Brother Leaves Family Home in 1993, Sister-in-Law Claims Exclusive Possession; Delhi High Court Says Long Absence Does Not Extinguish Co-Owner’s Property Rights
Co-Owner Not Physically Living in Property for 25 Years; Delhi High Court Says Absence Alone Cannot Extinguish Ownership
Facts
The dispute concerned Flat No. H-320, Naraina Vihar, New Delhi, purchased from his own funds by R.L. Arora in 1971. A conveyance deed was subsequently executed in his favour by the Delhi Development Authority on 27 July 1987.
R.L. Arora died intestate on 4 June 1988, leaving behind his wife Rama Arora, two sons—Sunil Kumar Arora and Devender Kumar Arora—and daughter Vandana Murgai.
Consequently, each of the four Class-I heirs initially became entitled to a one-fourth share in the property.
Devender Kumar Arora was married to Bina Arora. He died on 3 March 2006, after which Bina continued residing in the property along with their son Naman.
Sunil claimed that although he was not physically occupying the property, he continued to be its co-owner and was therefore in constructive possession.
Bina, however, claimed that Sunil had left the property in July 1993, never returned to reside there and had effectively been excluded from the property for decades. On this basis, she pleaded ouster, limitation and exclusive possession.
Sunil sought his share in the property in his reply dated 29 August 2018 to a legal notice issued by Bina. His share was expressly denied by Bina on 10 September 2018.
He thereafter instituted the partition suit on 10 January 2019.
The District Judge passed a preliminary decree under Order XII Rule 6 CPC, declaring:
- Sunil Kumar Arora — 1/3;
- Bina Arora and Naman Arora jointly — 1/3; and
- Vandana Murgai — 1/3.
Bina Arora challenged that decree before the Delhi High Court.
Issues
The principal questions were:
1. Whether a co-owner who had not physically resided in the property since 1993 had lost his ownership rights by ouster/exclusion.
2. Whether continuous physical possession by another branch of the family amounted to hostile possession sufficient to extinguish the co-owner’s rights.
3. Whether the partition suit filed in 2019 was barred by limitation.
4. Whether the existence of pleas of ouster and limitation prevented the Trial Court from passing a preliminary decree on admissions under Order XII Rule 6 CPC.
Appellant’s Arguments
Bina Arora argued that Sunil had completely separated himself from the property in July 1993 and had neither resided in nor exercised control over it for several years.
She asserted that she and the other family members had remained in settled, continuous and exclusive possession.
Therefore, the questions of:
- ouster;
- exclusion;
- hostile possession; and
- limitation
required evidence and could not have been summarily decided through Order XII Rule 6.
She particularly relied on an earlier Delhi High Court order in the same litigation observing, while dealing with Order VII Rule 11, that limitation was a mixed question of fact and law requiring trial and evidence.
Respondent’s Case
Sunil’s case rested on the admitted title.
The property admittedly belonged exclusively to his father, who admittedly died intestate. His status as one of the legal heirs was also undisputed.
Accordingly, physical non-occupation could not extinguish the ownership inherited by him unless Bina established a legally sustainable case of ouster through open, continuous and hostile possession to his knowledge and exclusion.
Analysis of the Law
Mere Physical Absence Does Not Extinguish Co-Ownership
The High Court held that there was no dispute concerning the fundamental title.
R.L. Arora owned the property and died intestate. His four legal heirs consequently inherited equal shares.
The fact that Sunil stopped physically residing there did not, by itself, terminate his proprietary interest.
The Court observed:
Mere physical possession by one co-owner does not make that person the exclusive owner.
A co-owner who remains outside the property continues to have constructive legal possession along with the other co-sharers unless ouster is established.
What Is Required to Prove Ouster?
The Court emphasised that possession by one co-owner is ordinarily not presumed to be hostile to another co-owner.
For Bina to establish exclusive ownership, she had to demonstrate that her possession was:
open + continuous + hostile to Sunil’s title + to his knowledge + to his exclusion.
The Court found these essential ingredients conspicuously absent from the pleadings and material.
Merely living in the property for decades could not convert possession into exclusive ownership.
Even Being “Driven Out” Is Not Automatically Ouster
An important aspect of the Trial Court’s reasoning, upheld in appeal, was that even if Sunil had been driven out of the house, that circumstance by itself would not transfer ownership to Bina and Naman.
