V. NEELADRI RAO, J.

( 1 ) D-2 and D-3 in O. S. No. 1981 of 1982 on the file of the VIII Assistant judge, City Civil Court, Hyderabad are the revision petitioners, R. 1 herein filed the suit for partition of the house hearing No. 17. 2. 582 admeasuring 550 sq. yards situated at Kurmaguda, Saidabad. Preliminary decree was passed for partition and R. 1 plaintiff is entitled to 1/13th and D-2 and D-3 are entitled to 2/13th each and six others are entitled to 1/13th each and the l. Rs. of the deceased defendant are entitled to 2/13th. It is a case of division of the property amongst brothers and sisters and each of the 3 brothers is given 2/13th share while each of the sisters is given 1/13th share.

( 2 ) R. 1 (Plaintiff) filed. A. No. 481 of 1987 for passing the final decree after partition of the plaint schedule house.

( 3 ) ADVOCATE Commissioner submitted that the suit house cannot be conveniently and reasonably divided in accordance with the preliminary decree. Then the revision petitioners who are residing in the plaint schedule house, filed. A. No. 224 of 1991 praying that the plaint schedule house may be allotted to them and they are prepared to pay the compensation to the other sharers by way of owely. The said petition was dismissed and the court Ordered auction of the plaint schedule house. It was divided into two portions and in the auction, the impleading petitioner in C. M. P. No. 11041 of 1991 purchased Portion No. 1 for Rs. 1,50,000/- while the impleading petitioner in C. M. P. No. 11042 of 1991 purchased the 2nd portion for Rs. 1,30,000/- and they deposited the sale consideration in the court. But confirmation of the sales was stayed in pursuance of the orders of this Court in C. M. P. No. 5251 of 1991 pending disposal of this revision petition.

( 4 ) THE total extent is referred to as 550 sq. yards in the plaint schedule. But it is not evident as to whether it is inclusive or exclusive of the plaint area of the suit house bearing No. 17. 2. 582. An extent of 80 sq. yards out of 550 sq. yards was gifted to D-7 and hence, the same was excluded even when the preliminary decree was passed. The revision petitioners sold an extent of 81 sq. yards to the claimant in. A. No. 1207 of 1989 and as per order dt. 2-4-1990, the Court directed that the said extent of 81 sq. yards should be allotted to the share of the revision petitioners. Thus the remaining extent is only 389 sq. yards.

( 5 ) SECTION 2, Partition Act, 1895 (for short "the Act") provides that in any suit for partition by reason of the nature of the property which had to be partitioned or of the number of the shareholders therein or of any other special circumstances a division of the property cannot reasonably or conveniently be made and the sale of that property and the Distribution of the proceeds would be more beneficial for all the shareholders, the Court may on the request of any of such shareholders interested individually or collectively to the one moiety or upwards, direct sale of the property and distribution of the proceedings. In order to consider the scope of Sec. 2 of the act, it is convenient to read it, and it is as under: power of 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 circumstances, 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 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. "it is apparent that a shareholder having one moiety or upwards that is having 50% of the shares or upwards or the shareholders interested collectively to the extent of 50% of the shares or upwards can file a petition under Section 2 of the Act. The following conditions have to be satisfied for invoking the said provision:1) It should appear to the Court that (a) by reason of the nature of the property to which the suit relates or (b) by reason of the number of the shareholders therein or (c) by reason of any other special circumstances, division of the property cannot reasonably or conveniently be made; and that2) sale of the property and distribution of the proceeds would be more beneficial for all the shareholders.

( 6 ) IT is evident that none of the sharers in this case has 50% share or upwards. Even the revision petitioners collectively do not own 50% or upwards. Thus, their petition cannot be treated as one under Sec. 2 of the partition Act It is manifest from Sec. 3 of the Act that minority shareholders can file the petitioner under the said provision if a petition under Sec. 2 was filed. As no one filed a petition under Sec. 2 of the Act, the petition filed by the revision petitioners cannot be held as a petition filed under Sec. 3 of the Act.

( 7 ) BUT the Court has the power de hors the provisions of the Act to direct the sale of joint property and divide the proceeds amongst the shares. The above principle as laid down in Rama Prasada Rao vs. Subbaramaiah was referred to with approval by the Supreme Court in Badri Narain vs. Nil Ratan. s the petition filed by the revision petitioners is neither under Section 2 nor under Section 3 of the Act. It has to be considered as a petition praying for sale of the property to themselves and the other shareholders have to be compensated by owelty and such request was made for consideration de hors the provisions of the Act. When such a petition can be entertained even when it is not under the provisions of the Act, the lower Court erred in dismissing the petition without considering as to whether in the circumstances of the case, this petition can be allowed, on merits.

( 8 ) THERE are 13 shareholders. The Commissioner who was appointed for dividing the plaint schedule property, submitted that it is not possible to divide the property. Thus, it is a case where the plaint Schedule property cannot conveniently and equitably be divided between the parties. In such a case, it may be allotted to one sharer or more than one sharers collectively and direct him/them to pay the value of the share of the other sharer/ sharers in money; Or it may be directed to be auctioned as among the sharers only; Or the Court may direct that the property may be sold in a public auction. Then a question arises as to which of the courses has to be adopted. In the case considered in Badri Narains case, the defendant therein was small sharer owning 3/16th share, and he was using the property in question as a shop-cum-residence. It was held by the Supreme Court that equity requires that he should be given a preferential right to retain the whole of the suit property on payment of compensation to the other sharer. In this case also the revision petitioners are residing in the plaint schedule house. Of course, the other sharers are equally small sharers. But it is usual that in the anscestral house, the sons reside while the married daughters go to their respective parents-in-laws houses. In this case, 7 sharers are married sisters of the revision petitioners and they are residing with their parents-in-laws. The other brother died and his L. Rs. are not residing in this ancestral house. Thus, equity requires that even in this case the revision petitioners should be given preferential right to retain the plaint schedule property.

