Property Partition and Joint Ownership Disputes: Legal Framework and Court Process

1. Introduction to Property Partition in Nepal

Property partition (locally known as "Ansha Banda" or "Banda") is one of the most common civil matters handled by courts and lawyers in Nepal. Partition refers to the legal process of dividing jointly owned property among co-owners (called coparceners) according to their respective rights and entitlements. In Nepal's social context, where family property is often held in common for generations and multiple heirs eventually emerge, partition disputes are virtually inevitable.

The Civil Code 2074, which came into force on Bhadra 1, 2075 (17 August 2018 AD), provides comprehensive provisions governing property partition. These provisions represent significant modernization from previous law, particularly regarding gender equality in inheritance and partition rights.

Scope and Significance of Property Partition

Property partition disputes affect millions of Nepali families. As population increases and agricultural land becomes scarce, partition disputes become more complex and contentious. Key aspects of partition law include:

Economic Significance: Property partition involves distribution of family assets often representing the family's primary wealth and livelihood.

Social Significance: Partition frequently involves family conflicts, generational disputes, and relationship disruption.

Legal Complexity: Modern partition involves technical surveying, property valuation, tax considerations, and legal procedures.

Gender Equality: The Civil Code 2074 implements constitutional promises of gender equality in property rights, transforming traditional inheritance patterns.

Ongoing Process: Partition is rarely a single event but often an ongoing process involving multiple properties, multiple heirs, and sequential divisions over generations.

Why Property Partition Matters

For lawyers, understanding partition law is essential because:

Frequency: Partition cases constitute 20-30% of civil litigation in many district courts

Complexity: Partition disputes involve technical knowledge (surveying, valuation) combined with legal and family issues

Financial Impact: Partition decisions directly affect clients' economic security and family relationships

Procedural Requirements: Partition has specialized procedures under Civil Code 2074 and Civil Procedure Code 2074

Precedent Value: Partition cases establish important precedents on inheritance, gender equality, and property rights

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2. Understanding Joint Ownership and Co-Parcenary

Joint property ownership occurs when multiple persons hold rights to the same property. Different forms of joint ownership create different legal relationships and different partition rights.

Forms of Joint Ownership

Tenancy in Common

Multiple persons own distinct shares of property:

• Each owner has defined share (e.g., 1/3, 1/2, 1/4)
• Each owner's share is clearly identified
• Each owner can partition their share independently
• Death of owner does not affect other owners' shares
• Other owners have no automatic succession rights

Example: Three siblings inherit father's property equally. Each holds 1/3 as tenant in common. One sibling can partition without others' consent.

Joint Tenancy

Multiple persons own property together with right of survivorship:

• All owners have equal rights
• Death of one owner automatically passes share to surviving owners
• Surviving owners acquire deceased's share
• Property gradually vests in last surviving owner
• Requires equal shares

Note: Joint tenancy is less common in Nepal compared to tenancy in common.

Co-Parcenary (Coparcenary)

Special relationship in joint family context:

• Family members (particularly males traditionally, now both genders under Civil Code 2074)
• Share in ancestral/family property
• Status continues even without active use
• Carries equal rights and obligations
• Survives family changes and separations

Coparcenary is particularly important in Nepal because:

• Joint family system remains common
• Ancestral property is typically held as coparcenary
• Hindu law traditionally recognized coparcenary
• Civil Code 2074 modernizes coparcenary to include equal gender rights

Rights of Co-Owners

Co-owners (whether tenants in common, joint tenants, or coparceners) have important rights:

Right to Possess and Use

Each co-owner has right to:

• Possess and use entire property
• Benefit from property's output (crops, rents, etc.)
• But cannot exclude other co-owners
• Must allow other co-owners' reasonable use

Example: Three brothers hold agricultural land as coparceners. Each can cultivate the land, but cannot prevent brothers from using their portions.

Right to Encumber (Mortgage/Pledge)

Co-owners can:

• Mortgage their share as security for debt
• Creditor gets lien on mortgagee's share
• But cannot mortgage entire property
• Other co-owners' shares are not affected

Example: One coparcener mortgages his share for loan. Lender can recover debt from his share, but other coparceners' shares are protected.

Right to Transfer

Co-owners can transfer their share:

• Can sell, gift, or will their share
• Other co-owners have no automatic right to first refusal (though can be contractually agreed)
• Transferee becomes new co-owner
• Other co-owners' shares unaffected

Right to Partition

This is the most important co-owner right and is foundational to partition law:

Section 301 of Civil Code 2074 establishes: "Any co-owner may separate their share or right from the property held jointly."

This means:

• Any single co-owner can demand partition
• Partition cannot be prevented by other co-owners
• All co-owners cannot be forced to continue joint ownership
• Right to partition is fundamental and inalienable

This right is crucial because it prevents forced perpetual joint ownership and allows co-owners to exit joint ownership when desired.

Obligations of Co-Owners

Co-owners have reciprocal obligations:

Obligation to Maintain Property

• All co-owners must contribute to property maintenance
• Major repairs are shared expense
• Taxes and government fees are shared
• Refusal to maintain can result in forced sale or compensation

Obligation to Not Exclude Others

• Cannot prevent other co-owners from using property
• Cannot take exclusive possession
• Cannot harm other co-owners' interests
• Violations can result in injunction or damages

Obligation to Account for Benefits

• If one co-owner derives exclusive benefit, must account to others
• If one co-owner collects rents, must share with others
• Cannot secretly profit from property

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3. Types of Property Subject to Partition

Not all property can be partitioned, and different property types have different partition rules.

