Law Presumes Joint Possession in Partition Suits Among Co-owners Unless Ouster Is Specifically Pleaded: Delhi High Court

“Plaintiff in Constructive Possession Need Not Pay Ad Valorem Court Fee in Partition Suit” –  Delhi High Court delivered a significant ruling clarifying the legal framework surrounding court fee valuation in partition suits, especially where plaintiffs assert constructive possession.

Dismissing an application filed by Defendant No.2 under Order VII Rule 11(c) of the Civil Procedure Code, Justice Vikas Mahajan held that fixed court fee under Article 17(vi) of Schedule II of the Court Fees Act, 1870 is payable where the plaintiff is a co-owner and has not pleaded ouster, regardless of actual physical possession.

“Joint and constructive possession of a co-owner in the suit property is a presumption in law that can only be negated by an admission of the plaintiff himself in the plaint whereby he specifically claims ouster or exclusion from the suit property.”

“Possession of One Is Possession of All” — Court Upholds Constructive Possession Principle in Partition Suit

The case involved a suit for partition, separate possession, rendition of accounts, and injunction filed by the plaintiff, Bharat Kumar Ahluwalia, against his sister and nephew, concerning the estate of his late brother, Dr. Ashok Kumar Walia, who died intestate and issueless in April 2021. The plaintiff, as a Class II legal heir, claimed a 50% share in the estate, comprising five properties, one of which was tenanted.

The defendant (nephew) moved an application asserting that the court fee affixed was deficient, arguing that the plaintiff was not in actual possession and must, therefore, pay ad valorem court fee under Section 7(iv)(b) of the Act.

The Court, however, was categorical in rejecting this submission:

“In the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved.”
(Neelavathi & Ors. v. N. Natarajan & Ors., (1980) 2 SCC 247) Relying heavily on a long line of precedents, including Jagannath Amin v. Seetharama [(2007) 1 SCC 694], Saroj Salkan v. Capt. Sanjeev Singh [2008 SCC OnLine Del 1278], and Dr. Durga Parmar v. V.K. Verma [2004 (78) DRJ 690], the Court reaffirmed that actual possession is not a prerequisite for the presumption of joint possession to apply in partition suits among legal heirs or co-owners.

“Tenancy Indicates Constructive Possession; Court Fee Based on Presumption, Not Physical Control”

One of the key factual aspects the Court considered was that at least one of the suit properties was tenanted, and interim orders had directed the rent to continue being deposited in the deceased’s bank accounts.

Quoting from the plaint, the Court noted:

“The Plaintiff is in joint and constructive possession of the suit properties (to the extent partition is sought) being the legal heir of Late Dr. Ashok Kumar Walia.” (Para 21)

And further,

“The Plaintiff enjoys joint possession, as co-owner over the subject properties. With the Plaintiff continuing being seized of possession as co-owner, fixed court fee is payable under Article 17 (vi) of Schedule II of the Court Fee Act.” (Para 23)

The Court clarified that tenancy does not negate possession of a co-owner, as co-owners are deemed in law to be in possession even if property is occupied by tenants.

“In partition suits where immovable property sought to be partitioned is with the tenants, the co-owners are deemed to be in constructive possession.”

“No Averment of Ouster in Plaint; Fixed Court Fee Sufficient”

Justice Mahajan emphasized that the trigger for ad valorem court fee is not mere lack of physical possession but a specific and clear pleading of ouster or exclusion, which was absent in the present plaint.

“On a wholistic reading of the plaint, it appears that the plaintiff has also pleaded sufficient facts to show the premise on which he is claiming joint and constructive possession.”

Rejecting the reliance placed by the defendant on Ramesh Kumar Bhagchandka v. Pankaj Gupta [2014 SCC OnLine Del 1324] and Om Prakash Arora v. Meenakshi Sardana [2022 SCC OnLine Del 2234], the Court distinguished both cases as inapplicable:

“In Ramesh Kumar Bhagchandka, the plaintiff had admitted ouster. In Om Prakash Arora, the plaintiff was not even a blood relative and claimed rights as a purchaser. Those facts are completely different from a legal heir claiming through succession and asserting constructive possession.”

The Court underscored that in such situations, the burden of proving ouster falls on the defendants, not the plaintiff.

“Delay in Filing Application Not Fatal, But Reflects Weakness”

The Court also noted that the application under Order VII Rule 11(c) had been filed after three years of appearance by defendants: “Though delay alone is not conclusive, the timing of the application reflects lack of merit and bona fides. The objection to court fee appears to be an afterthought.”

Rejecting the plea that the suit was undervalued, the Court concluded: “The plaintiff need not pay ad valorem court fee under Section 7(iv)(b) of the Court Fees Act, 1870 and the fixed court fee paid in accordance with Article 17(vi) Schedule II is valid in law. The application is misconceived and liable to be dismissed.”

Accordingly, the application under Order VII Rule 11(c) was dismissed, and the matter was directed to be listed before the Roster Bench for further proceedings.

Date of Decision: June 09, 2025