Partition, is mitakshara 'partition' may be only severance of the joint status of the members of the coparcenary, that it to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bounds, Nani Bali v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706. See also Jalaja Shethi v. Lakshmi Jalaja Shethi, AIR 1973 SC 2658.
Includes both division of states as well as division of meats and bounds, Sundara v. Girija, AIR 1962 Mys 72.
Is the determination of shares of the coparceners in the joint family. Actual division of the property by metes and bounds is not necessary to constitute partition, Girija Nandi Devi v. Bijendra Narain Chowdhary, AIR 1967 SC 1124: (1967) 4 SCD 501.
Partition, signifies a surrender of a portion of the joint rights in exchange for a similar right from the co-sharer, Rasa v. Arunachala, AIR 1932 Mad 577.
Partition, the act of dividing.
Before 1926 all co-owners of land might make partition, and coparceners were compellable to do so by Common Law (English). Co-owners, other than coparcener or copy-holders, were compellable to make partition by 31 Hen. 8, c. 1 (the Preamble of which sets forth the disadvantages of co-ownership), and 32 Hen. 8, c. 32, the latter Act applying to joint tenants and tenants in common holding for life or years.
Co-owners of copyhold were first enabled to make partition by s. 85 of the (English) Copyhold Act, 1841, since re-enacted by s. 87 of the (English) Copyhold Act, 1894.
With a view to the more convenient and perfect partition or allotment of the premises, equity frequently decreed a pecuniary compensation to one of the parties for 'owelty,' i.e., equality of partition, so as to prevent any injustice or unavoidable inequality, as where one party has laid out large sums in improvements on the estate.
On a partition, not every part of the estate need be divided. If there be three houses, it would not be right to divide every house, for that would be to spoil them; but some recompense is to be made either by a sum of money or rent for owelty of partition, to those that have the houses of least value.
For an order for partition of a wall separating the gardens of two adjoining houses, see Mayfair Property Co. v. Johnson, (1894) 1 Ch 508.
By the (English) Partition Act, 1868, now repealed, it was provided (s. 3) that in a suit for partition where, if this Act had not been passed, a decree for partition might have been made, then if it appear to the Court that, by reason of the nature of the property to which the suit relates, or the number of the parties interested, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property, the Court might, on the request of any of the parties interested, and notwithstanding the dissent or disability of any other of them direct a sale of the property accordingly; and see also ss. 4, 5. The (English) Partition Act, 1876, further amended the law. After 1925, co-owners, coparceners and all others entitled to undivided shares in land having been deprived of their legal title to a legal estate by the (English) Law of Property Act, ss. 1 (6), 34, and (English) Settled Land Act s. 36, the entirety becoming vested in trustees for sale, the (English) Partition Acts, 1868 and 1876, were repealed by the (English) Law of Property Act, 3rd Sch., s. 1 (10). S. 28 (3) of that Act provides that where the net proceeds of sale have under the trusts affecting the same become absolutely vested in persons of full age in undivided shares (whether or not such shares may be subject to a derivative trust) the trustees for sale may partition the land remaining unsold or any part thereof or provide for payment of any equality money subject to the consents in the s. provided for. Derivative trustees not having power to invest in land may obtain the requisite power under s. 57 of the (English) Trustee Act, 1925. See Chitty's Statutes, tit. 'Partition'; Seton on Judgments.
A party asking for a sale was not compellable to part with his share to his co-owners at a valuation, Pitt v. Jones, (1880) 5 App Cas 651.
Partition was one of the matters assigned to the Chancery Division of the High Court of Justice. [(English) Jud. Act, 1873, s. 34]
The term 'partition' in sub-s. (3) of s. 36 therefore must be given the same meaning as in s. 36(2)(h) of the Madras Act, Jalaja Shedthi v. Lakshmi Shedthi, AIR 1973 SC 2658: (1973) 2 SCC 773: (1974) 1 SCR 707.
Partition is really process in and by which a joint enjoyment is transformed into an enjoyment in severally, Controller of Estate Duty v. Kantilal Trikamlal, AIR 1976 SC 1935 (1941): (1976) 4 SCC 643: (1977) 1 SCR 9.
To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. The further requirement is that this unequivocal intention to separate must be to the knowledge of the persons affected by such declaration. This intention to separate maybe manifested in diverse ways, Kalyani v. Narayanan, 1980 Supp SLC 298: AIR 1980 SC 1173 (1177).
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