judgement:
il Appeal No. 1101 of 1967,.
Appeal by certificate from the judgment and order dated September 28, 1966 of the Calcutta High Court in Appeal No. 7 of 1965.
G. L. Sanghi, B. D. Sharma and section P. Nayar, for ;the appellant.
A. K. Sen, B. P. Maheshwari and Shambhu Nath Chunder, for the respondent.
The Judgment of the Court was delivered by Beg, J.
The National Tobacco Co. of India Limited (herein after referred to as "the Company"), the Respondent in the appeal before us, manufactures Cigarettes, at its Factory in Agrapara, upon which Excise duty is vied by the appellant, the Assistant Collector of Central Excise, Calcutta Division (hereinafter referred to as "the Collector").
The rates at which the Excise duty was imposed upon the cigarettes of the Company under the provisions of the Central Excise and Salt Act of 1944 (hereinafter referred to as "the Act") were varied, from time to time, by the provisions of Finance Acts of 1951 and 1956 and the Additional Duties of Excise (Goods of Special Importance) Act of 1957.
The Collector maintained an office at the factory itself for the levy and collection of tax.
The Company was required to furnish quarterly consolidated price lists which used to be accepted for purposes of enabling the Company to clear its goods, but, according to the Collector, these used to be verified afterwards by obtaining evidence of actual sales in the market before issuing final certificates that the duty had been fully paid up.
The particulars of the cigarettes to be cleared were furnished by the Company on forms known as A.R.1 forms required by Rule 9 of the Central ' Excise Rules.
For facilitating collection of duty, the Company, maintained a large sum of money in a current account with the 825 Central Excise authorities who used to debit in this account the duty leviable on each stock of cigarettes allowed to be removed.
This current account, known as "personal ledger account", was maintained under the third proviso to Rule 9 which lays down: 9(1) " * * * * * * Provided also that the Collector may, if he thinks fit, instead of requiring payment of duty in respect of each separate consignment of goods removed from the place or premises specified in this behalf, or from a store room or warehouse duly approved, appointed or licensed by him keep with any person dealing in such goods an account current of the duties payable thereon and such account shall be settled at intervals not exceeding one month and the account holder shall periodically make deposit therein sufficient in the opinion of the Collector to cover the duty due on the goods intended to be removed from the place of production, curing, manufacture or storage".
It appears that the company used to furnish its quarterly price lists to the Collector on forms containing nine columns including one to show the "distributors ' selling price".
Until July 1957, so long as this form was used by the Company, no difficulty seems to have been experienced in checking the prices.
But, after this column was dropped from the new form of six columns, the excise authorities seem to have encountered some difficulty in valuing the cigarettes for vying excise duty.
They. ' therefore, changed the basis of assessment itself from "the Distributors" Selling Price" to "the wholesale cash selling price at which stockists or agents are selling the same to an independent buyer in the open market".
They held the view that such a charge could be made having regard to the provisions of Section 4 of the Act.
The Deputy Superintendent of Central Excise informed the Company,; of this change of basis on 5 11 1958 by a letter which also asked the Company to furnish its price lists immediately "for determining the correct assessable value" of its cigarettes.
On 7th November,, 1958, the Deputy Superintendent served a notice upon the Company demanding, payment of a sum of Rs. 1.67,072,40 as basic Central Excise duty and Rs. 74,574,85 as additional Central Excise duty on account of short levy for a certain brand of cigarettes cleared from the Company 's factory from 10th August, 1958 to 5th November, 1958.
On 12 11 1958, the Deputy Superintendent sent another notice demanding payment of a sum of Rs. 6,16,467,49 as basic Central Excise duty and Rs. 2,10,492,15 as additional central excise duty for short levy in respect of some brands of cigarettes cleared from the factory between 1 11 1957 to 9 8 1958.
On 13 11 1959.
(the Deputy Superintendent sent a 826 third notice to the Company under Rule 10 A of the Central Excise Rules 1944, demanding payment of Rs. 40,726,48 as basic Central Excise duty and Rs. 16,958.50 as additional duty for short levy in respect of various brands.
The Company applied to the Calcutta High Court under Article 226 of the Constitution against the three notices mentioned above, one of which specifically under Rule 10 A and the other two under Rule 10 of the Central Excise Rules.
A learned single Judge of that Court quashed the notices by his order of 15 2 1960 on the ground that the Company had not been given any opportunity of being heard so as to be able to meet the material collected behind its back which formed the basis of the demands under the aforesaid three notices.
On a joint request of both ides.
the High Court did not decide the question whether notices of demand ,were time barred.
But, the learned Judge said : "Nothing in this order will prevent the respondent from proceeding to take any step that may be necessary for such assessment or for the realisation of the revenue in accordance with the law".
The learned Judge had also held that neither the basis adopted by the company nor that put forward by the Collector was correct.
The learned Judge pointed out the correct basis which was considered by him to be in consonance with the provisions of Section 4, sub.s(a) of the Act.
He indicated the various factors required by Section 4 of the Act which had to be taken into account and held: "The determination as to whether a wholesale market exists at the site of the factory or the premises of manufacture or production etc.
or which is the nearest wholesale market, or the price at which the goods or goods of like kind and quality are capable of being sold must necessarily be a complicated question and must be determined carefully upon evidence and not arbitrarily.
Such determination cannot wholly be made ex parte, that is to say, behind the back of the assessee.
A satisfactory determination can only be made by giving all information to the assessee and after giving the assessee an opportunity of establishing his own point of view, or checking and/or challenging any material or evidence upon which the Excise Authorities wish to depend.
" As no appeal was filed by either side against this decision, it became final and binding between parties before us so that the question whether the High Court has correctly interpreted Section 4 of the Act in determining the basis on which the excise duty leviable could be assessed is not under consideration here.
827 When the case went back to the Collector, he issued a fresh notice on 24 4 1960.
As the validity of this notice is the real question now in issue in the appeal before us, it may be reproduced in toto here.
