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Chapter- IV

Basic principles of partition of joint properties

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What is partition of joint properties:


The lexicographic meanings of the word partition are: (i) to divide into parts,
pieces, or sections; (ii) the act or process of dividing something into parts.
The meaning of the word partition in legal terminological sense is that “The
divisions of the contents of any real property, usually done when, more of the
parties involved fail to agree on a termination of their ownership. Partition
usually takes place through the court. 1
In ordinary law, partition means transformation of joint ownership of all into
separate ownership of each as to the portion allotted. The legal term ‘partition’ is
applied to the division of lands, tenements and hereditaments belonging to co-owners
and the allotment among them of the parts, so as to put an end to community of
ownership between some or all of them.2
Mitra’s Legal & Commercial Dictionary, 4th edit, defines the term Partition as ‘It is
severance of joint status and all that is necessary to constitute partition is a definite
and unequivocal indication of intention of a member of joint family to enjoy his share
in severalty although such intention is required to be communicated to the other
members of the family.3
Partition is the division made between several persons of joint lands which
belong to them as co-proprietors, so that each becomes the sole owner of the part
1
Black’s Law Dictionary.
2
Halsbury’s Laws of England, Mitra’s Partition, 6th ed p. 196.
3
76 CWN 137.
which is allotted to him. The mere divisions of the shares of the joint properties do
not amount to a partition although it has the effect of severance of the joint estate.4
A partition is the adjustment of diverse rights regarding the whole by distributing
them on particular portion of the aggregate. It is the redistribution of pre-existing
rights and not the acquisition of rights.5
Property may be partitioned by physical division, or if there is more than one
sample of the same type, one may be allotted to each of the parties. If the partition
cannot be effected in either of these methods the property may be sold and the sale
proceeds divided. Sometimes when the property is not saleable and does not admit of
physical division, partition is effected by enjoyment of the property in turn as in the
case of right of worship.6 This follows from the principle that partition signifies the
transformation of joint possession into separate possession. 7
The true character of partition is that it converts joint enjoyment into enjoyment
severally. Partition is not an exchange of the undivided shares of a co-sharer over the
whole common property in exchange of the 16 annas share in a definite portion
thereof, namely, the portion that was allotted to him in exchange thereof. By
partition a co-sharer gets a separate allotment by virtue of his antecedent title as co-
sharer. There is thus no acquisition of property in another independent right. It is not
a conveyance; it is not an exchange. The separate allotment is not obtained by another
independent title.8
Partition consists in defining the shares of the coparceners in the joint property –
actual division of the property by metes and bounds is not necessary to constitute
partition. Once the shares are defined, whether by agreement between the parties or
otherwise, partition is complete. The parties may, thereafter choose to divide the
property by metes and bounds or may continue to live together and enjoy the
property in common. It is a process by which an enjoyment is transferred into
enjoyment in severalty.9

Partition may take place either by Revenue Officer or by ordinary civil courts:
Sec. 54 of CPC provides that “Where the decree is for the partition of an undivided estate
assessed to the payment of revenue to the Government, or for the separate possession of a

4
35 C 961, 12 CWN 127, 6 CLJ 735, 4 C 434.
5
7 BLC 704 para 14.
6
15 CLJ 376.
7
12 CWN 37, 34 DLR 127, 13 DLR (SC) 191.
8
AIR 1946 Cal 129.
9
AIR (SC) 1124.
share of such an estate, the partition of the estate or the separation of the share shall be made by
the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in
accordance with the law (if any) for the time being in force relating to the partition, or the separate
possession of shares, of such estates.”
Therefore, partition by courts, as provided in sec. 54 of CPC, may be effected
either by Revenue Officer or by ordinary civil courts. Accordingly, In case of
immovable properties, partition is of two kinds: (i) Partition of undivided properties
assessing the payment of revenues to the Government; (ii) Separate possession of a
share of such undivided properties. Actual partition by both of these two modes of
separation takes place.
So far our study we do not find any statutory provision in Sec. 54 of the CPC
deals with partition of the estate. That is an instance of partition decree which a civil
court can pass but cannot itself execute; execution has to be effected by the
Collector.10

