# R. RAMAMURTill IYER v. RAJA V. RAJESWARA RAO

- **Citation:** [1973] 1 S.C.R. 904
- **Court:** Supreme Court of India
- **Decided:** 1972-08-22
- **Bench:** A. N. Grover, D. G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-ramamurtill-iyer-v-raja-v-rajeswara-rao-5738
- **Pages:** 14

## Headnote

B
Partition Act •· 2 &: 3-Code of Civil Procedure O. 23 R. 1-PlaintiO 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 a 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, a cinema house with its appurten- C
anc:ca, was incapable of division by metes and bounds, the same be aold
and the proceeds divided between tbe parties. The defendant contended 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 a valui:.tion
made by the Court, under the provisions of s. 3 of the Act. The Court
app:)ioted. a Commissioner whose report showed that be bad 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 D
plaintiff for withdrawing the suit with liberty to institute a fresh 1ui1.
The Judge held !bat the suit could be withdrawn because. no preliminary
decree had been passed and that a 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 a 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 E
Rule I there was an unqualifieJ 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.
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 F
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 cousiderations
it mnot be held that plaintiff could not withdraw so as to defeat
the
defendant's claim. He further pointed out that in a partition snit a def en·
dant oeeking a share is in the position of a plaintiff and one plaintiff cannot withdrnw without the permission of another. [914B, DJ
Under ss. 2 and 3 of the Partition Act, the various stages in
the G
proceedings would be as follows :
1. In a snit for partition if, it appears to the Court that for the
reasons. stated in s. · 2 a ·division of the property cannot reaaonably and
· ¢onveniently be made and that a sale of .property .would be more benefidal it <:an direct sale.· This can be done, however, only on the request
of the shareholders interested individually or collectively to the extent H
of one moiety pr upwards.
(2) When a request is made under •-. 2 to
the court to direct a .ale any other shareholder can apply under a. 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 partv
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R. R. IYER v. R, v. RAO (Grover; I.)
905
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) H two or more shareholders
severally .apply for leave to buy the court is bound to order a •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 a shareholder applies for leave to buy
~t a valuation·
the at.are of the party asking for ;i, sal~ under s.

