Code of Civil Procedure, 1908 | Order XXVI | Partition commissions

Order XXVI Rule 13 CPC - Commission to Make Partition of Immovable Property

Order XXVI Rule 13 of the Code of Civil Procedure, 1908 enables a civil court to appoint a commissioner to divide immovable property according to the shares declared in a preliminary partition decree, where the case is not governed by Section 54 CPC.

Text of Order XXVI Rule 13 CPC

13. Commission to make partition of immovable property

Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

Meaning and essential requirements

Preliminary decree: A decree that declares the rights or shares of the parties while leaving further steps, such as division by metes and bounds, to be completed before the final decree. In a partition suit, see Order XX Rule 18 CPC.

Commission: A court-authorized assignment to a suitable person, generally called a commissioner, to carry out a defined investigation or task and report back to the court. Section 75 CPC provides for issuing commissions, including for partition, subject to the prescribed rules.

Immovable property: For the purposes of this provision, land and other property treated as immovable under applicable law, such as buildings or interests in land, rather than movable goods.

Rule 13 applies only after the court has passed a preliminary decree determining the parties' shares. The commissioner must work within those declared rights and cannot independently revise the decree or decide disputed ownership questions outside the assignment.

Why Section 54 CPC is excluded

Section 54 CPC - Partition of estate or separation of share: Where a decree concerns partition of an undivided estate assessed to payment of revenue to the Government, or separate possession of a share in such an estate, partition or separation is to be made by the Collector or a gazetted subordinate deputed by the Collector, in accordance with the applicable law.

Accordingly, Rule 13 is the commission mechanism for partition cases not covered by Section 54. Whether land falls within Section 54 depends on its legal and revenue status and the applicable State law.

Procedure for partition by commissioner

Preliminary decree: The court determines the parties' rights and shares under the applicable law.
Commission order: Where Rule 13 applies, the court appoints a suitable commissioner and specifies the property, shares and task.
Inquiry and division: Under Order XXVI Rule 14(1), the commissioner makes the necessary inquiry, divides the property into the shares directed by the order, and may allot shares to parties, including with sums to equalize the value of shares where authorized.
Report and plan: The commissioner prepares a signed report describing the division and, where appropriate, a map or plan showing the proposed allotments, as contemplated by Rule 14(2).
Objections and judicial review: Under Rule 14(3), the court hears objections to the report and may confirm, vary or set it aside. If set aside, the court may issue a new commission or make such other order as it thinks fit.
Final decree: Upon confirmation or variation, the court passes the final decree in accordance with Rule 14(3).

Practical issues in a partition commission

The commissioner may need to consider boundaries, access, the physical configuration of the property, buildings, existing improvements and the feasibility of allotting separate portions in the shares fixed by the court. Any valuation or adjustment must remain within the court's directions and applicable law.

Parties should check the proposed measurements, site plan, access arrangements, share allocation and any proposed equalization payments. Specific objections supported by relevant documents or measurements can be placed before the court under Rule 14(3).

Key distinction: The commissioner proposes or implements a physical division in accordance with the preliminary decree. The court retains authority to decide objections and pass the final decree. A commissioner's report does not, by itself, constitute a final partition decree.

Section 75(d) CPC: Empowers courts, subject to conditions and limitations, to issue commissions to make a partition.
Section 54 CPC: Provides the separate Collector-led process for specified revenue-paying estates.
Order XX Rule 18 CPC: Governs decrees in suits for partition or separate possession of a share.
Order XXVI Rule 13 CPC: Permits appointment of a commissioner after a preliminary partition decree, outside Section 54 cases.
Order XXVI Rule 14 CPC: Addresses the commissioner's division, report, objections and final decree.

Frequently asked questions

Can a partition commissioner be appointed before a preliminary decree?

Rule 13 specifically requires that a preliminary decree for partition has been passed. Other procedural powers may apply to different purposes, but they should not be confused with a Rule 13 partition commission.

Is the commissioner free to change the shares?

No. The partition must follow the rights declared in the preliminary decree. Any change to adjudicated shares is a matter for the court under the applicable law, not for the commissioner acting independently.

Can parties object to the partition report?

Yes. Order XXVI Rule 14(3) provides for the court to hear objections and confirm, vary or set aside the report.

Official statutory references

Consult the Code of Civil Procedure, 1908 - official India Code text and the India Code portal. Relevant State amendments, High Court rules and revenue laws should also be checked in individual cases.