Law Commission Report Partition Act 1893
Partition Act, 1893
Contents
1.Title, extent and saving
2.Power to Court to order sale instead of division in partition suits
3.Procedure when sharer undertakes to buy
4.Partition suit by transferee of share in dwelling house
5.Representation of parties under disability
6.Reserved bidding and bidding by shareholders
7.Procedure to be followed in case of sales
8.Orders for sale to be deemed decrees
9.Saving of power to order partly partition and partly sale
10.Application of Act to pending suits
WHEREAS it is expedient to amend the law relating to partition; It is hereby enacted as follows:—
1.Title, extent and saving
(1) This Act may be called the Partition Act, 1893;
(2) It extends to the whole of India except the State of Jammu and Kashmir
(3) rep
(4) But nothing herein contained shall be deemed to affect any local law providing for the partition of immovable property paying revenue to Government.
2.Power to 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 ins property to which the suit relates, or of the number of the share- holders therein, or of any other special circumstance, a division of such property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more benefice for all the shareholders, the Court may, if it thinks fit, on the request of any of 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.
3.Procedure when sharer undertakes to buy
(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or to parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share declaration shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
4.Partition suit by transferee of share in dwelling house
(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.
5.Representation of parties under disability
In any suit for partition a request for sale may be made or an undertaking, or application for leave, to buy may be given or made on behalf of any party under disability by any person authorised to act on behalf of such party in such suit, but the Court shall not be bound to comply with any such request, undertaking or application unless it is of opinion that the sale or purchase will be for the benefit of the party under such disability.
6.Reserved bidding and bidding by shareholders
(1) Every sale under section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think fit and may be varied from time to time.
(2) On any such sale any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting of or accounting for the purchase-money or any part thereof instead of paying the same as to the Court may seem reasonable.
(3) If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder.
7.Procedure to be followed in case of sales
Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely:—
(a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction, the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar;
(b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure ( 14 of 1882 ) in respect of sales in execution of decrees.
8.Orders for sale to be deemed decrees
Any order for sale made by the Court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure ( 14 of 1882 ).
9.Saving of power to order partly partition and partly sale
In any suit for partition the Court may, if it shall think fit, make a decree for a partition of part of the property to which the suit relates and a sale of the remainder under this Act.
10.Application of Act to pending suits
This Act shall apply to suits instituted before the commencement thereof, in which no scheme for the partition of the property has been finally approved by the Court.
Section 44 in The Transfer of Property Act, 1882
44. Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
The following are the types of co-ownerships:
- Tenants in Common
- Joint Tenancy
- Tenancy by the Entirety
1. Co-ownership
2. Mitakshara Coparcenary
3. Dayabhaga Coparcenary
4. Mutual Relations
5. Co-owners and other persons
6. Partition
7. Partible and Impartible Property
8. Oral Partition
9. Partition by Deed
10. Partition by Suit
11. Final Decree for Partition
12. Sale instead of Partition
13. Effects of Partition
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