Partition is the division made between several persons of joint lands which
belong to them as co-proprietors, so that each becomes the sole owner of the part
which is allotted to him. The mere divisions of the shares of the joint properties do
not amount to a partition although it has the effect of severance of the joint estate. 11
An amicable arrangement for separate possession of joint lands amongst the co-
sharers by itself does not amount to partition by metes and bounds so as to convert
the joint title and possession of the co-sharers into exclusive title and possession. 12
But in the Hindu Mitakshara family there may be partition by definite of shares. 13

Methods of making partition; - “partition may be effected either amicably or


through courts”:
This is the provisions of sec. 143B of SA&T Act that the parties may effect
partition of any other joint immovable properties by a registered deed. But, it is our
study that, if any of the co-owners of joint properties denied making partition at the
asking of another party, the party seeking partition, this being a civil right, can take
shelter of civil court having jurisdiction as mandated u/s. 9 of the Code of Civil

10
7 BLC 704 para 14.
11
35 C 961, 12 CWN 127, 6 CLJ 735, 4 C 434.
12
42 DLR 393, 14 BLC (AD) 28, 29 CWN 229, 43 CWN 181, 69 CLJ 527, PLD 1959 Kar 408, 15 BLD
(AD) 95 para 21.
13
43 C 1051, 20 CWN 1085, 24 CLJ 207 (PC) 1.
Procedure for his grievance praying for his separate share. Therefore, partition of any
joint property may be effected either amicably or through the intervention of courts.

The most common form of partitioning the joint properties is a deed of partition.
But co-owners may effect a partition by metes and bounds by other instruments, e.g.,
a deed of family settlement, award, partition list, etc. 14 Amicable partition may be
made in various ways, e.g. orally or by a deed or by an award by arbitrators. It is not
necessary that the parties must explore for an amicable partition before seeking a
partition trough court.
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Who can plead for partition:


Various categories of joint owners may ask for partition; such as:-
(i) Any co-owner of joint property can seek partition of his share:
Each of the co-owners under the Mohammedan law has the right to claim
partition when the possession as tenants-in-common appears to be inconvenient. 15
A person is not entitled to oust his co-sharer from a portion of land in exclusive
possession of the latter on the plea that he has got title to every inch of joint property.
If he feels that his co-sharer is in possession of some land in excess of sharer his
14
Mitra’s Partition 6th ed p. 251.
15
Mitra’s Partition, 6th ed p. 309.
remedy is in a suit for partition.16 If anybody is aggrieved by such exclusive possession
of a portion of joint land let him go to the partition suit for his remedy. 17
Sister who has been married to a stranger family in a different locality and has
been living as a member of that family ever since her marriage, becomes a stranger so
as to disentitle her to have joint possession of the dwelling house of her father’s
family now in the occupation of her brother, her relief is a properly framed partition
suit.18
In a case, the plaintiffs were in possession of suit lands by purchasing the same
from one co-sharer. Other co-sharers disturbed in their possession. Held: It is settled
principle of law that no injunction should generally be granted against co-sharers as
all co-sharers retain rights over every inch of the land until the same is partitioned by
metes and bounds but injunction can be given in appropriate cases where de facto
partition for recognizable period of time having been in existence through informal
arrangement and thereby possessed by the injunction-seeker can be easily identified. 19
It is true that Muslim heirs take defined and ascertained shares but that does not
necessarily mean that they also take these shares in separate portions in the properties
inherited by them. The share is ascertained but not the extent of the lands held by the
heirs. For this purpose, if an heir intends to carve out his definite ascertained share in
the properties, he has inevitably to file partition suit and until the partition is
effected, he possesses his ascertained share jointly with his co-shares. 20
On computation of the figures that have been given by the parties to the suit it
was found that there was surplus of 2 decimal lands. Held: A surplus of 2 decimal of
lands with nobody to claim it – No other co-sharer being in existence, the suit for
partition maintainable.21
Plaintiff has every right to get her portion as per deed, as the same is ‘Den-
moharana’ deed, and also can get the portion of saham of inheritance and if she did
not obtain the same can claim the same by filing partition suit. 22 Three persons (the
plaintiff and 2 defendants) obtained a joint decree for specific performance of contract
of purchasing lands; but before execution of the said decree, dispute arose amongst
the parties as to extent of their shares therein. Then (before execution of the earlier

