg to the apJ?ellant no preliminary decree had been passed m the present swt and (1) [1964] 2 S.C.R. 538. • (2) [1967] 3 S.C.R. 886.

R. ~. IYER v. R. v. RAO (G1-over, J.)

thus no vested right had come into existence in favour of tlle defendant. There was no question of any co'Unter claim or set off and therefore the trial court was fully justified in allowing withdrawal o~ the suit. If the matter were to be viewed only in the above light the appellant's contention would have good Cleal of force. But the nature and incidents of partition suit and the col};equences which emue once the provisions of the Partition Act are invokep or sought to be applied must be con-sidered before the contentiom of the appeliant's counsel can be accepted.

The Partition Act was enacted t0 amend the Jaw relating F' partitjon. Sections 2 and 3 are as follows :-·

S. 2. "Whenever in any suit for partition in which,

if institlfted prior to the commencement of this Act, decree for partition might have been made, it appears to the Court that, by reason of the nature of the pro-f!erty to which tke suit relates, or of the number of the shareholders therein, or of any other special circums-tance, division of the property cannot reasonably or conveniently be made, and that 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 sale of the property 11nd distribu-tion of the proceeds.

S. 3 ( 1) If, in any case in which the Court is request-ed under the last foregoing section to direct sale, any other shareholder applies for leave to buy at valuation the share or shares of the party or parties asking for sale, the Court sh!lll order valuation of the share or shares in such m!lllller as it may think fit and offer to sell the same to such shareholder at the price so ascer-tained, and may give all necessary and proper direc-tions 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 sale of the share or shares to the share-holder. 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 ·appli-.c~t or applicants s.hall,be liable to pay all costs of Jr mctdent to the appltcation or applications."

The scheme of ss. 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 division of the pro-j:Jerty 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 sale of the property and distribute the proceeds among the shareholders. Now when court has been requested under s. 2 to direct sale any other shareholder can apply for leave to buy at valuation the share or shares of the party or parties asking for sale. In such situation it has been made obligatory that the court shall order valuation of the share or shares and offer to sell the samll to the shareholder who has applied for leave to buy the share at price ascertained by the court. In other words if plaintiff in suit for partition has invoked the power of the court to order sale instead of division in oartiton suit under s. 2 and the other shareholder undertakes to buy at 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 valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at 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 re:isonable manner. It would appear from the objects and reasons for the enactment of the Partition Act thab as the law stood the court was bound to give share to each of . the parties and could not direct sale or division of the proceeds. There could be, instances whel'e 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 expedients in order to do so. The court was, therefore, given discretionary authority to direct sale where 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 moiety in tho property was made 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 sale were given right to buy the others out at valuation to be detennined by the court.

question Immediately arises whether after shareholder has applied for leave to buy at valuation under s. 3 the other share-holder who bas requested the court to exercise its pawer under 'S. '2 of ordering sale can withdraw the suit under O!der 23,. Rule; 1 of the Civil Proci!dure Code. The answer to this question will

depend on the nature of the right or privilege which vests ii1 the co-sharer to seek to derive benefit of the provisions o[ s. 3'. . In s'bme of the decided cases choice or option given to the share-holder under s. 3 has been treated as right or privilege. See Jhamandas Li/aram v. Mulchand Pahlumal([1]) and Ni1ish Chan-dra Ghosh v. Promode Kumar Ghos/1. (') It was argued on behalf " of the appellant that even if right or privilege is conferred by " s. 3 on shareholder once the other shareholder has invoked the proced•ue prescribed by s. 2 of the Partition Act it is not vested right which ·can come into existence only if preliminary decree has been passed by the court or if mutual compJomise has been effected between the parties. Our attention has bern invited to the decisions of this court mentioned before in which the passing of preliminary decree or compromise being effected were treated as creating vested right which prevented the plaintiff in suit for partition from withdrawing it if the other share-holders were not agree<!ble. According to the learned counsel for the appellant the only decision in which the point under consideration has been directly considered is that of Viswanathh Sastri-J., in Hasan Badsha v. Sultan Raziah Begum.(') 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. Commissioner was also appointed to report whet.her the property was capable of division and he 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 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 impractic· ability of dividing the property. Tllat did not clothe the defendant with ar.f enforceable right and did not prevent the plaintiff from exercising the right of suitor to withdraw the suit. This autho-rity has also been strongly relied upon for the similarity of facts in the present case. Here also, it is pointed out, the court had n?t. ~me to the conclusion that the property was incapable of d1v1s1on by metes apd 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 right which inheres in other share-holder 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

(I) 24 Indian Cases 273.

