JUDGMENT : M.R. ANITHA, J. 1. Appellants are the legal heirs of deceased defendant/respondent in F.D.I.A. No. 2992/2004 in O.S. No. 227 of 2001 on the file of Subordinate Judge's Court, Thalassery. 2. Against the preliminary decree, A.S. No. 49/2004 was filed which was dismissed and thereafter F.D.I.A. No. 2992/2004 was filed for passing final decree. Respondents/ plaintiffs filed application under Sections 2 and 3 of the Partition Act, 1893 (in short ‘the Act’). Value of Rs. 1,40,000/- per cent offered by the respondents/petitioners/plaintiffs were accepted and respondents/plaintiffs were directed to pay the amount in respect of the share of the appellants/respondents/defendants including the value of the share of the house, within two months and the entire property in Ext.C2 plan which is more descriptively stated in Ext.C3 (A share list) is allotted to the respondents/petitioners/ plaintiffs. While so, original defendant died and his legal heirs filed A.S. No. 210/2011. By the impugned judgment, learned Additional District Judge-I, Thalassery confirmed the final decree passed by the Subordinate Judge and appeal was dismissed. Against which the appellants/legal heirs of the deceased original defendant approaches this Court in this R.S.A. Original defendant got examined himself as RW-1 and Exts.C1 to C4 were marked. 3. Notice was issued to the respondents/petitioners/plaintiffs. Respondents/petitioners/ plaintiffs appeared through Advocate R. Parthasarathy. Lower court records were called for and both sides were heard. (Appellants/respondents/defendants would be referred as ‘defendants’ and respondents/ petitioners/plaintiffs as ‘plaintiffs’). 4. At the time of admission, this Court formulated the following substantial question of law: “Whether the courts below were justified in conducting an auction amongst the sharers in case it is found that the property is not capable of division by metes and bounds.” 5. According to the learned counsel for the defendants, the trial court did not conduct any valuation as contemplated under Section 3 of the Act. He would also contend that the defendants' predecessor, that is the deceased original defendant, from the very beginning requested for allotting the house in the schedule property to his share. It is also his contention that all the other sharers have independent houses and are living separately and defendant had no means to construct a new house and that was why he contended for allotting the house to his share and he had been occupying the house with family. But, the Court arbitrarily accepted Rs. It is also his contention that all the other sharers have independent houses and are living separately and defendant had no means to construct a new house and that was why he contended for allotting the house to his share and he had been occupying the house with family. But, the Court arbitrarily accepted Rs. 1,40,000/- suggested by the plaintiffs as the value of the property and permitted the plaintiffs to purchase the share of the defendant. Hence defendants filed I.A. No. 41/2013 before the Appellate Court for demolishing the house since it has become valueless due to old age and partition the entire schedule property and allot the share of defendants so that they can put up a house in that property. Learned counsel also placed reliance on Sathi Lakshmanan vs. Mohandas, 2008 (4) KLT 401 . 6. Learned counsel for the plaintiffs, on the other hand, would contend that the main contention of the original defendant in the final decree proceedings is that the centage value fixed by the Commissioner as Rs. 75,000/- per cent is very high and the maximum value of the property would be only Rs. 30,000/- to Rs. 35,000/-. After filing petition under Sections 2 and 3 of the Act, the plaintiffs offered Rs. 1,00,000/- per cent to the schedule property and thereupon the defendants filed statement offering value at Rs. 1,01,000/- per cent. Plaintiffs again offered value of Rs. 1,40,000/- per cent for which the original defendant had no objection and it was after that the final decree was passed. But, only in the appellate stage, the legal heirs raised a contention for demolition of the house and for allotting the share of property. That, according to the learned counsel, is not sustainable since legal representatives are not entitled to have a plea contrary to and withdrawing the contentions taken by the predecessors. Sukhlal and Others vs. Jacob and Another, 2020 (1) KHC 466 : 2020 (1) KLJ 662 : 2020 (1) KLT 398 , Krishnan Sathyadas vs. Lakshmikutty Amma, 1990 (2) KLJ 497 : 1990 (2) KLT 795 : 1990 KHC 469 were relied on by the learned counsel to support his contention. 