Mr. Rajesh Gupta and Mr. Harpreet Singh, Advs v. MEENAKSHI DUBEY

Judgment

1. This appeal assails order dated 18 December 2023, passed by a learned Single Judge of this Court in IA 15528/2023 in CS (OS) 496/20211. The application, which stands disposed of by the impugned order, was preferred by the appellant Pankaj Aggarwal2 under Order XIV Rule 2(2)3 of the Code of Civil Procedure, 19084, as the 1 Dr. (Mrs.) Meenakshi Dubey v Mr. Pankaj Aggarwal 2 “Pankaj” hereinafter 3 (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to— Signature Not Verified (a) (b) and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force, Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 defendant in CS(OS) 496/2021, seeking that issues (i), (ii), (iv) and (v), as framed by the learned Single Judge on 2 May 2023, be treated as preliminary issues, as also under Section 105 of the CPC, praying that trial of CS (OS) 496/2021 be stayed pending disposal of CS 58565/2016, presently pending before the learned Trial Court. The learned Single Judge has rejected both prayers. Aggrieved thereby, the appellant Pankaj has filed the present appeal. Rival Pleadings in the Suit The Plaint

2. CS (OS) 496/20216 was filed by the respondent Meenakshi Dubey7, against the appellant Pankaj. Meenakshi and Pankaj are siblings. At the time of filing of CS (OS) 496/2021, Pankaj was occupying the ground floor and the first floor and Meenakshi was occupying the second floor of the suit property situated at A-11/25, Vasant Vihar, New Delhi – 110057.

3. The plaint, in the suit, asserted and averred thus: (i) K.K. Aggarwal, the father of Pankaj and Meenakshi, died issue has been determined, and may deal with the suit in accordance with the decision on that issue. 4 “CPC” hereinafter 5 10. Stay of suit. – No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation.—The pendency of a suit in a foreign court does not preclude the Courts in [India] from trying a suit founded on the same cause of action. 6 “the suit” hereinafter 7 “Meenakshi” hereinafter Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 intestate on 25 May 1981. Pursuant to his death, an oral family settlement was executed among Pankaj, Meenakshi and their mother Indira Aggarwal8, agreeing that Indira would own the ground floor, Pankaj would own the first floor and Meenakshi would own the second floor of the suit property. In order to avoid further disputes, this oral family settlement was reduced into writing by way of a written family settlement dated 21 July

1998. Even prior thereto, however, all parties acted on the basis of the oral family settlement dated 30 May 1981. (ii) As the family settlement contained no dispensation with respect to the roof rights in the suit property, it was apparent that the roof rights were required to be divided one third among Indira, Pankaj and Meenakshi. (iii) Acting on the basis of the family settlement, Indira executed a Gift Deed dated 23 December 2004, gifting the second floor and a proportionate share of the appurtenant land to Meenakshi. (iv) In March 2011, Pankaj took Indira with him to Toronto. At that time, Indira was 76 years of age. She was suffering from depression and, over a period of time, completely came under the control of Pankaj. (v) In 2011 itself, Pankaj communicated with Meenakshi, expressing his desire to raise constructions on, or sell, the third Signature Not Verified 8 “Indira” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 floor of the suit property, without involving Meenakshi. In the circumstances, Meenakshi instituted CS (OS) 643/2011 before the learned Senior Civil Judge9, Dwarka Courts, seeking an injunction against such construction on, or alienation of, the third floor of the suit property. (vi) In CS (OS) 643/2011, Indira filed an application on 31 May 2014, seeking her deletion from the array of parties and averring that she had transferred all her rights in the suit property, in favour of Pankaj, vide Gift Deed dated 2 April

2012. The said purported Gift Deed was placed on record, in CS (OS) 643/2011, by Pankaj on 16 August 2014 (vii) The application was rejected by the court. (viii) Vide order dated 7 October 2014, passed in CS (OS) 643/2011, the learned Senior Civil Judge restrained Pankaj from creating any third party right in respect of the second floor of the suit property or raising any construction thereon. (ix) The Gift Deed, which had been placed on record by Pankaj in CS (OS) 643/2011 on 16 August 2014, was

