Bombay High Court
Vaman Ganpatrao Trilokekar And Ors. vs Malati Ramchandra Raut And Ors. on 18 November, 1987
Equivalent citations: AIR1988BOM321, 1988(2)BOMCR615, (1988)90BOMLR45, AIR 1988 BOMBAY 321, (1988) 2 BOM CR 615, (1988) MAH LJ 393, (1988) MAHLR 904, (1988) 90 BOM LR 45, 1988 BOM LR 90 45
Author: S.P. Bharucha
Bench: S.P. Bharucha
JUDGMENT Bharucha, J.
1. This appeal assails the order dt. 10th Sept. 1985 passed in a partition suit. The learned single Judge thereby directed that a valuation of the share of the plaintiffs in the two immoveable properties in suit should be made as of July 1972 and the suit was adjourned for the purpose.
2. On 16th April 1885 Dr. Sakharam Arjun Raut died leaving property at Khotachi Wadi, which is one of the two immovable properties in suit He left behind him a widow, Jayantibai, and three sons, Vasantrao, Yeshwantrao and Raghunathrao. On 10th Jan. 1904 Jayantibai died leaving a will whereunder she bequeathed the property at French Bridge, which is the other immovable property in suit, to the three sons. On 4th Nov. 1904 probate of her will was obtained. On 12th Oct. 1936 Yeshwantrao died leaving a will Whereby he bequeathed his estate to his widow Rewabai. Rewabai died intestate on 28th Oct. 1939 leaving Narayan (the original 1st plaintiff) as her only heir. On 24th Dec. 1972 Narayan died leaving a will dated 21st Dec. 1972. Probate was obtained on 7th Aug. 1975 in respect of the will and the executors thereunder were brought on record as plaintiffs 1(a) to 1(d). On 26th Feb. 1974 plaintiff 1(a) died and his name was deleted. On 25th Mar. 1957 Raghunathrao died leaving a will whereby he bequeathed his estate to his widow Ramabai and his children Madhav (the original 2nd plaintiff) and Kamala (the original 3rd plaintiff). Ramabai died intestate in Oct. 1967 leaving Madhav and Kamala as her only heirs. Madhav died intestate on 26th Feb. 1974 and left Kamala as his only heir. Letters of administration in respect of his estate were obtained by Kamala on 5th Sept. 1975. Kamala died on 3rd Jan. 1980. Probate in respect of her will was obtained on 11th Jan. 1982 and her executors were brought on record as plaintiffs 3(a), (b) and (c). Vasantrao died leaving a will wherein he bequeathed his estate to his children Ramchandra, Keshav, Sumant, Sunderabai and Indira (the original 1st to 5th defendants). Ramchandra died on 3rd Dec. 1980 and his widow Malati and sons Anand and Pramod were brought on record as defendants 1(a) to (c). Keshav (the original 2nd defendant) died leaving a will dt. 27th July 1971. Probate in respect thereof was obtained by his executors on 11th Dec. 1974. The executors were brought on record as defendants 2(a) to (c). Sunderabai (the original 4th defendant) died leaving a will dt. 23rd Aug. 1974. Her executor was brought on record as defendant 4A. Defendant 4A died on 13th June 1983 and the heirs of Sunderabai were then brought on record as defendants 4(a) and (b). On 23rd Dec. 1978 Indira (the original 5th defendant) died leaving a will dt. 19th Nov. 1975 and her sole executor was brought on record as defendant No. 5(a). Subsequent to the passing of the order under appeal probate was obtained in respect of the will of Indira.