It turns as follows: Registered A/D GOVERNMENT ' OF INDIA Collectorate of Central Excise Office of the Assistant Collector of Central Excise, Calcutta I Division (5, Clive Row), Calcutta NOTICE C. No. VI(b)14/3/58/3886 Dated 21st April.
, 1960 TO M/s. National Tobacco Co. (India) Ltd., Agarpara, 24 Parganas.
In connection with the assessment of Central Excise duties for the periods : 1. from 1st October, 1957 to 5th November, 1958 in respect of 316,885,000 of "No. Ten" brand Cigarettes.
from 1st January, 1958 to 28th January , 1958 in respect of 6,600,000 of "D.L.T. Mag" Cigarettes.
from 1st January, 1958 to 5th February, 1958 in respect of 9594,000 of "May Pole" Cigarettes '.
from 1st January, 1958 to 7th February, 1958 in respect of 3143,500 "Carltons Gold Seal" Cigarettes.
V. from 1st January 1958 to 31st January, 1958 in respect of 1471,250 of "John Peel" Cigarettes.
from 1st January, 1958 to 16th January, 1958 in respect of 8200,000 of "Light House" Cigarettes.
from 1st January, 1958 to 16th January, 1958 in respect of 9070,000 of "Gold Link" Cigarettes.
Please note that a sum of Rs. 10,05,133.25 np.
(Rupees 10 lads five thousand one hundred thirty three and twenty five naya paise only) as basic Central Excise duty and a total sum of Rs. 3,43,208.25 np.
(Rupees three lacs forty three thousand two hundred eight and twenty five naya paise only) as additional duty had been provisionally debited in your account on the basis of the price list supplied to us by you for the quarters 828 (i) beginning October, 1957 dated 17th October, 1957.
(ii) beginning January, 1958 dated nil.
(iii) beginning April, 1958 dated 14th April, 1958, and (iv) beginning July, 1958 dated 14 7 58, and (v) beginning October, 1958, dated nil.
We now propose to complete the assessments for the said periods from the evidence in our possession from which it appears : (i)that there is no wholesale market for the goods covered by your price lists in or near the factory or the 'Place of manufacture and that the nearest wholesale market for the sale is the Calcutta market.
(ii) the wholesale cash price of the articles in question at the time of sale and/or removal of the ,,goods at the Calcutta market at which goods of like kind or quality are sold or are capable of being sold have been ascertained by us and the evidence at our disposal reveals that the prices quoted by you in your price list are not correct.
The prices at, as per chart annexed hereto which has been prepared on the basis of available evidence in terms of section 4 (a) , of the Central Excise and Sale Act, 1955.
The vouchers mentioned in the chart are available for your inspection at any time next week during office hours.
After obtaining inspection of the vouchers please attend at our office at 5 Clive Row, Calcutta on 2nd May 1960 at 10.30 a. 'M. for the purpose of discussing the points mentioned above 4.
We are prepared to give you a personal hearing with regard to all the points indicated above.
If you have any evidence in support of your contention you are at liberty to produce the same at the time of bearing.
Thereafter please note that we propose to make the final assessment in accordance with law.
Sd./ (N. D. MUKhERJEE) Assistant Collector of Central Excise, Calcutta I Division, Calcutta" The Company challenged the validity of this notice by means of a second petition for Writs of Prohibition and Mandamus against the Collector on the ground that the notice was barred by time 829 and was issued without jurisdiction so that no proceedings founded on it could be taken.
It was prayed that the Collector may be ordered to cancel the notice.
The petition was allowed by a learned Single Judge of the Calcutta High Court on 3 1 1964 on the ground that such a notice was barred by the provisions of Rule 10 of the Central Excise Rules 'because the notice was held to be fully covered by Rule 10 and by no other rule.
A Division Bench of the High Court confirmed this view on 8 9 1966 and dismissed the Collector 's appeal.
The case having been certified, under Article 133(a), (b) and (c) for an appeal to this Court, this question is before us now.
The learned Single Judge as well as the Division Bench of the Calcutta High Court said that there was not enough material on record to conclude that there was any "provisional assessment" under Rule 10 B (deleted on 1 8 1959 and substituted by Rule 9 B) which laid down: "10B. PROVISIONAL ASSESSMENT OF DUTY (1) Notwithstanding anything contained in these rules (a) There the owner of any excisable goods makes and subscribed a declaration before the proper Officer to the effect that he is unable for want of full information to state precisely the real value or description of such goods in the proper Form : or (b) Where the owner of any goods has furnished full information in regard to the real value or description of the goods, but the proper Officer requires further proof in respect thereof; or (c) Where the proper Officer deems it expedient to subject any excisable goods to any chemical or other test, The proper Officer may direct that the duty leviable on such goods may, pending the pro duction of such information or proof or pending the completion of any such test, be assessed provisionally.
(2) When the owner of any goods in respect of which the duty has been assessed provisionally under sub rule(1) has paid such duty, the proper Officer may make an order allowing the goods to be cleared for home consumption or for exportation, as case may be and such order shall be sufficient authority for the removal of the goods by the owner: Provided that before making any such order the proper officer shall require the owner to furnish a bond in the proper form binding the Owner to pay the differen 830 tial duty When the final assessment is made.
(3) When the duty leviable on such goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed, falls short of, or is in excess of, the duty finally assessed.
the owner of the goods shall pay the deficiency or be entitled to a refund, as the case may be." No order directing provisional assessment, contemplated by Rule 10 B, (applicable at the relevant time) has been placed before us.
Nor was the Company asked by the Collector to furnish a bond to pay up the difference after making a final assessment as was required under Rule 10 B.
It was, however, contended for the Collector that the execution of a bond, for the satisfaction of the Collector, could be dispensed with in a case where the Company kept a large sum of money in deposit in the "personal ledger account" to guarantee its ability to meet its liabilities.
It was also pointed out that the learned Single Judge as well as the Division Bench had found that the practice of provisionally approving the price lists supplied by the Company, pending acceptance of their correctness after due verification, had been established as a mater of fact.
It was submitted that this was substantially a "provisional assessment" covered by Rule 10 B, although it may not conform to the technical procedural requirements of such an assessment.
