CIVIL

Separation of share’ is a species of ‘partition

Indian Law Encyclopedia

Hon’ble Apex Court in 2009 (9) SCC 689 in the matter of Shub Karan Buba Alias Shub Karan vs. Sita Saran Bubna & Ors. has, inter alia held at Paragraphs 5 & 6 observed as
follows:
“5. `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share’ is a species of ‘partition’. When all coowners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.”