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22. A preliminary decree as we see declares the rights and the liabilities of the parties and after passing of preliminary decree for partition, declaring the rights of several parties interested in the property, the final decree proceedings will start by filing a petition/application under Order 20 Rule 18 CPC by any of the parties to the preliminary decree; Then the final decree Court shall proceed to divide and separate the shares as specified either under Section 54 or under Order 26 Rule 13 and 14 CPC. In the event of court Commissioner under Order 26 Rule 13 CPC submits a report stating that Page 2127 the schedule property is not partitionable, then in that event there was no provision empowering the court to sell the schedule property against the wishes of the parties to the suit. The court has no power to sell the property even if the circumstances necessitate. Thus there is a gap and void in law. This gap and void in law came to be filled by enacting Section 2 and 3 of the Partition Act. The statement of objects and reasons of Partition Act, 1893 which reads as under: "....That section, however, only authorises the court to divide the property, and in some exceptional cases where an equal division is not practicable to award a money compensation for the purpose of equalising the value of the shares. But as the law now stands, the court must give a share to each of the parties and cannot direct a sale and division of the proceeds in any case whatever. Instances, however, occasionally occur where there are inseparable practical difficulties in the way of making an equal division, and in such cases the Court is either powerless to give effect to its decree or is driven to all kinds of shifts and expedients in order to do so. Such difficulties are by no means of very rare occurrence although in many cases where the parties are properly advised they generally agree to some mutual arrangement, and thus relieve the court from embarrassment.

23. Therefore we are of the considered opinion that wherever tile property cannot be divided and separated as specified under Section 54 or Order 26 Rule 13 CPC, the provision of Partition Act, 1893 will step in to resolve the controversy between the parties and to the benefit of shareholders to enjoy the fruits of decree. There may be cases not covered under Section 2 and 3 of the Partition Act, then the court has the discretionary power to adopt equitable method of owelty. In the instant case, the Court Commissioner submitted a report stating that the schedule property is not partitionable. Except three legal representatives out of four legal representatives of deceased defendant No. 5, all other parties to the suit are agreeable for sale of the schedule property and to distribute the sale proceeds among them as per their entitlement. Under the circumstances, the provisions of Partition Act, 1893 are applicable to the facts of the case.

24. Learned Counsel for legal representatives of defendant No. 5 contend that the impugned order is contrary to the mandatory requirement of Page 2128 Section 2 of the Partition Act. He contend that the share of plaintiffs is less than a moiety in the modified decree, therefore, the application filed by them under Section 2 of the Partition Act is not maintainable. Section 2 and 3 of the Partition Act reads as under:

2. Power to court to order sale instead of division in partition suits. - 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.

25. Keeping in view the law declared by the Supreme Court in Ramamurthi Aiyar's case it is necessary to examine the fact situation in the case on hand. On 1.4.2006 the plaintiffs filed an application under Section 2 of the Partition Act for sale of the schedule property. Except the three legal representatives of defendant No. 5 and their advocate, all other patties were present before the Trial Court and submitted that they have no objection to allow the application filed by the plaintiffs. Individually the share of the plaintiffs is not a moiety as specified under Section 2 of the Partition Act. Moiety means more than 50% of the share in the schedule property. Since the plaintiffs and all other defendants except three legal representatives of defendant No. 5 agreed for sale of schedule property, the same amounts to collectively a moiety or upwards as specified under Section 2 of the Partition Act. Therefore, there is no substance and merit in the contention of the Learned Counsel for the appellants that the application filed by the plaintiffs is contrary to mandatory requirement of moiety under Section 2 of the Partition Act.