7. So, the points for consideration are: (i) Whether the valuation of share made by the courts below is in compliance of Section 3 of the Act? 7. So, the points for consideration are: (i) Whether the valuation of share made by the courts below is in compliance of Section 3 of the Act? (ii) Whether the legal heirs of the defendants can set up a different plea than that has been taken by their predecessor? Point No. 1 8. Plaint schedule property is 7.15 cents of land with a house. First plaintiff is allotted 1/4 and 2nd plaintiff is allotted 2/4 and original defendant was allotted 1/4 share. Original defendant is the younger son who has been residing in the house and his contention from the very beginning is to allot the house to his share. Anyway, the Commissioner found that the property cannot be partitioned and Commissioner submitted the sharelist as A and B and valuation was made at the rate of Rs. 75,000/- per cent and value of the house after deducting the value towards depreciation was found as Rs. 19,237/-. Subsequently, the plaintiffs filed petition under Sections 2 and 3 requesting to allot the entire schedule property to them and offered a price of Rs. 1,00,000/- and defendant offered Rs. 1,10,000/-. Thereafter, plaintiff filed memo offering Rs. 1,40,000/- per cent for the property and house situated therein. 9. Defendant got examined himself as RW-1. The court accepted the amount of Rs. 1,40,000/- per cent offered by the plaintiffs and finding that the property cannot be partitioned by metes and bounds, passed final decree allotting the plaint schedule property to the plaintiffs and directed the plaintiffs to pay the amount due to the share of the defendants within two months. 10. In this case, admittedly plaintiffs collectively have more than half of the schedule property. As per Section 2 of the Act, whenever it appears to the Court that by reason of the nature of the property to which the suit relates or of the number of shareholders therein or of any other special circumstances, a division of property cannot reasonably or conveniently be made and that a sale of property and distribution of proceeds would be more beneficial for all the shareholders, the court may on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards direct sale of the property and distribution of the proceeds. Here, admittedly, the plaintiffs have in total 3/4 shares. Here, admittedly, the plaintiffs have in total 3/4 shares. The division of property is also reported to be impossible by the commissioner. Total extent of property is only 7.15 cents. So, legally plaintiffs are entitled to apply for sale of the property under Section 2 of the Act and seek for distribution of the proceeds. 11. Section 3 of the Act deals with the procedure when such an application or request has been made by any of the parties which provides that if in any case in which the court is requested under Section 2 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. Sub-Section (2) provides that 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. So the procedure of valuation as per sub-section (1) of Section 3 is in such manner as the court may think fit and it should be just and reasonable. 12. Here, original defendant filed written statement contending that the centage value is Rs. 8,000/- to Rs. 10,000/- in the locality though plaintiff shown the centage value as Rs. 30,000/- in the plaint. The Commissioner valued the property at Rs. 75,000/- per cent and the house at a value of Rs. 19,237/- after deducting depreciation. Thereafter, the plaintiff offered Rs. 1,00,000/- per cent and the original defendant offered Rs. 1,01,000/- again plaintiff offered Rs. 1,40,000/- per cent. That was not further challenged by the defendant. The court seems to have deem it fit and accepted it. 13. 75,000/- per cent and the house at a value of Rs. 19,237/- after deducting depreciation. Thereafter, the plaintiff offered Rs. 1,00,000/- per cent and the original defendant offered Rs. 1,01,000/- again plaintiff offered Rs. 1,40,000/- per cent. That was not further challenged by the defendant. The court seems to have deem it fit and accepted it. 13. Malathi Ramachandra Raut vs. Mahadevo Vasudeo Joshi, AIR 1991 SC 700 : 1991 (Supp.) 1 SCC 321 : 1991 KHC 273 was relied on by the counsel wherein while dealing with Section 3 of the Act, it has been held by two Judge Bench of the Apex Court that it is the duty of the Court to order the value of the shares of the parties asking for sale of the property under Section 2 and to offer to sell shares of such party to the shareholders applying for leave to buy them in terms of Section 3 at the price determined upon such valuation. As soon as a request for sale is made by a shareholder under Section 2, any other shareholder becomes immediately entitled to make an application under Section 3 for leave to buy the shares of the former. The right to pay having thus arisen and become crystalised the date with reference to which valuation of the shares in question has to be made is the date on which the right arose. 14. Here, the plaintiffs made an application under Sections 2 and 3. Thereafter, they offered a price of Rs. 1,00,000/- for purchase of property as per Section 3 and original defendant also applied for leave to purchase by offering Rs. 1,10,000/-. Again, the plaintiffs offered Rs. 1,40,000/- per cent and consequently the Court accepted the same being the highest price. So, everything regarding the purchase of property by the shareholders has been crystalised when the plaintiffs offered Rs. 1,40,000/- and no objection was further raised by the defendant with regard to valuation offered by the plaintiffs. Paragraph 8 of the above cited judgment quoted R. Ramamurthi Iyer vs. Raja V. Rajeswara Rao, 1972 (2) SCC 721 : AIR 1973 SC 643 which reads thus: 8. 