No head of fee in the Rajasthan Court Fees and Suits Valuation Act, 1961 is litigated as often, or misunderstood as widely, as the fee on a suit for partition. The decisive question is deceptively simple: is the plaintiff in joint possession, or has he been excluded? Section 35 answers it with two radically different consequences — a flat fee of thirty to two hundred rupees in the first case, and full ad valorem fee on the market value of the share in the second. This note examines Section 35 sub-section by sub-section, the cognate provision in Section 36, and the settled rule that the fee is fixed by the averments of the plaint alone, illustrated through Neelavathi v. M. Natarajan and the Rajasthan jurisprudence.
Why partition fee stands apart
A partition suit is not a money suit and is rarely a simple recovery suit, so the ordinary computation rules in the computation of court fees chapter do not capture it cleanly. The legislature therefore carved out a dedicated provision — Section 35 — for partition and separate possession of joint family property or property owned jointly or in common. The provision recognises a legal reality of co-ownership: a coparcener or co-owner is, in the eye of law, already in possession of the whole through his co-sharers. When such a person merely seeks to convert that joint possession into a defined, separate share, he is not asserting a new title against an excluder; he is regulating an existing one. The fee structure mirrors that distinction. Where the plaintiff is in joint (constructive) possession, a nominal fixed fee suffices; where he has been ousted and must in substance recover possession, he pays as if seeking the value of his share. This is the architectural logic that runs through the entire section and explains every result that follows.
The structure of Section 35
Section 35 of the Rajasthan Court Fees and Suits Valuation Act, 1961 is built on three sub-sections that work as a single scheme. Sub-section (1) governs the plaintiff who has been excluded from possession; sub-section (2) governs the plaintiff who is in joint possession; and sub-section (3) governs the defendant who, in his written statement, himself claims partition and separate possession of his share. The two limbs for the plaintiff are mutually exclusive and self-selecting: the suit cannot fall under both, and which limb applies is decided not by the court's eventual finding on possession but by what the plaintiff himself pleads. The fee thus attaches to the frame of the suit, not to its merits. This is the same possession-driven logic the Act applies elsewhere, and it should be read together with the broader treatment of suit valuation in the Rajasthan Court Fees and Suits Valuation Act hub.
Sub-section (1): the excluded plaintiff pays on market value
Section 35(1) provides that in a suit for partition and separate possession of a share in joint family property, or of property owned jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. The rationale is that an excluded co-owner is, in substance, recovering possession of his share from those who have kept him out; the relief is no longer nominal but proprietary, and the State levies fee accordingly. "Market value" here means the value of the plaintiff's own share, not the entire property — a critical point, since the plaintiff is not seeking to recover the whole but only his aliquot interest. Where the property carries an ascertainable market value, that value of the share is the measure; the plaintiff cannot arbitrarily under-value the share to escape into the slab regime, and a tahsildar's or registrar's valuation may be invoked to test a figure that appears unrealistically low. The threshold fact that triggers this limb is exclusion, and exclusion must be a genuine ouster, not a mere grievance about non-receipt of profits, as the case law in the section below makes clear. The practical consequence is significant: a plaintiff who is in truth out of possession faces a substantial fee, and any attempt to dress such a suit up as one in joint possession will be tested against the substance of the pleadings rather than their label.
Sub-section (2): joint possession and the fixed-fee slabs
Section 35(2) applies where the plaintiff is in joint possession of the joint family property or property owned jointly or in common. Here, because the plaintiff is in law already in possession and merely seeks to crystallise his share, the fee is a small fixed amount on a graded scale tied to the value of his share: rupees thirty where that value is rupees five thousand or less; rupees one hundred where it exceeds five thousand but does not exceed ten thousand; and rupees two hundred where it exceeds ten thousand. The slabs are sharply concessional compared to ad valorem fee, reflecting the policy that a co-sharer who is not out of possession should not be priced out of seeking partition. These are fixed fees in nature, and conceptually align with the fixed-fee philosophy reflected in Schedule I and Schedule II, even though the partition slabs are set out in the body of the Act itself rather than in the Schedules.
