Partition Law

Partition Law

Partition Law

Chapter 10 of the Civil Code, 2074 makes legal provision relating to partition. Section 205 says that for the purpose of apportionment of a property in common, the husband, wife, father, mother, son and daughter are coparceners. Section 206 says that each coparcener has equal entitlement to partition share. Section 206(2) says that if a baby is in the womb of the mother, the partition is made after setting aside his or her partition share by treating the baby born as coparcener.

According to section 207, a son and daughter of a couple who cannot conclude marriage or not considered a valid marriage by law, shall obtain their partition share from the father and mother. section 208 says that a son and a daughter whose father is not traced out shall obtain their partition share from the property of the mother. The son or daughter born from a wife who is kept without making public, shall not be entitled to claim partition share after the death of the husband or father. Section 212 says that separation may be made at any time if there is a mutual agreement between the coparcener. The husband and wife may get separated at any time obtaining their respective partition share. Section 214 makes provision that a widow may get separated at any time by taking her partition share and if she concludes another marriage, the son or daughter from previous husband gets the property and if no such daughter or son, then she herself may retain such property. The deed of partition is to be executed and is compulsorily to be registered in the concerned ward office as per section 218. The partition is effected on the basis of inventory received.

If any coparcener wants to get separated by taking his or her partition share, may file a lawsuit and specify therein the date of separation of bread and board from the other coparcener. Also setting out an inventory of the property and debts and assets held in his or her name and that of the other coparceners. Matters to be mentioned in the deed of partition are as following:

  • Name, surname, age, address of every coparcener and that of his or her father or mother, grand- father and grand- mother,
  • Property to be received by coparceners,
  • If the part of a coparcener involves debts, money receivable, amount of such debt and money,
  • If, upon partition, any coparcener is to live with another coparcener, then that details,
  • Matter that no coparcener has concealed property,
  • If any property is to be devolved on a coparcener only, upon the death of father, mother, husband or wife then, such details thereof,
  • If the partition share of any coparcener is to be entrusted to any one, then the details thereof,
  • Other necessary matters.

The law has prohibited to provide property in common to only a coparcener who has not taken partition share and is a coparcener without effecting partition in section 219. No person shall conceal or hide the property that is liable to be partitioned among the coparceners. According to section 229, the pledged or mortgaged property is to be released from the property in common if it is found that the property is pledged or mortgaged that is liable to partition. Section 230 says that if one has filed lawsuit to obtain partition share, after the submission of inventory, makes petition to the court to withhold his or her property to the extent of his or her partition share or income thereof be withheld, then the court may withhold such property. At the time of making partition, if any coparcener has not access to way or passage, and if such passage can be managed from the land of other coparcener, then partition is effected that the concerned coparcener has to provide way or passage to that coparcener. Section 232 says that partition is not to be effected in a manner that gives the responsibility of the payment of the debt of the joint family to a sole coparcener without the consent of the creditor. Section 233 provides for the payment of the compensation by the law- suit filing person to the defendant if the petitioner is not entitled to receive a partition share.

Limitation

The person who is aggrieved of any of the act done or action taken under the chapter of partition can make a lawsuit as follows:

  • Any time if partition has never been effected or a common general deed has been executed in effecting partition and even though there is no deed and the parties have used the property by self-calculation,
  • Within three months from the date of partition if one is not satisfied with such partition,
  • In case of concealing property, till the life of the concerned coparcener,
  • In other cases, within six months after the date on which such an act was done or action was taken.

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