Even if the making of debit entries could, on the facts of the case, be held to be merely provisional think that what took place could not be held to be a "provisional assessment" within the provisions of Rule 10 B which contemplated the making of an order directing such an "assessment" after applying_ the mind to the need for it.
Before proceeding further we will deal with the question whether the Division Bench correctly refused to permit an argument that the impugned notice of 24 4 1960 fell under Rule 10 A.
The ground given for this refusal was that such a case was neither taken before 'the learned Single Judge nor could be found in the grounds of appeal despite the fact that the appellant had ample opportunity of amending its Memorandum of appeal.
The appellant has, however, relied on a previous intimation given to the counsel for the respondent that such a contention would be advanced at the hearing of the appeal and also on an application dated 21 3 1966 praying for permission to add the alternative ground that the impugned notice fell under Rule 10 A.
We think that this refusal was erroneous for several reasons.
Firstly the Company having come to Court for a Writ of Pro hibition on the ground that the impugned notice was issued with 831 out jurisdiction had necessarily to establish the case which it sets, up in paragraph 25 of its Writ Petition, that the notice was not authorised by the rules including Rule 10 A.
As the notice of 21 4 1960 was followed on 4 5 1960 by a correction by another notice of certain statements both the notices were assailed in paragraph 25 (ii) in the following words "The respondent has mala fide and without jurisdiction issued the said impugned notices pretending to falsely state that the aggregate sum therein mentioned has been provisionally debited in your petitioner 's account and pretending to intimate, to your petitioner that the respondent proposed to complete the assessment, And thereby, he is seeking, under the guise of completing an alleged assessment which had already been completed and duty in respect whereof had already been paid, to do indirectly what he could not do directly inasmuch as Rule 10A of the said Rules has no application to the facts of the case and inasmuch as recovery of any duty which might have been short levied under Rule 10 of the Rules is barred by limitation".
This assertion was met by a categorical denial by the Collector in paragraph 26(ii) of the Collector 's affidavit in reply where it was stated that it was denied "that Rule 10 A of the said Rules had no application to the facts of the case as alleged or that the recovery of any duty which had been short levied was barred by limitation under Rule 10 of the said Rules as alleged or at all".
Thus, the applicability of Rule 10 A was very much in issue.
Secondly, We find, from the Judgment of the learned Single Judge that, as the burden lay upon the petitioning Company to demonstrate, for obtaining a Writ of Prohibition, that the impugned notice was not authorised by any rule, its counsel had contended ',, inter alia, that the notice did not fall under Rule 10 A.
The question was thus considered by the learned Single Judge.
Thirdly, the question whether the Collector did or did not have the power to issue the impugned notice under or with the aid of Rule 10 A was a question of law and of jurisdiction.
going to the root of the case, which could be decided without taking further evidence.
Indeed, as the burden was upon the petitioning Company to show that the impugned notice was issued without jurisdiction, a finding that the notice did not fall even within Rule 10 A was necessary before a Writ of Prohibition could issue at all.
We think that the Division Bench ought to have permitted the question to be argued, subject to giving due opportunity to the petitioning Company to meet it on such, 832 terms as the Court thought fit, even if the point was not taken in the grounds of appeal.
Therefore, we will consider this question also.
Rule 10 of the Central Excise Rules, ran as follows "10.
Recovery of duties or charges short levied, or erroneously refunded When duties or charges have been short levied, through inadvertence, error, collusion or mis construction on the part of an officer, or through misstatement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such 'cause, erroneously refunded, the person chargeable with the duty or charge, so short levied, or to whom such refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owners account current, if any, or from the date of making the refund".
Rule 10 A reads as follows: "10 A Residuary powers for recovery of sums due to Government.
Where these Rules do not make any specific provision for the collection of any duty, or of any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or "these Rules, such duty, deficiency in duty or sum shall, on a written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify.
" The two rules set out above occur in Chapter III of the Central Excise Rules 1944 headed "Levy and Refund of, and Exemption from Duty".
Rule 7 merely provides that the duty leviable on the goods will be paid at such time and place and to such, person as may be required by the rules.
Rule 8 deals with power to authorise exemptions in special cases.
Rule 9(1) provides for the time and manner of payment of duty.
This rule indicates that ordinarily the duty leviable must be paid before excisable goods are removed from the place where they are manufactured or stocked, and only after obtaining the permission of the officer concerned.
The third proviso 833 to Rule 9 has already been set out above.
Rule 9(2) provides for the recovery of duty and imposition of penalty in cases where Rule 9 sub.
r (1) is violated.
Rule 9A specifies the date with reference to which the duty payable is to be determined.
We are ,not concerned here with Rules 11 to 14 dealing with refunds, rebates, exports under bonds and certain penalties for breaches of Rules.
Rule 52 and 52 A, found in Chapter V, dealing with a number of matters relating to "Manufactured Goods", may also be cited here : "52.
Clearance on payment of duty When the manufacturer desires to remove goods on payment of duty, either from the place or a premise specified under rule 9 or from a store room or other place of storage approved by the Collector under rule 47, he shall make application in triplicate (unless otherwise by rule or order required) to the proper officer in the proper Form and shall deliver it to the Officer at least twelve hours (or such other period as may be elsewhere prescribed or as the Collector may in any particular case require or allow) before it is intended to remove the goods.
The officer, shall, thereupon, assess the amount of duty due on the goods and on production of evidence that this sum has been paid into the Treasury or paid to the account of the Collector in the Reserve Bank of India or the State Bank of India, or has been despatched to the Treasury by money order shall allow the goods to be cleared".
"52A. Goods to be delivered on a Gate pass (1) No excisable goods shall be delivered in a factory except under a gatepass in the proper form or in such other form as the Collector may in any particular case or class of cases prescribe signed by the owner of the factory and countersigned by the proper officer.
" It will be noticed that in Chapter III, the term "assessment" was used only in the former rule 10 B, corresponding to the present rule 9 B, while dealing with provisional assessment of duty.
But, Rule 52 shows that an "assessment" is obligatory before every removal of manufactured goods.