Ancestral Property

Ancestral property (also called "Pitrijaya" or "Khandan ko Sampati") is property inherited from ancestors:

Definition: Property that came to current holders through inheritance from previous generations, typically held in joint family

Characteristics:

• Has continuous existence over multiple generations
• Multiple heirs have claims
• Subject to specific inheritance rules favoring family members
• Cannot be excluded from partition based on gender (under Civil Code 2074)

Partition Rights:

• All legal heirs have equal partition rights
• Cannot be sold without heirs' consent (traditionally)
• Partition is frequently required as population increases

Example: Property purchased by grandfather, inherited by father and uncle, now inherited by multiple cousins. This is ancestral property. All descendants have partition rights.

Joint Family Property

Property acquired during joint family's existence:

Definition: Property acquired through collective efforts of family members while in joint family arrangement

Characteristics:

• Acquired after family began joint ownership
• Belongs to family as whole
• Individual contributions may be obscured
• Division requires determining individual contributions

Partition Rights:

• All family members have equal rights
• Contributions may be considered
• Court may allocate based on efforts or need

Self-Acquired Property

Property acquired through individual effort:

Definition: Property purchased or created by individual using their own earnings or resources

Characteristics:

• Individual clearly identified as acquirer
• Not part of ancestral wealth
• Passes to heirs on death
• Can be freely transferred during life
• Can be willed to anyone (not restricted to family)

Partition Rights:

• Owner controls during lifetime
• After death, inheritance follows succession laws
• Heirs partition similar to ancestral property

Important Distinction: Whether property is self-acquired or ancestral affects:

• Who has partition rights
• Whether certain restrictions apply
• How shares are calculated
• Whether spouse/widow has separate rights

Mixed Property

Property combining ancestral and self-acquired elements:

Example: Ancestral house where current owner added stories using own earnings. What part is ancestral? What part is self-acquired?

Determination:

• Court traces history of acquisitions
• Determines original source of funds
• Calculates proportional shares
• May require expert analysis and evidence

Agricultural vs. Non-Agricultural Land

Agricultural Land:

• Subject to land ceiling laws (limits on maximum holdings)
• Cannot be divided below minimum viable size
• Subject to agricultural tax
• May have tenant rights affecting partition
• Partition must maintain productivity

Non-Agricultural Land:

• Fewer restrictions
• Can be divided into smaller units
• Urban land may command higher value
• Zoning rules may affect division

Movable vs. Immovable Property

Immovable Property (Land and Buildings):

• Requires survey and precise demarcation
• Cannot be easily divided
• Often subject to physical partition restrictions
• Most partition disputes involve immovable property

Movable Property (Money, Gold, Business Assets):

• Can be easily divided
• Can be allocated to different co-owners
• Subject to valuation to ensure equal division
• Easier to partition than immovable property

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4. Legal Framework Governing Property Partition

Property partition in Nepal is governed by a comprehensive legal framework combining multiple laws and constitutional provisions.

Constitutional Framework

Constitution of Nepal 2072 (2015 AD)

Article 16: Right to property

• Citizens have right to acquire, hold, and dispose of property
• Government cannot arbitrarily acquire property
• Property rights protected subject to law

Article 18: Equality before law

• No discrimination based on gender
• Equal protection of laws
• Applies to property and succession rights

Article 38: Women's rights

• Women have equal lineage rights
• Equal property rights in all spheres
• Equal inheritance rights without gender discrimination
• Provisions protecting single women and marginalized women

These constitutional provisions mandate that property partition laws must:

• Be gender-equal
• Protect property rights
• Ensure non-discrimination
• Provide constitutional remedies for violations

Civil Code 2074 Provisions

Sections 205-236 comprehensively address property partition:

Section 205: Principle of Equal Inheritance "Upon death of a person, the property shall be divided equally among all children, both sons and daughters, regardless of marital status."

This fundamental provision:

• Requires equal shares for all children
• Eliminates gender-based discrimination
• Eliminates marriage-based discrimination
• Establishes universal baseline for partition

Section 206-208: Special Cases

• Wife's rights in husband's property
• Rights when father is not traced
• Children from invalid marriages

Section 209-213: Succession Rights

• Rights of spouses
• Rights of parents
• Rights of other heirs

Section 301-320: Co-Ownership and Partition Rights

These sections specifically address joint ownership and partition:

Section 301: Right to Separate from Joint Ownership "Any co-owner may separate their share from joint property held with others."

Section 302: Manner of Partition "Partition may be by agreement of all co-owners or by court order if agreement is not possible."

Section 303-310: Partition Procedures

• Physical partition of land
• Monetary division
• Court's role in determining fair division
• Protection of essential properties

Section 311-320: Restrictions on Partition

• Agricultural land productivity
• Family dwelling protection
• Dependent member support

Land Revenue Act and Rules

Land Act 2021 (1964 AD)

Provides framework for:

• Land registration
• Property documentation
• Land measurement and survey
• Property transfers

Land (Survey and Measurement) Act 2019 (1963 AD)

Governs:

• Property surveys
• Boundary demarcation
• Measurement procedures
• Survey records and documentation

These acts provide technical procedures for implementing partition.

Civil Procedure Code 2074

Sections 234-240 specify procedures for partition suits:

Section 234: Jurisdiction District courts have jurisdiction over partition cases

Section 235: Venue Partition suit can be filed in district where property is located or where defendant resides

Section 236: Mandatory Mediation Partition disputes require 30-day mediation period before trial

Section 237-240: Trial and Judgment Procedures Specify procedures for partition suit trials

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5. Rights of Co-Owners and Coparceners

Understanding specific rights of co-owners and coparceners is essential for partition law.