1,40,000/- and no objection was further raised by the defendant with regard to valuation offered by the plaintiffs. Paragraph 8 of the above cited judgment quoted R. Ramamurthi Iyer vs. Raja V. Rajeswara Rao, 1972 (2) SCC 721 : AIR 1973 SC 643 which reads thus: 8. In R. Ramamurthi Iyer vs. Raja V. Rajeswara Rao, 1972 (2) SCC 721 : AIR 1973 SC 643 , this Court stated (at pages 647-648 of AIR): The scheme of Sections 2 and 3 (of the Partition Act, 1893) 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 share-holders 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 where a court has been requested Under Section 2 to direct a sale any other shareholder can apply for leave to buy 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. In 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 partition 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 and it is bound to order a valuation of the share in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation..... (p.727) 15. Trial court following the principles in Sathi Lakshmanan and Antony vs. Joseph, 2010 (3) KLT 140 found that the highest value offered by the plaintiffs can be accepted and portion of sale proceeds equivalent to the share of the defendant can be allotted to him. The procedure adopted by the trial court in accepting Rs. (p.727) 15. Trial court following the principles in Sathi Lakshmanan and Antony vs. Joseph, 2010 (3) KLT 140 found that the highest value offered by the plaintiffs can be accepted and portion of sale proceeds equivalent to the share of the defendant can be allotted to him. The procedure adopted by the trial court in accepting Rs. 1,40,000/- per cent offered by the plaintiffs as value of the property seems to be quite reasonable since sub-section (1) of Section 3 expressly provides that the valuation of the share or shares can be made by the court as it may think fit and offer to sell the same to the shareholder at the price so offered. 16. The contention of the learned counsel for the defendant is that they have filed I.A. No. 41/2013 before the first appellate Court for demolishing the house since it has become valueless due to old age and partition the entire schedule property and allot the defendants share of property. 17. Learned counsel for the defendants placed reliance on Sathi Lakshmanan wherein it has been held by the learned Single Judge that Section 3 of the Act cannot be invoked in a case where there is no request for sale as provided under Section 3 and if Section 2 and 3 have no application the partition has to be effected de hors provisions of the Act and court can devise most appropriate and suitable methods which is beneficial for all shareholders. But, it has been categorically held in that decision that if Sections 2 and 3 of the Act applies, court has no option or power to proceed except under the power under Section 3. It is also held that when it appears to the court that an equitable partition of the property cannot be made and request is made by one or more shareholders interested individually or collectively to the extent of one moiety or upwards for sale of the property and distribution of proceeds and any of the other sharer or sharers applies for leave to buy share of the party asking for sale, the court is bound to proceed as provided under Section 3 of the Act and has to offer to sell the property on the valuation to be made by the court. If another sharer also applies for leave, then the property has to be offered for sale to that sharer who is prepared to pay the highest above the valuation made by the Court. Hence if Sections 2 and 3 applies, Court can only proceed as provided thereunder and cannot proceed outside the provisions of the Act or allot the property to one sharer with a direction to compensate the others by owelty. 18. The above decision is not squarely applicable to the case in hand, since admittedly the total extent of property is only 7.15 cents with house and first plaintiff has ¼ share, 2nd plaintiff 2/4 and ¼ defendants. So division of property cannot reasonably and conveniently be made as stated by the Commissioner. An application has been filed by the plaintiffs who have collectively have ¾ shares out of the scheduled property and hence the court is bound to act in accordance with the procedure under Sections 2 and 3. The records also would go to show that the original defendant also participated in applying to purchase the property for Rs. 1,01,000/- and it was subsequent to that the plaintiffs offered Rs. 1,40,000/-. It is thereafter that the court has accepted the valuation and it has already been found that the valuation so adopted seems to be just and reasonable in the facts and circumstances. So, the contention to the contra raised by the learned counsel for the defendants is not sustainable. Point so answered against the defendants. Point No. 2 19. The main contention of the learned counsel for the plaintiffs is that the very petition I.A. No. 41/2013 filed by the additional defendants who are the legal heirs of the original defendant itself is not maintainable in law since they are taking a contrary plea withdrawing the