Partition is unavailable to plaintiffs lacking actual or constructive possession unless possession is specifically claimed.

The appellants, sons of Late S. Swaran Singh, instituted a suit for declaration and partition of two properties allegedly forming part of their father’s intestate estate. In respect of Plot No. 27, Surya Niketan, the respondents relied on a registered General Power of Attorney dated 1 February 2003 executed by Swaran Singh in favour of respondent no. 1, and a registered Agreement to Sell dated 26 May 2003 executed by respondent no. 1, as attorney, in favour of respondent no. 3. The appellants alleged that the GPA and related transaction were forged and disputed the delivery of possession.

The Trial Court held that the GPA and Agreement to Sell were valid, the consideration had been paid, and possession had been delivered to respondent no. 3; it consequently held that the appellants were neither in actual nor constructive possession and that the partition suit, without a prayer for possession, was not maintainable. In the appeal, the appellants confined their challenge to the Surya Niketan property. They subsequently paid court fees based on the market value of the property and filed an application to amend the plaint to include possession, but withdrew that application on 28 March 2026.

1. Whether the registered GPA dated 1 February 2003 was validly executed by Late S. Swaran Singh in favour of respondent no. 1 and whether respondent no. 1 validly executed the Agreement to Sell dated 26 May 2003 in favour of respondent no. 3.

2. Whether respondent no. 3 was a bona fide purchaser of the Surya Niketan property and had received possession pursuant to the Agreement to Sell.

3. Whether the appellants were in actual or constructive possession of the property so as to maintain a suit for partition without seeking possession.

4. Whether the Trial Court’s dismissal of the suit as not maintainable warranted appellate interference under Section 96 CPC.

The Court applied Section 96 of the Code of Civil Procedure, 1908, governing first appeals, and the principle that a suit for partition ordinarily presupposes the plaintiff’s actual or constructive possession as a co-owner. Where the plaintiff is out of possession and possession is held by a transferee or adverse claimant, the plaintiff must seek an appropriate relief of possession and pay the requisite ad valorem court fee; a partition suit framed without such relief is not maintainable.

The Court relied on Prem Singh v. Birbal, (2006) 5 SCC 353, for the rule that a registered document carries a prima facie presumption of valid execution, which must be rebutted by the party challenging it. It also relied on Manmohan Batra v. Bharat Bhushan Batra, 2012 SCC OnLine Del 2663, holding that a plaintiff not in physical or constructive possession cannot maintain a partition suit without seeking possession. The Court further considered the applicable principle under the Court Fees Act concerning court fees in partition and possession proceedings.

The Court found that the GPA was a registered document, its execution and registration were proved through the attesting witness and the Sub-Registrar’s official witness, and the appellants failed to establish forgery or fabrication. The medical records relied upon by the appellants showed that Swaran Singh had been discharged in a satisfactory condition and did not establish that he lacked the capacity to execute the GPA.

The Agreement to Sell was also registered, executed by respondent no. 1 under the authority conferred by the GPA, and supported by evidence that the consideration of Rs. 10 lakh had been deposited in Swaran Singh’s bank account. The Court held that the hospitalization of Swaran Singh was immaterial because the transaction was executed through his attorney. The Agreement to Sell recorded delivery of possession, respondent no. 3 deposed that the property remained under her lock, and documentary evidence showed her payment of society charges; accordingly, the appellants were not in actual or constructive possession. Since possession was with respondent no. 3, the appellants were required to seek possession in addition to partition. Their withdrawn amendment application itself had acknowledged the need to claim possession, and its withdrawal did not alter the legal position.

The appeal was dismissed, and all pending applications were disposed of.