Rights During Joint Ownership

Right to Separate and Partition

This is the fundamental right already discussed. Any coparcener can demand partition at any time without consent of others.

Exceptions to Unilateral Partition Right:

• During minority (until age 18, represented by guardian)
• During mental disability (if guardian objects)
• During insolvency proceedings (creditors may have rights)
• Certain restrictions during pending court cases

Right to Share in Output and Benefits

All co-owners have equal right to:

• Agricultural output (crops, produce)
• Rents and returns from property
• Compensation if property is damaged

If one co-owner exclusively uses property:

• Must account to other co-owners
• May be required to pay compensation
• Other co-owners can enjoin exclusive use

Example: One brother exclusively cultivates agricultural property and keeps entire harvest. Other brothers can demand equal share of output or partition.

Right to Invest and Improve

Co-owners can:

• Invest in property improvements
• Build structures on property
• Plant perennial crops
• Make investments increasing value

Important: Improvements made by one co-owner become part of property. Other co-owners benefit from improvements at partition (fair division reflects improved value).

Example: One coparcener builds wall around property using own money. At partition, property value is increased. All coparceners benefit from this improvement.

Rights Regarding Property Management

Authority to Act for Property

Who can act on behalf of joint property?

In Joint Family Context:

• Household head traditionally had authority
• Under Civil Code 2074, authority is more clearly defined
• Major decisions require consent of all co-owners
• Minor decisions can be made by any co-owner

Major Decisions Requiring Consent:

• Sale of property
• Long-term lease
• Mortgage
• Partition
• Establishment of business using property as asset

Minor Decisions Made Unilaterally:

• Maintenance and repairs
• Payment of taxes
• Agricultural decisions on timing and method
• Collection of rents

Liability for Decisions:

• Those making decisions are liable for improper decisions
• Co-owners can sue for damages
• Can seek injunction to prevent improper actions

Rights of Wife in Joint Family Property

The Civil Code 2074 significantly enhanced wives' property rights:

Section 205: Wife has equal partition share to husband

Section 206: Wife can claim separate share if:

• Suffering cruelty or mental torture from husband/in-laws
• For maintenance of self and children
• With court approval

Section 209: Wife inherits husband's share if he dies before partition

Section 210: Wife can exclude herself from joint family and claim separate share

These provisions recognize wives as full co-owners, not just family members.

Rights of Separated or Divorced Spouse

Separated Spouse:

• Retains partition rights in marital property
• Can claim share in property acquired during marriage
• Maintenance obligation may be tied to property division

Divorced Spouse:

• Has partition rights in marital property acquired during marriage
• Equal division rights under Section 94
• Can claim maintenance from property if necessary
• Property division typically accompanies divorce decree

Widow/Widower:

• Retains partition rights
• Inherits deceased spouse's share
• Can claim maintenance from inherited property
• Can remarry without losing property rights

Minor Coparceners

Minors under 18 years have partition rights but with limitations:

Guardian Representation:

• Parent or court-appointed guardian represents minor
• Guardian decides on partition strategy
• Guardian must act in minor's best interest

Court Protection:

• Courts ensure minors' interests are protected
• Court orders must protect minor's share
• Cannot be deprived of rightful share

Rights Upon Majority:

• At age 18, minor can ratify guardian's decisions
• Can challenge decisions if prejudicial
• Can demand partition even if guardian agreed otherwise

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6. Classification and Identification of Heirs

Determining who is entitled to partition share is essential first step in partition. Civil Code 2074 establishes clear heir classification.

Class 1 Heirs (First Priority)

Sons and Daughters

Under Section 177:

• All children inherit equally
• No gender discrimination
• Includes adopted children
• Includes children from invalid marriage (Section 207)

Share: Each child gets equal share

Example: Father dies leaving 2 sons and 1 daughter. Each inherits 1/3 of property (previously daughters were excluded).

Prerequisites:

• Child must be legitimate (or treated as legitimate)
• Child must be born or in womb at time of death
• Descendant of child inherits child's share if child dies before partition

Married Daughter Entitlement:

Critically, under Section 178, married daughter's rights are equal to unmarried daughter: "A woman, whether married or unmarried, can claim a partition share from the property of her father."

This eliminates traditional practice of excluding married daughters.

Class 2 Heirs (If No Class 1 Heirs)

If deceased had no children, inheritance passes to:

Parents and Grandparents

Section 178 provides:

• Both mother and father inherit equally (if both alive)
• Surviving parent inherits if one has died
• Mother gets equal share (not reduced)
• Grandparents inherit if parents are deceased

Class 3 Heirs (If No Class 1 or 2 Heirs)

If no children or parents:

Grandparents and Their Descendants

Inheritance passes to:

• Grandparents
• Aunts and uncles (parents' siblings)
• Their descendants

Special Heirs: Widow/Widower

Widow/Widower Rights (Section 179)

If spouse survives, spouse inherits from deceased's property:

• Has succession rights
• Gets share as heir
• Can inherit even if remarries
• No time limit on succeeding

Disputed Heir Status

Establishing heirship can be disputed:

Proof of Heirship Required:

• Birth certificate or genealogy document
• Parent/ancestor's death certificate
• Family relationship proof
• Marriage certificate (if applicable)

Challenging Heirship:

• Another person may claim to be true heir
• Must prove biological relationship
• DNA testing may be required
• Court determines heirship

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7. Calculation of Shares in Property Partition

Once heirs are identified, calculating each heir's share is essential. Rules depend on property type.