3. On 17th May 1972 the suit was filed for partition. It was stated in the plaint that the original 1st plaintiff had a 1/3rd share, that the original 2nd and3rd plaintiffs had a 1/3rd share and that the defendants had the remaining 1/3rd share in the properties sought to be partitioned, which were held as tenants-in-common. The plaint sought partition according to the respective rights, shared and interests of the co-sharers in the properties but averred that division of the properties could not reasonably or conveniently be made and that the sale of the properties and the distribution of the sale proceeds thereof would be more beneficial. The plaintiffs, therefore, asked the court to direct that the properties be sold by and under its direction and that the sale proceeds be distributed in accordance with the respective rights, share sand interests of the co-sharers. On 26th June 1972 the plaintiffs took out a notice of motion for the appointment of a receiver and an injunction. In the affidavit in reply to the notice of motion the original defendants stated that they were prepared to buy at a valuation the respective shares of the plaintiffs and requested the court to give necessary directions in that behalf. On the notice of motion an order was taken by consent, in terms signed by counsel, whereunder the plaintiffs and the defendants undertook to court not to dispose of encumber or part with possession of the properties. On 9th Oct. 1972 the original defendants tendered their written statement. The written-statement noted that the plaintiffs had a 2/3rd share in the properties and had prayed that the properties be sold and the sale proceeds distributed between the plaintiffs and the defendants. The original defendants submitted that they had become entitled to apply to court under Section 3 of the Partition Act, 1893 (hereinafter called "the Act") and, accordingly, applied for leave to buy at a valuation the share of the plaintiffs in the properties. The original defendants asked the court to order a valuation of the share of the plaintiffs in the properties and to offer to sell the same to the original defendants at the price so ascertained. Upon the demise of the several defendants their legal representatives put in written-statements in which the court was asked to have the share of the plaintiffs valued and to sell it to all the defendants at the valuation that was made.
4. At the time when the written-statement of the original defendants was tendered, counsel on behalf of the plaintiffs told the court that the plaintiffs were taking out a chamber summons for amendment of the plaint by deletion of the averment that division of the properties could not reasonably or conveniently be made and that the sale thereof and the distribution of the sale proceeds would be more beneficial. The chamber summons was taken out and was dismissed on 9th Nov. 1972. An appeal was preferred by the plaintiffs on 14th Nov. 1972 from the order on the chamber summons and it was admitted. It was dismissed by a judgment and order dt. 1st April 1977. The Division Bench there said that it was true that before the court ordered a sale of the property the court had to be prima facie satisfied in the manner referred to in Section 2 of the Act. However, the provisions of Section 3(1) made it clear that once the plaintiffs made an averment that the property was such that a division thereof could not reasonably or conveniently be made and that it should be sold and t he sale proceeds distributed, the defendants got a right to apply for the purchase of the share or shares of the plaintiffs at a valuation to be determined in accordance with the directions of the court. Although the court had to be satisfied in the manner provided by Section 2 before ordering a sale, no such satisfaction was required in order to enable the defendants to exercise the right contained in Section 3(1) once the plaintiffs made the requisite averments. The defendants having exercised their option by making an offer to purchase the shares of the plaintiffs at a valuation, the amendment sought by the plaintiffs by the chamber summons had rightly been rejected.
5. The order assailed in this appeal was passed on 10th Sept. 1985 when the suit came up for hearing and final disposal. The learned judge noted that there was no dispute between the parties that the plaintiffs held a 2/3rd share in the properties while the defendants held a 1/3rd share. There was also no dispute that the properties were incapable of division by metes and bounds and were required to be sold. It was also not in dispute that the defendants had exercised the right conferred under Section 3 at the latest on 11th Oct. 1972 when the written-statement was filed. It was therefore, obvious to the learned judge that an order for determination of the valuation of the properties was required to be passed under section 3. Counsel on behalf of the plaintiffs had raised two issues for determination before the direction was given. He had urged that the legal representatives of the original 4th and 5th defendants could not exercise the right under Section 3 in the absence of the grant of probate in their favour. He had also urged that the value of the properties should be determined not with reference to the date on which the defendants had exercised their right under Section 3 but with reference to the date on which the valuation was being directed by the court. The learned judge did not accept either submission. He was of the view that the rights which the executors or legatees of the original 4th and 5th defendants exercised was a statutory right independent of the wills. Since the plaintiffs were not disputing that the legal representatives of these original defendants had an interest or share in the