## Text

904
R. RAMAMURTill IYER
v.
RAJA V. RAJESWARA RAO
August 22, 1972
[A. N. GROVER AND D. G. PALEKAR, JJ.]
B
Partition Act •· 2 &: 3-Code of Civil Procedure O. 23 R. 1-PlaintiO 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 a 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, a cinema house with its appurten- C
anc:ca, was incapable of division by metes and bounds, the same be aold
and the proceeds divided between tbe parties. The defendant contended 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 a valui:.tion
made by the Court, under the provisions of s. 3 of the Act. The Court
app:)ioted. a Commissioner whose report showed that be bad 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 D
plaintiff for withdrawing the suit with liberty to institute a fresh 1ui1.
The Judge held !bat the suit could be withdrawn because. no preliminary
decree had been passed and that a 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 a 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 E
Rule I there was an unqualifieJ 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.
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 F
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 cousiderations
it mnot be held that plaintiff could not withdraw so as to defeat
the
defendant's claim. He further pointed out that in a partition snit a def en·
dant oeeking a share is in the position of a plaintiff and one plaintiff cannot withdrnw without the permission of another. [914B, DJ
Under ss. 2 and 3 of the Partition Act, the various stages in
the G
proceedings would be as follows :
1. In a snit for partition if, it appears to the Court that for the
reasons. stated in s. · 2 a ·division of the property cannot reaaonably and
· ¢onveniently be made and that a sale of .property .would be more benefidal it <:an direct sale.· This can be done, however, only on the request
of the shareholders interested individually or collectively to the extent H
of one moiety pr upwards.
(2) When a request is made under •-. 2 to
the court to direct a .ale any other shareholder can apply under a. 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 partv
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R. R. IYER v. R, v. RAO (Grover; I.)
905
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) H two or more shareholders
severally .apply for leave to buy the court is bound to order a •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 a shareholder applies for leave to buy
~t a 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 a
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 a right, is nevertheless a 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 a 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 a 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 a 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 a 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 a 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 a 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 a valuation· to ~e made in such a 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. JharanChandra 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.
906
SUPREME COURT REPORTS
(1973] I S.C.R.
Observed t.h•t the prov_isio~s of the English Partition Act did not
A
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
of
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.
S. V. Gupte, P. Kothandaraman and G. N. Rao, for the appellant.
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 a judgment of
lhe 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 equai sha1~s. 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 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 a division was not only possible but it
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R. R. IYER v. R. v. RAO (Grover, /.)
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 seli 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 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 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 orderiug
sale of the suit property a decree might be passed in favour of the
defendant for the purchase of the plaintiff's 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 indicat"S that he "had considerable difficulty in suggesting
a 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 a fresh suit.
An objection was , raised
before the trial judge that because the defendant had invoked the
908
SUPREME COURT REPORTS
[1973] 1 S.C.R.
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 l, 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.
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On October .14, 1966, Raja Maheswara Rao sold his half
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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 a will and by an order passed by the court on October 13,
E
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 whether 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 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 inv<?ked the jurisdiction of this Court under s. 3 of the Partition Act an
indefeasible right to compel the plaintiff to sell the plainE
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R. R. IYER v. R. v. RAO (Grover, J.)
tiff's half sj)are to him at a valuation and prevent the
plaintiff from withdrawing- the suit ?
909
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 held 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 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 whether _ 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 a 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 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 fonnal
defect, or
-
910
SUPREME COUllT .REPORTS
[1973] 1 S.C.R.
(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 Illll:Y,. on such. terms as it thinks fit, grant the plaintiff
penmss1on to. with~ra"'. from such suit or .abandon such
part of a claim . with liberty to institute a fresh suit in
res~t 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
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 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 coun for
such withdrawal is neceS6ary.
In Hu/a9 Rai Baij Nath v. Firm
K. B. Dass & Co.(') 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. 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 a set off might
have been claimed under 0.8 of the C.P.C. or a counter clainl
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 prelinlinary decree for rendition of
accounts.
It was particular1y 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 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 a preliminary dC:Cree
had been passe4 orin.those cases weher a set ?fi has been claimed
or a 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.
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Sll
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 a good
Cleal of force.
But the nature and incidents of a partition suit
and the col};equences which emue once the provisions of the
Partition Act are invokep or sought to be applied must be considered 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, a
decree for partition might have been made, it appears
to the Court that, by reason of the nature of the prof!erty to which tke 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 11nd 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 sh!lll order a 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 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 ·appli-
.c~t or applicants s.hall,be liable to pay all costs of Jr
mctdent to the appltcation or applications."
912
SUPREME ·COURT J.EPORTS
(1973] 1 S.C.R.
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 proj: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 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
buy 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 samll to the shareholder who has applied for leave
to buy the share at a price ascertained by the court. In 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 oartiton 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
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can be done in a 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 a share to each of . E
the parties and could not direct a 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 a discretionary authority to direct a sale
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 tho
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 detennined 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 shareH
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
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R. R. IYER v. R. V, RAO (Grover, J.)
913
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 a choice or option given to the shareholder under s. 3 has been treated as a right or a privilege. See
Jhamandas Li/aram v. Mulchand Pahlumal( 1) and Ni1ish Chandra Ghosh v. Promode Kumar Ghos/1. (') 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
proced•ue 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 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 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 shareholders 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.
A 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 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 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 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
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 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
(I) 24 Indian Cases 273.
9-Ll72 Sup. CI/73.
(2) l.L.R. [1953] Vol. I Cal, 243 at p. 247.
(l) A.I.R. 1949 Mad. 772.
914
SUPREME COURT REPORTS
[1973] 1 S.:.R.
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
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point out that in a partition suit a defendant seeking a
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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 plaintill
is not wholly dominus litis and even on the assumption that 8, 3
confers a privilege or an option on the shareholder who i1) a
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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 0. 23, r. 1 C.P.C., is concerned must be
determined in the light of the rUie enunciated by Crump I., in
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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
E
that for the reasons stated in s. 2 a division of the property cannot reasonably and conveniently be mll,de and
that a 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.
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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 :it a valuatfon 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.
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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
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the highest price above the valuation made by the court.
(I) I.L.R. 49 Born. 672.
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R. R. IYER v. R. v. RAO (Grover, J.)
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.
915
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 h~ been made by a co-owner owning a moiety of· share
that a sale be held. One of the essential conditions for the applicability !?f s. 2 of the Partition Act is that it should appear to the
court th .. < 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 lpply 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 ti:> sell
the same to such shareholder at a price so ascertained.
Coming back to the question of withdrawal of a 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 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 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 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 ob_tains an advantage in that the court is bound thereafter
to order . a 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 a
nght, 1s nevertheless a pnvllege or a 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
•
916.
SUPREME COURT REPORTS
(1973] 1 S.C.R.
s. 2 instead of partitioning it.
Apart from these considerations
it would also enable the plaintiff in a partition suit to wit~draw
that suit and defeat the defendant"s claim which, according to
Crump J., 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 emphasis 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 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 h;is 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 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 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 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
(I) 5 A.C. 651.
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R. R. !YER v. R. v. RAO (Grover, J.)
917
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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 jurisdictio:1
if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it
. B
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.
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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