16
5 DLR 39.
17
12 DLR 708, 6 BLD 155.
18
13 DLR 230.
19
59 DLR (AD) 147 para 6, 54 DLR 196 para 21.
20
9 DLR 581, PLR 8 Dac 55.
21
19 DLR 344.
22
17BLC 71.
decree) one of those decree-holders, as plaintiff filed the instant suit for partition of
the said decretal lands impleading the other two decree-holders as defendant nos. 1 &
2 and met with the defence that a partition suit before the decree was actually
executed, his right not having been converted into a legal title, was not maintainable.
Held: Partition suit will lie in such circumstance, the plaintiff having a legal right, is
entitled to the remedy sought by way of partition. Where there is a right thought the
right is short of legal title, person holding such right entitled to a remedy. 23
Plaintiff’s suit was for declaration of title, confirmation of possession on partition
claiming that he got title in suit land on the basis of settlement taken vide Case No
21/1947-48. Admittedly, there was homestead in the suit land and govt. received rent
from plaintiff and as such the suit was decreed, 9 ADC 859.

(ii) Purchaser from joint properties can seek partition against co-sharers of
the vendors:
A purchaser from a co-parcener of some of the properties is entitled to sue in
respect of entire family properties or those purchased. 24 U/s. 44 of Transfer of
Properties Act, not only the transferee of a share but also of any interest therein can
sue for partition but the section imposes a limitation that it must be necessary to
give effect to the transfer.25 A stranger transferee cannot be put in joint possession of
an ejmali property with the family members. The proper course in such a case would
be to leave the purchaser to his remedy by a separate suit for partition. If temporary
injunction results in giving possession of a part of an ejmali property held by
members of the family to a stranger then it should not be granted. 26 Stranger
purchaser’s remedy lies in a suit for partition. 27
When by private arrangement amongst co-sharers, one of them is in exclusive
possession of a certain portion of ijmali land, a purchaser of the right title and
interest of the latter is entitled to be placed in the same position as his vendor. 28
When two properties A and B are jointly owned by X and Y, A being in possession
of X and B in possession of Y by mutual arrangement, the purchaser of half of the share
of A from Y is entitled to claim partition as against X. 29 A suit for specific performance of
contract was decreed for 8 annas share of the suit properties. The decree-holder, without
23
32 DLR (AD) 24.
24
62 C 655, 39 CWN 1044, 1948 Pat 317.
25
AIR 1940 Mad 491.
26
45 DLR 328, 29 DLR (SC) 82, 6 BLD (AD) 53, 19 DLR 20.
27
2 BLD 135.
28
11 CWN 517, 5 DLR 22.
29
23 CLJ 231.
filing a suit for partition, filed an application in the execution case for partition and for
possession. Held: Without a suit for partition the execution court cannot pass an order for
possession upon partition of the joint properties.30

