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Thursday, July 14, 2011

Joint Possession of Property & Court Fees : The Law

Justice V.K. Jain of the Delhi High Court in Anu v. Suresh Verma has recently reiterated the legal position that in cases where joint possession is claimed by the Plaintiff, he would be liable to pay fixed court fees. However, in cases where the Plaintiff pleads or the plaint otherwise reveals that the Plaintiff has been completely ousted from possession, the Plaintiff would have to pay ad-voleram court fees on the market value of the property. The relevant extracts of the judgment are reproduced hereunder;

5. Section 8 of the Suits Valuation Act, 1887 provides that where other than those referred to in the Court-fees Act, 1870 Section 7, paragraph v, vi and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. Section 9 of the above- referred Act provides that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, Section 7, paragraph v and vi, and paragraph x, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.

In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.

Suits for partition of property--

Court-fee--(a) as determined by the Court-fees Act, 1870 Value--(b) For the purpose of the Suit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.

It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Court-fees Act.

Section 7(iv)(b) of Court Fees Act, provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under Court-fee Act, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. Article 17(vi) of Schedule II of Court-fees Act provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act.

6. After examining the decision of Supreme Court in S.Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245, Neelavathi & Ors. v. N. Natarajan & Ors. AIR1980 SC 691, Jagannath Amin v. Seetharama (dead) by LRs & Ors. 2007(1) SCC 674 and Commercial Aviation and Travel Co. v. Vimla Panna Lal AIR 1988 SC 1636 this Court in CS(OS) No. 2642/2008 and IA No. 10367/2010 decided on 4th March, 2011 summarized the legal position in this regard as under: (ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court-fees Act. (iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property.

7. In my view, in order to constitute joint possession, it is not necessary that the plaintiff should claim to be in joint possession of each of the properties in respect of which partition is sought by him/her. If she claims to be in joint possession of even one of the properties either wholly or partly, that would be sufficient to bring the case within the ambit of Article 7(iv) of Court-fees Act, because what is relevant is joint possession of the estate in respect of which partition is sought. The plaintiff is seeking partition not with respect to any one property, but with respect to all the properties which were owned by her late parents. If partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the other co-owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition. In this regard, the following observations made by this Court in Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors. 124 (2005) DLT 305:

"It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be payable under Article 17 (6) of Schedule II of the Court fees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees Act i.e. on the value of plaintiff's share."


  1. What happens when one co-owner (joint owner by title and interest) seeks partition of the property whether he/she needs to pay ad valorem court fee on market value of the share claimed. I have already read in few judgements that possession of one co-owner is possession of all co-owner if the co-owner seeking partition has not been ousted / excluded from the possession. What is the meaning of "ousted/excluded" does it mean that his /her right of joint possession has ceased due to some court verdict. If one co-owner takes forced possession of the entire property and does not allow other co-owner to enter into the common property, will it be considered that other co-owner has been ousted /excluded from the property.

    Kindly give your valueable guidance/suggestions.

  2. Does possession here means peaceful possession or possession by any means or by force? gupta 9899756022

  3. Thanks for sharing this information. We are into realestate since 10 yrs. For more details on below contact us.


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