Ancestral Property Share Calculation

Basic Rule: Equal shares to all heirs in same class

For Children of Deceased Parent:

Example: Father dies, leaving 2 sons and 1 daughter. Property value is NPR 9,00,000.

• Each child inherits 1/3
• Each receives NPR 3,00,000 value
• Distribution is equal regardless of marital status or gender

For Children When Parent Already Dead:

Example: Grandfather dies. His son (now deceased) left 2 children (grandfather's grandchildren). His daughter left 1 child. Distribution:

• Son's share (which he would have gotten = 1/2) is divided among his 2 children = 1/4 each
• Daughter's share (which she would have gotten = 1/2) goes to her 1 child = 1/2
• Final distribution: 1/4, 1/4, 1/2

This is called "per stirpes" distribution (by lineage).

Self-Acquired Property Share Calculation

Similar to ancestral property:

• Equally divided among legal heirs
• Same class hierarchy applies
• No preferred shares

Mixed Property Share Calculation

When property is partly ancestral, partly self-acquired:

Process:

1. Determine what portion is ancestral
2. Determine what portion is self-acquired
3. Divide ancestral portion among all heirs equally
4. Divide self-acquired portion according to deceased's will or intestacy

Example:

Deceased acquired half the property during lifetime (self-acquired) and inherited half (ancestral).

• At death, leaves 2 sons and 1 daughter
• Ancestral half: divide equally = each gets 1/6 of ancestral
• Self-acquired half: divide equally = each gets 1/6 of self-acquired
• Total: each gets 1/3 of total property

Property Acquired After Husband's Death

A widow may acquire property after husband's death. This property is not subject to partition with husband's estate heirs; it belongs to widow's separate property.

Contributions and Adjustments

Civil Code 2074 provides that shares can be adjusted for:

Maintenance Provided During Life:

• If one child maintained deceased parent, may get adjustment
• If deceased maintained another heir, affects share
• Court evaluates fairness

Separate Property Brought Into Family:

• Property brought as dowry or gift retains separate character
• Not mixed with joint property
• Separate property goes to person who brought it (or their heirs)

Debts and Liabilities:

• Shares may be reduced by deceased's debts
• Estate must settle debts before distributing
• Heirs inherit net property (after debts)

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8. Voluntary Partition by Mutual Agreement

The preferred method of partition is voluntary agreement among all coparceners. This method is faster, cheaper, and preserves family relationships.

Advantages of Voluntary Partition

Speed: Can be completed in weeks/months (vs. years for court partition)

Cost: Minimal expenses (survey, registration fees only; no lengthy litigation)

Relationship Preservation: Parties negotiate solutions, preserving relationships

Flexibility: Parties can create customized arrangements

Finality: Settlement agreement ends dispute definitively

Control: Parties control outcome (vs. judge imposing decision)

Initiation of Voluntary Partition

Step 1: Identification of All Coparceners

First, identify all persons having partition rights:

• List all heirs according to Civil Code 2074
• Confirm their existence and address
• Include minors (with guardians), married daughters, etc.
• Confirm deaths of any heirs

Step 2: Gathering Documentation

Collect essential documents:

• Lalpurja (land ownership certificate)
• Property survey certificates and maps
• Tax records (Parchi-Parval)
• Death certificates of deceased family members
• Birth/marriage certificates of heirs
• Any previous partition documents
• Loan/mortgage documents

Step 3: Property Assessment

Assess value of each property to be partitioned:

For Agricultural Land:

• Area of land in each location
• Fertility/productivity of land
• Water access and irrigation
• Current market value
• Any crops or trees growing
• Any agricultural rights attached

For Residential Property:

• Size and condition of building
• Location and accessibility
• Market value
• Any commercial use
• Condition of structure

For Business or Assets:

• Valuation of business
• Value of equipment and materials
• Market value of securities or shares
• Value of bank accounts and cash

Professional Valuation:

• May hire professional valuers
• Creates objective value assessment
• Useful if parties dispute property values
• Costs shared among coparceners

Step 4: Family Meeting and Agreement

All coparceners meet to discuss partition:

Meeting Structure:

• Can be informal family meeting
• Can be formal meeting with witnesses
• Can be mediated by elder, mediator, or lawyer
• Should have clear agenda

Discussion Topics:

• List of all property to be partitioned
• Value of each property
• Each person's share percentage
• How to divide properties fairly
• Special needs or circumstances
• Timeline for implementation

Reaching Agreement:

Parties discuss and negotiate:

• How will properties be divided?
• Who gets which property?
• If monetary adjustment needed?
• Timeline for transfer?
• Dispute resolution if issues arise?

Key Principle: Division should be fair and equal (matching each person's share percentage).

Example:

Three siblings (2 brothers, 1 sister) inherit father's property:

• Agricultural land worth NPR 30,00,000
• House worth NPR 20,00,000
• Cash/jewelry worth NPR 10,00,000
• Total: NPR 60,00,000

Each sibling's share: NPR 20,00,000 (1/3)

Possible fair division:

• Brother 1: Gets agricultural land (NPR 30,00,000), pays sisters NPR 5,00,000 each
• Brother 2: Gets house (NPR 20,00,000) plus NPR 3,33,333 in cash
• Sister: Gets remaining cash plus jewelry (NPR 6,66,667) plus payments from brothers

Result: Each gets approximately equal value despite different properties received.

