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Partial Partition - Short Note

Partial partition applies in situations where a full partition is not possible, such as when (1) property is located both inside and outside of India, (2) a portion of property is mortgaged or in litigation, (3) property is held in partnership with strangers, or (4) property was excluded in a previous partition by mistake, accident, or fraud. There are two types of partial partitions: partial as to property, where one property is partitioned but another is left jointly owned; and partial as to the person separating, where one coparcener seeks partition while others do not. The Supreme Court established that a partition is presumed total unless shown otherwise, and that property must be physically divided to effect a partition

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550 views

Partial Partition - Short Note

Partial partition applies in situations where a full partition is not possible, such as when (1) property is located both inside and outside of India, (2) a portion of property is mortgaged or in litigation, (3) property is held in partnership with strangers, or (4) property was excluded in a previous partition by mistake, accident, or fraud. There are two types of partial partitions: partial as to property, where one property is partitioned but another is left jointly owned; and partial as to the person separating, where one coparcener seeks partition while others do not. The Supreme Court established that a partition is presumed total unless shown otherwise, and that property must be physically divided to effect a partition

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Jagan Mishra
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© © All Rights Reserved
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Download as DOCX, PDF, TXT or read online on Scribd
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PARTIAL PARTITION – Short Note

INTRODUCTION

Partial partition applies in circumstances where a general partition is not possible. If the
partition is done by mutual or private agreement between the parties is called a partial
partition.

Examples where Partial Partition applies:

A suit for partial partition is made by a coparcener:

(1) Where different portions of such property are situated in and out of India; or

(2) Where a portion of the property is not available for actual partition, i.e., mortgaged or in
litigation; or

(3) Where property is held in partnership by the joint family along with strangers, who could
not be made parties in the family partition; or

(4) Where property was excluded by mistake, accident or fraud during previous partition.

In such cases, a suit for partial partition, will come into effect.

TWO TYPES OF PARTIAL PARTITIONS:

1. Partial as to property

When any joint family has 2 different properties at 2 different places and make the partition to
one property and leave the other one as joint family property then that is called as partial as
to property.

2. Partial as to the person separating

When in a joint family with more than two coparceners and anyone of them want to partition
and other coparceners do not want it then that will be called a partial partition as to the
person separating.
CASE LAW: K.T. Prasad v. C.I.T. [(1982) 1 S.C.C. 447)],

The Supreme Court laid down the following basic principles of partition and partial partition:

(i) When there is a partition, it is presumed that it is a total partition, both to parties and
property.

(ii) When there is a partition between brothers, there is no presumption that there has been a
partition between one of them and his descendants.

(iii) However, it is open to any person who alleges that a partition has been partial (either as to
persons or as to property), to establish that fact.

(iv) In every case of HUF partition, the property must be partitioned by metes and bounds. A
declaration of intention by a coparcener to become divided brings about a severance of
status, and it is then open to the parties to enjoy their respective shares of the property as
tenants-in-common.

CONCLUSION:

It is not necessary at all That partition shall be effected by registered document. Also As a
general rule, a coparcener cannot, by suit, enforce a partial partition against the other
coparceners. However Partial partition by private arrangement is allowed.

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