Partition (CAP. 305 1

CHAPTER 305

T H E PARTITION ACT

Arrangement of Sections
Section

1. Short title.
2 . Interpretation. -.
3 . Application of Act.
4. Power to co-tenant to compel severance.
5. Power to Court to order partition on motion.
6. Notice of motion.
7 . Filing and service of notice of motion.
8. Power to Court to order sale instead of partition.
9. Motion for partition to include motion for sale.

10. Hearing.
11. Power to dispense with such service.
12. Procedure, where such service dispensed with.
13. Compensation to co-tenant for improvements.
14. Bidding by parties interested.
15. Persons under disability.
16. Evidence.
17. Finality of decrees.
18. Procedure generally.
19. Partitions, where recourse not had to Act.

PARTITION

(14th January, 1895.) 1511895.
411945.

S.R.O. 2211956.

1. This Act may be cited as the Partition Act. Short title.

2. In this Act- Interpretation.

LAWS OF AN'I'lGUA ANL) BAWUDA

2 CAP. 305) Partition

"Court" means the High Court or any Judge thereof;

"disability" means infancy, coverture, idiocy or lunacy;

"lands" includes tenements and hereditaments.

Application of
Act.

3. This Act shall apply to all lands the subject of any
co-tenancy, whether held or acquired before or after its
passing.

Power to CO- 4. All joint tenants and tenants in common of any
tenant to compel
severance. estate of inheritance in their own right, or in the right of

their wives of any lands in Antigua and Barbuda, and all
joint tenants and tenants in common for term of life or years
of any lands in Antigua and Barbuda, and all joint tenants
and tenants in common where one or some of them has or
have or shall have but a particular estate or particular estates
for term of life or years, and the other or others has or have
or shall have an estate or estates of inheritance or freehold
in lands in Antigua and Barbuda may be compelled in man-
ner hereinafter provided to make severance and partition
between them of all such lands respectively.

Power to Court 5 . Any person entitled to claim partition may on
to order partition
on motion. giving notice as hereinafter provided apply to the Court by

motion for an order of partition, and the Court shall hear
and dispose of such application and may make an order
directing a division of the property and issue a writ of
partition directed to the Provost-Marshal or other proper
officer for the due carrying out of such order and also make
any such order as to it seems expedient under the provisions
of this Act and give and make all necessary or proper direc-
tions and orders consequential thereon and vary any order
and make all such orders as to costs as to the Court may
appear just.

Notice of motion. 6. The notice required by the last preceding section
shall be a notice to all parties interested to appear on such
day as in such notice is mentioned, being not less than four-
teen days from the date thereof, and show cause why a
partition of the lands described therein should not be made
as to the Court may seem expedient.

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Partition (CAP. 305 3

7 . Such notice shall be filed in Court at the Registrar's ;;znat;notice
office, and a sealed copy or sealed copies thereof under the .f
hand of the Registrar served in the manner in which writs
of summons may be served under any laws or rules of Court
for the time being in force relating to the practice and pro-
cedure of the High Court:

Provided that the Court may dispense with service upon
any party interested.

8. (1) O n a motion for a partition, if it appears to Power to Court
to order sale

the Court that by reason of the nature of the property to instead of
which the motion relates or of the number of the-parties partition.
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 to 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 dissent or disability of
any others of them direct a sale of the property accordingly
and give all necessary or proper consequential directions.

(2) O n a motion for a partition, if a party or parties
interested individually or collectively to the extent of one
moiety or upwards in the property to which the motion relates
requests or 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 may give all necessary
or proper consequential directions.

(3) O n a motion for partition, if any party interested
in the property to which the motion relates requests the Court
to direct a sale of the property and a distribution of the pro-
ceeds as aforesaid, 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 and consequential directions, and in case of such
undertaking as aforesaid being given the Court may order
a valuation of the share of the party requesting a sale in

LAWS OF ANTIGUA AND BARBUDA

CAP. 305) Partition

Motion for
partition to
include motion
for sale.

Hearing.

Power to
dispense with
such service.

Cap. 446.

such manner as the Court thinks fit and may give all
necessary or proper consequential directions.

9. For the purposes of this Act a motion for partition
shall include a motion for sale and distribution of the pro-
ceeds, and vice versa.

10. At the hearing of the matter 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 being
made on further consideration; but, subject to the provisions
of this Act, all parties interested shall be served with notice
of the order made on the hearing and after such notice shall
be bound by the proceedings, as if they had been originally
parties to the matter, and shall be deemed parties to the
matter; and all such persons may have liberty to attend the
proceedings; and any such person may, within a time limited
by rules, apply to the Court to vary the order.