Step 5: Preparation of Partition Deed

Once agreement is reached, a legal document is prepared:

Partition Deed (called "Banda Likhat" or "Ansha Banda Likhat"):

This document should include:

Header:

• Deed title: "Partition Deed" or "Property Partition Agreement"
• Date of execution (in BS format)
• Location where signed

Parties:

• Names and addresses of all coparceners
• Their relationship to each other
• Their share percentages

Property Description:

• Detailed description of all properties
• Lalpurja numbers
• Location details
• Current status and condition

Division Terms:

• Specific allocation to each coparcener
• Which property goes to whom
• Any monetary adjustments
• Timeline for implementation

Verification:

• Statement that all coparceners agree
• Statement that division is fair and equal
• Certification of all signatures
• Thumb prints (if required)

Witnesses:

• At least two witnesses should sign
• Witnesses should have full knowledge of transaction
• Should ideally be persons with no interest in property

Step 6: Notarization

The partition deed should be notarized:

Notarization Process:

• Parties bring deed to notary public
• Notary verifies signatures and identities
• Notary certifies authenticity
• Notary seal is affixed
• Document becomes official record

Benefits of Notarization:

• Creates presumption of authenticity
• Reduces future disputes
• Required for registration
• Makes enforcement easier

Step 7: Registration and Implementation

Once agreement is finalized:

Registration at Land Revenue Office:

• Submit partition deed to Malpot (Land Revenue Office)
• Submit Lalpurja of original property
• Pay registration fees
• New ownership certificates (Lalpurja) are issued for each co-owner's portion

New Land Ownership Certificates: Each coparcener receives new Lalpurja showing:

• Their portion of property
• Their ownership alone (not joint)
• Clear boundaries
• Value of their portion

Property Transfer Tax:

• Transfer tax is calculated and paid
• May be exempt for partition among family members (under certain conditions)
• Registry charges are paid

Implementation Timeline:

Typical timeline for voluntary partition:

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9. Partition Through Administrative Process

When voluntary partition is complete, administrative processes register and formalize the partition.

Local Government's Role

Ward office and municipality have limited role in partition:

• Cannot adjudicate disputes
• Can assist documentation
• Can verify signatures
• Can maintain records

Land Revenue Office (Malpot) Procedures

The District Land Revenue Office plays central role:

Receipt of Partition Deed:

• Office receives partition deed
• Reviews for completeness
• Verifies that property description matches records
• Checks that all required signatures present

Verification of Ownership:

• Confirms current registered owner
• Confirms that all legal heirs have signed
• Confirms shares add up to whole
• Resolves any discrepancies

Field Inspection:

• Sometimes officer visits property
• Confirms property matches deed description
• Notes current condition and boundaries

Registration:

• New ownership certificates (Lalpurja) are issued
• Each co-owner gets certificate for their portion
• Original Lalpurja is cancelled
• Old deed is marked "superseded by partition"
• New ownership is recorded in register

Tax Assessment:

• New property tax is assessed
• Based on new ownership boundaries
• Each owner responsible for their portion
• Previous tax liability transferred to new owners

Survey and Measurement

For land partition, official survey may be required:

When Survey is Needed:

• When physical boundaries must be marked
• When new properties must be measured
• When deed describes property vaguely
• When parties want official documentation

Who Conducts Survey:

• Licensed surveyor
• Under Land Survey Office supervision
• Or Land Revenue Office may arrange

Survey Process:

1. Notice given to all affected parties
2. Field investigation and measurement
3. Boundary demarcation
4. Survey report and map prepared
5. Disputes resolved during survey
6. Final survey certificate issued

Cost of Survey:

• Varies based on property size
• Typically NPR 5,000-50,000
• Shared among coparceners

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10. Partition Suit: Judicial Process

When coparceners cannot agree, partition is obtained through court (partition suit or "Angsabanda Nalish").

When Partition Suit is Necessary

Partition suit is filed when:

• Coparceners refuse partition
• Disagreement on how to divide
• One coparcener excludes others
• Conflicting claims to property
• Property is complex

Initiating Partition Suit

Step 1: Demand for Partition

Before filing suit, it's advisable (though not required) to formally demand partition:

• Send written notice to other coparceners
• Demand equal partition
• Set reasonable deadline for response
• If refused, proceed with suit

Step 2: Filing the Partition Plaint

A partition suit is filed in district court where property is located:

Plaint must contain:

• Identification of all coparceners
• Description of property
• History of property (ancestral vs. self-acquired)
• Claim to partition share
• Reason partition is needed
• Relief sought (partition, valuation, etc.)
• All relevant documents attached

Example Plaint Prayer: "Therefore, it is humbly prayed that this Honorable Court may be pleased to:

1. Declare that plaintiff is coparcener in the above-mentioned property
2. Direct that the property be partitioned and divided equally among all coparceners
3. If equal physical partition is not possible, order the property be sold and sale proceeds be divided equally
4. Award plaintiff his/her rightful share in the property
5. Award court costs and legal fees"

Step 3: Service on Other Coparceners

Summons is served on all other coparceners notifying them of partition suit.

