Section 39:

39. Immovable property may be divided in kind (1) Subject to this section, the immovable property may be divided in kind where all the heirs consent to the division. (2) (a) A land surveyor selected by the heirs may proceed to make the division and to mark out the proposed lots. (b) Where the parties agree to distribute among themselves the lots as marked out, the surveyor shall draw up a memorandum of survey and plan in accordance with the Cadastral Survey Act. (c) Where minors or interdicted persons are concerned, the surveyor shall submit his memorandum to the Ministère Public for approval. (d) The memorandum shall be drawn up in triplicate, and one minute shall be filed by the surveyor in the Master’s office. (3) (a) Where the parties do not agree as to the distribution of the several portions as marked out by the surveyor, the surveyor shall advise them to attend, on a day to be there and then fixed by him, before the Magistrate of the district where the property is situated, and he shall forward a minute of his memorandum of survey and plan to the Magistrate. [Issue 7] S45 – 8 Revised Laws of Mauritius (b) Where the Magistrate is satisfied that the proposed division is a fair and proper one, he shall ex officio in his chambers cause the several portions to be drawn by lot in his presence, and in the presence of the parties or of such of them as attend. (c) Where a party fails to attend, the Magistrate may cause that party to be summoned by the District Court usher, and there shall be paid to the District Court concerned the fees prescribed by the Legal Costs and Fees Regulations 2000 for such service. (d) Where the drawing by lot has taken place, the Magistrate shall award to each heir the portion drawn by or for him, and he shall record such drawing and award at the foot of the memorandum of survey, which he shall forward to the Master’s office to be filed there, after causing a copy of such memorandum and award, duly signed by him, to be filed as one of the records of his Court. (4) The memorandum drawn up by the surveyor, and approved by the Ministère Public, where that approval is required under subsection (2), and the award of the Magistrate after a drawing by lot under subsection (3), shall be binding on all parties and shall have the effect of a valid partition, even where minors are concerned. (5) A division of immovable property may be made under this section and shall be valid, whether or not a notary has been appointed, where the surveyor certifies in his memorandum that the value of the property divided does not exceed 6,000 rupees. [S. 39 amended by s.22 (7) of Act 22 of 2011 w.e.f. 1 July 2013.]