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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
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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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
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.
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.