1. This petition is directed against the order of the Subordinate Judge of Salem dismissing an application under Section 3 of the Partition Act. There was an application under Section 2, but that application having been withdrawn the learned Subordinate Judge thought that the dismissal of the application under Section 3 should automatically follow.
2. I am unable to accept that view. Section 2 provides for sale of the property which is not capable of partition among the shareholders. But such a sale can be ordered only at the request of the shareholders interested individually or collectively, to the extent of one moiety or upwards, in the property. Under Section 3, if a request of that kind has been made to the court, any other shareholder may apply for leave to buy at a valuation the share or shares in the property and the court shall then 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. The policy of this provision appears to be that third parties should be avoided and the partition by that process should be confined to the shareholders. It seems to me that once a request has been made and an application on the basis of that request has also been filed under Section 3(1), the withdrawal of the request under Section 2 will in no way affect the application under Section 3(1). Notwithstanding the withdrawal of the request under Section 2, the application under Section 3(1) will have to be dealt with and disposed of on its merits. The only condition precedent for an application under Section 3(1) is a request under Section 2 and once that condition has been satisfied, any subsequent withdrawal of the request will be inconsequential to the continued maintainability of the application under Section 3(1).
3. Umrao Singh v. Umrao Singh, : AIR1918All356 does not appear to decide the point and there is no other case which directly deals with it. But Rajagopala Chettiar v. Razack Sahib : AIR1950Mad759 and Vedachala Naicker v. Duraiswami Mudaliar : AIR1951Mad593 provide the nearest parallel, which have been decided in the context of Section 9 of the Madras City Tenants Protection Act, 1921. It has been held in those cases that the subsequent withdrawal of the suit will not render the application filed under Section 9 intructuous, but the latter will have to be dealt with and disposed of according to the merits. I think the principle of these cases will have application to the instant case.
4. The petition is allowed. The lower court is directed to dispose of the application under Section 3(1) on its merits. No exists.