Court Procedure in Partition Suit

First Hearing:

• Court identifies all parties
• Court explains partition procedure
• Court directs mandatory mediation
• Sets mediation period (usually 30 days)

Mandatory Mediation Period:

• Per Civil Procedure Code, mediation is mandatory
• Court appoints mediator
• Parties attempt to reach agreement
• If successful, court approves settlement
• If unsuccessful, case proceeds to trial

Evidence Collection:

If mediation fails, parties present evidence:

Documentary Evidence:

• Lalpurja and property documents
• Deeds showing acquisition history
• Tax records proving payments
• Wills and inheritance documents
• Previous partition documents

Witness Testimony:

• Family members with knowledge
• Elderly persons knowing history
• Persons with knowledge of property

Expert Testimony:

• Surveyor (for property boundaries and area)
• Valuer (for property value)
• Legal expert on inheritance law

Property Survey:

Court typically orders official survey:

• Licensed surveyor conducts survey
• Measures all properties and boundaries
• Creates detailed maps
• Determines land area and boundaries
• Assesses value of different portions

Commencement of Trial:

Once evidence is collected:

• Oral arguments are presented
• Each party presents case
• Witnesses are examined and cross-examined
• Court asks questions
• Closing arguments presented

Court Judgment in Partition Suit

Court's Decision:

Judge issues judgment containing:

1. Findings on Coparcenary:

• Who are the legal coparceners?
• What are each person's rights?
• What is each person's share percentage?

2. Property Description:

• What property is subject to partition?
• Property values and locations
• Current conditions and encumbrances

3. Partition Method:

• How will property be divided?
• Physical partition or monetary division?
• Who gets which property?
• Any monetary adjustments between parties?

4. Implementation Orders:

• Timeline for implementation
• Who is responsible for what
• How disputes during implementation are resolved

5. Costs:

• Whether costs awarded
• To whom and in what amount

Example Judgment:

"This court finds that plaintiff and defendants are co-parceners in the property described above, each entitled to equal 1/3 share. The property consists of agricultural land, residential building, and cash. This court orders that the property be divided as follows:

Plaintiff: Receives agricultural land measuring 2 bighas, located in [location], valued at NPR 30,00,000

Defendant 1: Receives residential house located in [location], valued at NPR 20,00,000. Defendant 1 shall pay plaintiff NPR 3,33,334 and defendant 2 shall pay plaintiff NPR 3,33,333 to equalize shares.

Defendant 2: Receives cash and investments valued at NPR 10,00,000. Defendant 2 shall pay plaintiff NPR 3,33,333 as above.

All parties shall complete their respective obligations within 3 months of this judgment. This court awards court costs of NPR 50,000 to be paid by defendants."

Enforcement of Partition Judgment

Once judgment is final:

Registration:

• Judgment is registered with Land Revenue Office
• New Lalpurja certificates are issued
• Property records are updated

Implementation:

• Parties comply with court orders
• Properties are transferred according to judgment
• If payment is ordered, payments are made
• If compliance delayed, party can file execution petition

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11. Property Survey and Valuation in Partition

Accurate survey and valuation are crucial to fair partition.

Role of Survey in Partition

Survey serves several purposes:

Boundary Demarcation:

• Establishes precise property boundaries
• Marks boundaries with permanent markers
• Resolves boundary disputes
• Creates official boundary maps

Area Determination:

• Accurately measures property area
• Important for equal division
• Affects value assessment

Map Preparation:

• Creates official map showing property
• Shows boundaries, access roads, water sources
• Shows neighboring properties
• Provides documentation of division

Survey Process

Step 1: Survey Notice

• Affected parties are notified
• Notification includes survey date and scope
• Parties have opportunity to object

Step 2: Field Survey

• Surveyor visits property
• Measures all boundaries
• Identifies landmarks and markers
• Takes photographs and measurements

Step 3: Boundary Demarcation

• Boundaries are physically marked
• Permanent markers (pillars) are placed
• Boundaries are confirmed with parties
• Disputes are recorded

Step 4: Documentation

• Field notes are prepared
• Map is drawn showing boundaries
• Area calculations are made
• Survey report is completed

Step 5: Survey Certificate

• Official certificate is issued
• Boundary map is certified
• Document becomes official record

Property Valuation

For fair partition, property must be valued:

When Valuation is Needed:

• When properties being divided are unequal value
• To determine monetary adjustments
• To ensure equal distribution
• To determine compensation amounts

Valuation Methods:

Market Value Approach:

• Determines value based on current market prices
• Compares to similar properties sold recently
• Adjusted for property-specific factors

Income Approach:

• For agricultural land, based on expected produce value
• For commercial property, based on rental income
• Suitable for income-generating properties

Cost Approach:

• For buildings, based on construction cost minus depreciation
• Sum of land value + building value
• Used when market comparables unavailable

Professional Valuation:

• Hired valuers conduct formal valuation
• Prepare detailed valuation report
• Provide sworn valuation certificate
• Report is admissible as evidence

Valuation Factors:

Valuers consider:

• Location and accessibility
• Property size and dimensions
• Condition and quality
• Improvements and structures
• Legal encumbrances
• Tax status
• Market conditions
• Potential uses

Handling Unequal Properties

When properties have unequal values, several solutions exist:

Monetary Adjustment:

Example: Three coparceners inherit:

• Property A (house): NPR 30,00,000
• Property B (land): NPR 15,00,000
• Property C (cash): NPR 15,00,000
• Total: NPR 60,00,000

Each should get NPR 20,00,000.

Solution:

• Coparcener 1 gets Property A (NPR 30,00,000), pays NPR 5,00,000 to others
• Coparcener 2 gets Property B (NPR 15,00,000) plus NPR 5,00,000 cash = NPR 20,00,000
• Coparcener 3 gets Property C (NPR 15,00,000) plus NPR 5,00,000 cash = NPR 20,00,000

Result: Each gets equal value.

