ORDER: In the above suit for partition, A.Ramamurthi, J. by his order dated 21.12.2000, granted preliminary decree declaring the shares of the plaintiffs and the first defendant at 14/32 shares each and the second defendant at 4/32 shares. An Advocate- Commissioner was appointed to note down the physical features and to find out whether the property who capable of division. 2. The Advocate- Commissioner filed his report on 23.2.2001 stating that it was not possible or convenient in the interest of the parties to divide the property at 14: 14: 4 ratio. The first defendant had filed his objections dated 24.3.2001, on 28.3.2001 and contended that the property can be divided by metes and bounds and also annexed the plan suggesting division. 3. After hearing parties, A.K.Rajan, J. by order dated 28.3.2001 passed the following order: "This application is to appoint an Advocate- Commissioner, Preliminary decree has already been passed for partition. The Advocate- Commissioner has also filed his report, in which he has stated that the property is not divisible for the purpose of allotment of share at 14: 14: 4. The 1st defendant has filed objection to the Commissioner’s Report and he has filed a sketch prepared by a Civil Engineer giving 5 ft. passage on one side and providing car shed in the front. If that is accepted for parking the car, the person who want to reach the place has to cross 60 ft. distance. Therefore, this suggestion by the 1st defendant is not acceptable and it is rejected. Net result, we are left with only option namely to evaluate the property for the purpose of purchase by one of the parties, so that ultimately one may purchase the property and hence, evaluer is to be appointed. Hanu Reddy Realtors, Bishop Walers Avenue, Mylapore, Chennai-600 004, is appointed as evaluer to evaluate the property and submit his report within three weeks." 4. Not being satisfied with the said order, the first defendant took the matter on appeal and the Division Bench while disposing of O.S.A. No.131 of 2001, dated 28.8.2001, held as follows: "After the appellant was heard for sometime we directed the parties to agree upon a valuer who could value the property as a whole as also in the way it is proposed by the appellant to be divided and place the materials before the learned trial Judge for consideration. 2. 2. Parties today agreed that Mr.C.N. Srinivasan, Registered Valuer, No.5, Karpagambal Nagar, Luz, Chennai-600 004, can be appointed as a valuer to carry out the valuation. He is so appointed. His remuneration shall be fixed by the learned trial Judge. 3. We do not consider it necessary to retain this appeal on our file any longer. The matter shall be examined further by the learned trial Judge. The learned trial Judge shall, before issuing any further directions, take notice of the valuation report that will be placed before him by the valuer, hear further arguments and shall decide as to the best mode of dividing property fairly if such division is possible, and if not issue suitable directions for sale of the same. The appeal is disposed of accordingly." 5. Pursuant to the said direction, M/s.C.R. Narayana Rao, Architects & Engineers, had filed their report. The Engineers on valuing the property have mainly applied the guidelines value of Rs.1,024 per sq.ft. They have suggested four different routes alternatively giving valuation and plan for each of the routes. Route No.1 was by valuing the property as a whole, and for the said purpose, the value of the land was adopted from the guideline value. It is further stated that the major portion of the building is more than 60 years of age, the construction being partly of asbestos roofing and partly of concrete roof. Route Nos.2, 3 and 4 are alternative suggestions of allocating different portions by earmarking, common passage on the western side. Ultimately the Engineers concluded that valuing the property, as a whole, will give the best monitory benefit. If however, the land or building was to be held by one one of the parties then there should be a price penalty to the extent of about Rs.16 lakhs. 6. While the plaintiff and the second defendant have opted for selling the property in entirety, the first defendant had objected to the Engineer’s report. The first defendant had also submitted alternate plan which according to him, would be a viable division. 7. Mr.P.S. Raman, appearing for the plaintiff contends that the Engineer’s report shows that it would be beneficial for all the parties to sell the entire property and no useful purpose would be served in dividing the property into three shares. The first defendant had also submitted alternate plan which according to him, would be a viable division. 7. Mr.P.S. Raman, appearing for the plaintiff contends that the Engineer’s report shows that it would be beneficial for all the parties to sell the entire property and no useful purpose would be served in dividing the property into three shares. The Engineers had suggested the alternatives only in terms of the orders of the Court, but had ultimately expressed that the best advantage of all the parties would only be to dispose of the entire property. The alternative plan submitted by the first defendant was not a practical solution and the first defendant was only interested in protracting the proceedings since he was in possession of the property to the exclusion of the others, all these years. Though 18 shares out of 32 shares are held by plaintiffs and the second defendant, the first defendant had been successfully clinging on the property to the exclusion of the plaintiff and the defendants, and successfully kept out the plaintiff when the plaintiff sought for joint possession. The same attitude is adopted now also, in not allowing the property to be sold to the best advantage of all the three. 8. Mr.Raman’s views are supported by Mr.Kishnamachari, learned counsel appearing fro the second defendant. 