CHAPTER
153
PARTITION |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
|
Power of court to order sale instead of division. |
Sale on application of certain proportion of
parties interested. |
As to purchase of share of party desiring sale. |
Authority for parties interested to bid. |
Parties to partition suits. |
Power to dispense with service of notice of
decree or order in special cases. |
Proceedings where service is dispensed with. |
Provision for case of successive sales in same
suit. |
Request by married woman, infant or person under
disability. |
Suit for partition to include action for sale
and distribution of the proceeds. |
Costs in partition suits. |
CHAPTER 153 |
PARTITION |
An Act
relating to partition. | 28 of 1890
5 of 1987 |
[Commencement 16th
May, 1890] |
1. This Act may be cited as the Partition Act. | Short title. |
2. In this Act, unless the context otherwise requires- | Interpretation. |
"court"
means the Supreme Court on its Equity Side. |
3. In a suit for partition, where, if this Act had not
been passed, a decree for partition might have been made, then if it appears to
the court that by reason of the nature of the property to which the suit
relates, or of the number of the parties interested or presumptively interested
therein, or of the absence or disability of some of those parties, 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 between or among them the court may if it thinks fit, on the request
of any of the parties interested and notwithstanding the dissent or disability
of any others of them direct a sale of the property accordingly, and may give
all necessary or proper consequential directions. | Power of court to order sale instead of division. |
4. In a suit for partition where, if this Act had not
been passed, a decree for partition might have been made, then if the party or parties
interested individually or collectively, to the extent of one moiety or upwards
in the property to which the suit relates request the court to direct a sale of
the property and a distribution of the proceeds instead of a division of the
property between or among the parties interested, the court shall, unless it
sees good reason to the contrary, direct a sale of the property accordingly,
and give all necessary or proper consequential directions. | Sale on application of certain proportion of parties
interested. |
5. In a suit for partition where, if this Act had not
been passed, a decree for partition might have been made, then, if any party
interested in the property to which the suit relates requests the court to
direct a sale of the property and a distribution of the proceeds instead of a
division of the property between or among the parties interested, the court
may, if it thinks fit, unless the other parties interested in the property, or
some of them, undertake to purchase the share of the party requesting a sale,
direct a sale of the property and give all necessary or proper consequential
directions; and in case of such undertaking being given the court may order a
valuation of the share of the party requesting a sale in such manner as the court
thinks fit, and may give all necessary or proper consequential directions. | As to purchase of share of party desiring sale. |
6. On any sale under this Act the court may, if it
thinks fit, allow any of the parties interested in the property to bid at the
sale, on such terms as to non-payment of deposit, or as to setting off or
accounting for the purchase money or any part thereof instead of paying the
same, or as to any other matters as to the court seem reasonable. | Authority for parties interested to bid. |
7. Any person who, if this Act had not been passed,
might have maintained a suit for partition may maintain such suit against any
one or more of the parties interested, without serving the other or others (if
any) of those parties; and it shall not be competent to any defendant in the
suit to object for want of parties, and at the hearing of the cause the court
may direct such inquiries as to the nature of the property and the persons
interested therein, and other matters, as it thinks necessary or proper, with a
view to an order for partition or sale being made on further consideration; but
all persons who, if this Act had not been passed, would have been necessary
parties to the suit shall be served with notice of the decree or order on the
hearing, and after such notice shall be bound by the proceedings as if they had
been originally parties to the suit, and shall be deemed parties to the suit,
and all such persons may have liberty to attend the proceedings, and any such
person may, within a time limited by general orders, apply to the court to add
to the decree or order. | Parties to partition suits. |
8. Where in a suit for partition it appears to the
court that notice of the decree or order on the hearing of the cause cannot be
served on all the persons on whom that notice is by section 7 of this Act
required to be served, or cannot be so served without expense disproportionate
to the value of the property to which the suit relates, the court may, if it
thinks fit, on the request of any of the parties interested in the property,
and notwithstanding the dissent or disability of any others of them, by order,
dispense with that service on any person or class of persons specified in the
