Non-executant co-owner in constructive possession seeking declaration of void sale-deed is liable only for fixed court fees.

The petitioner filed a civil suit for declaration, injunction, and partition of ancestral property governed by Mitakshara law, claiming a one-fourth share.

She challenged a sale deed executed by her brother without partition, claiming a right of pre-emption and asserting joint possession in the plaint.

The trial court allowed an application by the respondents under Order 7 Rule 11 of the CPC through an order dated 20.07.2017, directing the petitioner to pay ad valorem court fees instead of fixed fees.

The trial court reasoned that because the petitioner is a married lady living with her husband in a different city (Satna), she was not in possession of the suit property.

1. Whether a non-executant of a sale deed who claims joint possession of ancestral property is liable to pay ad valorem court fees or fixed court fees for a declaration of the deed as void.

2. Whether the marital status and residence of a female co-sharer at her matrimonial home automatically ousts her from "possession" of ancestral property for the purpose of determining court fees.

Only plaint averments are germane at this stage, as held in Nusli Neville Wadia v. Ivory Properties.

The precedent of Suhrid Singh v. Randhir Singh (2010), which distinguishes between the "cancellation" of a deed (required for executants) and a "declaration" that a deed is non-binding (available to non-executants).

Under Section 7(iv)(c) of the Court Fees Act and Article 17(iii) of the Second Schedule, a non-executant in possession seeking a declaration of invalidity is liable only for fixed court fees, whereas one seeking a consequential relief of possession must pay ad valorem fees.

The High Court observed that for deciding an Order 7 Rule 11 application, the court must look only at the plaint’s averments, where the petitioner repeatedly stated she was in joint possession.

Applying Suhrid Singh, the court noted that since the petitioner was a non-signatory to the sale deed executed by her brother, she was seeking a declaration, not cancellation, thus exempting her from ad valorem fees.

The court rejected the trial court’s logic regarding the petitioner's residence. It held that a married woman living in her matrimonial home does not lose "possession" of ancestral property, citing the settled principle that every co-owner owns every inch of the property until it is partitioned by metes and bounds.

The petitioner’s claim of joint possession was legally sufficient to sustain a fixed court fee.

The Court held that the trial court’s order was illegal and without jurisdiction.

It ruled that the petitioner, as a non-executant co-sharer claiming joint possession, had valued the suit properly with fixed court fees.

The parties were directed to appear before the trial court on 15.05.2026 for further proceedings.