Part 8Partition

Part 8—Partition 69—Power to order partition or sale instead of partition (1) On any application for partition the court may order a partition of the said land or other property, and may give all necessary or proper consequential directions. (2) On any such application if it appears to the court that, by reason of the nature of the property, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the absence, dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 70—Sale on application of certain proportion of parties interested On any application for partition, if the party or parties interested individually or collectively, to the extent of one moiety or upwards in the property, request the court to direct a sale of the property and a distribution of the proceeds, instead of a division of the property between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and shall give all necessary or proper consequential directions. 71—As to purchase of share of party desiring sale On any application for partition, if any party interested in the property requests the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such undertaking being given the court may order a valuation of the share of the party requesting a sale in such manner as the court thinks fit, and may give all necessary or proper consequential directions. 72—Notice to interested parties (1) Notice of every application for partition shall be served on all other parties interested in the property unless the court otherwise directs. (2) Any party served with notice may attend the proceedings. (3) The court may direct such inquiries as to the nature of the property and the persons interested therein and other matters as it thinks necessary or proper with a view to an order for partition or sale. (4) If it appears to the court that notice of the application cannot be served on all parties interested in the property, or cannot be served without undue delay or expense disproportionate to the value of the property the court may dispense with the service of notice of the application on any person or class of person specified in the order dispensing with service. (5) The court may direct advertisements to be published in such manner as the court thinks fit, calling on all persons interested to come in and establish their claims within a time limited by the advertisements. (6) If an order is made by the court dispensing with service or for the publication of advertisements, all parties interested shall be bound by the proceedings in the application, whether they are within or without the jurisdiction of the court (including persons under any disability) as if they had been served with notice. 73—Proceedings where service is dispensed with Where an order is made under the preceding section dispensing with service, and property is sold by order of the court, the following provisions shall have effect, subject to any contrary order of the court: (a) the proceeds of sale shall be paid into court to abide the further order of the court; (b) the court shall, by order, fix a time, at the expiration of which the proceeds will be distributed, and may from time to time, by further order, extend that time; (c) the court shall direct such notices to be given by advertisements or otherwise as it thinks best adapted for notifying to any persons who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution, and the time within which a claim to participate in the proceeds must be made; (d) if at the expiration of the time so fixed or extended the interests of all the persons interested have been ascertained, the court shall distribute the proceeds in accordance with the rights of those persons; (e) if at the expiration of the time so fixed or extended the interests of all the persons interested have not been ascertained, and it appears to the court that they cannot be ascertained, or cannot be ascertained without undue delay or expense disproportionate to the value of the property or of the unascertained interest, the court shall distribute the proceeds in such manner as appears to the court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the court, and with such reservations (if any) as to the court may seem fit in favour of any other persons (whether ascertained or not) who may appear from the evidence before the court to have any prima facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons, and thereupon all such other persons shall by virtue of this Part be excluded from participation in those proceeds on the distribution thereof, but notwithstanding the distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person. 74—Authority for parties interested to bid On any sale under this Part the court may, if it thinks fit, allow any of the parties interested in the property to bid at the sale, on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase-money, or any part thereof, instead of paying the same, or as to any other matters as to the court seem reasonable. 75—Court to declare what parties are trustees of lands comprised in any suit, and as to the interests of persons unborn In any application for partition where an order shall be made by the court for the sale instead of the partition of the property, it shall be lawful for the court to declare that any of the parties are trustees of such property or any part thereof within the meaning of this Part, or to declare concerning the interests of unborn persons who might claim under any party or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the transaction concerning which such order is made, that such interests of unborn persons are the interests of persons who, upon coming into existence, would be trustees within the meaning of this Part, and thereupon it shall be lawful for the court to make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as the said court might, under the provisions of this Part make concerning the estates, rights, and interests of trustees born or unborn. 76—Payment and application of moneys arising from settled land All moneys to be received on any sale effected under the authority of this Part, when the property sold is settled land, may, if the court shall think fit be paid to any trustees of whom it shall approve, or otherwise the same shall be paid into court, and such money shall be applied as the court shall from time to time direct to some one or more of the following purposes, namely: (a) The discharge or redemption of any incumbrance affecting the hereditaments in respect of which such money was paid, or affecting any other hereditaments, subject to the same uses as trusts; or (b) The purchase of other hereditaments to be settled in the same manner as hereditaments in respect of which the money was paid; or (c) The payment to any person becoming absolutely entitled. 77—Trustees may apply moneys in certain cases without application to court The application of the money in manner aforesaid may, if the court shall so direct, be made by the trustees (if any) without any application to the court, or otherwise upon an order of the court, upon the application of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land. 78—Until money directed to be applied it is to be invested and dividends to be paid to parties entitled Until the money shall be directed by the court to be applied as aforesaid, the same shall be invested as the court shall direct in some or one of the investments in which money under the control of the court is for the time being authorised to be invested, and the interest and dividends of such investments shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land. 79—Court may direct application of money in respect of leases or reversions as may appear just Where any purchase money paid into court under the provisions of this Part shall have been paid in respect of any lease or any estate in lands less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, the court may, on the application of any party interested in such money, order that the same shall be laid out, invested, accumulated, and paid in such manner as the court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be. 80—Interpretation of settled land (1) The term settled land, as used in this Part, shall signify all hereditaments of any tenure, and all estates or interest in any such hereditaments, which are or shall be the subject of a settlement; and for the purpose of this Part a tenant in tail after possibility of issue extinct, shall be deemed to be a tenant for life. (2) All estates or interests in remainder or reversion not disposed of by the settlement, or reverting to a settlor, or descending to the heirs, executors, or administrators of a testator, shall be deemed to be estates coming to such settlor or heirs, executors, and administrators under or by virtue of the settlement. (3) In determining what are settled lands within the meaning of this Part, the court shall be governed by the state of facts, and by trusts or limitations of the settlement at the time of the said settlement taking effect. 81—Provision for case of successive sales in same auction If on any application for partition two or more sales are made and if any person who has by virtue of this Part been excluded from participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent (if any) to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claim thereto had been established in due time. 82—Request by infant or person under disability In an application for partition a request for sale may be made or an undertaking to purchase given on the part of an infant, person of unsound mind, or person under any other disability, by the next friend, guardian, committee (if so authorised by order of the court) or other person authorised to act on behalf of the person under such disability, but the court shall not be bound to comply with any such request or undertaking on the part of an infant unless it appears that the sale or purchase will be for his benefit. 83—Application for partition to include application for sale and distribution of the proceeds In an application for partition it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition. 84—Costs In any application for partition the court may make such order as it thinks just respecting costs.