`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. 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 co-owners 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. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds? Hon'ble Supreme Court has laid down the principles governing suits for partition:-
Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna & Ors.
22. It is a matter of common knowledge that in a suit for partition, the important aspects to be undertaken by the Court are ascertainment of the shares, identification of the property available for partition, division of the available properly by metes and bounds and allotment of the divided parts to the parties, commensurate with their shares.
Andhra High Court
Idpl Employees Co-Operative ... vs B. Rama Devi And Ors. on 25 August, 2004
Equivalent citations: 2004 (5) ALD 632, 2004 (6) ALT 323
In a partition it is not necessary that each and every property must be partitioned and that the parties are put in separate possession of respective portions of properties falling to their share. Supreme Court of India Rachakonda Venkat Rao And Ors vs R. Satya Bai (D) By Lr. And Anr on 11 September, 2003 Appeal (civil) 2508 of 1997
In Rachakonda Venkat Rao v. R. Satya Bat, , the Supreme Court explained the various steps involved in a suit for partition. Depending on the outcome of the adjudication, or area of agreement between the parties, the suit can be disposed of in one stroke, or by way of two decrees namely the preliminary and final. Where the subject-matter of the partition is a land, being part of estate and assessed to revenue, the steps subsequent to preliminary decree are required to be undertaken by the District Collector under Section 54 C.P.C. In other matters, the Court has to undertake steps to divide the properties by metes and bounds and deliver the same to the parties concerned in accordance with their respective shares. A party can seek delivery of possession in accordance with the final decree only after it is engrossed on a stamp of adequate value and by initiating execution proceedings. Any other step in between a preliminary and final decree is almost impermissible.
The distinction between a preliminary and final decree was aptly pointed out by the Supreme Court in Renu Devi v. Mahendra Singh and Ors., on 4 February, 2003
Equivalent citations: AIR 2003 SC 1608, 2003 (51) BLJR 699, in the following terms:
"A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held and pursuant to the result of further inquiry a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree (See CPC by Mulla, Vol. 1, 1995 Edn., P.21). The distinction between preliminary and final decree is this: a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree."
Right of a Purchaser of an Undivided Interest from a Coparcener:
Mulla on the 'Principles of Hindu Law' 15th Edition (1982), at page 348 deals with the right of a purchaser of an undivided interest from a coparcener. The learned Author says thus:
The purchaser of the undivided interest of a coparcener in a specific property-
(i) at a private sale in execution in West Bengal and Uttar Pradesh, or
(ii) at a private sale or a sale in execution in Madras, does not acquire a right to joint possession with the other coparceners. Such a purchaser acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, had he been so minded, before the sale of his interest took place. That right can only be enforced by a suit for a general partition to which all the coparceners must be joined as parties. The purchaser may in such a suit ask the court to allot to his vendor the specific property sold to him, and the court may allot that property to him if the interest of the other coparceners will not be prejudiced thereby.
22. S.V. Gupte on 'Hindu Law' - 3rd Edition (1981) (Volume 1), at pages 356 and 357 says thus:
It is well established that a purchaser - whether of the whole or any portion of the joint family property and whether at a sale in execution of a decree, in insolvency or by a voluntary transfer -may claim partition of the joint family property. The equitable right to sue for partition which is available to an alienee from a coparcener flows from the purchase made by him for valuable consideration. By such purchase, an alienee does not acquire any right in a specific property belonging to the coparcenary, but acquires the equitable right to step into the shoes of the alienating coparcener and sue for partition in the same way in which that coparcener could.
At page 392 of the same book, the learned Author deals with suits by purchasers and says that there is no distinction between an auction purchaser and a private purchaser.
Madras High Court K.S.K.P. Subbayan Chettiar vs K. Ramu And Ors. on 8 March, 1996
Equivalent citations: (1996) 2 MLJ 115
Supreme Court in Raj Kumar v. Sardari Lal,. on 20 January, 2004. Equivalent citations: 2004 (2) ALD 95 SC, 2004 (2) ALT 1 SC . It was held therein that though a pendente lite transferee is not brought on record under Order XXII, Rule 10 C.P.C., he is entitled to file an application under Order IX, Rule 13 C.P.C. to set aside the decree passed against his transferor.
24." It is to be borne in mind that the term `compromise' essentially means settlement of differences by mutual consent. In such process, the adversarial claims come to rest. The cavil between the parties is given a decent burial. A compromise which is arrived at by the parties puts an end to the litigative battle. Sometimes the parties feel that it is an unfortunate bitter struggle and allow good sense to prevail to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory process commences and eventually, by consensus and concurrence, rights get concretized. A reciprocal settlement with a clear mind is regarded as noble. It signifies magnificent and majestic facets of the human mind. The exalted state of affairs brings in quintessence of sublime solemnity and social stability." Supreme Court of India Bimal Kumar & Anr. vs Shakuntala Debi & Ors. on 27 February, 2012
In a partition suit, a court is required to define the shares of the parties, identify the joint properties which are to be partitioned, allocate properties to parties as per their respective shares and put the parties in possession of properties allocated to them. All this happened with agreement of parties when the court passed the decree on 13th July, 1978. No step is missing in those proceedings. Therefore, nothing remained to be done.
