Partition of self acquired property is not possible in the lifetime of father [Read the Order]

A bench of Justice Endlaw in the case titled as RAMESH ARYA vs PAWAN ARYA AND ORS. on 05.09.2019 has observed that in the lifetime of father, his self acuqired property cannot be partitioned.

In a partition suit, the High Court has made following observations:

"No merit is found in the only defence of the defendants no.3 to 5, of the father Parmanand Arya in his lifetime having allotted different portions of the house to different family members, this suit for partition is not maintainable.

The plea in this respect is vague. It is only pleaded that the father Parmanand Arya “in his lifetime settled the property in question by metes and bounds in favour of his four sons….”

No date of such “settlement” is pleaded, i.e. whether before the date of the Will or after. Parmanand Arya, till his demise was the sole owner of the property and neither of the parties thereto had any right, title or interest in the property and their use and occupation if any of the property, during the lifetime of Parmanand Arya was with the permission of Parmanand Arya.

There was thus no question of any partition in lifetime of Parmanand Arya; partition can only be between those having share, right, title or interest in the property.

Parmanand Arya after his demise, could have partitioned the property, by Willing demarcated portion thereof to the parties. It is not the case of the defendants no.3 to 5, that Parmanand Arya left any such Will. In the absence of any Will, inheritance by the parties could only be jointly.

Even if the parties had been allocated separate portions of the property for their respective use, by Parmanand Arya, the same in the absence of a Will, would not lead to the parties, on demise of Parmanand Arya, inheriting the said respective portions. Moreover, even if Parmanand Arya had desired the parties to so continue in possession of their respective portion, also after his death, the same would not amount to partition.

The Legislature has provided for any desire with respect to the estate, to be expressed by way of a Will executed in the manner laid down by law and till the allocation, even if done by the father in his lifetime, of different portions of the property between different family members forms subject matter of a Will executed in accordance with law, the said allocation would come to an end on the demise of the testator and the division thereof can only be in accordance with law i.e. by mutual partition or by a suit for partition. Thus, no need to put the suit to trial on the said aspect also or to frame any issues arises".

Read the Order here:

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