Full Text
HIGH COURT OF DELHI
Date of Decision: 17th FEBRUARY, 2026 IN THE MATTER OF:
IN
SONIA SAHNI & ANR ......Plaintiffs
Through: Mr. Tushar Mahajan and Mr. Sharan Mehta, Advocates
Through: Ms. Raavi Birbal, and Ms. Cauveri Birbal , Advocates for D-2 & 3
Mr. Hardik Rupal and Ms. Aishwarya Malhotra, Advocates for D-6
JUDGMENT
1. This Application under Order XII Rule 6 of the CPC has been filed by the Plaintiffs for passing a preliminary decree of partition on the basis of judgment and admissions.
2. The present Suit pertains to partition of property bearing No. H-18-19, Kirti Nagar, New Delhi, admeasuring approximately 200 square yards, (hereinafter referred to as the „the Suit Property‟) which was purchased on 26.03.1962 by Late Smt. Harbans Kaur Oberoi, the grandmother of the 20.00.17 Plaintiffs, by way of a registered sale deed. For the sake of convenience the Family chart of the Oberoi family is being reproduced herein and the same is as follows:
3. Late Smt. Harbans Kaur Oberoi was married to Late Sh. Bodh Raj Oberoi and they had five children, namely, Late Sh. Radhey Shyam Oberoi (father of the Plaintiffs), Defendant No.1, Defendant No.4, Defendant No.5 and Defendant No.6. Defendant No.2 is the son of Defendant No.1 and Defendant No.3 is the wife of Defendant No.2.
4. The facts of the case, as given in the Plaint, are as under: a. It is stated that during her lifetime, Late Smt. Harbans Kaur Oberoi executed a registered Will dated 30.10.1998, whereby she bequeathed distinct portions of the Suit property to her children in a floor-wise manner. Under the said Will, the entire ground floor along with the roof rights above the second floor was bequeathed jointly to Defendant Nos.1, 4 and 5. The entire first floor of the suit property was bequeathed to Defendant No.6 and the entire second floor of the suit property without 20.00.17 roof rights was bequeathed to the plaintiffs’ father, Late Sh. Radhey Shyam Oberoi. It is stated that at the time of bequest, the second floor was only constructed in a portion of 80 sq. yards. as per the then applicable bye-laws. The Will also stipulated that the staircase and passage on the ground floor were to remain common for use by all beneficiaries. The Will further stipulated that each beneficiary shall hold, use and enjoy their respective portion/ share of the property with full right and power of disposal and to receive the rent and profits as absolute owner of the same and to get the same mutated in his/her name in the records of MCD. b. It is stated that Late Smt. Harbans Kaur Oberoi passed away on 03.01.2007. Upon her demise, the bequests under the Will came into effect and Late Sh. Radhey Shyam Oberoi became the absolute owner of the second floor of the suit property. It is stated that he resided there along with the Plaintiffs, and the said second-floor portion remained in their exclusive possession. It is the case of the Plaintiffs that, notwithstanding the clear demarcation under the Will and the express stipulation regarding common access, Defendant No.2 began obstructing their right to use the common passage. It is stated that earlier, the Plaintiffs’ father used to enter through the iron gate at the front entrance and use the common staircase from the ground floor to reach the second floor of the Suit Property. However, after the death of the grandmother, Defendant No.2 closed the front iron gate, thereby preventing the Plaintiffs and their father 20.00.17 from using the common passage, forcing them to construct and use a spiral staircase. It is stated that the Plaintiffs and their father were denied basic amenities, thereby rendering occupation of the second floor difficult and unsafe. It is stated that on 14.03.2021, Late Sh. Radhey Shyam Oberoi passed away. The plaintiffs allege that even at the time of performing his last rites, Defendant No.2 denied them access through the common passage of the Suit Property, compelling them to carry the dead body through a back lane. c. It is stated that the Plaintiffs initiated pre-institution mediation, which failed. Subsequently, they issued a legal notice dated 29.09.2022 to the Defendants expressing their desire for partition of the Suit Property by selling of the entire suit property and dividing their respective 1/3rd share. In reply dated 01.11.2022, Defendant Nos.[2] and 3 claimed that they had purchased the shares of Defendant Nos.1, 4 and 5. d. According to the Plaintiffs, despite the floor-wise demarcation under the Will, the Suit Property has never been formally partitioned by metes and bounds, and each portion continues to form part of an undivided estate. e. The Plaintiffs state that the second floor of the suit property, which has devolved upon them through their late father under the Will dated 30.10.1998, is in a dilapidated and unsafe condition. The construction is more than sixty years old and, according to the Plaintiffs, any attempt to fully utilise the 200 20.00.17 sq. yard area would require fresh structural columns and foundation work starting from the ground floor and passing through each level up to the second floor. It is further pleaded that Plaintiff No.1 is employed in a school and earns only a meagre salary, which is barely sufficient for her livelihood and she is unable to undertake renovation, reconstruction, or even proper maintenance of the second-floor portion. Owing to this financial constraint, the plaintiffs claim that the premises under their occupation have continued to deteriorate and remain in a dilapidated state. In view of these circumstances, the Plaintiffs aver that they have no practical option except to sell their share in the suit property. They claim entitlement to the full secondfloor area measuring 200 sq. yards as inherited from their father under the Will. f. The Plaintiffs have, therefore, filed the present Suit seeking sale of the whole property and distribution of the proceeds, including their one-third share.
