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The Division Bench of the High Court considered that the following question arose for determination :

(1) Whether the court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such an inherent power and not the power under s. 2 of the aforesaid Act. (2) Whether the plaintiff having invoked the jurisdiction of the court under s. 2 of the Partition Act is entitled to withdraw the suit under Order 23, Rule 1 of the, Civil Procedure Code at the same time reserving his right to file a fresh suit on the same cause of action. (3) At what stage should the request under s. 2 be made and (4) Has the defendant who has invoked the jurisdiction of this Court under s. 3 of the Partition Act an indefeasible right to compel the plaintiff to sell the, plain-

tiff's half share to him at a valuation and prevent the plaintiff from withdrawing the suit ?

On the first question the High Court expressed the view that the Partition Act conferred on the court in a suit for partition a power of sale in certain specified circumstances. No general power of sale could be spelt out from the provisions of that Act. It was hold that s. 2 of the Partition Act had been invoked by the, plaintiff and the plaintiff could not withdraw a suit in the circumstances of the present case. It was further held that the request of the defendant under s. 3(1) of the Partition Act must be inquired into by the trial judge. Accordingly the appeal was allowed and the trial judge was directed to restore the suit to his file and frame the necessary additional issue and proceed to dispose of the request made by the defendant under s. 3(1) of the Act in accordance with law. The present appeal has been brought against that judgment. During the pendency of the appeal in this Court Ramamurthi Iyer the executor appointed by the will of late Raja Maheswara Rao, who had filed the appeal here, died on December 24, 1971. Smt. J. Padmini wife of M. Jayaraj filed C. M. P. 2227/72 for being brought on record as the second appellant on the ground that she was the only person competent to represent the estate of the deceased Raja Maheswara Rao. Another petition C. M. P. 1781/72 was filed in this Court by Isherdas Sahni & Bros. (P) Ltd. on the ground that the said company was the assignee of late Raja Maheswara Rao and was still his legal representative and should be impleaded in his place. On July 18, 1972 this Court allowed Smt. Padmini to be impleaded as appellant but declined the prayer for substitution as appellant of Isherdas Sahni & Bros. (P) Ltd. The company was, however, allowed to intervene in the appeal.

In the argument of the learned counsel for the appellant em- phasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of s. 2 of the Partition Act had not been satisfied and S. 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of s. 2. This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by' metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned. The language of s. 3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only "appear" that it is not so capable of division. It has further been contended that the respondent had maintained throughout that the property was capable of division. He could not, therefore, take advantage of the provisions of the Partition Act. Further he never made any proper application invoking the provisions of s. 3 of the Partition Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he Was ready and willing to buy the plaintiff's share in the suit at a valuation to be made in such a manner as the court might think proper. In our opinion, this was sufficient compliance with the requirement of s. 3 of the Partition Act. Section 3(1) does not contemplate a formal application being filed in every case. The words employed therein simply' mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale. In the written statement even if it was maintained that the property was not capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of S. 3 of the Partition Act.

Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt & Others v. Thomas Webb Jones(1) and the statement in Halsbury's Laws of England vol. 24, Second Edition (Hailsham Edn.) paras 745 to 747. It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap. 40) ss. 3 and 5 are similar in terms to ss. 2 and 3 of the Indian (1) 5 A.C. 651.

Partition Act. The statement in Halsbury's Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent. The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested. The provisions of the English Partition Act do not appear to be in parimutuel with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us.