Revision against dismissal of an application under Order VII Rule 11 CPC seeking rejection of a partition plaint for want of ad valorem court fee. The Court held that absent a specific plea of ouster, co-owners are presumed to be in joint possession and only fixed court fee under Schedule II, Article 17(vi) is payable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HEMLATA & ORS. .....Petitioners
Through: Mr. T.C. Yogi, Advocate. versus SHYNI V & ORS. .....Respondents Through: Mr. Zain Haider, Mr. Atul Kumar Srivastav and Mr. Kaoliangpou Kamei, Advocates for R-1 and 2. Mr. Dalip Singh, Mr Sanjeev Kr. And Mr. Sushil Kumar, Advocates for R-3 to 10.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
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possession. Learned Counsel for the Petitioners/Defendants seeks to rely upon his Written Submissions and the Replication filed in this regard.
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are in joint possession. The possession of one is in law the possession of all, unless ouster or exclusion is proved.
7.1 The Supreme Court in the Neelavathi & Ors. v. N. Natrajan & Ors.1 has held that it is the general principle of law that in the case of co-owners of an immovable property, the possession of one is synonymous with the possession of all, unless ouster or exclusion is proved. To be in joint possession of the immovable property, in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. So, as long as the right to a share and the nature of the property as joint is not disputed, the law presumes that the co-owner is in joint possession unless the co-owner is excluded from such possession. The relevant extract of the Neelavathi case is set out below:
“8…
It will be seen that the court fee is payable under Section 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided “joint family property” though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless
1 AIR 1980 SC 691
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he is excluded from such possession…”
[Emphasis supplied]
9.1 In addition, reliance was also placed on a judgment of a Coordinate Bench in the case of Tara Chand Gaur v. Satish Chand Sharma & Anr.2 where it was held that determination of exclusive possession or ouster is a question of fact and must be established from the evidence. The relevant extract of the judgement of this Court in the Sakshi Dhall case is set out below:
2 2018 SCC OnLine Del 12923
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“8…
Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession. ”
[Emphasis Supplied]
“14.1 A Coordinate Bench of this Court in the Tara Chand Gaur case has held that a co-owner seeking partition of an immovable property is liable to pay only fixed court-fee under Schedule II, Article 17(vi) of the Court Fees Act, as such co-owner is presumed to be in constructive possession unless ouster is specifically pleaded and proved by the other co-owners. Determination of exclusive possession or ouster is a question of fact and must be established through evidence . The relevant extract of Tara Chand Gaur case is reproduced below:
"6. So far as the third aspect of the court-fee having not been paid is concerned because the appellant/plaintiff has only affixed a court fee of Rs. 20/-, once again, the trial court has erred in holding that since the appellant/plaintiff had valued the suit at Rs. 1 crore, and he was not in possession of the suit property, therefore, the appellant/plaintiff was liable to pay court-fee on his 1/3rd share. In law, when a partition is sought by a co-owner, court-fee which is payable is a fixed court-fee in terms of Schedule II, Article 17(vi), of the Courtfees Act, 1870 inasmuch as every co-owner is either in actual physical possession of whole or part of the property or in law has to be taken in deemed possession or constructive possession of the coowned property. If a defendant is a co-owner who is in actual physical possession of the complete property, even then, the possession of one or more such co-owners who are defendants in possession, the possession is for and on behalf of all co-owners including the plaintiff(s), and whether there exists exclusive possession of the respondents/defendants and the same acts as an ouster of the plaintiff(s) is a question of fact, and only when this question of fact is proved by the respondents/defendants by leading evidence, it can be held that the appellant/plaintiff was not in possession, physical or constructive, of the suit property, so that court fee is payable for the 1/3rd share as claimed by the
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appellant/plaintiff. In fact, this issue of court-fee is very much interlinked with the issue of limitation because the appellant/plaintiff is not in possession, and both are factual issues which will have to be proved by the respondents/defendants that the appellant/plaintiff was not in physical possession of the suit property and ouster has been proved against the appellant/plaintiff by respondents/defendants after leading evidence."