The rules however, neither specify the kind of notice which should precede assessment nor lay down the need to pass an assessment order.
All we can say in that rules of natural justice have to be observed for, as was held by this Court in K. T. M. Nair vs State of Kerala(1), "the assessment of a tax on person or property is atleast of a quasi judicial character".
(1) ; @ 94.
L Sup.
CI/73 834 Section 4 of the Act lays down what would determine the value of excisable goods.
But, the Act itself does not specify a procedure for assessment presumably because this was meant to be provided for by the rules.
Section 37(1) of the Act lays down that "the Central Government may make rules to carry into effect the purposes of this Act".
Section 37, sub.
s (2), particularises without prejudice to the generality of the foregoing power" that "such rules may provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged , the issue of notice requiring payment, the manner in which the duty shall be payable, and the recovery of duty not paid".
It is clear from Section 37 that " assessment and collection of duties of excise" is part of the purposes of the Act, and Section 4, dealing with the determination of value for the purposes of the duty, also seems to us to imply the existence of a quasi judicial power to assess "he duty payable in cases of dispute.
"Collection", seems to be a term used for a stage subsequent to "assessment".
In a case where the basis of a proposed assessment is disputed or where contested questions of fact arise, a quasi judicial procedure has to be adopted so as to correctly assess the tax payable.
Rule 52 certainly makes an "assessment" obligatory before removal of goods unless the procedure for a "provisional assessment" under Rule 10 B (now rule 9 B) is adopted.
But, if no quasi judicial pro ceeding, which could be described as an "assessment" either under Rule 52 or "Provisional assessment" under Rule 10 B (now Rule 9 B) takes place at the proper time and in accord ance with the rules, is the Collector debarred completely afterwards from assessing or completing assessment of duty payable ? That seems to us to be the real question to be decided here.
One of the arguments on behalf of the Collector was that no "assessment", for the purpose of determining the value of excisable goods, having taken place in the case before us, there could be no "levy" in the eye of law.
It was urged that, even if there was no "provisional assessment", as contemplated by Rule 10 B, whatever took place could, at the most, be characterised as an "incomplete assessment", which the Collector could proceed to complete, even after the removal of the goals.
It was contended that such a case would be outside the purview of Rule 10 as it was not determined whether there actually was a short levy.
Hence, it was submitted there was no question of a proceeding barred by the limitation prescribed for making a The demand for a short levy in certain specified circumstances.
Division Bench, while repelling this contention, held : "In the present case, it appears that the procedure adopted was that the respondents issued a price list 835 quarterly.
In that price list, they gave their own estimate as to the value of the goods.
For the time being the excise authorities accepted the value so given, and gave a provisional certificate to that effect, intending to check the market value and then finally determine the value later on.
The procedure for issuing price list of approving the same provisionally and accepting payment therefore according to the estimate of the manufacturer, is a procedure which is not to be found either in the Act or the Rules".
It may be observed that this finding, that the procedure of a provisional acceptance of the Company 's estimates was adopted, seems inconsistent with another finding that what took place was a final adjustment of accounts within the purview of the 3rd proviso to Rule 9, set out above, constituting a "levy" accord to law.
The Division Bench appears to have regarded this procedure of an almost mechanical levy as equivalent to a complete assessment followed by the payment of the tax which constituted a valid "levy".
Hence, it concluded that, there being a legally recognised levy, the only procedure open to the Collector for questioning its correctness was one contemplated by Rule 10 so that a demand for a short levy had to be made within 3 months of the final "settlement of accounts" as provided specifically by Rule 10.
The Division Bench considered this procedure to be an alternative to an assessment under Rule 52 at the proper time and also :to a provisional assessment in accordance with the procedure laid down in Rule 10 B. But, to regard the procedure under Rule 10 as an alternative to an assessment would be to overlook that it presupposes an assessment which could be reopened on specified grounds only within the period given there.
The term "levy" appears to us to be wider in its import than the term "assessment".
It may include both "imposition" of a tax as well as assessment.
The term "imposition" is gene rally used for the, levy of a tax or duty by legislative provision indicating the subject matter of the tax and the rates at which it has to be taxed.
The term "assessment", on the other hand, is generally used in this country for the actual procedure adopted in fixing the liability to pay a tax on account of particular goods or property or whatever may be the object of the tax in a particular case and determining its amount.
The Division Bench appeared to equate "levy" with an "assessment" as well as with the collection of a tax when it.
held that "when the payment of tax is enforced, there is a levy".
We think that, although the connotation of the term "levy" seems wider than that of "assessment", which it includes, yet, it does not seem to 836 us to extend to "collection".
Article 265 of the Constitution makes a distinction between "levy" and "collection".
We also find that in N. B. Sanjana Assistant Collector of Central Excise, Bombay & Ors.
vs The Elphinstone Spinning & Weaving Mills Co. Ltd.,A(1), this Court made a distinction between "levy" and "collection" as used in the Act and the Rules before us.
It said there with reference to Rule 1 0 : "We are not inclined to accept the contention of of Dr. Syed Mohammad that the expression 'levy ' in Rule 10 means actual collection of some amount.
The charging provision Section 3(1) specifically says.
'There shall be levied and collected in such a manner as may be prescribed the duty of excise . ' It is to be noted that subsection (i) uses both the expressions "levied and collected" and that clearly shows that the expression 'levy ' has not been used in the Act or the Rules as meaning actual collection".
We are, therefore, unable to accept the view that, merely because the "account current", kept under the third proviso (erroneously mentioned as second proviso by the Division Bench) to Rule 9, indicated that an accounting bad taken place, there was necessarily a legally valid or complete levy.
The making of debit entries was only a mode of collection of the tax.
Even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final.
It could only be clothed or invested with validity after carrying out the obligation to make an assessment to justify it.
Moreover, it is the process of assessment that really determines whether the levy is short or complete.
It is not a factual or presumed levy which could, in a disputed case, prove an "assessment".
This has to be done by proof of the actual steps taken which constitute "assessment".
Undoubtedly, a mechanical adjustment and ostensible settle ment of accounts, by making debit entries, was gone through in the case before us.
