Sunday, March 29, 2026
Latest:
delhihighcourt

SMT. SARITA GARG vs SH. AMAN GUPTA & ORS.

Information

$~26

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th February, 2024
+ CS(OS) 95/2020, I.A. 2927/2020
SMT. SARITA GARG ….. Plaintiff
Through: Mr. Varun Dewan, Advocate.
versus

SH. AMAN GUPTA & ORS. ….. Defendants
Through: Mr. D.V. Khatri, Ms. Harshita Khatri and Mr. Anurag Verma, Advocates for D2.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 17998/2023 (under Order VII Rule 11 read with Section 151 CPC)
1. The application under Order VII Rule 11 read with Section 151 CPC, has been filed on behalf of the defendant No. 2, Shri Rajeev Gupta.
2. It is submitted in the application that the plaintiff has filed a suit for Declaration and Cancellation of the registered Will dated 16.07.2010 and for consequential benefits of Partition, Rendition of Accounts and for Permanent Injunction against the defendants, who are the brothers and sisters of the plaintiff.
3. Smt. Sushila Gupta W/o Late Sh. R.K. Gupta, mother of the parties to the suit, had purchased the suit property bearing No.13, Block-D, Vivek Vihar, Delhi. It was converted to freehold and Conveyance Deed dated 20.12.1996 was executed in her favour. Plaintiff and defendant No.3 and 4 are the married daughters of Smt. Sushila Gupta while defendant No.1 and 2 are the sons. Smt. Sushila Gupta during her life time executed a registered Will dated 16.07.2010 whereby she bequeathed the suit property in favour of defendant No.1 and 2. Smt. Sushil Gupta expired on 10.01.2013 and by virtue of the Will, defendant No.1 and 2 became the owners of the suit property. They are in possession of the same and have been exclusively using and occupying the suit property.
4. The plaintiff as well as defendant No.3 and 4 had full knowledge about the execution of the registered Will dated 16.07.2010 since the time of its execution, but they have wrongly claimed that they had come to know about the Will from the reply dated 02.05.2019 given by defendant No.1 and 2 to the Legal Notice sent by the plaintiff. It is asserted that Will is a validly executed and registered document and unless the Will is declared to be null and void, the relief of Partition cannot be claimed by the plaintiff. It is, therefore, submitted that the suit for Partition is not maintainable in the light of the validly executed and registered Will of Smt. Sushila Gupta. The suit is, therefore, liable to be rejected.
5. It is further submitted that once the relief of Declaration of Will is deleted from the plaint, the valuation of the suit for the other reliefs is about Rs.2,330/-, which is much below the pecuniary jurisdiction of this Court and the suit is liable to be rejected.
6. Reliance has been placed on Ramti Devi vs. Union of India (1995) 1 SCC 198, Anita Anand vs. Gargi Kapur, 2018 SCC OnLine Del 11372 and Sangeeta Sehgal & Ors. v. Guatam Dev Sood & Ors, CS (OS) No.243/2020.
7. The application is contested by the plaintiff who has submitted that the relief of Declaration and Cancellation of the Will has been sought along with claim for Partition as a consequential benefit.
8. It is further submitted that the plaintiff had no knowledge about the execution of the Will about which she came to know only from the Reply dated 02.05.2019. No Will dated 16.07.2010was ever executed by Smt. Sushila Devi and it has been procured by fraud, duress and coercion by the defendant no. 1 and 2 with an intention to usurp the suit property. It is submitted that the application is without merit and is liable to be dismissed.
9. Submissions heard.
10. The basic premise seeking rejection of the plaint is that so long as the validly executed and registered Will dated 16.07.2010 subsists and is not declared null and void, the suit for partition cannot be maintained.
11. In the case of Ramti Devi (supra) it was observed that if the party is seeking to have the document avoided or cancelled, necessarily a declaration has to be given by the Court in this behalf and until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binding on the parties. It was also reiterated that the limitation period for a suit seeking a Declaration to avoid the registered Sale Deed is null and void, shall commence from the date of the knowledge to the plaintiff of fact of the Sale Deed and any suit to seek its avoidance cannot be filed beyond a period of three years.
12. Likewise, similar observations have been made in Anita Anand (supra) that the suit for Partition filed by the plaintiff shall not be maintainable unless the Gift Deed is challenged. Relief of Partition would be consequential to the Declaration of the Gift Deed as illegal.
13. The aforesaid judgments enunciate the law about which there is no ambiguity. A duly executed and registered document shall be valid and binding till such time it is cancelled and avoided and the consequential relief that may flow from such cancellation, cannot be claimed till the document is declared null and void.
14. In the present case, the plaintiff has made specific averments that she has come to know about the execution and registration of the Will dated 16.07.2010 of the mother only on 02.05.2019. The suit has been filed on 20.01.2020, which is well within a period of three years.
15. Further, the first relief sought by the plaintiff is for Declaration and Cancellation of the Will dated 16.07.2010 as null and void. The other reliefs of Partition, Rendition of Accounts and Permanent Injunction as claimed by the plaintiff would become available if it is held that the Will is null and void. The relief of Partition, Rendition of Accounts and Permanent Injunction in fact are the consequential reliefs to the Declaration as sought by the plaintiff.
16. The argument of the learned counsel for the defendant No.2 that the Declaration has to be sought by way of a separate suit and it is only when the Declaration is given can any relief of Partition be claimed is totally fallacious and against Section 34 of the Specific Relief Act, 1963 the proviso of which clearly stipulates that the consequential relief which flows from the Declaration, has to be necessarily claimed in the same suit.
17. Thus, this application is totally without merit and is hereby dismissed.
CS(OS) 95/2020
18. List on 30.05.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 13, 2024
Va/JN

CS(OS) 95/2020 Page 1 of 4