5. Summons in the Suit was issued on 30.11.2022. Written Statements have been filed by the Defendants No.2 & 3 and Defendant No.6.
6. In their Written Statement Defendants No.2 and 3 contend that the present Suit is a mala fide attempt by the Plaintiffs to harass them and to compel a sale of the suit property for the Plaintiffs’ own benefit. They assert that the parties had been residing peacefully in their respective portions of the property for decades, with Defendant No.2 and his family residing on the ground floor since about 1966, Defendant No.6 on the first floor, and the 20.00.17 Plaintiffs’ father on the second floor since around 1975. According to them, no disputes existed earlier, and the present litigation has been initiated only after Defendants No.2 and 3 purchased the ground floor along with terrace rights from Defendants No.1, 4 and 5 by a registered transaction dated 31.01.2019 in the name of Defendant No.3. It is the case of the Defendants No.2 & 3 that the Plaintiffs’ real intention is to sell their portion or reconstruct it for commercial gain, and the Suit has been filed as a pressure tactic after the 2019 purchase. It is further alleged that Plaintiff No.1 returned to the second floor in 2008 after her separation and thereafter began creating disputes within the family. The Defendants claim that they had always tried to maintain peace, provided assistance to the Plaintiffs’ father, and even installed water pumps at their own expense, which were later taken over by other family members. Defendants No.2 & 3 also deny the allegations relating to obstruction of passage and the incident concerning the last rites of the Plaintiffs’ father. According to them, they never denied access to the common areas or staircases, but only refused to allow the body to pass through their living room due to pandemic-related safety concerns. It is the stand of the Defendants that the plaintiffs threatened them and locked the common areas and denied them access to the terrace after learning about the 2019 purchase, forcing them to file police complaints. The defendants further state that Defendant No.2 has deep sentimental attachment to the property, has spent substantial amounts on its maintenance, and that the plaintiffs have neglected their own portion. They contend that the plaintiffs have fabricated stories regarding staircases, access, and dilapidation only to justify a partition and sale of the property. It is further stated that the Will clearly distributed the Suit property floor-wise, granting each beneficiary 20.00.17 absolute rights over their respective portions, including the right of disposal and, therefore, the Suit property already stands divided as per the Will, and no further partition can be sought.
7. A separate Written Statement has been filed by the Defendant No.6 supporting the case of the Plaintiffs for the purpose of partition.
8. It is stated by the learned Counsel for the Plaintiffs that the Plaintiffs are unable to enjoy the property. He contends that the ultimate object and the real intention of the joint properties being partitioned is to give a person the monetary value equivalent of his percentage share in the joint property. He further contends that if physical division of the existing construction is not possible, then a person will not get the monetary value of his percentage share in the joint property and in such a circumstance the property can be partitioned. He places reliance on a Full Bench Judgment of this Court in Indu Singh v. Prem Chaudhary, 2018 SCC OnLine Del 8951, wherein the Full Bench has held as under: “16… …..