9. Mr.Mohan Parasaran, learned senior counsel for the first defendant, however very vehemently contended that it was definitely possible to divide the property either as suggested by the first defendant or as suggested by Engineers under route Nos.2 to 4. It is further contended that the right of the share holders in possession of the property, to exercise their option under Sec.3 of the Partition Act, 1893 was very fundamental and mandatory and the Court had a duty to direct valuation of the property in terms of Sec.3 of the Partition Act. He would further contend that the Court had no other alternative, but to give such a direction. He would further contend that the Court had no other alternative, but to give such a direction. Learned counsel referred to the provisions under the Partition Act, and reliefs on the following judgments: (i) In Muthuswami Gounder v. A.P. Kaithamalai, 89 L.W. 652, Gokulakrishnan, J. as he then was, held that after the passing of a preliminary decree, the lower Court ought to have decided the case as per the provisions of the Partition Act and should not have ordered auction of the suit property as between the sharers and that it was open to the petitioner to file a partition under Sec.3 and to agitate the matter. (ii) Ponnammal v. Kanakavalli Srinivasan, (1989)1 M.L.J. 179 . In this judgment, M.Srinivasan, J. as he then was, held that the co-sharers in the partition suit, have the right to apply for ascertainment of the value of their shares after the passing of the preliminary decree for partition. The object of the Legislation was to prevent a stranger from disturbing the enjoyment of a family house by the members thereof. The right of the members to retain their family house to continue their residence, was recognised by law. If the fight was between two members of the family, the Court will have to consider as to how best the house could be divided into two portions. 10. Reliance is also placed on the judgment of the Supreme Court in R.Ramamurthi v. V.Rajeaswararao, A.I.R. 1973 S.C. 643. Reference is made to the observation that as soon as a shareholder applies for leave to buy at a valuation under Sec.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 and to offer to sell the same to such shareholders at such valuation. 11.Per contra, Mr.P.S.Raman, relies on the judgment of Palanikumar Pillai v. Palani Kumar Pillai, A.I.R. 1989 Mad. 119. Reference is made to the observation that when the property is incapable of division and no application under Sec.2 of the Partition Act had been made, the Court had undoubted power to effectuate a partition of the properties equitably by any of the methods and the discretion of the Court was not affected by the provisions of the Act. 12. I have considered the submissions of both sides. 12. I have considered the submissions of both sides. I am unable to entertain the objections raised by the first defendant in the context of Sec.3 of the Partition Act for the following reasons: (i) Even as on date there is no specific application by the defendant as required under Sec.3 of the Partition Act. It is true that there is no need for a separate application. But there should be some positive pleading in the said context at least in the written statement of the defendant as noticed in the judgment of the Supreme Court in R.Ramamurthi v. V.Rajeaswararao, A.I.R. 1973 S.C. 643. It is not the case of the first defendant that he has raised any such pleading in his written statement. (ii) It is also noteworthy that the issue of Sec.3 of the Partition Act, is raised for the first time by the first defendant, in his latest objections to the Engineer’s Report filed only during the present hearing. At earlier stages, the first defendant did not raise any such contention. In his objection to the report of the Advocate Commissioner, he has not chosen to exercise his right under Sec.3 of the Partition Act. A perusal of the order of A.Ramamurthi, J. as well as that of a Division Bench as mentioned above also discloses that the first defendant had not expressed his desire under Sec.3 of the Partition Act. (iii) The present proceedings now before the single Judge, are limited to the scope of a Remand Order of the Division Bench. The Division Bench has only directed that the trial Judge shall decide as to the best of dividing property fairly if such division was possible and if not, suitable directions for the sale of the property. Earlier, the learned single Judge specifically found division as not feasible, which finding was not specifically set aside by the Division Bench. The Division Bench has neither on its own nor at the instance of the first defendant entertained any objection on the basis of Sec.3 of the Act. Therefore, I will have no power to go beyond the directions of the Division Bench by entertaining any objection by one of the parties by invoking Sec.3 of the Act. The Division Bench has neither on its own nor at the instance of the first defendant entertained any objection on the basis of Sec.3 of the Act. Therefore, I will have no power to go beyond the directions of the Division Bench by entertaining any objection by one of the parties by invoking Sec.3 of the Act. (iv) On merits also apart from the information of the Advocate- Commissioner, and Report by the Engineer, holding that outright sale would be the best advantage for all parties, I have also gone through the alternate suggestion made by the Engineers under Route Nos.2, 3 and 4 and also the alternate plan submitted by the first defendant. Route Nos.2, 3 and 4 disclose that the road frontage could be made available only to one of the parties. The other two sharers have to be inevitably satisfied only with the rear portions which would be much disadvantageous. Any division of the road frontage is also not possible considering that the entire length of the frontage facing the road is only 88 feet, and it further tapers into a very narrow width of 31.5 feet. None of the suggested alternatives would serve any purpose either for putting up any independent construction or to enter into any joint venture in the face of the present Building Regulations. The alternative suggestion by the first defendant, only exposes the intention of the first defendant to take the most advantageous portion to himself and rendering other portions without any value. The right of a party under Sec.3 of the Partition Act cannot result in oppression as against other sharers putting them to disadvantage and loss. It is only a discretionary relief as pointed out by the Supreme Court in Badri Narain D.D. Choudhary v. Nil Ratan Sarkar, (1978)3 S.C.C. 30 . After referring to Secs.2 and 3, the Supreme Court held that even if the conditions under Sec.3 of the Partition Act were satisfied, the Court has a discretion to direct or not to direct the sale of property and to order distribution of the proceeds and that the same was clear by the usage of the word “may”. 13. Therefore, considering the overall circumstances, I am inclined to order sale of the entire property and the distribution of the assets in proportion to the shares of each of the parties. 14. 13. Therefore, considering the overall circumstances, I am inclined to order sale of the entire property and the distribution of the assets in proportion to the shares of each of the parties. 14. The Advocate- Commissioner is directed to take steps for effecting a public sale by due advertisement in the Newspapers.