properties it was not mandatory that they should secure probate when exercising the right under Section 3(1). The right did not arise under the wills but was based on the admission of the plaintiffs that they had a share or interest in the properties. Further, the learned judge observed, at that juncture he was not passing any decree in the suit but merely giving directions for carrying out the valuation of the properties. In regard to the contention about the relevant date for the ascertainment of the value of the properties, the learned judge found that once the plaintiffs had sought the assistance of the court under Section 2 and any shareholder was willing to buy the share of the plaintiffs at a valuation to be fixed by the court, then the court had "no option but to at once direct the valuation of the properties". Once the defendants had sought leave to buy the share of the plaintiffs by their affidavit dt. 5th July 1972 in answer to the notice of motion the right was asserted and it was necessary for the court "to direct valuation forthwith and the mere fact that the Court did not pass order at once but the suit remained pending on the file of this Court for over several years would not enable the plaintiffs to urge that the valuation of the properties should be fixed as on the date, when the Court would pass an order about determination of the valuation...... Once this right is exercised by any shareholder under Section 3(1) of the Act by making application for leave to buy the share of the plaintiffs, then the rights between the plaintiffs and the defendants are crystallised or concluded and the mere fact that the Court did not direct valuation immediately cannot postpone the right till the passing of the order". The learned judge also came to the conclusion that the plaintiffs had been guilty of postponing the passing of the order for ascertaining the value of the properties and could not complain that it would be inequitable that the value of the plaintiffs' shares would be determined with reference to the year 1972. He appointed a valuer and adjourned the suit for five weeks to enable the valuation to be submitted.
6. In this appeal the submissions made on behalf of the plaintiffs before the learned judge are reiterated. It is convenient to consider first the submission in relation to the relevant date for the ascertainment of the valuation of the properties.
7. Before we come to the provisions of the Act we must set out the provisions of the Code of Civil Procedure, 1908, in relation to decrees in partition suits. Order 20, Rule 18 thereof reads as follows :
"18. Decree in suit for partition of property or separate possession of a share therein.--Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,--
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required"
8. The Act was passed to amend the law relating to partition. Sections 2, 3 and 8 thereof are relevant and read thus :
"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.
3. (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in Sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
8. Any order for sale made by the Court under Section 2, 3 or 4 shall be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure."
9. The object of the Act has been noted by the Supreme Court in R. Ramamurthi Aiyar v. Raja V. Rajeswararao, . It was said thus :
"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 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 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."
10. The provisions of Section 2 provide an alternative to the decree for partition by metes and bounds that, prior to the commencement of the Act was obligatory. The provisions can be applied only when the time is ripe for the passing of a decree for partition by metes and bounds, i.e., when the Court has determined who the co-sharers in the property in suit are and what the extent of the share of each is. If, at this point of time it appears to the Court that a decree for partition by metes and bounds cannot reasonably or conveniently be made and that a sale of the property and the distribution of the sale proceeds would be more beneficial it may, on the request of a shareholder or shareholders interested to the extent of one moiety in the property or more, "direct a sale of the property and a distribution of the proceeds." The obligation of the Court to direct a sale only on the request of shareholders to the extent of a moiety or more presupposes that the Court has determined who the co-sharers in the property are and what the extent of their share is. This is also presupposed by the obligation of the Court to direct a distribution of the sale proceeds.
11. Before a request for sale of the property can be entertained under Section 2, therefore, the Court has to determine who the co-sharers in the property are and what the extent of the share of each is. It must do so by passing a preliminary decree as contemplated by Order 20, Rule 18.
12. Where a request is made as required by Section 2 and an application is made under Section 3(1) by another co-sharer for "leave to buy" the share of the party asking for sale under Section 2, the Court is required to order a valuation of that share and "to offer to sell" the same to the applicant at the price that is ascertained. Necessarily, the share of the party asking for sale, a valuation of which is called for, must be determined before the valuation is in fact called for. Where more than one party has called for a sale the valuation of all their shares has to be made and the price received, upon the offer to buy at that valuation being accepted, has to be distributed among them in the proportion of their respective shares. For both purposes, the predetermination of their shares is also requisite.
