Property Partition in Nepal

SEPTEMBER 18, 2020

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Property Partition in Nepal

2024-06-09

Partition refers to the division of ancestral property or common property between the coparceners. All coparceners have equal property rights. According to Section 206 of Muluki Civil Code, 2074, “Each coparcener shall have equal entitlement to partition share.” A coparcener is a person who shares the inheritance of an undivided property. Coparceners in Nepali property partition are the wife, husband, father, mother, son, or daughter. The purposes of apportionment of a property is common with the coparceners; the husband, wifey father, mother, son and daughter. For the purpose of separation, property partition is done where if there is a mutual agreement between the coparcener, the parties can separate at any time by obtaining their respective partition share. In Nepal, property partition is governed by the Muluki Civil Code 2074 (2017 AD), which establishes the legal framework for dividing ancestral property among coparceners.

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    The provisions regarding the property partition is specifically given in the Chapter-10 Provisions Relating to Partition under Part-3 Family Law of Muluki Civil Code 2074 (2017 AD).

    The key provisions related to property partition are:

    Right of unborn child:

    The right of an unborn child is given under Section 206 (2) and 207 of Muluki Civil Code, 2074 (2017 AD). If a woman beneficiary/coparcener is pregnant at the time of partition, the unborn child is also considered a beneficiary/coparcener, and a share is set aside for them. In case of the child born to a couple who cannot conclude a marriage or whose marriage cannot be considered valid or whose matrimonial relationship is dissolved according to law, the unborn child is considered a beneficiary/coparcener from such father and mother.

    Partition share from mother:

    The provision regarding the partition share from mother is given in the Section 208 of the Muluki Civil Code, 2074 (2017 AD). The child born from the mother whose father is not traced out shall obtain their partition share from the property belonging to the mother only. However, a wife kept without public acknowledgment or children born from such a relationship are not entitled to claim a partition share after the death of the husband or father.

    Partition share from part of father or husband:

    The provision regarding the partition share from part of father or husband is given in the Section 209 of the Muluki Civil Code, 2074 (2017 AD). The partition share to be obtained by the children or wife would be only from the part of their husband, father or mother. However, in the cases where a husband, father or mother dies before partition, his wife or his or her child shall obtain the partition share to which the husband, father or mother is entitled. In the case where a person has more than one wife, the respective partition share is only shared from the part of the husband.

    Partition share to be obtained by latter wife or child:

    The provision regarding the partition share to be obtained by the latter wife or child can be provided by Section 210 of the Muluki Civil Code, 2074 (2017 AD). The partition share of the wife when the marriage is concluded either by consent or by the death of the wife, in that case the wife and the child will be getting the property partition from their husband or father. 

    Right to separation and obtaining property:

    Beneficiaries/coparceners have the right to get separated by obtaining their partition share if the person responsible for making arrangements for maintenance and medical treatment fails to do so. Additionally, separation can occur at any time by mutual agreement or if deemed appropriate by the head of the family. The right to separation includes the conclusion of a relationship between husband and wife where they can be separated at any time by obtaining their partition share if the husband or wife expels the wife or husband from the house or if the husband or wife causes physical or mental torture to the wife or husband.

    Right to partition share of widow:

    The widow can get separated at any time by taking her partition share from her husband. However, if a widow concludes another marriage, the property obtained by her from the partition share would be devolved on the child (if any child is born to her from the previous husband), and if there isn't any child from the previous husband, she herself may retain such property.

    Prohibition of Hiding Property: 

    There is a prohibition against hiding property during the partition process to ensure fairness.

    Relinquishment of Partition Share:

    Any coparcener from their free consent can relinquish their partition of share by executing a deed to that effect where the coparcener can either take or not to take their partition share in part of just take some cash or kind in consideration of their partition share. However, the partition share of a minor may not be relinquished. If the deed on relinquishment of partition share is executed, then it is deemed that the coparcener has received their partition share. Also, the coparcener should appear in person for executing the deed; if not coparcener can appoint an authorized attorney instead.

    Requirements of deed partition:

    For the property partition, a deed of partition shall be executed in writing between the coparceners. The loans/debts in the common property shall be divided equally among the coparceners of the property. The deed shall be registered in the concerned office in presence of witnesses, bearing signature and thumb-impression of the witness and the coparcener fulfilling all the legal requirements. Additionally, to provide the property to be parted in the partition should be in effect. The matters that shall be specified in the deed of partition:

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

    Conclusion:

    These measures seek to promote equitable property distribution among all eligible family members, reflecting a societal change toward gender equality and respect of the rights of all descendants, regardless of their legality or their parents' marital status. The law also covers the rights of unborn children and establishes methods for family members to separate and live freely with their fair portion of the property.

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