Sub-section (3): the defendant who claims partition
Section 35(3) addresses the common situation where a defendant, instead of simply resisting the suit, asserts in his written statement his own right to partition and separate possession of his share. He cannot ride free on the plaintiff's court fee. The sub-section requires fee to be paid on his written statement, computed on half the market value of his share, or at half the rates specified in sub-section (2), according as that defendant has himself been excluded from possession or is in joint possession. The halving recognises that a court-fee has already been paid on the suit by the plaintiff, so the defendant's positive claim attracts a reduced, but real, levy. This provision is also the legislature's guard against collusion: family members cannot defeat the revenue by having the plaintiff plead only part of the estate while the defendants quietly bring the rest in through their written statements free of fee — a concern the Rajasthan High Court addressed in Khemchand v. Yaswant Chand.
Section 36: suits for joint possession
Section 35 must be read alongside Section 36, which governs a suit for joint possession of joint family property or of property owned jointly or in common, brought by a person who has been excluded from such joint possession. There, fee is computed on the market value of the plaintiff's share. The two sections together complete the map: Section 35 deals with the prayer for partition and separate possession, while Section 36 deals with the prayer to be let back into joint possession. The unifying thread is exclusion — wherever the plaintiff has been ousted and must in substance recover possession, whether separate or joint, the Act demands fee on the market value of his share; wherever he is already in possession and merely seeks to define or partition it, the nominal fixed fee applies. Understanding this pairing prevents the frequent error of forcing every co-ownership dispute into Section 35. It also explains why a plaintiff who has been physically driven out cannot simply ask for partition under the slab limb: if the relief truly needed is restoration of possession, Section 36 (or the exclusion limb of Section 35) governs, and the market-value measure follows. The two provisions are best read as a continuum keyed to a single fact — the plaintiff's possessory position at the date of suit — rather than as isolated heads of fee, and the same fact selects the limb whether the prayer is for joint possession or for separate possession after partition.
The fee is fixed by the plaint, not the defence
The single most important interpretive rule is that the court fee in a partition suit is determined solely on the allegations in the plaint, read as a whole, and not on the pleas in the written statement or the eventual findings on the merits. The locus classicus is Neelavathi v. M. Natarajan, AIR 1980 SC 691 (also reported as (1980) 2 SCC 247), decided on 30 November 1979. There, five sisters sued their brothers for partition and separate possession, consistently pleading that they were in joint possession as co-owners. Interpreting the cognate Tamil Nadu Court Fees and Suits Valuation Act, the Supreme Court held that where the plaint avers joint possession, the fixed-fee limb (the equivalent of Section 35(2)) governs, and the ad valorem limb applies only on a clear and specific averment of exclusion. The principle is provision-neutral and applies with full force to Section 35 of the Rajasthan Act, whose two limbs are drafted on the same lines.
What counts as exclusion
Because everything turns on exclusion, the courts have been careful to keep the bar high. In Neelavathi, the Supreme Court reaffirmed the elementary rule of co-ownership that the possession of one co-owner is in law the possession of all, unless ouster or exclusion is proved. It followed that the mere fact that the plaintiffs were not paid their share of the income, or were not in actual physical possession of any specific part of the property, did not amount to their having been excluded from the joint possession to which they were legally entitled. A co-owner need not be in actual possession of the whole or any part to sue for partition while remaining within the fixed-fee limb. Exclusion, in the sense that attracts market-value fee, connotes a definite ouster — conduct denying the plaintiff's title or possession — not the ordinary friction of an undivided family. A plaintiff who genuinely wishes to invoke the concessional slabs must therefore frame his plaint on joint possession and avoid pleading himself out of it.