But, we could not equate such an adjustment with an assessment, a quasi judicial process which involves due application of mind to the facts as well as to the requirements of law, unless we were bound by law to give an unusual interpretation to the term "assessment".
Here, we do not find any such definition of assessment or any compelling reason to bold that what could at most be a mechanical provisional collection, which would become a "levy" in the eve of law only after an "assessment", was itself a levy or an assessment.
Rules 10 and 10A, placed side by side, do raise difficulties of interpretation.
Rule 10 seems to be so widely worded as to (1) ; 2045.
837 cover any "inadvertence, error, cullusion or misconstruction on the part of an officer", as well as any "misstatement as to the quantity, description or value of such goods on the part of the owner" as causes of short levy.
Rule 10 A would appear to cover any "deficiency in duty if the duty has for any reason been short levied", except that it would be outside the purview of Rule 10A if its collection is expressly provided for by any Rule.
Both the rules, as they stood at the relevant time, dealt with collection and not with assessment.
They have to be harmonised, In N. B. Sanjana 's case (Supra), this Court harmonised them by indicating that Rule 10A, which was residuary in character, would be inapplicable if a case fell within a specified category of cases mentioned in Rule 10.
It was pointed out in Sanjana 's case (Supra).
that the reason for the addition of the new Rule 10A was a decision of the Nagpur High Court in Chhotabhai Jethabhai Patel vs Union of India(1), so that a fresh demand may be made on a basis altered by law.
The Excise authorities had then made a fresh demand, under the provisions of Rule 10 A, after the addition of that Rule, the validity of which challenged but upheld by a Full.
Bench of the High Court of Nagpur.
This Court, in Chhotabhai Jethabhai Patel & Co., vs Union of India ( 2 ) also rejected the assessee 's claim that Rule 10 A was inapplicable after pointing out that the new rule had been specifically designed" for the enforcement of the demand like the one arising in the circumstances of the case".
We think that Rule 10 should be confined to cases where the demand is being made for a short levy caused wholly by one of the reasons given in that rule so that an assessment has to be reopened.
The findings given by the Calcutta High Court do not show that, in the case before us, there was either a short levy or that one of the grounds for a short levy given in Rule 10 really and definitely existed.
No doubt the Division Bench gave a reason for the way in which the claims became time barred, in the following words: "It is quite possible, that the Excise authorities, in an attempt tohelp the, appellants, by facilitating the movements of goods, inadvertently allowed the claims to be barred by limitation.
That, however, is not a matter which can affect the question of limitation.
The bar of limitation has been imposed by Statute.
The morality of the case or the conduct of the parties is therefore irrelevant unless the law provides that the court on that ground can afford relief ' (1) A.I.R, 1952 Nag.
139, (2) [1962] Supp. 2 S.C.R. 1 838 This finding was presumably given to show that the impugned notice fell within the purview of Rule 10 because the demand was due to a short levy caused by "inadvertence" of the officer concerned.
It will be noticed that the Division Bench did not go beyond finding a "possibility" of such inadvertence.
This is not a finding that it was definitely du. , to it.
No finding which could clearly relate the, case to any cause for short levy found in Rule 10 was given.
Moreover, we find that there was no case taken up by the Company in its petition before the High Court that any short levy resulted from an inadvertence.
of the officer concerned in the process of assessment.
The case set up was that of a levy after a completed assessment, in accordance with law, which could not, according to the Company, be reopened.
If, therefore, as we find from the conclusions recorded by the High Court itself what took place was not an "asseessment" at all in the eye of law, which could not be reopened outside the provisions of Rule 10, we think that the case will fall beyond Rule 10 as it stood at the relevant time.
The notice set out above does not purpoe, to be issued under any particular rule probably because the Collector,.
in the circumstances of the case, was not certain about the rule under which the notice could fall.
But, as was pointed out by this Court in Sanjana 's case (Supra), the failure to specify the provision under which a notice is sent would not invalidate it if the power to issue such a notice was there.
The notice alleges that it is a case of "incomplete assess ment".
The allegations contained in it have been characterised by the learned counsel for the Company as a change of front intended to cover up the neglet of the Collector in failing to comply with the correct procedure of making either an assessment before delievery contemplated by Rule 52 or a provisional assessment under Rule 10 B. We are unable to hold, either upon the findings given by the High Court or upon facts transpiring from the affidavits filed by the parties that the notice was a mere cloak for some omission or error or inadvertence of the Collector in making a levy or an assessment.
We may point out that Rule 10 itself has been amended and made more reasonable in 1969 so as to require a quasi judicial procedure by serving a show cause notice "within 3 months from the date on which the duty or charge was paid or adjusted in the owner 's account current, if any".
This amendment, made on 11 10 1969, indicates that the quasi judicial procedure.
for a finding on an alleged inadvertence, error, collusion, or misconstruction by an officer, or misstatement by the assessee, as the cause of an alleged short levy resulting from an assessment, can now be embarked upon and not necessarily completed 839 within the prescribed period.
We are, however, concerned with the procedure before this amendment took place.
At that time, it was certainly not clear whether a case would fall under Rule 10 even before the short levy or its cause was established.
Furthermore, in the present case, the reason for an alleged short levy could be a change of basis of proposed assessment under instructions from higher authorities mentioned above.
Even that change of basis was held by the High Court to be erroneous.
Until the High Court indicated the correct basis there was an uncertainty about it.
Such a ground for an alleged short levy would be analogous to the reason for the introduction of Rule 10 A itself _ which, as pointed out in N. B. Sanjana 's case (Supra), was 'a change in the law.
One could go back still further and come to the conclusion that the real reason ',or the alleged short levy was a failure of the Company to supply the fuller information it used to supply previously and not just a misstatement.
If the case does not clearly come within the classes specified in Rule 10, this rule should not be invoked because, as was rightly contended for the appellant, a too wide construction put on Rule 10 would make Rule 10A useless.
The two rules have to be read together.
It is true that Rule 10 A seems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by a quasi judicial procedure.
If, however, it is read in conjunction with Section 4 of the Act, we think that a quasi judicial proceeding, in the circumstances of such a case, could take place under an implied power.
