PARTITION OF INHERITANCES ACT

PARTITION OF INHERITANCES

CHAPTER 308

PARTITION OF INHERITANCES ACT

To make new provisions for the liquidation and partition of inheritances

and to provide for matters connected therewith and incidental thereto.

(27th July, 1984) *

Enacted by ACT XIII of 1984 , as amended by Act XXIV of 1995 .

This Act may be cited as the Partition of Inheritances Act.

In this Act, unless the context otherwise requires -

"Minister" means the Minister responsible for justice;

"prescribed" means prescribed by regulations under this Act;

"property" means any thing or right as is referred to in Title I of

Part I of Book Second of the Civil Code;

"public officer" and "public service" have the same meaning as is

assigned to them by article 124 of the Constitution;

"Registrar" means the Registrar of Courts;

" Tr i b u n a l " m e a n s t h e P a r t i t i o n o f I n h e r i t a n c e s Tr i b u n a l

established by article 4.

(1) Where two or more persons hold in common any

property deriving to them from an inheritance, such property may

be subject to partition in accordance with the provisions of this Act

on a demand made as provided in subarticle (2)

Provided that no such demand shall be made except after

three years have elapsed from the opening of the succession.

(2) Such demand may be made by application to the Tribunal

by one or more co-owners who at the time of the opening of the

succession either own between them not less than fifty per centum

of the shareholding of the property so held in common or together

constitute not less than fifty per centum of the number of all the co-

owners.

(3) The provisions of the foregoing subarticles shall be without

prejudice to the provisions of article 906 of the Civil Code.

(4) Where however an action is brought before or referred to

the Tribunal in accordance with the provisions of this Act the

Tribunal shall so long as such action is pending before it have

exclusive jurisdiction with respect to the subject matter thereof and

no other action in respect of the same claim shall be brought before

any court of first instance.

(1) There is hereby established a tribunal to be known as

the Partition of Inheritances Tribunal.

(2)

The Tribunal shall take cognizance of and decide on any

*See article 1(2) of the Act as originally enacted, which subarticle has been omitted

under the Statute Law Revision Act, 1980, and Legal Notice 34 of 1984.

PARTITION OF INHERITANCES

demand brought before it in accordance with this Act and of any

regulations made thereunder.

(1) The Tribunal shall consist of one or three arbitrators

who shall be appointed and shall serve in accordance with the

provisions of this Act. Except where all the co-owners agree that it

shall consist of three arbitrators, the Tribunal shall consist of one

arbitrator.

(2) An arbitrator shall be one of a panel of persons appointed

by the President of the Republic acting in accordance with the

advice of the Prime Minister from amongst persons who in the

Prime Minister’s opinion are qualified to carry out the duties and

functions of arbitrators for the purposes of this Act.

(3) A person shall be disqualified from being appointed or

serving as arbitrator so long as he is a member of the House of

Representatives.

(4) The arbitrators shall sit in the Tribunal, either in turn or in

accordance with such distribution of duties and subject to such

provisions as to inability to serve and other circumstances, as the

Minister may establish or as may be prescribed.

(5) Before taking cognizance of any application brought before

the Tribunal, the arbitrator, if he does not hold judicial office, shall

take an oath to examine and decide the application faithfully,

impartially and in accordance with this Act; and such oath shall be

taken before the Court of Appeal.

(6) The Minister shall designate a public officer to be Secretary

of the Tribunal, and may also detail other public officers to assist

the Secretary in the performance of his duties. The Secretary of the

Tribunal shall have mutatis mutandis such powers and duties as are

by the Code of Organization and Civil Procedure vested in the

Registrar of Courts.

(7) The registry of the superior courts shall be the registry of

the Tribunal, and all records of proceedings of the Tribunal shall be

retained in such registry under the custody of the Registrar.

(1) A person appointed to the panel of arbitrators shall so

serve for the period specified in his appointment being a period of

not less than three years, and if no such period is specified he shall

serve for a period of three years.

(2) An arbitrator may be removed from office during the period

of his appointment only in the same circumstances and manner as a

judge of the superior courts.

(3) An arbitrator actually serving as such in a particular case

shall, notwithstanding the termination of his period of service,

continue so to serve on the proceedings in which he is serving as

arbitrator until the conclusion of those proceedings and thereafter

for the purpose of the interpretation, correction and making good

an omission in any award given therein.

An application to the Tribunal made as provided in article

3 shall be filed in the Registry of the Tribunal in such manner, on

PARTITION OF INHERITANCES

the payment of such fees and together with such documents as may

be prescribed.

(1) A copy of the application together with the documents

and notes filed therewith shall be served on each of the respondent

co-owners.

(2) The respondents shall within twenty working days of the

service of the application file an answer thereto in which they state

any points of disagreement with the contents of the application or

with the documents filed therewith.

(1) Where an action for the partition of hereditary property

is pending before a court of first instance, the party or parties who

together could, if the case were not so pending, make an application

in accordance with article 3, may by a note or by notes filed in the

Registry of the court before which the case is pending request the

court to transmit the cause to the Tribunal, and the court shall

thereupon order that the records of the case be transmitted to the

Tribunal.

(2) The filing of such note or notes, as the case may be, shall be

deemed to be a withdrawal of the action from the jurisdiction of

that court and an application to the Tribunal for a decision on the

demand contained in the act commencing the proceedings before

the court

Provided that no registry fees shall be levied for such

discontinuance of the action.

