Partition of Property in Nepal: Legal Framework and Procedures

Partition of property means the due process of law concerning the division of ancestral or jointly owned property among members of a family or co-owners. The entire process is under the governance of the Muluki Civil Code, 2017 chapter 10, and other relevant laws, which establish fairness and clearness in property distribution.

Muluki civil code has defined coparceners in relation to the partition of property:

Sec 205 defines the coparcener that is entitled to partition of property such as; husband, wife, father, mother, son, and daughter.

Equal entitlement to partition share of property

According to Section 206 of the Civil Code of 2017, each beneficiary/coparcener is entitled to an equal partition share. Furthermore, if a woman beneficiary/coparcener is pregnant at the time of partition and the baby to be born by her is to become a beneficiary/coparcener, the property shall be divided by treating such a fetus as a beneficiary/coparcener and only after setting aside his or her partition share of the property.

Furthermore, section 207 of the code states that a son and daughter born to a couple who are unable to consummate a marriage, whose marriage is deemed invalid, or whose matrimonial relationship is legally dissolved shall receive their partition share from such a father and mother.

To obtain partition from mother

According to Section 208 of the Civil Code of 2017, a son and daughter whose father cannot be traced must obtain their partition share solely from the property owned by their mother. Furthermore, a wife who has not made her marriage public, or a son and daughter born from her, are not entitled to a partition share following the death of the husband or father.

To obtain partition share from part of father or husband

According to Section 209 of the Civil Code of 2017, In an undivided family, sons and daughters, or wives of brothers, can only obtain a partition share from their father or husband. If a husband, father, or mother dies before partition, their spouse or child will inherit the partition share.

If a person has multiple wives, only the husband's share will be divided among them. According to Section 210 of the Civil Code of 2017, If a person marries again or has a child from a previous marriage and divides his or her property with his or her spouse, the wife, son, or daughter will only receive their share from the husband's or father's property. If a surviving spouse marries another person before partition, the other spouse's partition shares will be set aside, and the surviving spouse will receive a partition share from the part to which she is entitled.

Partition by mutual consent

According to Section 212 of the Civil Code of 2017, If the coparceners agree, they can separate at any time and receive their respective partition share. If the head of the family decides it's best for the coparcener to separate and obtain their share, they can do so at any time.

Husband or wife may get separated by obtaining a partition share

According to Muluki Civil Code, 2017 section 213, husband and wife may get separated at any time by obtaining his or her partition share in any of the following circumstances: -

• If the husband or wife expels the wife or husband from the house,
• If the husband or wife causes physical or mental torture to the wife or husband.

According to Muluki Civil Code, 2017 section 99, If divorce is to be effected because of the husband, the concerned court shall, if the wife so demands, cause partition to be effected between the husband and wife before effecting divorce.

Partition to be effected

According to Muluki Civil Code, 2017 section 216, In partitioning a property in common, a deed of partition shall be executed in writing between the coparceners. In effecting partition of property in common and debts in common shall be so made that partition shares thereof are equal. Partition shall be effected by balancing both high value and less value properties, with the consent of all the coparceners, and failing such consent, by a lottery. If, in effecting partition, there arises a dispute on any property, partition shall be effected after the settlement of the dispute.

Matters to be specified in deed of partition

• Name, surname, age, address of every coparcener and that of his or her mother, father, grand-father and grand-mother,
• Property to be received by the coparceners,
• If the part of a coparcener involves debts, moneys receivable, amount of such debts and moneys,
• If, upon partition, any coparcener is to live with another coparcener, that details thereof,
• A matter to the effect that no coparcener has hidden or concealed any property subject to partition,
• If any property is to devolve on a coparcener only, upon the death of the father, mother, husband or wife, details thereof,
• If the partition share of any coparcener is to be entrusted to any one, details thereof,

Deed of partition to be registered

To partition the property, a deed must be drawn up in front of witnesses, signed by both parties and registered in the appropriate office after meeting all legal requirements.

Prohibition of providing property without effecting partition

The head of the family cannot transfer the property in common to any other person without the permission of the coparceners and can also transfer the property in a following scenario without asking consent of the other coparceners, while providing the property to the extent of his or her partition share, to any coparcener.

The partition of property in Nepal therefore is one entire legal process governed by the Muluki Civil Code, 2017, which has provided for fair division of ancestral and jointly owned property amongst eligible coparceners; the sections maintain equity and clarity over the entitlement of sons, daughters, and spouses, mutual consent partitions, and situations of divorce or remarriage. These ensure transparency, with specific guidelines such as the execution and registration of a deed of partition. The law, with clearly defined eligibility and procedures, tries to equilibrate all parties' rights and maintain family cohesion while protecting all legal rights.