1 . Where in any proceeding under this Act it appears
to the Court that notice of the order on the hearing of the
motion cannot be served on all the persons interested in the
property or cannot be so served without expense dispropor-
tionate to the value of the property, the Court may, if it
thinks fit, on the request of any of the parties interested in
the property, and notwithstanding the dissent or disability
of any others of them, by order dispense with that service
on any person or class of persons specified in the order and
instead thereof may direct advertisements to be published
at such times and in such manner as the Court shall think
fit, calling upon all persons claiming to be interested in the
property, who have not been so served, to come in and
establish their respective claims in respect thereof before the
Judge in chambers within a time to be thereby limited; and
after the expiration of the time so limited all persons who
shall not have so come in and established such claims, whether
they are within or without the jurisdiction of the Court,
including persons under any disability, shall be bound by
the proceedings in the matter, as if on the day of the date
of the order dispensing with service they had been served
with notice of the order service whereof is dispensed with;
and thereupon the powers of the Court under the Trustee
Act shall extend to their interests in the property, as if they

LAWS OF ANTIGUA AND BARBUDA

Partition (CAP. 305 5

had been parties to the matter, which may be deemed a suit
for the purposes of the said Act; and the Court may
thereupon, if it shall think fit, direct a sale of the property
and give all necessary or proper consequential directions.

12. Where any order is made under the last preceding ~ ; , " ~ ~ ~ : e w h e r e
section of this Act dispensing with service of notice on any dispensed with.
person or class of persons, and property is sold by order of
the Court, the following provisions shall have effect:

( 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 ex-
piration of which the proceeds will be d i s t r k t e d and
may from time to time by further order extend that time.

( c ) The Court shall direct such notices to be given
by advertisement or otherwise as it thinks best adapted
for notifying to any persons service on whom is dispensed
with, 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 expense disproportionate to the value of the pro-
perty or of the unascertained interests, 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

LAWS OF ANTIGUA AND BARBUDA

CAP. 305) Partition

Compensation to
co-tenant for
improvements.

Bidding by
parties
interested.

Persons under
disability.

but to the exclusion of all other persons; and thereupon
all such other persons shall by virtue of this Act be
excluded from participation in those proceeds on the
distribution thereof, but notwithstanding the distribu-
tion any excluded person may recover from any partici-
pating person any portion received by him of the share
of the excluded person.

13. O n any partition or sale under this Act the Court
may, in dividing the lands or distributing the proceeds of
sale take into consideration, in favour of any party who has
been allowed by his co-tenants to have exclusive occupation
of the whole or any part of the lands, and who has expended
money or labour upon cultivating or improving the property
or the part of the property so occupied by him, the value
of the improvements made by such party upon the property
or part thereof at his expense or by his labour.

14. O n any sale under this Act 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 payment or 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 seems
reasonable.

15. (1) In any proceedings under this Act any person
under any disability may be represented for all purposes by
the next friend, guardian or other person lawfully author-
ized to act on behalf of such person under disability, but
the Court shall not be bound to comply with or recognize
any request for sale or undertaking to purchase made or given
on behalf of any person under disability, unless the sale or
purchase will be for his benefit.

(2) The Court may direct that the share or shares in
the proceeds of any sale under this Act to which any person
under any disability is entitled be paid to any trustees of
whom it may approve or into Court and may give all
directions and make all necessary orders in and about the
investment of and dealing with such shares, as to the Court
seems expedient.

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Partition (CAP. 305 7

16. All laws and rules of Court for the time being Evidence.
in force for regulating the giving or receiving of evidence
at the trial of an action in the High Court shall apply to
any proceedings under this Act.

17. A final order made by a Judge of the High Court Finality of
decrees.

on the hearing of any motion made under the provisions
of this Act shall be &ly recorded in the decree-book and
shall be of the same effect as between the parties thereto as
a final judgment or order in an action so recorded.

18. All laws and rules of Court for the time being Procedure
generally.

in force relating to practice and procedure in the High Court
shall apply, so far as they are applicable, to p r o c e e d i n p d e r
this Act; and rules of Court regulating the practice and pro-
cedure under this Act may be made and, when made,
amended in the manner prescribed by any law for the time
being in force for the making of rules of Court for the regula-
tion of practice and procedure in the High Court.

19. A partition of lands, where recourse shall not be Partitions, where recourse not had
had to the provisions of this Act, shall be void at law, unless to A C ~ .
made by some instrument in writing.