Chandigarh, October 25
The possession of property by one co-owner is in the eye of law, possession of all joint owners. A co-owner has interest in the whole property and also in every part of it.
While observing this, a local court has held a woman, who is not in possession of a house, entitled to the 1/3rd share along with her two brothers after the death of their mother. The court has passed the significant ruling while passing a preliminary decree in favour of the sister, who filed a civil suit against her two brothers, seeking relief of partition of the house situated in Sector 8, Chandigarh.
In the plaint, she said her mother died intestate on March 29, 2011. After her death, the house was transferred in the name of the complainant and her two brothers. She, along with the defendants (brothers), has an equal undivided 1/3rd share each in the house. She no longer wished to remain in joint ownership and wanted her separate share by way of partition by metes and bounds. In January, 2018, she requested the defendants to buy her share so that the issue was amicably settled, but the latter refused to do so.
Both defendants opposed the plaint and raised an objection as to the maintainability of her plea. They said the plaintiff is not in possession of any part of the house and as such, she was bound to affix ad-valorem court fee. They also said no partition or fragmentation of property was allowed in Chandigarh as per the Chandigarh Estate Rules of 2007, as such the present suit also deserved to be dismissed.
Mayank Marwaha, Civil Judge (Junior Division), Chandigarh, rejected both objections of the defendants. Though the plaintiff is not in physical possession of any portion of the house, it is pertinent to mention that as per the settled law, the possession of property by one co-owner is in the eye of law, possession of all joint owners. A co-owner has interest in the whole property and also in every part of it. Since it has already been observed that the plaintiff is an owner to the extent of 1/3rd share in the house in question, she, being a co-owner, was not required to pay ad-valorem court fee while filing the present suit.
The court said as per Chandigarh Estate Rules of 2007, no fragmentation of any site or building is permitted. However, the plaintiff has sought relief of partition. By deciding the suit filed by the plaintiff, only the share of parties in the house is to be determined, which shall not amount to fragmentation of the house. In view of this, the suit of the plaintiff succeeds and a preliminary decree is passed to the effect that the plaintiff, along with the defendants, is held entitled to the 1/3rd share each in the house.
What court observes
Mayank Marwaha, Civil Judge (Junior Division), says though the plaintiff is not in physical possession of any portion of the house, as per the settled law, the possession of property by one co-owner is in the eye of law, possession of all joint owners. She, being a co-owner, is not required to pay ad-valorem court fee while filing the present suit.