Exchange:

Parties exchange portions to balance values:

• Coparcener with property of lower value receives additional land from property of higher value
• Exchange aimed at equalizing values

Sale and Division:

Properties are sold:

• Proceeds are divided equally
• Simple division of cash is easiest

Buy-Out:

One coparcener buys out others:

• One party buys entire property
• Pays others their respective shares
• Remaining parties exit

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12. Physical Division vs. Monetary Division

Not all property can be physically divided. Courts must choose appropriate division method.

Physical Division

When Possible:

• Agricultural land can be divided into separate parcels
• Large properties can be physically separated
• Distinct properties can be allocated separately

Advantages:

• Each person gets actual property
• Clear ownership of distinct parcel
• No ongoing relationship needed

Disadvantages:

• May create uneconomic parcels
• May reduce productivity (agricultural land)
• May not be possible (house cannot be divided)
• Survey and demarcation costs

Limitations:

Not permitted when:

• Would render property uneconomic
• Would destroy value of property
• Would make property unsuitable for use
• Would violate environmental or zoning laws

Monetary Division

When Used:

• When physical division not possible
• When property cannot be equally divided
• When one party buys out others
• When property is sold

Process:

1. Property is valued
2. Sale price or appraised value is determined
3. Each coparcener's share is calculated
4. Monetary payments are made
5. Property transfers to purchaser/highest bidder

Advantages:

• Equal distribution is easier
• Works for any property type
• No property is rendered uneconomic
• Can divide non-physical assets (cash, jewelry)

Disadvantages:

• Requires property sale or purchase
• Creates cash flow need for some parties
• May not be possible if coparcener lacks funds
• Sale may take time and involve transaction costs

Mixed Approach

Courts often use combination:

• Physical division of some properties
• Monetary adjustments to equalize
• Cash division where applicable

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13. Partition Restrictions and Protections

Civil Code 2074 provides protections preventing partition from harming essential family assets.

Protection of Family Dwelling

Restriction on Division of Primary Home:

Court cannot partition the primary family dwelling if:

• Family members currently reside there
• Partition would render persons homeless
• Dwelling is necessary for family shelter

Instead, court may:

• Award dwelling to one coparcener
• Require compensatory payment to others
• Delay partition until children mature
• Require co-ownership continuation

Protection of Agricultural Land

Minimum Viable Unit Requirement:

Agricultural land cannot be divided below:

• Minimum size needed for economic production
• Size that maintains productivity
• Size that is commercially viable

Requirements:

• Cannot divide land into uneconomic parcels
• Partition must maintain land productivity
• Irrigation facilities cannot be destroyed
• Land use must continue

Solution if Partition not Possible:

If equal physical partition not possible:

• Court may order sale of land
• Proceeds are divided
• Or award land to one coparcener with monetary compensation

Protection of Dependent Members

Maintenance Consideration:

Court must ensure partition doesn't harm:

• Dependent children
• Elderly parents
• Disabled family members

Court Powers:

• Can withhold partition share as maintenance fund
• Can impose maintenance obligations
• Can protect livelihood of dependents

Restriction on Sale Without Proper Division

Property cannot be sold before:

• All coparceners agree
• Court orders sale
• Partition is properly completed

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14. Partition After Death of Coparcener

A common scenario is partition needed after death of one or more coparceners.

Succession Before Partition

If coparcener dies before partition:

• Deceased's share is inherited by their heirs
• Heirs become new coparceners
• Heirs can demand partition
• Number of claimants may increase

Example:

Two brothers hold ancestral land jointly. Brother 1 dies, leaving 3 children.

Before: 2 coparceners (2 brothers) After: 4 coparceners (1 surviving brother + 3 children of deceased brother)

The surviving brother and deceased's 3 children now jointly own the property.

Timeline for Partition

Option 1: Partition During Mourning Period

Some families partition immediately after death:

• Avoid continuation of grief
• Resolve matters clearly
• Allow heirs to settle
• Permits new ownership registration

Option 2: Delayed Partition

Many families delay partition:

• Allow time for mourning
• Complete funeral rituals
• Resolve probate matters
• Gather necessary documents

Option 3: Intestate Partition

If deceased had no will:

• Inheritance follows Civil Code 2074
• All legal heirs inherit equal shares
• Partition follows inheritance

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15. Partition in Special Circumstances

Partition of Adopted Child's Share

If an adopted child is coparcener:

• Has equal partition rights as natural children
• Cannot be discriminated against
• Inherits equal share
• Partition share is protected

Partition of Widow's Share

Widow has several options:

Option 1: Continue Joint Ownership

• Widow continues as coparcener
• Participates in partition
• Gets her equal share

Option 2: Separate Share

• Widow can claim separate maintenance share
• Can exclude from joint ownership
• Receives separate property
• Retains inheritance rights

Option 3: Remarriage Consideration

• Widow can remarry
• Remarriage doesn't affect partition rights
• Can receive and manage own share
• Can transfer to new family if desired

Partition During Divorce

When divorcing couples hold joint property:

Property Division Rule:

• Property acquired during marriage is marital property
• Subject to equal division (Section 94)
• Can be divided as part of divorce

Divorce and Partition Together:

• Can obtain divorce and property division in one case
• Court handles both issues
• Simplifies dispute resolution

Partition of Business Property

For partnerships or business ownership:

Options:

• One partner buys out others
• Business is sold and proceeds divided
• Partners continue joint ownership
• Partnership agreement determines procedure

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16. Enforcement and Registration of Partition

Once partition is decided (by agreement or court), it must be implemented and registered.

