JUDGMENT

THOMMEN, J.:—Special leave granted.

2. The defendants in suit No. 400 of 1972, which is a suit for partition, appeal from the judgment of the Division Bench of the Bombay High Court in Appeal No. 894 of 1985 whereby the learned Judges, setting aside the judgment of the single Judge, held that the valuation of the shares of the plaintiffs in the two suit properties had to be made for the purpose of S.3 of the Partition Act, 1893 (hereinafter referred to as the "Act") not as on the date when the defendants sought leave of the Court to buy the respective shares of the plaintiffs, but as on the date of the preliminary decree declaring the shares of the parties in the properties in question.

3. The suit for partition was filed by the present respondents on 17-5-1972. They averred that the nature of the suit properties was such that their division could not reasonably or conveniently be made and that their sale and distribution of the proceeds would be more beneficial for all the shareholders. The plaintiffs, therefore, prayed that the properties be sold and the proceeds distributed amongst the shareholders. The plaintiffs admitted that the defendants together held 1/3rd share in the properties and the plaintiffs together held 2/ 3rd shares. On 26-6-1972 the plaintiffs took out a notice of motion for the appointment of a receiver and injunction. In the affidavit filed on 5th July, 1972 by the defendants in reply to the notice of motion, they stated that they were prepared to buy at a valuation the shares of the plaintiffs, and requested the Court to direct a valuation of the same. In their written statement filed on 9-10-1972, the defendants reiterated their willingness and sought leave of the Court to buy at a valuation the 21 3rd shares held by the plaintiffs in the properties.

4. The plaintiffs, however, took out chamber summons for amendment -of the plaint to delete their averment to the effect that the properties could not reasonably or conveniently be divided and the sale of the properties and distribution of the proceeds would be more beneficial for the shareholders. The chamber summons was dismissed on 9-11-1972. The appeal preferred by the plaintiffs against that order was dismissed on 1-4-1977.

5. In the meantime, the original plaintiffs and the defendants, except one, had died and their legal representatives were brought on record.

6. The learned single Judge noticed that there was no dispute between the parties as regards their respective shares in the suit properties. It was also no longer in dispute that the properties were incapable of division by metes and bounds and that they had, therefore, to be sold. The defendants having sought leave of the Court to purchase the shares of the plaintiffs in the properties at a valuation, those, shares had to be valued as on the date of their so seeking the leave and not as on any subsequent date. The learned Judge held that once the defendants exercised their right under S. 3(1) of the Act, their rights, as between themselves and the plaintiffs, were crystallised and concluded. He, however, stated that he did not pass any decree in the suit, but only directed the valuation of the properties with reference to the date on which the defendants sought leave of the Court under. S. 3 in order that, upon conclusion of the proceedings, the shares of the plaintiffs in the properties could be sold to the defendants at the price so determined.

7. On appeal by the plaintiffs, the Division Bench held that the present appellants, who claimed to be the legal representatives of the original defendants, had first to obtain probate or letters of administration, and thereupon a preliminary decree had to be passed. It was with reference to the date of such preliminary decree that the valuation of the properties would have to be made.

8. In R. Ramamurthi lyer v. Raja V. Rajeswara Rao ((1972) 2 SCC 721, this Court stated (at pages 647-648 of AIR):-

"The scheme of Ss. 2 and 3 (of the Partition Act, 18