2013 AIR CC 1490 (DEL) ::2013 (1) ADR 87 ::(2013) 198 DLT 85 ::(2013) 2 HinduLR 511 ::AIR 2013 (NOC) (SUPP) 1363 (DEL.)

Delhi High Court

Hon'ble Judge(s): Hima Kohli , J

(A) Hindu Succession Act ( 30 of 1956) S. 6 (1), Proviso (3)(5) Expln. (as amended by Act of 2005) — Suit for partition — By daughter of co-parcener — Maintainability — Stage of passing of preliminary decree had not arrived at by time of passing of Amendment Act of 2005 — Suit was still at nascent stage of conducting admission/denial of documents — Plea that succession having opened upon demise of father of parties prior to promulgation of 2005 amendment, S 6 of 2005 Act would not apply, not acceptable — Thus requirements as envisaged under S 6 of 2005 Act for its applicability had been fulfilled — Suit for partition, maintainable AIR 2012 SC 169, Foll (Para 44,45)

(B) Court Fees Act (7 of 1870) S. 7 (iv)(b), Sch. 2, Art. 17 (vi)— Partition suit — Payment of court fees — Determination — Claim of plaintiff as to being in joint and constructive possession of suit properties, partition where of was sought — They would be only required to pay fixed court fees — And not ad valorem Court fees on share claimed by them {" In a suit for partition, if joint possession is pleaded by the plaintiff, on the basis that he is a co-owner of the suit property sought to be partitioned, fixed court fees is to be paid under Article 17(vi) of Schedule II of the court-fees Act, 1870 on the presumption of joint possession of the plaintiff, even if the plaintiff is not in actual possession. Equally, it is not necessary, that the plaintiffs should be getting a share or some income from the property. This is because by creating a fiction of law, it is deemed that in case of co-owners, the possession of one in law is the possession of all, unless upon perusal of the averments in the plaint that must be read as a whole, a clear cut case of ouster is made out. Only in such circumstances would the plaintiff be liable to pay ad valorem court fees on the market value of his share as provided for under Section 7 (iv)(b) of the Court-fees Act. "} .....