order, and instead thereof, may direct advertisements to be published at such
times and in such manner as the court shall think fit, calling upon all persons
claiming to be interested in such property who have not been so served to come
in and establish their respective claims in respect thereof before the judge in
chambers within a time to be thereby limited. After the expiration of the time
so limited all persons who shall not have so come in and established such claims,
whether they are within or without the jurisdiction of the court (including
persons under any disability), shall be bound by the proceedings in the suit as
if on the day of the date of the order dispensing with service they had been
served with notice of the decree or order service whereof is dispensed with,
and thereupon the powers of the court under the Act entitled the
Trustee Act shall extend to their interests in the property to which the suit
relates as if they had been parties to the suit, and the court may thereupon,
if it shall think fit, direct a sale of the property and give all necessary or
proper consequential directions. | Power to dispense with service of notice of decree or
order in special cases. |
9. Where an order is made under this Act dispensing
with service of notice on any person or class of persons and property is sold
by order of the court, the following provisions shall have effect- | Proceedings where service is dispensed with. |
(a) the
proceeds of sale shall be paid into court to abide the further order of the
court; |
(b) the court
shall, by order, fix a time at the expiration of which the proceeds will be
distributed, and may from time to time by further order extend that time; |
(c) the court
shall direct such notices to be given by advertisements or otherwise, as it
thinks best adapted, for notifying to any persons on whom service is dispensed
with, who may not have previously come in and established their claims, the
fact of the sale, the time of the intended distribution, and the time within
which a claim to participate in the proceeds must be made; |
(d) if at the
expiration of the time so fixed or extended the interests of all the persons
interested have been ascertained, the court shall distribute the proceeds in
accordance with the rights of those persons; |
(e) if at the
expiration of the time so fixed or extended the interests of all the persons
interested have not been ascertained, and it appears to the court that they
cannot be ascertained, or cannot be ascertained without expense
disproportionate to the value of the property or of the unascertained
interests, the court shall distribute the proceeds in such manner as appears to
the court to be most in accordance with the rights of the persons whose claims
to participate in the proceeds have been established, whether all those persons
are or are not before the court, and with such reservations (if any) as to the
court may seem fit in favour of any other persons (whether ascertained or not)
who may appear from the evidence before the court to have any prima facie
rights which ought to be so provided for, although such rights may not have
been fully established, but to the exclusion of all other persons; and
thereupon all such other persons shall by virtue of this Act be excluded from
participation in those proceeds on the distribution thereof; but
notwithstanding the distribution any excluded person may recover from any
participating person any portion received by him of the share of the excluded
person. |
10. Where in a suit for partition two or more sales
are made, if any person who has by virtue of this Act been excluded from
participation in the proceeds of any of those sales establishes his claim to
participate in the proceeds of a subsequent sale, the shares of the other
persons interested in the proceeds of the subsequent sale shall abate to the
extent (if any) to which they were increased by the non-participation of the
excluded person in the proceeds of the previous sale, and shall to that extent
be applied in or towards payment to that person of the share to which he would
have been entitled in the proceeds of the previous sale if his claim thereto
had been established in due time. | Provision for case of successive sales in same suit. |
11. In a suit for partition a request for sale may be
made or an undertaking to purchase given on the part of a married woman,
infant, person of unsound mind or person under any other disability, by the
next friend, guardian, receiver appointed under the Mental Health Act or other
person so authorised to act on behalf of the person under such disability, but
the court shall not be bound to comply with any such request or undertaking on
the part of an infant unless it appear that the sale or purchase will be for
his benefit. | Request by married woman, infant or person under
disability. |
12. For the purposes of this Act a suit for partition
shall include an action for sale and distribution of the proceeds, and in a
suit for partition it shall be sufficient to claim a sale and distribution of
the proceeds, and it shall not be necessary to claim a partition. | Suit for partition to include action for sale and
distribution of the proceeds. |
13. In a suit for partition the court may make such
order as it thinks just respecting costs up to the time of the hearing. | Costs in partition suits. |