Clarification on court fees at time of family partition of property

859 votes

Plaintiffs had submitted that Section 7(iv)(b) read with Article 17(vi) of Schedule II of the Court Fees Act, 1870 provides for payment of fixed court fees in suits for partition of joint family properties as affixed by the plaintiffs and in support of the said submission, he placed reliance on following decisions:-

48. The amount of court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of suit properties, has to be examined in the context of Section 7 of the Court Fees Act, 1870 which prescribes computation of fees payable in suits. The relevant extract of Section 7 is reproduced hereinbelow:-

"7. Computation of fees payable in certain suits:- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-
58. In the case of Saroj Salkan(supra), a Division Bench of this Court had referred to the decisions of the Supreme Court in the case of Neelavathi(supra) and Jagannath Amin(supra) and of this Court in the case of Prakash Wati (supra) & held that :-

―13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co-owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad- valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court Fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession.‖ (emphasis added)
71. The said conclusion is fortified with the opinion expressed by the Division Bench in the case of Saroj Salkan(supra) and by a learned Single Judge of this court in the case of Durga Parmar(Dr.) & Ors. Vs. V.K.Verma & Ors. reported as (2004) 7 AD (Delhi) 452, wherein the legal position was reiterated as follows:

― 3.....The law is well-settled that the valuation of a suit for the purposes of Court-fee depends upon the prayers made in the plaint and in partition suits where immovable property sought to be partitioned is with the tenants, the co-owners are deemed to be in constructive possession. In such cases, they cannot be, prima facie, held to be out of possession of the property and cannot be made to pay Court-fee on the value of the share being claimed by them. The judgment of the Apex Court in Chief Inspector of Stamps Vs.Indu Prabha Vachaspati(Smt.) and Ors.1998 9 SCC 157, is a direct authority on this question..‖

Advocate JK Patel LawRato

603 votes

Hello, without knowing of property details it would be difficult to tell you about court fees, you can check court fees act for delhi as regards court fees payable on probate, in addition you need to pay legal fees .
generally for probate wherein will is not contested it would take maximum 6 months .
Kindly note probate of will is not mandatory in Delhi .

Advocate Jayatee Chatterjee LawRato