FAO(OS) 173/2024 Page 1 of 13 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 06.08 .2025 Judgment pronounced on: 21 .08.2025 + FAO( OS) 173/2024, CM APL. 71085/2024, CM APL. 73925/2024 & CM APL. 27986/2025 ANURAG SANT ..... Appellant Through: M r. Ashok Kumar Singh, Senior Advocate along with M r. Rakesh Chaudhary, M r. Rajev Chauhan, M r. Rajat Joshi, M s. Eesha Garg and M s. Salo ni Singh, Advocates . versus ANUPRIYA VIJ & ANR. ...Respondent s Through: M r. Shekhar Gupta, M r. M ehendra Pratap and M r. Anand M ishra, Advocates . CORAM : HON'BLE M R. JUSTICE ANIL KSHETARPAL HON'BLE M R. JUSTICE HARISH VAIDYANATHAN SHANKAR J U D G M E N T ANIL KSHETARPAL , J. 1. The Appellant has prefered the present Appeal assailing the corectness of the order dated 28.08.2024 (hereinafter referred to as the ³Im pugned Order ´) passed by the learned Single Judge of this Court in CS(OS) 52/2022, titled as Anupriya Vij and Anr. vs. Anurag FAO(OS) 173/2024 Page 2 of 13 Sant . By the Impugned Order, the learned Single Judge dismissed I.A. No. 11295/2022 in CS(OS) 52/2022, filed by the Appellant/Defendant therein under Order VI Rule 11(b ) of the Code of Civil Procedure, 1908 1, se king rejection of the plaint on the ground of non -payment of appropriate ad valorem Court Fees based on the corect valuation of the concerned suit property. The Respondents/Plaintifs therein have instituted the aforesaid Civil Suit, which is curently pe nding before the learned Single J udge . FACTUAL M ATRIX: 2. The relevant facts, necessary for adjudication of the present Appeal , are briefly stated as under: i. The parties in the present matter are the children and Class -I legal heirs of Late Shri Shiv Chand Sant (deceased on 17.12.2020) and Late Smt. Vijaya Sant (deceased on 09.08.2020), both being the common ancestors from whom the rights in the concerned suit prop erties devolve. The Respondents [Plaintiffs before the learned Single Judge] are the real sisters of the Appellant [Defendant before the learned Single Judge] . ii. The dispute arises in respect of two imovable properties [hereinafter collectively refered to as the ³suit p URSHUWLHV´ ]: a) Property bearing No. B -215, Ashok Vihar , Phase -I, Delhi ± 110052, constructed on a plot admeasuring 300 sq. yards (250.80 sq. met ers) [hereinafter refered to as ³$VKRN9LKDU3URSH ]; 1Hereinafter referred to as µ&3&¶ FAO(OS) 173/2024 Page 3 of 13 and b) Property bearing No. 5 -B, Nath M arket, Nai Sarak, Delhi ± 110006, admeasuring 600 sq. fet [ hereinafter referred to as the ³1DL6DUDN3URSHUW\´ ]. iii. The present lis originated with the institution of the Civil Suit by the Respondents/Plaintiffs, wherein they sought partition of the suit properties, partition of the immovable assets of the fathe U¶V businesses, namely Umesh Prakashan and Umesh Publications , mesne profits, rendition of acounts, and permanent injunction along with a declaration in respect of the suit properties . iv . The factual controversy centers on the allegation that the Appella nt/Defendant, along with his family, is in exclusive use and ocupation of the Ashok Vihar Property to the exclusion of the Respondents. The Respondent/Plaintifs assert that, as Class -I legal heirs, they and the Appellant /Defendant are each entitled to an undivided 1/3 rd share in the suit properties and the immovable business assets. v. The Appellant /Defendant disputes this claim by placing reliance upon two registered W ills dated 26.08.2015 (executed by the late father) and 24.09.2019 (executed by the late mother) which, acording to him, confer upon the Plaintifs a combined 34% share only in the Ashok Vihar Property. The validity of the aforesaid W ills is directly in issue in the pending Civil Suit, the Respondents /Plaintifs alleging that they were procured by the Appellant /Defendant through undue influence and coercion . FAO(OS) 173/2024 Page 4 of 13 3. In the course of procedings, the Appellant/Defendant raised a preliminary objection under Order VI Rule 11(b ) of the CPC , contending that the Civil Suit was liable to be rejected for non - payment of ad valorem Court Fes by the Respondents/Plaintifs on their own valuation of the Ashok Vihar Property. It was urged that, having valued the relief for possession, the Respondents/ Plaintifs were required to pay Court fes in acordance with Section 7(iv)(b) of the Court Fes Act, 1870 2. 4. Consequently, I.A. No. 11295/2022 was dismissed by t he learned Single Judge vide Impugned Order, who, after considering the contentions, held as under: ³7KLV&RXUWRQWKHUHDGLQJRIWKHSO plaintifs have not admited their ouster or exclusion from the suit property. Therefore, in the judgments of Anil Kumar Bansal [Col. (Retd.)] & Anr. v. R.K. Bansal & Ors. 3 and Nishet Bhala and Ors. v. M alind Raj Bhala and Ors. 4 relied upon by the aplicant/defendant in the facts of this case as noted above, there is no exclusion admited by the plaintif. Accordingly, the said judgments are of no asistance to the plaintif herein. Accordingly, the plea of the defendant that the plaintifs ought to pay ad -valorem Court fes as per Section 7(iv) (b) of the Court Fees Act, 1870 for the relief of separate possesion with respect to Ashok Vihar suit property despite admiting their co -ow QHUVKLSLVZLWKRXWDQ\PHULWVDQG SUBM ISIONS OF THE APPELANT: 5. It is submitted and pleaded by learned senior counsel for the Appellant that the Respondents /Plaintifs are admittedly ousted from 2 Hereinafter referred to as µ$FW¶ 3 198 (2013) DLT 723. 