Rajasthan application: valuation and anti-collusion
The Rajasthan High Court has applied these principles directly to Section 35. The valuation to be accepted is the plaintiff's own valuation as disclosed in the plaint; it does not depend on the defence taken, and even a contrary finding by the trial court after evidence on the question of joint possession does not retrospectively compel the plaintiff to value the suit under Section 35(1). The fee crystallises when the plaint is filed and on its averments. At the same time, in Khemchand v. Yaswant Chand the High Court underscored that the court must remain alert to collusion: where the plaintiff deliberately omits properties and the defendants then bring them in through their written statements claiming partition, the State's interest in court fee is protected by Section 35(3), which fastens fee on the defendant's own claim. The plaint-averments rule protects the bona fide co-sharer; the defendant-fee rule protects the revenue.
Substance over form in framing
A recurring temptation is to draft a partition plaint so as to disguise what is really a recovery of possession from an excluder, and thereby pay the nominal slab fee. The courts look to the substance and reality of the relief, not the astute wording of the plaint — the approach the Supreme Court applied to court-fee questions in Shamsher Singh v. Rajinder Prashad, (1973) 2 SCC 524, in the cognate context of a declaratory suit with consequential relief. If, read as a whole, the plaint discloses that the plaintiff has in truth been ousted and seeks to recover his share, the suit falls under Section 35(1) and attracts market-value fee however it is labelled. Conversely, a plaint that genuinely and consistently asserts joint possession cannot be pushed into the ad valorem limb merely because the defence alleges ouster. The drafting must honestly reflect the plaintiff's possessory position; the fee then follows as a matter of law.
A practical checklist
For the practitioner and the examinee alike, Section 35 reduces to a short sequence. First, identify the prayer: partition and separate possession (Section 35) or restoration of joint possession (Section 36). Second, read the plaint as a whole to determine the pleaded possessory status — joint possession or exclusion — ignoring the written statement and any anticipated finding. Third, if joint possession is pleaded, apply the Section 35(2) slabs of rupees thirty, one hundred or two hundred on the value of the share; if exclusion is pleaded, compute fee on the market value of the share under Section 35(1). Fourth, for any defendant who claims partition in his written statement, levy half the market value or half the slab rate under Section 35(3). This discipline keeps the partition fee distinct from the rules for declaration and injunction suits and from money suits, and it ensures the fee is anchored where the Act intends — in the plaintiff's own pleading.
Frequently asked questions
What court fee is payable on a partition suit in Rajasthan when the plaintiff is in joint possession?
Under Section 35(2), a fixed fee on a graded scale: rupees thirty if the value of the plaintiff's share is rupees five thousand or less, rupees one hundred if it is above five thousand but up to ten thousand, and rupees two hundred if it exceeds ten thousand.
How is court fee computed when the plaintiff has been excluded from possession?
Under Section 35(1), fee is computed ad valorem on the market value of the plaintiff's share, because an excluded co-owner is in substance recovering possession of his share rather than merely defining an existing joint possession.
Is court fee decided on the plaint or on the written statement?
On the plaint alone, read as a whole. Neelavathi v. M. Natarajan, AIR 1980 SC 691, holds that the fee is determined by the plaint's averments and cannot be influenced by the pleas in the written statement or by the eventual findings on the merits.
Does not receiving a share of the income amount to exclusion?
No. In Neelavathi v. M. Natarajan the Supreme Court held that mere non-payment of one's share of income, or absence of actual physical possession, does not amount to exclusion; possession of one co-owner is in law the possession of all unless ouster is proved.
What fee does a defendant pay if he claims partition in his written statement?
Under Section 35(3), the defendant pays on his written statement either half the market value of his share or half the Section 35(2) rates, according as he himself has been excluded from possession or is in joint possession.
What is the difference between Section 35 and Section 36?
Section 35 governs a suit for partition and separate possession of joint or common property; Section 36 governs a suit by an excluded person for restoration of joint possession, with fee on the market value of his share. Both turn on whether the plaintiff has been excluded.