Court-Ordered Implementation

If partition is by court order:

Execution Petition:

• If coparcener refuses to comply
• Petitioner files execution petition
• Court can enforce by:
  • Ordering forced compliance
  • Imposing fines
  • Ordering imprisonment
  • Appointing administrator

Enforcement Officer:

• Court appoints officer to implement judgment
• Officer ensures parties comply
• Officer supervises property transfer
• Officer reports to court

Registration and Documentation

New Lalpurja Issuance:

• Land Revenue Office issues new Lalpurja
• Each coparcener receives certificate for their share
• Original joint Lalpurja is cancelled
• New certificates show individual ownership

Tax and Revenue Impact:

• New property tax assessment
• Each owner responsible for their portion
• Tax records are updated
• Previous joint tax arrangement ends

Record Maintenance

Court Records:

• Partition judgment is recorded
• Copy filed with Land Revenue Office
• Copy available for public reference
• Searchable in case database

Land Records:

• Land registry updated
• All surveys recorded
• All boundary demarcations recorded
• Official maps maintained

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17. Common Disputes in Property Partition

Despite clear laws, partition disputes regularly arise.

Dispute Over Heirship

Common Issue: Who is entitled to partition?

Examples:

• Adopted child's status disputed
• Illegitimate child's rights
• Marriage validity disputed
• Paternity questioned

Resolution:

• Court determines heirship
• May require DNA testing
• Genealogy evidence required
• Previous court decisions relevant

Dispute Over Property Valuation

Common Issue: Properties valued differently by different parties.

Example:

• Agricultural land valued at NPR 20,00,000 by one party
• Valued at NPR 15,00,000 by another
• Affects which properties parties receive

Resolution:

• Court orders professional valuation
• Valuers provide sworn valuation
• Court determines fair value
• May average different valuations

Dispute Over Property Characterization

Common Issue: Whether property is ancestral or self-acquired.

Impact:

• Ancestral property: all heirs inherit equally
• Self-acquired property: passes per deceased's will

Example:

• Deceased inherited land (ancestral) and built house on it
• Is house ancestral or self-acquired?
• Court must determine

Resolution:

• Trace property acquisition history
• Determine original source of funds
• Apply proportional division if mixed

Dispute Over Maintenance Expenses

Common Issue: Should one coparcener pay maintenance for all?

Example:

• One brother maintained property and paid all expenses
• Now claims other brothers must reimburse

Resolution:

• Court determines if maintenance was proper
• If beneficial to all, cost is shared
• If beneficial to one only, that person bears cost
• May adjust partition to compensate

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18. Tax and Financial Implications

Partition has significant financial implications.

Partition Tax (Transfer Tax)

When property is transferred in partition:

Transfer Tax Rate:

• Typically 1% of property value (varies by location)
• Calculated on fair market value
• Paid to government revenue office

Exemption:

• Transfer among family members in partition may be exempt (varies by state)
• Should verify current tax rules
• Professional tax advice recommended

Property Tax Reassessment

After partition:

New Tax Assessment:

• Each portion assessed separately
• Based on new ownership
• Based on new boundaries
• Assessed property-by-property

Tax Payment Responsibility:

• Each owner responsible for their portion's tax
• Previous joint payment arrangement ends
• Each pays individually

Capital Gains Consideration

If property is later sold:

Capital Gains Tax:

• If property appreciate and then sold
• Gain is taxable income
• Cost basis is important
• Professional advice recommended

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19. Timeline and Cost Management

Typical Timeline

Voluntary Partition:

Court-Ordered Partition:

Cost Comparison

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20. Conclusion and Best Practices

Summary

Property partition in Nepal is governed by comprehensive provisions in the Civil Code 2074. Key principles include:

• Gender equality in all partition rights
• Right of any coparcener to unilaterally demand partition
• Fair and equal division among legal heirs
• Multiple resolution pathways (voluntary, administrative, judicial)
• Protection of essential family assets
• Clear procedures and rights protection

Best Practices for Lawyers

For Clients Seeking Partition:

1. Early Resolution Attempt: Try voluntary partition first; much faster and cheaper
2. Complete Documentation: Gather all property and ownership documents early
3. Clear Identification of Heirs: Determine all legal heirs according to Civil Code 2074
4. Professional Valuation: Obtain objective property valuation
5. Mediation Participation: Participate genuinely in mediation process
6. Fair Dealing: Ensure proposed divisions are fair to all parties

For Lawyers Representing Parties:

1. Thorough Case Assessment: Clearly evaluate heirship, property, and valuations
2. Early Settlement Exploration: Help clients understand value of settlement
3. Proper Documentation: Ensure partition deed complies with all requirements
4. Court Procedure Compliance: Follow Civil Procedure Code 2074 strictly
5. Evidence Organization: Present clear, compelling evidence
6. Cost Management: Help clients manage costs and timelines

For Dispute Prevention:

1. Early Planning: Families should plan partition before disputes arise
2. Clear Documentation: Maintain clear property ownership and succession documents
3. Regular Communication: Family members should discuss property issues regularly
4. Professional Advice: Seek legal advice when property issues arise
5. Written Agreements: Document family agreements in writing

Final Thoughts

Property partition, while complex, is a manageable process when parties understand their rights and follow proper procedures. The Civil Code 2074's provisions on gender equality and clear partition procedures represent significant progress in protecting family members' rights. For lawyers, mastering partition law enables them to help families resolve these critical financial disputes efficiently and fairly, preserving family relationships while ensuring justice.