(2) l.L.R. [1953] Vol. I Cal, 243 at p. 247. (l) A.I.R. 1949 Mad. 772.

share partitioned. The following observations of Crump 1., in Tukaram Maharlu Tandel v. Ramchandra Mahadu Tandel([1]) have been cited in support of the above submission :

"But there are other and wider considerations. whicll. lead me to hold that plantiff could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in partition suit defendant seeking share is in the position of plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1 ( 4) ) "·

It has further been emphasised that in partition suit _the plaintill is not wholly dominus litis and even on the assumption that 8, 3 confers privilege or an option on the shareholder who i1) defendant in suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing suit under Order 23 Rule 1.

It seems to us that the true position under ss. 2 and 3 of the Partition Act so far as 0. 23, r. 1 C.P.C., is concerned must be determined in the light of the rUie enunciated by Crump I., in the above case as that rule has seldom been doubted and there is 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 suit for partition if, it appears to the Court

that for the reasons stated in s. 2 division of the pro-perty cannot reasonably and conveniently be mll,de and that sale of property \\Ould 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 request is made under s. 2 to the court to direct sale any other shareholder can. apply under s. 3 for leave to buy :it valuatfon the share of the other party asking for 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 sale of the share or shares so the shareholder who offers to pay the highest price above the valuation made by the court. (I) I.L.R. 49 Born. 672.

6. If no shareholder is willing to buy such share or shares at the price so ascertained the application under s. 3 shall be dismissed, the applicant being liab:e to pay all the costs.

question which presents certain amount of difficulty is at what stage the other shareholder acquires privilege or right under s. 3 when proceedings are pending in partition suit and request h~ been made by co-owner owning moiety of· share that sale be held. One of the essential conditions for the appli-cability !?f s. 2 of the Partition Act is that it should appear to the court th .. < division of the property cannot reasonably or con-veniently be made. To attract the applicability of s. 3 all that the law requires is that the other shareholder should lpply for leave to buy at valuation. Once that is done the other matters men-tioned 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 valuation the share of the party asking for sale the court is bound to order valuation of his share and offer ti:> sell the same to such shareholder at price so ascertained.Coming back to the question of withdrawal of suit in wl\ich the provisions of ss. 2 and 3 of the Partition Act have been invo~ 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 sale under s. 2 of the Partition Act and the defen-dant has applied to the court for leave to buy at valuation the share of the plaintiff tt11der s. "1. 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 plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the pro-F ceedings obtained an advantage of which it does not seem just to deprive him".

As soon as shareholder applies for leave to buy at valuation the share of the party asking for sale under s. 3 of the Partition Act he ob_tains an advantage in that the court is bound thereafter to order . V(\luation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This a?vant.age, which may or !11!1Y not fulfil the juridical meaning of nght, 1s nevertheless pnvllege or benefit which the. law con• fers on the shareholder. If the plaintiff is allowed to withdraw the suit 11;ft~r the defen?ant has gained or acquired the advantage or the pnVIlege of buymg the share of the plaintiff in accordance with the provisions of s. 3 (1) it would onlv enable the plaintiff to defeat t\Je .purpose of s. 3 ( 1 ) and also to deprive tile 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 partition suit to wit~draw that suit and defeat the defendant"s claim which, according to Crump J., cannot be done even in 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 finaing 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 respon-dent 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 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 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 h;is further been contended that the res-pondent had maintained throughout that the property was capable of division. He could not, therefore, take advantage of the pro-visions 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 statemem, was th2. in case the court held that the said property was incapable of oivision into two shares he was ready and willing to buy the plaintiff's share in the suit at valuation to be made in such 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 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 valuation the share of tl)e 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 &In.) naras 7 45 to 7 4 7. It has been pointed iout that in the En!!lfsh Partition Act 1868 (31, 32 Victoriae, Cap. 40) ss. 3 anil 'i are similar in terms toss. 2 and 3 of the Indian

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 discretionary jurisdictio:1 if any interested party requested for sale to order sale notwith-standing the dissent or the disability of any other party, if it . appeared to the court that it would be more beneficial for th~ 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 bein~ 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.