13. Section 3(2) contemplates a situation where the application for leave to buy is made by more than one shareholder, in which case the share of the party who applies for sale under Section 2 is required to be sold to whichever applicant offers the highest price above the valuation that has been made. That the applicants under both sub-sections are not obliged to buy when the offer is made to them is clear from the provisions of Section 3(3). If the applicant does not buy he is only made liable to pay the costs incidental to his application. If the applicant under Section 3 does not buy when the offer is made to him the Court must revert to the procedure under Section 2.
14. To illustrate, the plaintiff sues for partition and avers that he has a half share in the property in suit. He avers also that a decree for partition by metes and bounds is not reasonable or convenient and that a sale-of the properly and distribution of the proceeds would be more beneficial. One of several defendants denies that the plaintiff has any share in the property. Another defendant seeks, under Section 3, leave to buy the share of the plaintiff. No leave to buy can be given and no valuation of the plaintiff's share can be ordered under Section 3 until the Court has determined that the plaintiff has a share in the property. Similar is the position when one of several defendants disputes the extent of the plaintiffs share in the property.
15. It is, therefore, clear that an order of valuation under Section 3 of the Act cannot be made until and unless the Court has determined who the co-sharers in the property are and what the extent of their share is and has passed a preliminary decree accordingly. The Court must thereafter find and indicate that partition of the property by metes and bounds is not reasonable and convenient and that the sale thereof and the distribution of the sale proceeds would be more beneficial. Upon this, if a shareholder requests a sale as required by the provisions of Section 2 the Court may grant the request. If, then, another shareholder applies for leave to buy as required by Section 3 the Court must grant the application. Conceivably, all this can be done on the same day; but one thing is clear; valuation of a share under Section 3 cannot be ordered to be made as of any day prior to the date of the preliminary decree.
16. Accordingly, we cannot endorse the finding that the Court has "no option but to at once direct the valuation of the properties" when a co-sharer makes a request to the Court under Section 2 and another co-sharer applies for leave to buy his share at the valuation to be made by the Court. We also cannot endorse the finding that once the right under Section 3(1) is exercised by a shareholder by making an application for leave to buy, then the rights between the plaintiffs and the defendants are crystallised or concluded. It is not possible to accept the submission of Mr. Chagla, learned counsel for the respondents (defendants), that once an application under Section 3 is made, the Court is bound to order a valuation forthwith and that the Court has no discretion but to so order.
17. Mr. Chagla emphasised that in the instant case the shares were admitted and that there was agreement between the parties on the aspect of partition by metes and bounds. The learned judge did not proceed only upon the basis of the peculiar facts before him. In any event, even upon such admitted position the Court must first declare who the co-sharers in the property in suit are and what the extent of their respective shares is. It is only after such preliminary decree has been passed that the Court can proceed under Sections 2 and 3. Valuation of a share for the purposes of Section 3 cannot, hence, be ordered as of a date earlier than the date of the preliminary decree.
18. There is only one decision which is squarely upon this point of valuation. It is the judgment of a learned single judge of the Madras High Court in Jayarama Chettiar v. D. Annamalai Chettiar, . The argument was that the market value of the house in question should have been ascertained not as on the day when the plaintiffs half-share therein was ordered to be sold but as on the date on which the defendant had offered to purchase it. The learned judge considered the language of Section 3 and found that it contemplated the ascertainment of the price as on the date of the order for sale. The learned judge noted that seven years had elapsed between the date of the offer and the date of the order for sale and that during that period the market value of the house had shot up considerably but that, he said, was no reason why the defendant should exclude the plaintiff from the benefit of the rise in price during the seven years in question. The plaintiff had continued to be the co-owner of the house along with the defendant up to the date of the sale.
19. We are broadly in agreement with the view that was taken. We cannot accept Mr. Chagla's argument that the judgment should not be considered because, obviously erroneously, the learned judge stated that Section 3 contemplated the ascertainment of the price as on the dale of the order for sale "under Clause (2) of Section 3."