(iii) The second aspect is that over a period of time in urban areas the covered area of construction which is permissible on a plot has been steadily increasing. For example in Delhi previously on a plot ordinarily a ground floor, first floor and a barsati floor (part second floor) was only allowed to be constructed. Barsati floor means that the entire second floor is not allowed to be covered but the second floor which is called as a barsati floor is allowed to be only partly covered. The municipal law thereafter changed whereby almost the entire second floor was allowed to be covered. Thereafter, the municipal law has further 20.00.17 changed and a third floor was allowed to be constructed, besides allowing construction of a basement on a property. Now in addition to a plot having a basement and four floors, in view of the scarcity of parking of vehicles in a city like Delhi on account of the existence of unending number of vehicles, stilt parking is also permitted to be made below the ground floor and above the basement floor. Since the ultimate object and the real intention of the joint properties being partitioned is to give a person his monetary value equivalent of his percentage share in the joint property/properties, and since now additional Floor Area Ratio (FAR)/covered area is permissible, therefore in old constructed properties, simply by physically dividing the existing construction the same does not result in a person getting his monetary value of his percentage share in the joint property/properties. Partition therefore really in today's date and age in urban areas is a partition in terms of FAR/covered area, and once that is so, then on such FAR/covered area being available to a coowner/joint owner then such a person may/would/could want to reconstruct for enjoying more constructed area falling to his share, and which will necessarily require bringing down the old construction and thereafter making fresh construction on the plot of basement plus four floors and stilt parking. Thus in very old constructed properties simply physically partitioning of such joint property/properties is not the answer, and the joint property/properties in many cases have necessarily to be sold so as to give a person his actual monetary share value in the joint property/properties. At this stage I would hasten to add that with respect to sale of a joint property, the entitlement of a co-owner in terms of Sections 3, 4, 6 and 7 of the Partition Act come in, whereby on an order being passed of sale of a joint property, the sale is not necessarily and firstly by public auction/sale, because firstly in the sale 20.00.17 proceedings, one or more co-owners can buy out the other co-owner/co-owners i.e. rights of pre-emption.” (emphasis supplied)
9. Attention of this Court has also been drawn to the Judgment dated 29.05.2025, passed by a co-ordinate Bench of this Court in CS(OS) 438/2022, titled as Ms. Simi Arun Pandeya v. Mr. Amit Mittal, which has been upheld by the Division Bench of this Court in Simi Aun Pandeya v. Kumudini Mittal, 2025 SCC OnLine 9782.
10. Per contra, learned Counsel appearing for Defendants No.2 & 3 states that the present Application under Order XII Rule 6 of the CPC is not maintainable. He contends that though every party to the Suit rely on the Will dated 30.10.1998. The said Will demarcated the properties. It is stated that there is no admission on the part of the Defendants which will entitle the Plaintiff the relief sought for by the Plaintiff in the present Application.
11. Heard the learned Counsels for the parties and perused the material on record.
12. Admittedly, the Grandmother of the Plaintiffs has left behind the Will dated 30.10.1998. For the sake of convenience, relevant portions of the translated copy of the Will are being reproduced herein and the same reads as under: “So long as I am alive, I will remain the undisputed owner and in possession of my abovesaid immoveable property bearing no. no. H-18- 19, Kirti Nagar, New Delhi, and after my death I hereby bequeath the abovesaid property amongst my two sons and 3 daughters in the following manner: 20.00.17 i) Entire ground floor and the roof of the second floor of the said property built on land measuring 200 sq. yards to my three daughters namely Smt. Kamlesh Kapoor w/o Late Shri K.L. Kapoor r/o H-18-19 (GF), Kirti Nagar, New Delhi, Smt. Nirmal Mehta w/o Shri S.L. Mehta r/o I-130, Kirti Nagar, New Delhi and Smt. Poonam Wason w/o Shri K.N. Wason r/o B- 1/270, Janakpuri, New Delhi in equal shares. ii) Entire first floor of the said property no. H-18-19, built on land measuring 200 sq. yards shall go to my son Shri Surinder Oberoi who is already residing in the said first floor. iii) Entire second floor of the said property no. H-18- 19 built on land measuring 200 sq. yards without roof rights of the said second floor shall go to my another son Shri Radhey Shyam who is also residing in the said second floor. The staircase and passage on ground floor will remain common against all the beneficiaries except first floor. Each beneficiary shall hold use and enjoy the portion/ share of the property given to him/ her by this will with full right and power of disposal and to receive the rents and profits as an absolute owner of the same and to get the same mutated in his/ her name in the records of MCD…..”
13. A perusal of the abovementioned portions shows that the Suit Property has been demarcated and each party knows the exact share of the property to which he/she is entitled to. The Suit Property, therefore, already stands partitioned under the Will. 20.00.17
14. The only question that arises is as to whether the Plaintiffs are able to enjoy the property or not. The said issue can be decided only after leading evidence.