It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied [See Craies on Statute Law (Fifth Edition) P. 105] The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the Provisions of Section 4 of the Act read with Rule 10 A of the, Central Excise Rule, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning and applicability of Rule 10A.
The High Court 's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all.
This rule flows from the maxim : "Expressio unius act exclusio alterius.
" But, as we pointed out by Wills, J., in Colquohoun vs Brooks(1) this maxim "is often a valuable servant, but a dangerous master . ".
The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and (1) (1888) 2 ,62. 840 purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these.
Moreover the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of.
a duty.
Although Rule 52 makes an assessment obligatory before goods are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment.
There is no express pro hibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no " assessment", as it is understood in law, took place at all.
On the other hand, Rule 10A indicates that there are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules.
If the assessee disputes the correctness of the demand an assessment becomes necessary to protect the interests of the assessee.
A case like the one before us falls more properly within the residuary class of unforeseen cases.
We think that, from the provisions of Section 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred.
No writs of prohibition or mandamus ",ere, therefore, called for in the circumstances of the case.
Consequently, we allow this appeal and set aside the orders of the Calcutta High Court.
The Collector may now proceed to complete the assessment.
In the circumstances of the case, the parties will bear their own costs throughout.

summary/full:
The respondent manufactures cigarettes at its factory upon which Excise Duty is levied by the Assistant Collector of Central Excise, Calcutta Division.
The rates varied according to the provisions of Finance Act, 1951, and 1956 and the Additional Duty of Excise (Goods of Special Importance) Act, 1957.
The Company was required to furnish quarterly consolidated price lists and the particulars of cigarettes to be cleared were furnished by the Company as required by Rule 9 of the Central Excise Rules.
For facilitating collection of duty, the Company maintained a large sum of money in a Current Account with the Central Excise authorities, who used to debit this account for the duty leviable on each stock of cigarettes allowed to be removed.
The Company used, to furnish its quarterly price lists to the Collector ,on forms containing nine columns and until July 1957, so long as this form was used by the Company, no difficulty was experienced in checking prices.
But after this column was dropped from the new form of six, columns, the Excise authorities encountered some difficulty in valuing the cigarettes for levying Excise Duty.
They therefore, changed the basis of assessment from the Distributors selling price to the wholesale cash selling price at which stockists or agents were selling the same in the open market.
The authorities informed the Company of this change of basis on 5 11 58 by letter, which also asked the Company to furnish its price lists immediately for determining the correct assessable value of its cigarettes.
Two days thereafter, the authorities served a notice upon the Company demanding payment of Rs. 1,67,072,40 P. as Basic Central Excise Duty and Rs. 74,574,85 P. as Additional Central Excise Duty on ground of short levy for a certain brand of cigarettes cleared from Company 's Factory between 10th August 1958, After another five days, the authorities sent another notice demanding more than Rs. 6 lakhs as Basic Central Excise Duty and more than Rs. 2 lakhs as Additional Central Excise Duty.
On the following day, the authorities sent a third notice under Rule 10 A of the Central Excise Rules, demanding more than Rs. 40,000/as Central Excise Duty and more than Rs. 16,000/ as Additional Duty.
The Company challenged these notices by a writ before the High Court.
, The High Court quashed the notices on the ground that the Company had not been given an opportunity of being heard.
No appeal was filed by the other side against this decision, but when the case went back to the Collector, he issued P. fresh notice on 24 4 1960.
By this notice, for certain periods, a sum of more than Rs. 10 lakhs was levied as Basic Central Excise Duty and a total sum of more than Rs. 3 lakhs as Additional Duty, and this amount had been provisionally debited in the Company 's Account on the basis of the price list supplied by the Company and the Company was informed that if it desired a personal hearing, it 823 can appear before the authorities to make the final assessment in accordance with law.
The Company challenged the validity of this notice dated 24 4 60 on the ground that the notice was barred by limitation and was 'issued without jurisdiction, so that no proceedings could be taken.
The learned single Judge, as well as the Divisional Bench of the High Court allowed the petition on the ground that the notice was barred by time under Rule 10 of the Central Excise Rules because the notice was held to be fully covered by Rule 10 and by no other rule.
The case was certified under article 33(a), (b) and (d) for an appeal to this Court.
Rule 10 of the Central Excise Rules provides that when duties or charges have been short levied through inadvertence or misconstruction etc., the person chargeable with the duty so short levied, shall pay the deficiency or pay the amount paid to him in excess on written demand by the proper officer within three months from the date on which the duty or charge is paid or adjusted in the owner 's account, if any, or from the date of making the refund.
It was contended that this was substantially a provisional assessment covered by Rule 10 B.
The Division Bench of the High Court, however, refused to agree that the impugned notice of 24 460 fell under Rule, 10 A.
The reason given for this refusal was that such a case was neither taken before the learned single Judge, nor could be found in the grounds, of the appeal despite the fact that the appellant had ample opportunity of amending its Memorandum of Appeal.
Allowing the appeal.
HELD : (i.) That the High Court erroneously refused to consider whether the impugned notice fell under Rule 10 A.
The applicability of Rule 10 A was very much in issue because the Collector in his affidavit denied that Rule 10 A of the said rules had any application to the facts of the case.
(ii) It cannot be accepted that merely because the current account kept under Rule 9 indicated that an accounting had taken place, there was necessarily a legally valid or complete levy.
The making of debit entries was only on ground of collection of the tax.
Even if payment or actual collection of tax could be spoken of as a defective levy, it was only provisional and not fINal.
It could only be closed or invested with validity after carrying out the obligation to make an assessment that really determines whether the levy is short or complete.
It is not a faCtual or presumed levy which could prove an assessment.
This has to be done by proof of the actual steps taken which constitute assessment.
[836D] A mechanical adjustment, or settlement of accounts by making debit entries was gone through in the present case, but it cannot be said that any such adjustment is assessment which is a quasi judicial process and involves due application of mind to the facts, as well as to the requirements of law.