(3) The Tribunal shall hear and decide the matter transmitted to

it as aforesaid within the limits of the demand, the pleas thereto and

any counter-claim made, and on the evidence presented according

to law, whether made or presented before the court or the Tribunal.

(1) The application, or the action transmitted to the

Tribunal under article 9, shall be set down for hearing at an early

date.

(2) The Tribunal shall hold its sittings and deliver its award,

including any preliminary or partial award, in public unless all the

parties agree otherwise.

(3) The Tribunal shall hear the applications in conformity with

the rules laid down in t he Code of Organizati on and Civil

Procedure in so far as may be applicable to the proceedings before

the Tribunal and not incompatible with this Act.

(4) The Tribunal shall decide any matter before it in

accordance with the provisions of the Civil Code relating to the

partition of an inheritance and of any other law in so far as

applicable to the matter before the Tribunal, and shall award costs

accordingly. Such costs shall include the costs incurred by any

party before the court of first instance in any cause which is

transmitted to the Tribunal in accordance with the provisions of this

Act.

(5) Every award shall be signed by the arbitrator, and where the

arbitrators are three by each arbitrator

PARTITION OF INHERITANCES

Provided that a dissenting arbitrator need not sign the award,

but a mention of this fact shall be made by the other arbitrators.

(6) The award delivered by the Tribunal shall be final and

conclusive.

(7) Notwithstanding the provisions of subarticle (6), the

Tribunal shall have power to give at any time, at the request of any

of the parties, an interpretation of the award or of any points

determined therein, and to make good any error or omission in any

award.

The parties may appear before the Tribunal in person or

may be duly represented by another person.

(1) Unless all the parties to the arbitration proceedings

agree otherwise, the Tribunal shall give the award not later than six

months from the day the respondents have filed their answer or the

day on which the time for the filing of the answer expires,

whichever is the earlier.

(2) Where the award cannot be delivered within the time

mentioned in the preceding subarticle, such time may be extended

for further periods, each not exceeding six months, at the request of

the applicants or by the Tribunal in exceptional circumstances

which shall be expressly stated and entered in the records of the

arbitration proceedings.

(3) Where any period referred to in the preceding subarticles is

for any reason not extended as therein provided, the proceedings

shall be deemed to have been adjourned to an unspecified date and

the provisions of articles 964 and 965 of the Code of Organization

and Civil Procedure shall, mutatis mutandis, apply to such

proceedings; and in any such case the period mentioned in

subarticle (1) shall commence on the date of the reappointment of

the cause.

(1) The Tribunal shall have such powers as are by the

Code of Organization and Civil Procedure vested in the Civil

Court, First Hall.

(2) Without prejudice to the foregoing provisions of this

article, the Tribunal shall have the power to summon witnesses and

to administer the oath, to appoint experts to report on matters of a

technical nature involved in the dispute, and to require any person

who appears to it to have special knowledge of any relevant matter,

or of any of the matters to which the application referred to relates,

or of the matter referred to it, to furnish in writing or otherwise,

and to confirm on oath, such opinion and such particulars relating

to the application, including the partition into shares of any things

movable or immovable, as the Tribunal may require, and may

authorise any person to administer the oath for that purpose.

(1) The Tribunal shall endeavour to bring about a

compromise between the parties on the issues in dispute.

(2) Where a compromise is reached the Tribunal shall draw up

a procès-verbal thereof and shall incorporate the compromise in an

PARTITION OF INHERITANCES

award after such procès-verbal is signed by the parties or by their

legal representatives or is otherwise accepted or adhered to by a

signed instrument filed with a note in the Registry of the Tribunal.

The arbitrator may be challenged, or shall abstain, from

sitting in the Tribunal in any of the circumstances set out in article

734 of the Code of Organization and Civil Procedure; and in any

such case the provisions of Sub-Title II of Title II of Book Third of

that Code shall apply in so far as they are applicable and subject to

the other provisions of this Act.

(1) The enforcement of the awards of the Tribunal shall be

carried out in the manner prescribed in the Code of Organization

and Civil Procedure, and shall vest in the Tribunal itself.

(2) Where the award requires a public deed, the Tribunal shall

appoint a notary to publish the deed and curators to represent

defaulters on the deed, and fix the place, date and time for the

publication of the deed.

The fees payable to the arbitrators and to any experts

appointed by them shall be those established for legal and other

referees under the Code of Organization and Civil Procedure, and

the provisions of that Code applicable to referees shall apply to

such arbitrators or experts

Provided that no such fees shall be payable to the arbitrators

who hold a judicial office or are selected from the public service.

The Minister may from time to time make regulations

governing the procedure of the Tribunal and, without prejudice to

the generality of the foregoing, may make regulations -

(a) prescribing the contents of an application to the

Tribunal, the answer thereto, and any other written

proceedings before the Tribunal, the manner of filing

of any such act, and the documents which shall be filed

therewith;

(b) prescribing the procedure for the service of any act on

the other party;

(c) prescribing the procedure for the fixing by the

Tribunal of the date of hearing of the application and

for the giving notice of such date to the parties

concerned;

(d) prescribing the fees, other than those provided for in

article 17, charges and expenses payable in connection

with any proceeding before the Tribunal, including

registry fees for the award or for the discontinuance of

the cause;

(e) prescribing the fees payable to a person in respect of

the appearance or assistance on behalf of a party in the

proceedings before the Tribunal;

(f) prescribing the fee payable to the Registry in respect

of the issue of any authentic copy of award or

document in the records of the Tribunal;

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(g) prescribing any other matter that may be necessary for

the better carrying out of the functions of the Tribunal.