Bina originally entered the property as the wife of Devender Kumar Arora, who himself was a co-sharer.
There was no sufficient pleading explaining when and how the character of that permissive/co-sharer possession transformed into possession openly hostile to the title of all other co-owners.
Limitation: Cause of Action Arose in 2018
The High Court rejected the contention that limitation began running merely because Sunil ceased living in the property in 1993.
Since no legal ouster or denial of his co-ownership had been established before 2018, his right to seek partition continued.
Sunil expressly claimed partition on 29 August 2018.
Bina expressly denied his share on 10 September 2018.
Accordingly, the Court held that the cause of action arose in 2018, and the suit instituted on 10 January 2019 was well within limitation.
Article 110 Did Not Apply
The Court held that Article 110 of the Limitation Act had no application because there had been no established exclusion or ouster from the joint family property before 2018.
Thus, decades of physical non-residence did not by itself start limitation against the co-owner.
Order XII Rule 6: Was Trial Necessary?
Bina argued that because limitation had earlier been described as a mixed question of law and fact, evidence necessarily had to be recorded.
The High Court disagreed.
The earlier observation was made while deciding whether the plaint could be rejected at the threshold under Order VII Rule 11.
Once the admitted pleadings and material showed:
- R.L. Arora’s ownership;
- his intestate death;
- Sunil’s status as legal heir;
- absence of pleaded facts constituting legal ouster; and
- denial of Sunil’s share only in 2018,
there was no triable factual foundation capable of defeating the admitted co-ownership.
The preliminary partition decree could therefore be sustained.
Precedent Analysis
Nagabhushanammal v. C. Chandikeswaralingam
The Trial Court relied upon this Supreme Court decision for the proposition that one co-owner cannot claim exclusive ownership unless possession is established to be in denial of the other co-owner’s title and hostile to that co-owner through exclusion.
Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust
The appellant relied upon this authority to contend that limitation ordinarily requires proper pleadings, framing of an issue and evidence.
The High Court found that proposition did not alter the result because the pleaded case itself failed to disclose a legally sustainable ouster before 2018.
N. Asha Devi v. R. Aravind Kumar
The High Court noted the Supreme Court’s 2026 reiteration that although limitation is ordinarily a mixed question of law and fact, the Court may determine it at the threshold where the relevant position is apparent from the pleadings themselves.
Subsequent Relinquishment: Sunil May Ultimately Get Two-Thirds
There was an important subsequent development.
Vandana Murgai had executed a registered Relinquishment Deed in favour of Sunil, and she admitted its genuineness in her statement dated 22 August 2025.
The High Court therefore held that if the relinquishment is found genuine, the preliminary decree may be modified so that:
Sunil Kumar Arora — 2/3 share
Bina Arora + Naman Arora jointly — 1/3 share
instead of the existing one-third distribution.
Court’s Reasoning
The central principle emerging from the judgment is:
Non-residence is not ouster. Exclusive physical possession is not exclusive ownership.
For one co-owner’s possession to destroy another co-owner’s title, there must be a clear hostile assertion against the latter’s ownership, coupled with open and continuous possession to that co-owner’s knowledge and exclusion.
Bina’s case essentially established that Sunil had not lived in the property since 1993. It did not establish the legally distinct requirement that his ownership itself had been openly repudiated for the requisite period.
Accordingly, the plea of ouster failed.
Conclusion
The Delhi High Court dismissed Bina Arora’s appeal and upheld the preliminary decree of partition.
It held that Sunil Kumar Arora remained a co-owner despite not physically residing in the property for decades because no legal ouster or hostile possession sufficient to extinguish his ownership had been established.
The partition suit filed in January 2019 was within limitation because his share was expressly denied only in September 2018.
The Court further permitted modification of the preliminary decree if Vandana Murgai’s registered relinquishment in Sunil’s favour is ultimately found genuine.
Case Details
Case: Bina Arora v. Sunil Kumar Arora & Ors.
Court: Delhi High Court
Case No.: RFA 1007/2026 & CM APPL. 62450/2026, 62452/2026
CNR: DLHC010435362026
Judge: Justice Neena Bansal Krishna
Reserved: 15 September 2026
Pronounced: 18 September 2026
Result: Appeal dismissed; preliminary partition decree upheld. Plaintiff’s one-third share may increase to two-thirds if the registered relinquishment of the sister’s one-third share in his favour is found genuine.