Rule 10 and 10 A seems to be so widely worded as to cover any inadvertence error etc.; whereas Rule 10 A would appear to cover any deficiency in duty if the duty has for any reason, been short levied, except that it would be outside the purview of Rule 10 A if its collection is expressly provided or by any rule.
Both the rules as they stood at the relevant time, deal with collection, and not with assessment.
In N. B. Sanjana 's case ; this Court indicated that Rule 10 A which was residual.
in character, would be inapplicable if a case fell within a specified category of cases mentioned in Rule 10.
It was pointed out in Sanjana 's case that the reason for the addition 824 of the new rule 10 A was a decision of the Nagpur (Chotabhai Jethabhai 's case; A.I.R. 1952 Nagpur 139), so that a fresh demand may be made on a basis altered by law.
The excise authorities had made a fresh demand under Rule 10 A, the validity of which was challenged, but it was upheld by a Full Bench decision of the High Court of Nagpur.
This Court, in Chotabhai Jethabhai 's case also rejected the assessee 's claim that Rule 10 A was inapplicable after pointing out that the new rule was specifically designed for the enforcement of the demand like the present one.
[836F 837E] (iii)The present case, therefore, falls within the residuary clause of unforeseen cases from the provisions of section 4 of the Act, read with Rule 10 A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred.
Therefore, it is wrong to hold that the case falls under Rule 10 and not under Rule 10 A.


judgement:
Criminal Appeal No. 46, of 1969.
Appeal under Article 134(1)(c) of the Constitution of India from the judgment and order dated December 10, 1968, of the Patna High Court in Criminal Appeal No. 116 of 1966.
section M. Mishra and section section Jauhar, for the appellant.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
The short question which arises for determination in this appeal on certificate granted by Patna High Court is whether the appellant who was less than 21 years of age on the date of his conviction for an offence under section 326 read with section 149 Indian Penal Code, can claim the, benefit of section 6, of the (Act No. 20 of 1958).
, 876 The appellant and five others, who belong to village Mandil in District Gaya, were tried in the court of Additional Sessions Judge Gaya for offences under sections 147, 148, 307, 323 and 307 read with section 149 Indian Penal Code and section 25 of the Arms Act.
Jugal Kishore appellant was convicted under section 326 read with section 149 and section 148 Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years on the first count and rigorous imprisonment for a, period of two years on the second count.
The sentences awarded to the appellant were ordered to run concurrently.
The other five accused were also convicted for various offences and were sentenced on those counts.
On appeal the Patna High Court as per judgment dated January 22, 1968 acquitted two of the accused.
The conviction of the appellant for offences under section 326 read with section 149 and 148 Indian Penal Code was maintained.
The sentence of the appellant for the offence under section 326 read with section 149 Indian Penal Code was reduced from five years to three years.
The sentence for the offence under section 148 Indian Penal Code was, however, maintained.
The conviction of the other three accused was maintained for some of the offences, and they were awarded sentences of imprisonment on that count.
After the pro nouncement of the judgment by the High Court, an application was made on behalf of the appellant that his case be deal; with under the on the ground that he wag below 21 years of age at the time of his conviction by the trial court.
This application was rejected by the High Court as per ,order dated December 12, 1968 on the ground that the offence for which the appellant had been convicted was punishable with imprisonment for life, and as such, the provisions of could no be invoked in his case.
On prayer made by the appellant, the High Court certified the case to be fit for appeal to the Supreme Court as it involved the question relating to the applicability of the .
The appellant and his companions were tried on the allegation that on October 14, 1964 at about 10 a.m., while Madho Saran was getting his field bearing No. 1678 ploughed by his ploughman Rakshya Mahto, the appellant and Raghu accused went there and questioned Madho Saran for cutting the ridge between field No. 1678 and 1719.
Field No. 1719 belonged to the appellant.
Madho Saran went to his house and narrated the incident to his brother Sadho Saran.
Madho Saran and Sadho Saran along with others then came out of their house and while they were near a barrage, they met the accused who were accompanied by about 30 person of their village.
One of the accused, namely, Hira Lal, who was armed with a gun, fired a shot as a result of which Sadho 'Saran was hit on his head.
Sadho Saran fell down, whereafter 87 7 the other accused, including the appellant who was armed with a garasa, caused further injuries to Sadho Saran and his companions with sharp edged and blunt weapons.
The injured were thereafter taken to Jehanabad Hospital.
On receipt of intimation from the doctor incharge of the hospital, a police Sub Inspector went to the hospital and recorded the statement of Madho Saran, Nand Kishore, one of the accused, also lodged a report at the police station.
The question with which we are concerned in this appeal, as mentioned earlier, is whether the appellant can claim the benefit of the .
The appellant gave.
his age to be 19 years in his statement under Section 342 of the Code of Criminal Procedure, and the case has been argued before us on the assumption that the appellant was less than 21 years of age at the time of his conviction by the Additional Sessions Judge.
The main offence for which the appellant has been convicted is section 326 read with section 149 Indian Penal Code.
Section 326 deals with the offence of voluntarily causing grievous hurt by dangerous weapons or means and the punishment prescribed for the offence is imprisonment for life, or imprisonment of either description for a term which may extend to ten years.
The convicted person shall also be liable to pay fine.
According to section 149 of the Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
It is.
, therefore, manifest that the appellant on being convicted for the offence under section 326 read with section 149 Indian Penal Code was liable to be punished for imprisonment for life or with imprisonment of either description for a term which may extend to ten years and was also liable to pay fine.
The was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith.
The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail.
The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice.
Modern criminal jurisprudence recognises that no one is a born criminal and that good many crimes are the product of socioeconomic milieu.
Although net much can be done for hardened criminals, considerable stress has 878 been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals.
The Act gives statutory recognition to the above objective.
It is, therefore provided that youthful offenders should not be sent to jail, except in certain circumstances.
Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life.
This is clear from the language of section 6 of the Act.
Sub section (1) of that section reads as under "When any person under twenty one years of age.
is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the per son is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
" Mr. Misra on behalf of the appellant has urged that as the offence under section 326 read with section 149 Indian Penal Code is punishable not only with imprisonment for life but also with imprisonment which may extend up to ten years, the benefit of section 6 of the Act can be invoked by the appellant.
