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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  The Judge held that  the  suit could be withdrawn  because  no  preliminary decree  had  been  passed and that a  fresh  suit  could  be brought under the provisions of Order 23 Rule 1 of the  Code of  Civil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  The suit was dismissed  as  withdrawn.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 3 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

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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                             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 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. 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 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

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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.        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]

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

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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."                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

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908 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-               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 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

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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               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 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

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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. 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 :-               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

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             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." 912 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  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. 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 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.

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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 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  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. 914 share partitioned.  The, following observations of Crump J.,

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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 3  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.               915                       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

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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 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 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.  ’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 916 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

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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 3 of the Indian (1)  5 A.C. 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. G.C, Appeal dismissed. 918