20. The judgment of the Supreme Court in the case of R. Ramamurthi Aiyar, , needs to be mentioned again. The Supreme Court held that as soon as a shareholder applied for leave to buy at a valuation the share of the party asking for sale of the property, he obtained an advantage in that the Court was bound thereafter to order a valuation and, after getting the valuation done, to sell the same to such shareholder at such valuation. This advantage, which might or might not fulfil the juridical meaning of a right, was nevertheless a privilege or a benefit. If the plaintiff was allowed to withdraw the suit after the defendant had gained or acquired the advantage or privilege of buying the share of the plaintiff in accordance with the provisions of Section 3(1), it would enable the plaintiff to defeat the purpose of Section 3(1) and deprive the defendant of the option or privilege which he had obtained.
21. This judgment of the Supreme Court was not concerned with the date of valuation under Section 3. It was concerned only with the question as to whether or not the plaintiff could withdraw the statement that he had made that the property was not capable of being partitioned by metes and bounds after another shareholder had offered to buy up his share. There is nothing in the judgment to suggest that the Court is obliged "forthwith" to order a valuation under Section 3 of the share of the co-sharer who requested the Court under Section 2 to order a sale. There is also nothing in this judgment which suggests that the valuation date under Section 3 can be any date earlier than the date upon which the Court passes the preliminary decree, grants to a co-sharer his request under Section 2 and, thereafter, to another co-sharer leave to buy under Section 3.
22. Reference was made by counsel to the provisions of Section 4 which read thus :
4. "(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall if any member of the family being a shareholder shall undertake to buy the share of such transferee, make valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in Sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section."
23. Section 4 contemplates a situation altogether different from that contemplated by Sections 2 and 3. Further, under Section 4 the shareholder has to "undertake to buy" the share of the transferee. Under Section 3 the shareholder applies for leave to buy and it is clear from the provisions of Sub-section (3) thereof that he is not obliged to buy when the offer is actually made to him.
24. To conclude upon the first submission, the learned judge was, in our view, in error in directing the valuation of the properties without having first passed a preliminary decree declaring who the co-sharers in the properties were and the extent of their shares; and in directing the valuation to be made as of July, 1972 when the defendants had first applied for leave to buy.
25. Mr. Chagla, learned counsel for the respondents, drew our attention to the judgment of the Supreme Court in Rameshwar v. Jot Ram, . The Supreme Court there reiterated that the right of a party was determined by the facts as they existed on the date the action was instituted. Later developments could not defeat his right because, had the Court found his facts to be true on the day he sued, he would have got his decree. The Court's procedural delays could not deprive him of legal justice or rights crystalised in the initial cause of action. Where the nature of the relief, as originally sought, had become obsolete or unserviceable or a new form of relief was more efficacious on account of developments subsequent to the suit or even during the appellate stage, it was but fair that the relief should be moulded, varied or reshaped in the light of updated facts. It was important that the party claiming the relief or change of it should have the same right from which either the first or the modified remedy might flow.
26. Upon the basis of this decision Mr. Chagla submitted that a preliminary decree must be deemed to have been passed in 1972 or, at least, in 1977. In support of the submission Mr. Chagla said that the suit was filed in 1972 and it was not contested, so that the decree ought to have been passed in 1972 itself. He said that on the Notice of Motion the defendants had sought leave under Section 3 but the Court had not given it to the defendants. He said that the learned single judge had declined to do so. The delay up to 1977, according to Mr. Chagla, was caused because of the proceedings that had been adopted by the plaintiffs in that they had filed an appeal against the order on the chamber summons which had been dismissed. After 1977 and until 1985, when the order under appeal was passed, Mr. Chagla ascribed sole responsibility for delay to the Court.