( 9 ) BUT the learned counsel for the purchasers strongly relied upon the decision in Ramaprasada Raos case to urge that the order of the Lower Court in directing sale of the property in public auction, is just and proper. In that case, the brothers are entitled to the house in question in moities. Both of them are doctors. One of them was having practice in the said house situated in Rajahmundry, while the other brother had been practising at a village. When the trial Court in that case directed the auction of the said house between the parties, the appellate court in that case held that the sale should be held in public auction. It was held therein that having regard to the circumstances of the case, the appellate Court rightly came to the conclusion that it would be more beneficial to all the sharers if the said house was sold in public auction, wherein strangers should also be allowed to bid. But the circumstances which were relied upon in the said case were not referred to in the above judgment.

( 10 ) IN Rajcoomaree Dassee vs. Gopalchaunder Bose, it was held that the two items which could not be divided without destroying their intrinsic value were directed to be valued and if one of Co-parceners wished to retain the same separately or jointly as part of his/their share, the proportionate share of its value be paid to the remaining co-parcener/co-parceners.

( 11 ) IN Ashanullah vs. Kali Kinders, Filed, J observed that where the effect of partition would do to destroy the intrinsic value of the whole property of shares, the Court would pay to the plaintiff compensation for his share.

( 12 ) IN Basunta Kumar Ghose vs. Motilal Ghose a Division Bench of the calcutta High Court ruled that when it was inconvenient to divide a property that property must be left in the possession of the person in occupation, and the other person who cannot conveniently get actual possession had to be compensated for it.

( 13 ) ALL the above decisions and some other decisions were referred to in ramaprasada Raos case (1 supra) for observing that the courts have taken the view that the Court has the power de hors the provisions of the Partition act to give necessary directions if the property in question cannot be equitably, reasonably and conveniently divided among the sharers or when a division cannot be made without effecting the intrinsic value of the property of the sharers. But it was not observed in Ramaprasada Raos case (1 supra) that in all such cases, the only direction that has to be given by the Court is the direction for the sale of such property in public auction and the person in possession cannot be allowed to retain it by ordering payment of owelty to other sharers or that it cannot be directed to be sold as among sharers only. Thus, the decision in Ramaprasada Raos case (1 supra) is not to the effect that in all such cases, the Court had to direct sale of such property in public auction and it cannot given any other direction just as allowing the person in possession to retain it by compensating the other sharers with money or that the auction should be restricted to the sharers only. It may be noted that if the person in possession belongs to the family which owned it from the time of their anscestors, then it is proper to allow him to retain as he will have attachment to that anscestral property. In Badri Narains case (2 supra), the supreme Court allowed the tenant who purchased only 3/16th share, to retain the premises in question and directed him to pay the compensation to the other sharer on the basis of the market value of the property as on the date of the order. As the revision petitioners herein are, in occupation of the house in question and as they are the members of the family which owned it, and as the other sharers had not claimed that it may be allotted to all of them jointly or any one of them, it is a just case to allow the revision petitioners to retain this property if they are prepared to compensation the other sharer on the basis of the present market value of this property.

( 14 ) WHEN this property was sold in two portions, it fetched Rs. 1,50,000/- and Rs. 1,30,000/- respectively. The present market value can be reasonably arrived at by adding 15% interest to the same. Hence, if the revision petitioners are prepared to retain this property, they have to deposit rs. 2,80,000/- with interest at 15% per annum on the same from the date of deposit by purchasers till the date of deposit and also on deposit of interest at 15% per annum on the amounts deposited by the purchaser towards the stamp duty. But it is also reasonable to fix the time limit tor the revision petitioners to avail this option. In view of the amount involved, but as it is a matter which is pending since long, it is just and proper to grant time to the revision petitioners till 15th March 1992 to avail this option by depositing the amount as referred to in the Court below, failing which it has to be held that the revision petitioners are not prepared to and the option and then the sales in favour of the two purchasers have to be confirmed.

( 15 ) AS per order in. A. No. 1207/88 the Court directed that the extent of 81 sq. yards sold to the applicant therein has to be allotted to the shares the revision petitioners. As they are now permitted to retain, the plaint schedule house subject to the conditions referred to, the Court has to determine the value of the said extent as on to-day and then the revision petitioners have to deposit the difference between the amount so determined and 4/13th share of Rs. 2,80,000/- and interest thereon and the amounts deposited towards stamp duty. But if the value of 81 sq. yards is less than 4/13th share amount as referred to above. e. , Rs. 2,80,000/- plus interest referred to above, then the revision petitioners will be entitled to withdraw the difference of the amount. Of course, if the revision petitioners are not going to avail the option as provided in this order by 15th March, 1992 then the Court has to act as per the impugned order.

( 16 ) THE revision petition is accordingly ordered. No costs.

( 17 ) IN case the revision petitioners deposit the amount as per this order by 15th March 1992, the purchasers are free to withdraw the amounts deposited by them including the amount deposited towards Stamp duty besides the interest as ordered herein.