(iii) Lessee/mortgagee or any contingent interest-holder can seek partition


against co-sharers of the lessors/ mortgagors etc.:
A suit for partition by lessee against a co-sharer of lessor is maintainable. 31 A
lessee of temporary interest may maintain a suit for partition against others having
similar interest even though different in kind. Such partition is valid even if one of
the defendants has a share in the superior interest. 32
A person having contingent interest may claim partition. 33 Where the property is
joint at the time of the execution of a mortgage by a joint owner, he could only
mortgage his undivided share in the property, and such right is always subject to the
right of the other co-owners to effect a partition.34
Suit for partition is maintainable at the instance of the usufructuary mortgage
whether he is in actual possession or out of possession of the mortgaged land,
provided the mortgagor is a party to the suit and the suit is necessary for giving effect
to the mortgage.35 A patnidar of a fractional share of a mouza can claim partition of his
share in it though the defendant may be jointly interested with other persons in the
remaining mouzas.36
Contrarily – Lessee of a portion of a dwelling-house cannot sue for partition of
the house.37
(iv) Adverse possessor in joint property can seek partition of his possessed
lands:
If one acquired title over any portion of a joint property by adverse possession, he
may seek partition of his said portion.38
(v) Mere possessors, without having title, can claim partition amongst
themselves:
Apart from the ownership or legal title to the land, many diverse kinds of rights
are created by various kinds of possession of property; for example, sec. 53A of the
T.P. Act gives a legal sanction to possession obtained in part performance of a written
30
20 BLD (AD) 149 = 7 BLT (AD) 139.
31
24 C 575, 1 CWN 406 FB, 37 C 918, 12 CLJ 240, 14 CWN 962 PC, 20 CWN 1306.
32
35 CWN 1072, 54 CLJ 234.
33
24 CLJ 26.
34
1934 L 809.
35
13 DLR 115, PLD 1961 Dac 831, AIR 1933 Bom 121.
36
34 C 1026.
37
23 CWN 32.
38
42 DLR (AD) 154 =10 BLD (AD) 94.
contract. Similarly, sec. 9 of the S.R. Act does not specifically create any right but
provides a remedy to a possessor to recover his possession, if he is wrongfully
dispossessed in terms of the section. Partition suit amongst such mere possessors will
lie in such circumstance.39
(vi) Life-interest holder in joint property can seek partition for her share:
Co-owners of life-interest are entitled to claim partition. 40 During the period of
her life time, a Hindu Widow is a complete owner and co-sharer of any property with
right to claim partition and consequently having right to claim pre-emption. 41 The
widow can effect a partition of the properties left by their husband between them
during their life-time and that they can even transfer their life-interest. Such transfer
would not affect the further interest of the revisioners. 42
A widow who held the land for her life in lieu of her maintenance, would be a
‘land-owner’ and therefore she must be considered to be a person entitled to apply for
partition u/s. 111 of Land Revenue Act.43 The suit property was inherited by plaintiff
and defendant No. 1 from Haridash Roy. Plaintiff is the widow of Haridash and
defendant No. 1 is her step son – plaintiff is entitled to partition, even though she has
only life interest in the property left behind by her husband. 44
Two Hindu widows were found to be in lawful possession of the property of their
deceased husband and a case of division of their properties having arisen, the question
was whether a partition suit was competent. Privy Council observed that the widows
were in lawful possession of their husband’s properties and though they had no title,
still they by lawful possession had an estate or interest in respect of their possession
and so can maintain the partition suit.45
From secs. 3(1) &(3) of the Hindu Women’s Rights to the Property Act, 1937 it
clearly appears that during the period of her life time she is owner and co-sharer of
any property with the right to claim partition and consequently having the right to
claim pre-emption.46
Contrary view –A tenancy in the joint land created by one of the co-sharers in
the land cannot be binding on the non-contesting co-sharers and they can continue

39
32 DLR (AD) 24.
40
13 CWN 611, 44 CWN 114.
41
3 BLD 1 = 34 DLR 178, 2 BCR 95, 4 ADC 938.
42
21 DLR 673.
43
PLD 1957 Lah 447, PLR 1957 (2) WP 766.
44
7 BLT 80.
45
16 IA 187.
46
34 DLR 178 = 3 BLD 1.
their possession of their land disregarding the tenancy created by such a co-sharer
in such a land. Such a co-sharer cannot induct permanent tenant on such joint
land. The other co-sharers can forcibly take possession of the land dispossessing the
tenant inducted on the land by another co-sharer without resorting to a suit for
partition of the joint estate.47
A Hindu widow along with her 4 sons inherited the property of her deceased
husband. One son died and the mother also inherited the property of her son.
Mother filed a suit for partition of the property inherited by her from her son. Held:
Mother is not entitled to a partition since it is being claimed only in respect of the
properties inherited by her from her son. She can claim a share when the partition
suit is instituted by her son.48

In Hindu law, in a joint family wife cannot ask for partition but her shares
therein.49

(vii) Female heirs can seek for partition even of the house or homestead lands
in ancestral properties:
It is widely talked and debated in our country that the female heirs do not get
any share in their paternal house or homestead lands and as such ultimately, the
female heirs are deprived from the paternal homestead lands. Though I find no
specific law or any concrete judicial authority in this regard, I find some decisions
relevant to this subject; which are given below:

Where plaintiff is a stranger to the joint Hindu family he is not entitled to a share
on partition in the homestead of the family. 50 Sister who has been married to a
stranger family in a different locality and has been living as a member of that family
ever since her marriage, becomes a stranger so as to disentitle her to have joint
possession of the dwelling house of her father’s family now in the occupation of her
brother, her relief is a properly framed partition suit. 51