27. The minutes do not show that the learned single judge had been asked on the defendants' Notice of Motion to pass an order under Section 3 and had declined to do so. What is on record is the consent order on the Notice of Motion. If the learned judge had indicated that he was inclined to reject the defendants' application for an order under Section 3 and the defendants were serious about it, an order would have been obtained from which the defendants could have preferred an appeal. In so far as the period between 1972 and 1977 is concerned, the appeal filed by the plaintiffs against the order on the chamber summons was found worthy of admission. When the appeal was dismissed in 1977 no application appears to have been made on behalf of the defendants that the suit should be ordered to be placed on board peremptorily. No application in this behalf appears to have been made by the defendants even thereafter and until 1984. In these circumstances, Mr. Chagla's submission is unwarranted.
28. Mr. Chagla submitted that the decree should be deemed to have been passed in 1972, which means that the defendants must be allowed to pay in 1987 the price evaluated as of 1972. This would be grossly inequitable. If the decree had in fact been passed in 1972 the plaintiffs would have received the value of their share in 1972 and could have put it to use.
29. This brings us to the submission in regard to probate. Mr. Mehta, learned counsel for the appellants (plaintiffs), pointed out the provisions of Section 213 of the Succession Act. Thereunder no right as an executor or legatee can be established in any Court unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed or letters of administration with the will annexed. It was Mr. Mehta's submission that the executors or heirs of the deceased defendants could seek leave of the Court under Section 3 only if they were co-sharers in the properties. They could be held to be co-sharers in the properties only if their rights had been established by probates. In the absence of probates, Mr. Mehta submitted, they could not claim to exercise the right of a co-sharer under Section 3 and the learned judge was in error in directing a valuation on their application. Mr. Mehta referred to the judgment of the Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, , wherein it has been made clear that the words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or executor unless he has obtained probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court unless probate or letters of administration have been obtained of the will under which the right is claimed and, therefore, it is immaterial who seeks to establish the right as a legatee or an executor. Whosoever seeks to establish that right he cannot do so unless the will under which the right is claimed has resulted in the grant of probate or letters of administration.
30. Mr. Chagla submitted that the bar of Section 213 applied only to the establishment of a right and, therefore, only to the passing of a decree. It was no bar to the continuation of a suit. Only valuation had here been ordered and that was an order in continuation of the suit.
31. As we have held, no Court may apply the provisions of Sections 2 and 3 until it has: determined and has declared who the sharers in a property are and what their share is. Such declaration by preliminary decree cannot be made until and unless the executors or heirs of deceased parties have established their rights to the property by obtaining probate or letters of administration. Apart therefrom, it is only a shareholder who can invoke Section 3 and apply for leave to buy the share of the party which has requested a sale under Section 2. Unless the share of the applicant under Section 3 has been established no order can be made upon his application directing valuation of the property.
32. At the conclusion of his address, and without prejudice to his submissions, Mr. Chagla made the following statement :
"In the event of this Hon'ble Court holding :
(a) that the Respondents who are legal representatives but have not obtained probate are not entitled to exercise rights under Section 3 or
(b) that the Respondents who are legal representatives but have not obtained probate are not entitled to the benefit of the offer under Section 3 or
(c) that the Respondents who are legal representatives of the original Defendants are not entitled to the benefit of the offer under Section 3, the Respondents are agreed that the surviving original Defendant viz. Respondent No. 3 alone or together with such of the legal representatives as may be held entitled to the benefit of Section 3 , shall avail of the offer under Section 3."
32A. We are afraid that the statement does not carry the matter further. There can be no determination or declaration of who the shareholders in the properties are and what the extent of the share of each is until each of the defendants has obtained representation as required by Section 213 and this, as we have held, is a pre-requisite to an order under Section 2 which, in turn, is a prerequisite to an order under Section 3.
33. The appeal is, accordingly, allowed. The order of the learned single judge dt. 10th Sept., 1985 is set aside and is substituted by the following :
"Suit adjourned sine die. Upon each of the defendants having obtained representation as required under law the defendants' advocates on record shall so intimate to the Court's office and to the plaintiffs' advocates on record. Upon such intimation being received, and within ten days hereof, the office shall place the suit on the board of the learned judge taking long causes for hearing and final disposal."
34. The respondents shall pay to the appellants the costs of the appeal.
35. Oral application for leave to appeal to the Supreme Court refused.