[Emphasis Supplied]”
“1. That the Plaintiff No.1 (Smt. Shyni V.) is the wife of Late Sh. Vijender Pal @ Bijender Kumar (hereinafter shall be referred as the Deceased) and resides on rent at H.No.239-A, Pocket-12, Jasola Vihar, New Delhi-110025. That the Plaintiff No.2 (Sh. Avinash Chaudhary) is the son of Late Sh. Vijender Pal, residing at H.No.239-A, Pocket-12, Jasola Vihar, New Delhi110025 along with his mother (Plaintiff No.1). (True copies of the Driving License of the Deceased, Pan Card of the Deceased, Death Certificate of the Deceased, Death Certificate of the father of the Deceased and the Passport of the Plaintiff No.1 have been produced along with the list of documents).
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5. That the Plaintiffs and the Deceased lived together at their rented residence at the above-mentioned address in Jasola Vihar, New Delhi.
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FACTS THAT LEADS TO THE FILING OF THIS SUIT:
24. That the Plaint-Schedule properties were owned and possessed by the Deceased. Thereafter the demise of the Deceased, by fiction of law, the Plaintiffs herein have become the co-owners and possessed the SuitProperties and the said properties are deemed to be in joint-possession of the Plaintiff No.1 & No.2 and the Defendants No.1, No.2 & No.3 .
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26. That for the above reasons it would be to the Plaintiff’s benefit to have
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their share separated by partition.
27. That the Plaintiffs claim partition of the said properties and separate possession of their share.
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VALUATION
36. That the suit is valued for the purpose of court fees and the jurisdiction in the following manner:
* For a decree for Partition to the effect the Plaintiffs are entitled to, the suit is valued for the purpose of court fees and jurisdiction over Rs.1 Crore and court fees of Rs.500 each are paid. The Plaintiffs also undertake to pay any further court fees which may be required to be paid on actual partition of the property at the appropriate time.”
23. That the Plaintiffs have preferred to file this present suit since they have become the joint-owners of the Suit-Properties which were inherited by the deceased who was the husband of the Plaintiff No.1 and the father of the Plaintiff No.2, shown in the Plaint-Schedule below and are at present in the possession of both the Plaintiffs and the Defendants. Though at present the Defendants No.1, No.2 & No.3 are the ones who are staying in one of the Suit-Properties, namely H.No.14-B, Khizrabad, New Delhi110025 and the other Suit-Property namely, H.No.2-A, Khizrabad, New Delhi-110025 is leased out on rent.
24. That the Plaint-Schedule properties were owned and possessed by the Deceased. Thereafter the demise of the Deceased, by fiction of law, the Plaintiffs herein have become the co-owners and possessed the SuitProperties and the said properties are deemed to be in joint-possession of the Plaintiff No.1 & No.2 and the Defendants No.1, No.2 & No.3.”
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of the suit property, Respondent No.1/Plaintiff would only be liable to pay fixed court fee as per the Article 17(vi), Schedule II of the Court Fees Act, 1870 and not ad valorem Court fees on the market value of the suit property.
13.1 Thus, the contention of the Petitioner that ad valorem court fee on the market value of the suit property has to be paid in view of the plea of ouster is without any merit.
15.1 It is however made clear that the order passed today will not preclude the Petitioners/Defendants from raising all contentions before the learned Trial Court. The rights and contentions of the parties are left open in this behalf.
TARA VITASTA GANJU, J
JULY 23, 2025/pa
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1 issue framed by the court
Whether a plaintiff co-owner in a partition suit must pay ad valorem court fee when ouster is alleged but not specifically pleaded in the plaint.
Colour shows how this judgement treated each authority
Neelavathi & Ors. v. N. Natrajan & Ors.Relied on¶71
AIR 1980 SC 691 · Who else cites this
Sakshi Dhall v. Smt. Indira Dhall & Ors.Applied¶9
C.R.P. No. 93 of 2025
Tara Chand Gaur v. Satish Chand Sharma & Anr.Relied on¶91
2018 SCC OnLine Del 12923 · Who else cites this
4 provisions across 2 enactments
Hemlata
Shyni V
Tara Vitasta Ganju
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