4 AIR 2007 DELHI 60. FAO(OS) 173/2024 Page 5 of 13 the suit properties and thus, they a re under legal obligations to pay ad valorem Court Fes under Section 7(iv)(b) of the Act . 6. Indisputably, the learned senior counsel for the Appellant submitted that, in acordance with the registered W ill dated 26.08.2015, executed by his father, the decision to let out the suit property was solely taken by the Appellant /Defendant DVLWVµ absolute RZQHU¶ . This, acording to the Appellant /Defen dant , reflects that the Respondents /Plaintifs are neither in possession of the suit property nor do they exercise any influence or control over its day -to -day management. The Appellant /Defendant also relied upon the valuation report dated 25.02.2022. For this, as per the aforesaid W ill, the Appellant /Defendant is declared the head of the house with responsibility for his parents, whose decisions are binding on the family, and is granted sucession rights in the property from the testator to his wife, and t hereafter to the Appellant /Defendant exclusively . 7. The Appellant /Defendant contends that, in view of the rent agrement dated 01.1.2021 betwen the Respondents/ Plaintiff s and the tenant of the Ashok Vihar Property, Sh. Vipin Nagpal , the Appellant, has himself asserted ownership over the suit properties . Hence, the Respondents /Plaintiffs cannot claim constructive possession thereof through the said tenant . 8. Learned senior counsel for the Appellant, further, pleaded that a bare peru sal of the registered W ill dated 26.08.2015 and 24.09.2019 stipulates WKHSDUHQWV¶ desire with similar expression and sentiments, FAO(OS) 173/2024 Page 6 of 13 and these are in norms of the society, that consequential ouster or exclusion from the suit properties , which has ben admitte d in clear and unambiguous terms . 9. In view of the aforementioned submissions, the learned senior counsel relied on Prakash W ati v s. Dayawanti & Anr. 5 where a party is not in possession of the property and alleges ouster, as in this case, the claim amounts to seking possession of their share, making ad valorem Court Fes on the market value of that share mandatory, rather than the fixed fe applicable t o joint possession cases . 10. Learned senior counsel for the Appellant also relied upon Nishet Bhalla & Ors. vs. M aini Raj Bhalla & Ors. 6 and Col. (Retd.) Anil Kumar Bansal v s. R.K. Bansal 7 that the plaintifs were bound to pay ad valorem Court Fes on that valuation as per the Act. It further held that the plaintifs were not in possession of any portion of the suit property at the time of filing and had admitted their exclusion, making them liable to pay ad valorem fes on the value of their shares for partition and possession . SUBM ISIONS OF THE RESPONDENT S: 11. Per contra , learned counsel for the Respondents, in opposition to the submissions advanced on behalf of the Appellant and as stated in their reply to the Order VI Rule 11(b ) of the CPC application, contended primarily on two grounds: Firstly , that the Respondents/Plaintifs therein had knowledge of the alleged W ills 5AIR 1991 Delhi 48. 6 2006 SCC OnLine Del. 649. 72012 SCC OnLine Del 5635 . FAO(OS) 173/2024 Page 7 of 13 executed by their father and mother, respectively. Secondly , the Respondents have been ousted from the suit properties , an d therefore, Court Fes ought to be afixed on the plaint. In view of these submissions, the Respondents /Plaintifs have categorically disputed the genuineness and validity of the alleged W ills of their father and mother, respectively, and have also raised allegations of both mental and physical abuse. W ith respect to the issue of ouster and payment of ad valorem Court fees, the Respondents /Plaintiffs have clearly stated LQ WKH SODLQW WKDW WKH\ DUH LQ µF properties and als o claim to be co -owners thereof . 12. In view of the aforesaid submissions, the learned counsel for the Respondents placed reliance on Jagannath Amin vs. Setharama (Dead) By LR s. and Others 8 and Nelavathi and Others vs. N. Nataranjan and Others 9 to emphasize that the suit properties , though not strictly so, are treated as undivided joint family property. In law, when property is jointly owned, possession by one co -owner is demed possession for all, unless it is clearly established that a co - owner ha s been ousted or excluded. Therefore, a Plaintif is considered to be in joint possession in the eyes of the law even without physically posessing any part of the property . 13. Learned counsel for the Respondents further submitted that it is a settled pos ition of law that for the purpose of determining constructive possession, only the averments made in the plaint are to be considered, and where joint possession is pleaded on the basis of 82007 (1) SCC 694. 9 (1980) 2 SCC 247. FAO(OS) 173/2024 Page 8 of 13 co -ownership, the Court Fes are payable under Article 17(vi) of Schedule I of the Act, and no