47
12 DLR 40, 7 DLR 519, 17 IA 110, 53 DLR 405.
48
21 DLR 639.
49
15 DLR (SC) 58.
50
13 DLR 347.
51
13 DLR 230.
In this respect, the prominent jurist of the sub-continent Mitra gave opinion that
‘a daughter or any other female heir has the right to demand partition even in respect
of the dwelling-house wholly occupied by the sons of the deceased.’ 52
We also may place our query that, now a days, many of our family have only a
dwelling house and the same may be situated in the urban area. The only homestead
is a valuable property. Then why a daughter shall be deprived from his father’s
dwelling house and why the son will get the whole property?
Considering these aspects, it is clear that in partition suits while allotment of
shares to several parties by metes and bounds the female heirs, who have been
married to distant place, shall get their share (saham) in outside the homestead lands
keeping the homestead in favour of male heirs. But this does not mean that the
females will be deprived from that portion of lands; rather they will get their share in
lieu of that homestead portion in another portion out side the house. It shall also be
kept in mind that in modern age, a considerable portion of the country has become
urban area. So, if there be not sufficient and equivalent valuable lands for female heirs
in lieu of homestead, then homestead lands may, also shall be allotted to the female
heirs.

(viii) Custodian of vested property may claim partition of vested property


portion from joint property:
When some part of a joint property have been vested in the government as being
enemy or vested property, the Former Enemy Property now Vested Property personal
i.e. Assistant Custodian may file a suit for partition for separating the same from joint
property and for taking possession of the same.53
Custodian of vested property is to file a suit for partition when a co-sharer is in
complete possession of joint property. 54 As plaintiff does not have title to the entire
suit land the greater part of which is in fact an enemy property, he is not entitled to
a decree for declaration as prayed for – He may seek remedy by way of partition in
an appropriate forum.55 Former Enemy Property now Vested Property personal i.e.
Assistant Custodian cannot take possession of the alleged leased out property

52
Mitra’s Partition, 6th ed p. 309.
53
30 DLR (AD) 139, 1 BCR (AD) 109, 39 DLR 132, 9 BLD (AD) 9 = 41 DLR (AD) 107.
54
30 DLR (AD) 139, 1 BCR (AD) 109, 39 DLR 132.
55
41 DLR (AD) 107, 30 DLR (AD) 139.
without having the property partitioned by metes and bounds on institution a
regular and proper suit for partition.56
Plaintiff’s suit was for declaration that the V.P. Case is illegal, collusive and void.
Plaintiff does not have title to the entire suit land the greater part of which is in fact
an enemy and vested property he is not entitled to a decree he prayed for. He might
seek remedy by way of partition in an appropriate forum. 57 Mere vesting of the
enemy property in the custodian does not transfer on the title or the ultimate right
of the real owner and a person in possession of the enemy property by virtue of a
document of however limited or imperfect nature it may be cannot be said to be a
trespasser and he cannot be ousted from it by the Custodian. 58
Some co-sharers left for India and some remain in Bangladesh. The Bangladeshis
brought suit for declaration of title to the whole jote lands and declaration that the
list of the suit property as enemy is illegal and ultravires without impleading the left
co-sharers claiming that they got the shares of those left co-sharers by amicable
partition. Held: One of the co-owners can bring a suit for ejecting a trespasser from
the property owned by him and others either jointly or as co-owners, the basis being
that he has a right to hold every inch of the joint property until a partition takes place
and as such they can legally maintain a suit for declaration the enlistment of those co-
sharers’ property as enemy property is illegal.59
Suit lands originally belonged to 4 brothers. Plaintiffs purchased the whole suit
lands from one of those recorded tenants claiming that the others died unmarried
leaving the rest recorded tenant as only heir. Suit lands were vested under V.P. Case
of 233 of 1980. The suit was decreed for declaration of title.60

56
15 BLT 506, 23 DLR East Pak. 108.
57
9 BLD (AD) 9 = 41 DLR (AD) 107.
58
20 DLR 976, 20 DLR 493, 31 DLR 186.
59
15 BLD (AD) 95 para 21.
60
3 MLR (AD) 255.

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