15. The purport and scope of Order XII Rule 6 of the CPC has been succinctly explained by the Apex Court in Uttam Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120, wherein the Apex Court has held as under:
16. A perusal of the abovementioned paragraphs shows that for passing an Order under Order XII Rule 6 of the CPC, the admission should be only those which are made in the Plaint. The abovementioned paragraphs have been explained by the Apex Court in Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753, wherein the Apex Court has held as under:
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44. In Uttam Singh [(2000) 7 SCC 120] this Court made a distinction between a suit just between the parties and a suit relating to the Specific Relief Act, 1963 where a declaration of status is given which not only binds the parties but also binds generations. The Court held that such a declaration may be given merely on admission (SCC para 16 at p. 128 of the Report). But in a situation like the present one where the controversy is between the parties on an admission of non-payment of rent, judgment can be rendered on admission by the court.”
17. What amounts to admission in the Plaint under Order XII Rule 6 of the CPC has been succinctly explained by the Apex Court in Vikrant Kapila v. Pankaja Panda, (2024) 18 SCC 695, wherein the Apex Court has held as under:
32. Admission in pleadings means a statement made by a party to the legal proceedings, whether oral, documentary, or contained in an electronic form, and the said statement suggests an inference with respect to 20.00.17 a fact in issue between the parties or a relevant fact. It is axiomatic that to constitute an admission, the said statement must be clear, unequivocal and ought not to entertain a different view. Coming to admission in pleadings, these are averments made by a party in the pleading viz. plaint, written statement, etc. in a pending proceeding of admitting the factual matrix presented by the other side. To constitute a valid admission in pleading, the said admission should be unequivocal, unconditional, and unambiguous, and the admission must be made with an intention to be bound by it. Admission must be valid without being proved by adducing evidence and enabling the opposite party to succeed without trial. A court, while pronouncing a judgment on admission, keeps in its perspective the requirements in Order 8 Rule 5, Order 12 Rule 6 and Order 15 Rules 1 and 2CPC read with Sections 17, 58 and 68 of the Evidence Act.
33. The logic behind such jurisprudential examination of an admission is that a judgment pronounced on admission, not only denies the right of trial on an issue but denies the remedy of appeal. Hence, discretion has to be exercised judiciously and objectively while making a judgment on admission in a pleading. The existence of the power to pronounce a judgment on admission under Rule 6 of Order 12 [ Order 12 Rule 6“6. Judgment on admissions.—(1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which 20.00.17 the judgment was pronounced.”] and Rules 1 and 2 of Order 15 [ Order 15“1. Parties not at issue.—(1) Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.2. One of several defendants not at issue.— [Renumbered as sub-rule (1) by Act 104 of 1976, S. 65.] [(1)] Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants. [Ins. by Act 104 of 1976, S. 65.] [(2) Whenever a judgment is pronounced under this rule, decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.]”], is not an issue in the appeal but rather the issue is whether pronouncing judgment on alleged admission is valid and legal.
34. When the admissions are categorical and unequivocal, the remedies available against such a decree are limited. In a given case, as in the present appeal, if there is an argument on whether there is an admission of a fact or a document, before examining the merits of the matter, this Court ought to verify whether admission exists or not and also whether the circumstances relied upon by the learned Single Judge can be constituted as admission for rendering a judgment.”
18. Undoubtedly, admissions can be made through submissions in the pleadings or can be discernible through evidence – oral or documentary. The Courts have to exercise the judicial discretion while pronouncing a judgment on admission. It is well settled law that while passing a Judgment under 20.00.17 Order XII Rule 6 of the CPC, the bottom line is that while ensuring judicial discretion, the court does not avoid a trial on an issue where a trial is needed, and findings recorded. The court does not try an issue in which there is no contest between the parties. Thus, the weighing of options or judicial discretion is dependent on the peculiar circumstances of the case or the nature of the controversy that the court is considering. Admissions have to be categorical and intentional. The Courts have to be careful while passing a judgment on admission because such admissions result in judgments without trial which permanently deny any remedy to a party and, therefore, unless the admission is clear, unambiguous, and unconditional, the discretion of the court is not exercised to deny the valuable right of a defendant to contest the claim. The Apex Court in Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273, had held as under:
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19. Applying the said law to the facts of the present case it can be seen that the Will dated 30.10.1998 divides the Suit Property into specific parts. Whether the division is practical or not; whether the Plaintiffs are in a position to use their portion effectively or not; whether the Defendants are not permitting the Plaintiffs to use their property or not – all these questions can be decided only after leading evidence and not on the basis of the allegations made by the Plaintiffs.
20. In the absence of any admission on this aspect in the Written Statement, this Court is not in a position to allow the present Application under Order XII Rule 6 of the CPC.
21. Accordingly, the present Application is dismissed. CS(OS) 747/2022 & I.A. 20102/2022
22. List on 08.04.2026 for framing of issues.
SUBRAMONIUM PRASAD, J FEBRUARY 17, 2026 Rahul/SM