Partition Law in Nepal (अंशबण्डा सम्बन्धी व्यवस्था)

The partition law in Nepal is governed by Muluki Dewani Sanhita (Civil Code), 2074 (enacted as Act No. 34 of 2074 BS), which came into force on 1 Bhadra 2075 BS (17 August 2018). It replaced the old Muluki Ain 2020 and consolidated family, property, and succession law into a single modern code aligned with the Constitution of Nepal 2015.

2. Who is a Co-parcener (अंशियार)?

• Section 205 defines who qualifies as a co-parcener for the purpose of property partition. For the partition of joint family (sagol) property, the following are recognised as co-parceners:
• Husband (पति)
• Wife (पत्नी)
• Father (बाबु)
• Mother (आमा)
• Son (छोरा)
• Daughter (छोरी)

3. Equal Share of Each Co-parcener

Section 206 lays down the core principle of partition:

1. Every co-parcener is entitled to an equal share in the property.
2. If, at the time of partition, a female co-parcener is pregnant, and the unborn child would be a co-parcener upon birth, the partition must be done only after setting aside that child's share. The child must be treated as a co-parcener from birth.
3. If the pregnant woman does not deliver a live child, the share set aside for that child shall be distributed equally among the other co-parceners.

4. Share for Children Born from Dissolved Marriages

Section 207 provides that sons and daughters born from couples:

• Whose marriage could not legally take place,
• Whose marriage is not recognised as valid, or
• Whose marital relationship has been dissolved under law,

5. Share from the Mother's Property

Section 208 covers cases where the father's identity is unknown:

1. Sons and daughters whose father has not been identified shall receive their partition share from the mother's property only.
2. A wife kept secretly (not publicly acknowledged) — and children born from her — shall not be entitled to claim a partition share after the death of the husband or father.

6. Partition from Father's or Husband's Share Only

Section 209 addresses partition in joint family (sagol) settings:

1. Sons, daughters, or wives living together with elder and younger brothers shall receive their partition share from their respective father's or husband's share only.
2. If a husband or father dies without taking his share, the share he would have received shall pass to his wife, sons, and daughters.
3. If a person has more than one wife, they shall all receive their share from the husband's portion only.

7. Share for a Subsequent Wife and Children

Section 210 deals with partition when a person remarries after earlier partition:

1. If a person remarries after separating from his earlier wife/children through partition, the new wife and any children from that marriage shall receive their share from the husband's/father's portion only.
2. If a person remarries while his earlier wife is still alive (having not yet taken her share), the share owed to the new wife must be carved out from the remaining share, and given to her.

8. Right to Demand Partition (अंश लिन सक्ने)

Section 211 establishes the positive right to claim partition:

1. Husband, wife, father, mother, son, or daughter living on joint (sagol) property must provide food, clothing, education, and healthcare to each co-parcener according to the family's income and financial capacity.
2. If the person responsible for these duties fails to fulfil them, any co-parcener may take their share and separate.

9. Right to Separate at Any Time

Section 212 recognises the right to separate at will:

1. If all co-parceners mutually agree, they may separate and take their shares at any time.
2. If it appears appropriate for co-parceners to live separately rather than in a joint family (e.g., when the head of the household or adult members living in different places find it appropriate), partition may be done at any time.

Clarification: "Head of the household" (gharko mukhya) refers to a legally adult person responsible for managing the household — working in farming, trade, or other occupations and bearing the responsibility of running the household.

10. Right of Husband or Wife to Separate

• Section 213 provides special grounds for a husband or wife to take their share and separate at any time, irrespective of other conditions:
• (a) If the husband/wife has been expelled from the home by the other, or
• (b) If the husband/wife has subjected the other to physical or mental torture.

11. Right of a Widow to Separate

Section 214 gives a widow a special right:

1. A widow may take her share and separate at any time regardless of any other provision.
2. If a widow remarries, the property she received as her partition share shall — if she had children from the first husband — go to those children; if she had no children, she may keep it herself.

12. Waiver of Partition Share (अंश छोडपत्र)

Section 215 allows a co-parcener to renounce their share:

• A co-parcener may renounce their share — in whole or in part — whether or not they have received it, or by taking only cash or goods in lieu of it.
• When renouncing, if the co-parcener has a spouse or adult children, their consent is required.
• (Proviso): The partition share of a minor co-parcener cannot be renounced.
• Once renounced, the share shall be treated as if it never existed for that person.
• At the time of renouncing or receiving a share, the co-parcener must be personally present.

13. How Partition Must Be Conducted

Section 216 sets out the mandatory procedure for partition:

1. Partition of joint family (sagol) property must be done through a written deed (banda patra) among co-parceners.
2. The partition must be done such that the joint family debts are neither increased nor decreased.

(Clarification): "Joint family debt" (sagolko rin) means debts taken by the household head or by all co-parceners with written consent, or debts incurred in jointly agreed trade or work.

1. Partition must be done by drawing lots (gola hali) in a fair manner with the co-parceners' consent, or by mutual agreement.
2. If there is a dispute over any property, that disputed property is kept undivided while the rest is divided. Once the dispute is resolved, the disputed property is then partitioned.

(Proviso): If the dispute will take a long time to resolve, the undisputed property may be partitioned separately.

16. Prohibition on Giving Property Without Partition

Section 219 restricts the household head's power over joint property:

• The head of the household (gharko mukhya) cannot give away joint family property to only one co-parcener without first doing partition and each co-parcener receiving their share — except:
• With the consent of all co-parceners, property may be given to one.
• Property falling within one's own share may be given to another co-parcener without everyone's consent.
• ntory has been submitted, the court may stay the property or its income up to the petitioner's estimated share until the partition is completed.

17. Prohibition on Concealing Property (Section 226)

1. No one may hide or conceal property that is subject to partition.
2. If a co-parcener is later found to have concealed property, they shall not be entitled to receive that concealed property.
3. The concealed property shall be distributed among the other co-parceners as their additional share.

18. Compensation / Equalization of Shares (Section 227)

If any property that fell within a co-parcener's share cannot be enjoyed by them due to legal reasons, the equivalent value of that property must be compensated proportionally from the shares of all other co-parceners.

19. Restriction on Exchange After Partition (Section 228)

After partition, a co-parcener cannot exchange their received property with another co-parcener — citing the property being defective or unsatisfactory — unless all co-parceners mutually agree to such exchange.

20. Mortgaged Property in Partition (Section 229)

1. If property subject to partition is found to be mortgaged, the court shall — if all co-parceners agree — redeem or arrange to redeem that property from the joint family estate before proceeding with partition.
2. If all co-parceners cannot agree, the court may still order partition but ensure the redemption obligation is assigned appropriately.

21. Access / Right of Way (Section 231)

If any co-parcener's share falls on a plot that has no road access or exit, and it is possible to provide access from another co-parcener's land, the other co-parcener must provide a right of way as part of the partition arrangement.

22. Debt Allocation in Partition (Section 232)

1. During partition, no individual co-parcener can be solely assigned the entire joint family debt without the creditor's consent.
2. Even if one co-parcener is assigned the debt in the deed, if the creditor does not consent, all co-parceners remain equally liable for the joint debt.

29. Limitation Period (हदम्याद) — Section 235

A party aggrieved by actions under the partition chapter may file a case within the following periods:

Circumstance

• Any time (no limitation)
• Dissatisfied with the partition — from the date of partition
• Within 3 months
• Property concealed or hidden — during the lifetime of the co-parcener
• No limitation
• All other cases — from the date the act occurred