Thommen, J. - (1.)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 defendatns 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.