A suit for partition lies only when the parties have undivided share in the property.

The Hon’ble High Court of Delhi held that only when the parties have undivided share, a suit for partition lies. Where the property has already been divided by metes and bounds, suit for partition is not maintainable.

The same was held in the matter of Uma Shankar & Anr. Vs. Anand Prakash, CS(OS) 634/2018 on 11.12.2018.

Challenge

The only limited issue in the present suit was whether the plaintiffs are entitled to partition even when the subject property stands already divided by metes and bound under the Will of the father of the parties.

Held

The Hon’ble High Court of Delhi held that a suit for partition lies only when the parties have undivided share in the property and in such a suit, first a preliminary decree for partition is passed determining the shares of each of the parties, followed by a final decree for partition, either of division of the property by metes and bounds as per the shares of the parties, and if the property is not capable of being divided by metes and bounds, by sale of the property and distribution of sale proceeds as per share declared in the preliminary decree for partition.

It was further held that under Section 4 of the Partition Act, 1893, if any of the shareholder shows desire to purchase the share of the others, a final decree for partition in terms thereof also is passed.