Safiya Malik

The Delhi High Court has declined an application seeking the rejection of a civil suit concerning a property dispute arising from a registered gift deed and will. The matter involves a claim for the nullification of the documents in question and the plaintiff's attempt to establish co-ownership over the contested property. The court, after examining arguments from both sides, has allowed the proceedings to continue, directing the plaintiff to pay the requisite court fees. The case is now scheduled for further proceedings before the Joint Registrar (Judicial) on April 3, 2025.

The plaintiff filed a suit challenging the validity of a registered gift deed dated September 6, 2021, and a registered will dated July 26, 2017, both executed by the deceased property owner, Late Shri Chander Bhan. The plaintiff sought a declaration that these documents be rendered null and void and requested a permanent injunction to prevent the first defendant from creating third-party rights over the disputed property, located at M-111, Saket, New Delhi-110017.

Late Shri Chander Bhan passed away on February 5, 2023, at the age of 92, leaving behind five legal heirs: two sons (the plaintiff and the first defendant) and three daughters (defendants three to five). The first defendant, the younger son, claims absolute ownership of the property based on the will and gift deed executed in his favor. He contends that the property was self-acquired by the deceased and therefore not subject to partition among the heirs.

The first defendant filed an application under Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC), seeking rejection of the suit on multiple grounds, including the absence of a valid cause of action, undervaluation of the suit, and non-payment of ad valorem court fees as required under the Suit Valuation Act, 1887 and the Court Fees Act, 1870.

Additionally, the defendant argued that a previous suit for partition had already been filed by one of the daughters (defendant four), which was dismissed for lack of cause of action. He submitted that since the plaintiff was not in actual possession of the property, his claim of constructive possession lacked merit. The defendant also stated that property tax records and electricity bills were in his name, reinforcing his ownership claim.

The court examined the arguments and made several observations regarding the plaintiff's claim and the defendant’s objections. In a previous judgment dated November 5, 2024, the court had already noted that the plaintiff was not in physical possession of the property and thus was liable to pay ad valorem court fees. The court recorded in paragraph 13 of that judgment:

"The plaintiff on 21st August 2024 fairly conceded before this Court that he is not in actual physical possession of any portion of the suit property."

Further, in paragraph 26, the court observed:

"In view of the execution of the Gift Deed, the plaintiff’s plea of constructive possession is also without any merit. Upon execution of the Gift Deed dated 03.09.2021, late Shri Chander Bhan as per the recitals handed over the actual physical possession of the suit property to the defendant no. 1. The plaintiff is thus, liable to pay ad-valorem court fee."

The court acknowledged the defendant’s reliance on the Dahiben v. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366 case, which affirmed that a suit should be summarily dismissed if it lacks a cause of action or is legally untenable. The court also noted its previous decision in Sunita Ranga v. Vijayinder Kumar & Ors (2024:DHC:8516), wherein a similar claim for partition was dismissed due to the failure to challenge a registered will.

However, the court distinguished the present case, stating that the rights of the plaintiff to challenge the gift deed and will were expressly left open for adjudication in this suit. The plaintiff had since applied for an amendment under Order VI Rule 17 CPC, seeking to include consequential relief for possession, and had paid ad valorem court fees for his claimed one-fifth share.

In its judgement, the court declined to reject the suit under Order VII Rule 11 CPC and instead allowed the matter to proceed. It recorded:

"In these circumstances, the Court is not inclined to reject the plaint under Order VII Rule 11 of CPC. Considering the sequence of events, including the prior rejection of the partition suit, the reservation of rights to challenge the gift deed and will, and the plaintiff's compliance with the requirement to pay ad valorem court fees, this Court would lean in favor of the plaintiff for not rejecting the suit on this basis."

Additionally, the court modified an earlier interim order, granting the first defendant permission to use, occupy, or lease the property but barring its sale or mortgage without prior court intimation. The order stated:

"In the considered opinion of this Court, the defendant no. 1 has sufficiently made out a case for grant of this variation and accordingly defendant no. 1 is granted liberty to use or occupy and/or let out the suit property as per his discretion. However, defendant no. 1 is directed not to sell or mortgage the suit property without giving prior intimation to this Court."

Accordingly, the application is dismissed, and CS(OS) 441/2023 is listed before the Joint Registrar (Judicial) on April 3, 2025, for further proceedings.

Case Title: Sh. Subhash Chandra Jarodia v. Sh. Vijayinder Kumar & Ors.
Case Number: CS(OS) 441/2023, I.A. 13786/2023, I.A. 29995/2024, I.A. 32144/2024, I.A. 1216/2025
Bench: Justice Anish Dayal

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