pleas already put forward by their predecessor the original defendant. By filing I.A. No. 41/2013, the additional defendants sought to demolish the house and partition the entire schedule property and allot their share. According to the learned counsel for the defendants if that small extent of property of their share is allotted to them, the wife and children of the original defendant can put up a house and they have no place of abode also. 20. According to the learned counsel for the defendants if that small extent of property of their share is allotted to them, the wife and children of the original defendant can put up a house and they have no place of abode also. 20. So, the question is whether the additional defendants can seek for demolition of the house and partition of the property as sought for in I.A. No. 41/2013? In Sukhlal it has been held by a learned Single Judge of this Court while dealing with Order XXII Rule 4(1), Order XXII Rule 4(2) that the legal representatives are not entitled to have a plea contrary to and withdrawing the contentions taken by the predecessor. That was a case in which the suit was filed for declaration of title, recovery possession, mandatory injunction and other connected reliefs. Suit was originally filed against two defendants. They have filed joint written statement. Subsequently first defendant died and his legal heirs were impleaded and the second defendant along with the additional defendant filed petition for amendment of the written statement which was jointly filed by the original defendants 1 and 2. In the original written statement it has been contended that the first defendant obtained 10 cents of property as kudikidappu. By the proposed amendment that plea was sought to be deleted and an independent title of additional defendants 8 and 12 de hors the right claimed by the first defendant was sought to be set up which was found to be not sustainable in law. 21. In Krishnan Sathyadas while dealing with Order XXII Rule 4(2) a learned Single Judge held that a right not set up by the deceased cannot be set up by a person impleaded as legal representatives alone. It is also held that it is open to the court to allow a legal representative to be impleaded in his own personal capacity in which case he could set up his own independent title. 22. In the present case, additional defendants filed appeal as the legal heirs of the deceased original defendant. They can only step into the shoes of the original defendant and cannot have a plea contrary to or withdrawing the contentions taken by the predecessor. 23. 22. In the present case, additional defendants filed appeal as the legal heirs of the deceased original defendant. They can only step into the shoes of the original defendant and cannot have a plea contrary to or withdrawing the contentions taken by the predecessor. 23. Here the original defendant, from the very beginning was seeking to allot the house to his share and thereafter petition was filed by the plaintiffs under Sections 2 and 3 and plaintiffs as well as the defendant offered value to the property pointing to the fact that the defendant was also amenable for sale of property among the shareholders and sub-section 2 of Section 3 specifically provides that if two or more shareholders squarely applies for leave to buy the property as provided under Section 3(1) of the Act, the court has power to sell the share or shares to the shareholder who offers the highest price above the valuation made by the court. 24. Before the court, the valuation at the rate of Rs. 75,000/- determined by the Commissioner was there and thereafter either parties offered prices and the court adopted the highest price and the final decree was passed. Now, the additional defendants who are the legal heirs of the deceased original defendant is seeking for demolishing the house and divide the property and allot the share of defendants and I.A. No. 41/2013 has been filed for that relief. It has come out from the evidence of the original defendant as RW-1 that two of the plaintiffs have no house of their own. One among them is living with son and other is living in the mother-in-law's house. Hence, it would not be just and proper to allow the prayer of the additional defendants seeking for demolition of the house and divide the shares. So also, additional defendants are seeking for a distinct relief of demolition of the house and dividing the shares contrary to the request of their predecessor to allot the house in his share. So also, he has participated in the whole proceedings under Section 3 and finally a decree was passed by the court. So, the petition filed by the additional defendants as I.A. No. 41/2013 is not sustainable in law or on facts and hence rightly dismissed by the first appellate court. 25. In the result, appeal is found to be devoid of any merit and hence dismissed. So, the petition filed by the additional defendants as I.A. No. 41/2013 is not sustainable in law or on facts and hence rightly dismissed by the first appellate court. 25. In the result, appeal is found to be devoid of any merit and hence dismissed. Taking into account the relationship of the parties, there is no order as to costs.