Division Bench decision of the Patna High Court in Raghubir Sahu v. Ajodhya Sahu and Ors. AIR (32) 1945 Patna, 482 wherein the learned Judges have held:
"In the present case, the decree was passed on compromise. It was admitted that by the compromise, the properties allotted to the share of each party were clearly specified and schedules of properties allotted to each were appended to the compromise petition. Therefore, no further inquiry was at all necessary. In such circumstances, the decree did not merely declare the rights of the several parties interested in the properties but also allotted the properties according to the respective shares of each party. Therefore, it was not a preliminary decree but it was the final decree in the suit. A compromise decree in a partition suit allotting specific parcels to the parties is a final order for effecting partition : There being already a final decree, the only thing that remained to be done was to engross it on a stamped paper under Article 45, Stamp Act, 1899. The decree to be engrossed on the stamp will bear the date of the decree, 17th December, 1921, and will declare the position of the parties in respect of the properties on that date. There is no time limit prescribed by the statute for the engrossment of a partition decree on stamp of requisite value. In fact no date was fixed by the Court for the purpose. Therefore, mere engrossment of the decree on stamped paper of the requisite value will not in any way affect the interest of the parties in respect of the properties though, changes may have taken place in regard to the properties since the decree was made on 17th December, 1921. The only effect of engrossment of the decree on stamped paper would be that it will be rendered legally effective which it is not until so engrossed."
12. "In our opinion, the law has been correctly stated by the Division Bench of the Patna High Court."
Supreme Court of India Rachakonda Venkat Rao And Ors vs R. Satya Bai (D) By Lr. And Anr on 11 September, 2003 Appeal (civil) 2508 of 1997
There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. I n that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of preemption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the Legislatures clearly did not intend to confer. The legislature was aware that in a Suit for Partition the stranger/outsider, who has purchased a share, would have to be made a party. The Legislature was aware that in a Suit for Partition the parties are inter-changeable. The Legislature was aware that a Partition Suit would result in a decree for Partition and in most cases a division by meters and bounds. The Legislature was aware that on an actual division, like all other co-sharers, the stranger/ outsider would also get possession of his share, yet the Legislature did not provide that the right for pre-emption could be exercised "in any Suit for Partition". The Legislature only provided for such right when the "transferee sues for partition". The intention of the Legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of preemption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. The interpretation given by the Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted than in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a Suit for Partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.
We however clarify that if at any stage the Appellant applies for partition and for separation and possession of his share Respondents 1 and 2 and/or any other co-sharer will still be entitled to move under Section 4 of the Partition Act.
Supreme Court of India Gautam Paul vs Debi Rani Paul & Ors. on 17 October, 2000
Equivalent citations: 2000 (6) ALT 36 SC, 2001 (1) BLJR 45, 2000 (4) CTC 503
Article 136 of the Limitation Act presupposes two conditions for the execution of the decree; firstly, the judgment has to be converted into a decree and secondly, the decree should be enforceable. The submission that the period of limitation begins to run from the date when the decree becomes enforceable, i.e., when the decree is engrossed on the stamp paper, is unacceptable. The Bench, while elaborating the said facet, proceeded to lay down as under: - "24. "A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp Act. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with penalty, if any, is paid the decree can be acted upon.
In Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari [1950 SCR 852 : AIR 1951 SC 16] it was said that the payment of court fee on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.
26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
in Ratan Singh v. Vijay Singh and Ors.12 wherein, while dwelling upon the concept of enforceability of a decree and the effect of an order of stay passed by the appellate court, the Bench stated thus:
"8. When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression "enforceable" has been used to cover such decrees or orders also which become enforceable subsequently.
"The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and 23 only thereafter the period of twelve years will begin to run would lead to absurdity." Supreme Court of India
Bimal Kumar & Anr. vs Shakuntala Debi & Ors. on 27 February, 2012
Note: Metes and bounds is a system or method of describing land, real property (in contrast to personal property) or real estate. The system has been used in England for many centuries, and is still used there in the definition of general boundaries.
The term "metes" refers to a boundary defined by the measurement of each straight run, specified by a distance between the terminal points, and an orientation or direction. A direction may be a simple compass bearing, or a precise orientation determined by accurate survey methods. The term "bounds" refers to a more general boundary description, such as along a certain watercourse, a stone wall, an adjoining public road way, or an existing building.
Family: The word "family", as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act, to support the suggestion that the term "family" was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor."
Gautam Paul vs Debi Rani Paul & Ors. on 17 October,2000. Equivalent citations: 2000 (6) ALT 36 SC, 2001 (1) BLJR 45, 2000 (4) CTC 503