This contention, in our opinion, is not well founded.
Plain reading of section 6 makes it manifest that it deals with persons under twenty one years of age who are found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life.
As imprisonment for life can also be awarded for the offence under section 326 read with section 149 Indian Penal Code, a person found guilty of such an offence would not be entitled to claim the benefit of section 6.
To hold otherwise.
would have the effect of ignoring the words "but not with imprisonment for life" and treating them to be otiose.
Such a construction is plainly not permissible.
We also cannot subscribe to the view that the offences excluded from the purview of the section are only those offences wherein punishment prescribed is imprisonment for life and not for a lesser term, for the language used in the section does not warrant such a view.
On the contrary, the ,Plain meaning of the section is that the section cannot be invoked by a person who is convicted for an offence punishable with imprisonment for life.
The fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life.
The policy underlying the Act appears to be that it is only in 879 cases of not very serious nature, viz., offences not punishable with imprisonment for life that the convicted person should have the benefit of provisions of the Act.
Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, the benefit of the Act would not be permissible in his case.
Likewise, there are certain offences like those under the Prevention of Corruption Act wherein the convicted person cannot claim the protection of the Act.
Section 18 of the Act expresser excludes such offences from the purview of the Act.
In the case of Som Nath Puri vs State of Rajasthan (1) the appellant had been convicted for an offence under section 409 Indian Penal Code.
Punishment for the offence under section 409 Indian Penal Code is the same as for the offence under section 326, namely, imprisonment for life, or imprisonment of either description for a term which may extend to ten years and the liability to pay fine.
It was held by this Court that in such a case the provisions of section 4 of the cannot be invoked.
It may be mentioned that section 4 of the, Pro bation of Offenders Act also excludes from its operation persons convicted of offences punishable with imprisonment for life.
In that connection, the Court observed : "As the offence of criminal breach of trust under section 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of a person found guilty of having comm itted an offence not punishable with death or imprisonment for life.
" We, therefore, hold that the appellant cannot invoke the benefit of section 6 of the .
The appeal fails and is dismissed.
Appellant to surrender to the bail bond.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant, who was less than 21 years of age, was convicted for an offence under section 326, read with 6. 140 I.P.C. and was sentenced to 3 years imprisonment.
On the question whether he could claim the benefit of section 6 of the , HELD : (1) The Act was enacted with a view to provide 'for the release of, offenders of certain categories on probation or after due admonition with the object of preventing the conversion of youthful Offenders of less than 21 years age into obdurate criminals as a result of their association with hardened criminals of mature age in the jail.
Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, or is one of those specified in section 18 of the Act, the benefit of the Act would not be available.
[877G H; 879A C] (2) The appellant, on being convicted for the offence under a. 326 read with section 149, I.P.C., was liable to be punished with imprisonment for life.
Therefore, he would not be entitled to the benefit of section 6 of *a ., To hold otherwise would be treating the word but not with imprisonment for life ' in the section, as otiose, contrary to rules of construction.
[878E G] (3) The 'fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life.
1878G H] Som Nath Puri vs State of Rajasthan, ; , followed.


judgement:
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.
section V. Gupte, P. Kothandaraman and G. N. Rao, for the appellant.
section 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 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.
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 908 provisions of section 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 section 2 of the aforesaid Act.
(2) Whether the plaintiff having invoked the jurisdiction of the court under section 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 section 2 be made and (4) Has the defendant who has invoked the jurisdiction of this Court under section 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 section 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 section 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 section 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.
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.
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 vs 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 vs 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 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) ; (2) ; 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 : section 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.
section 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.
" 912 The scheme of sections 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 section 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 section 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.
A question immediately arises whether after a shareholder has applied for leave to buy at a valuation under section 3 the other shareholder who has requested the court to exercise its power under section 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 section 3.
In some of the decided cases a choice or option given to the shareholder under section 3 has been treated as a right or a privilege.
See Jhamandas Lilaram vs Mulchand Pahlumal(1) and Nitish Chandra Ghosh vs Promode Kunwr Ghosh.
(2) It was argued on behalf of the appellant that even if a right or privilege is conferred by section 3 on a shareholder once the other shareholder has invoked the procedure prescribed by section 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 vs 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 section 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 section 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 Vol.
1 Cal.
243 at p. 247.
(3) A.I.R. 1949 Mad.
9 L172 Sup.
CI/73.
914 share partitioned.
The, following observations of Crump J., in Tukaram Mahadu Tandel vs 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 section 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 sections 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 sections 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 section 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.
When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale.
The court has to order valuation of the share of the party asking for sale.
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 section 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. 915 6.
If no shareholder is willing to buy such share or shares at the price so ascertained the application under section 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 section 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 section 2 of the 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 section 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 section 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 sections 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 section 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 section '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 section 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 section 3(1) it would only enable the plaintiff to defeat the purpose of section 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 section 2 of the Partition Act had not been satisfied and section 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 section 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 section 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 section 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 section 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 section 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 vs 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) sections 3 and 5 are similar in terms to sections 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.

summary/full:
In a suit for partition of property between two joint owners the plaintiff made an application to the Court under section 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 section 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 sections 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 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 sections 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 section 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 section 2 to the court to direct a sale any other shareholder can apply under section 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 section 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 section 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 section 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 section 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 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 section 3 of the Partition Act.
[916F G] Tukaram Mahadu Tandel vs Ramchandra Nahadu Tandel, I.L.R. , applied.
Bijayananda Patnaik vs Satrughna Sahu & Others [1964] S.C.R. 538, Hulau Rai Baij Nath vs Firm K. B. Dass & Co. ; , Jhamandas Lilaram vs Mulchand Pahulma 244 Indian Cases 273.
Jharan Chandra Ghosh vs, Promoda kumar Ghosh, I.L.R. [1953] Vol.
at page 247, Hasan Badsha vs Sultan Raziah Begum.
A.I.R. 1949 Mad. 772, and Peter Pill & Others vs 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]