challenged by Meenakshi by amending CS (OS) 643/2011. In view of the said amendment, CS (OS) 643/2011 was transferred to this Court and, consequent on enhancement of pecuniary jurisdiction of district courts, was re-transferred to the District Court. It is presently pending before the learned Additional Signature Not Verified 9 “the learned SCJ” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 District Judge, Patiala House, and stands re-renumbered as CS 58565/2016. (x) Between March 2010 and May 2011, Pankaj transferred ₹ 2 crores to his account and, in April 2011, further transferred ₹ 46,84,523/- to his account, from the account of Indira. This was done taking advantage of the weak mental condition of Indira, who was suffering from constant depression. This transfer stands reflected in the bank statement of Indira. (xi) During cross examination in CS 58565/2016, Meenakshi was confronted with a Will alleged to have been executed by Indira on 16 March 2010. A perusal of the Will revealed that it indirectly described Indira’s share in the suit property. Indira’s signature on the Will was different from her usual signature. The contents of the Will did not make sense, and the language in which the Will was written did not reflect any existence of analytical existence of logic. It was clear, therefore, that the Will was executed under coercion. It was, therefore, liable to be declared null and void. (xii) Prior to her death, Indira used to reside on the first floor of the suit property. Between 1998 and 2018, the ground floor of the suit property was rented out by Indira. The entire rent was collected by Indira as the ground floor fell to her share under the family settlement dated 21 July 1998. Signature Not Verified (xiii) After the death of Indira, Pankaj started collecting rent Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 from the tenants of ground floor of the suit property, under the garb of the Will dated 16 March 2010 stated to have been executed by her. (xiv) In actual fact, all assets of Indira, including the rent collected from the ground floor, were was required to be equally divided between Pankaj and Meenakshi. (xv) On 17 November 2018, Indira died at the age of 83. Her medical records revealed that she was in a weak mental state prior to her demise.

4. On the basis of these facts and averments, Meenakshi, vide CS (OS) 496/2021, sought (i) a decree of partition by metes and bounds, partitioning the ground floor, terrace/roof rights of the second floor, the garage block and the undivided land under the said property, between Pankaj and Meenakshi, with half share falling to the lot of each, (ii) a declaration that the Will dated 16 March 2010 purportedly executed by Indira, was null and void and (iii) a decree of permanent injunction restraining Pankaj from creating any third party interest in the ground floor or the garage block of the suit property. Written Statement

5. The appellant Pankaj Aggarwal, in his written statement filed by way of response to the suit, contended thus: Signature Not Verified (i) K.K. Aggarwal owned two properties. One was the suit Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 property located at Delhi and the other was a residential property at Faridabad. (ii) Meenakshi’s contention that an oral family settlement had been executed on 30 May 1981 was denied. (iii) In fact, an oral family settlement was executed, but in

1983. Under the said family settlement, the Faridabad property fell to the lot of Meenakshi, whereas the suit property at Delhi was exclusively allotted to Indira and Pankaj. (iv) The Faridabad property was, in fact, sold by Meenakshi and, out of the sale proceeds, she purchased a property at Janakpuri. (v) On 5 June 1984, Meenakshi executed a relinquishment deed, relinquishing her share in the suit property in favour of Indira and Pankaj. (vi) On 17 December 1984, Jamuna Devi, the mother of K K Aggarwal, executed a Will, bequeathing her rights in the suit property on Indira and Pankaj. (vii) On the basis of the relinquishment deed dated 5 June 1984 executed by Meenakshi and the Will dated 17 December 1984 executed by Jamuna Devi, the suit property was mutated by the DDA in favour of Pankaj and Indira on 30 August 1987. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 (viii) The written family settlement dated 27 August 1998 (wrongly stated by Meenakshi to have been executed on 21 July 1998) was executed by misrepresentation and manipulation. The document was, moreover, compulsorily registerable under Section 17(1)(a) of the Registration Act, 1908. As it was unregistered, it could not confer any right, title or interest in the suit property. It was also inadmissible in evidence and could not be read even for any collateral purpose. (ix) On 29 September 2004, Pankaj executed a Special Power of Attorney, empowering Indira to gift the share of Pankaj in the second floor of the suit property to Meenakshi. It was on the basis of the said SPA that the gift deed was executed by Indira on 23 December 2004, gifting, to Meenakshi, the second floor of the suit property and the proportionate share of the appurtenant land. (x) On 5 July 2004, consequent on the suit property being converted to freehold, a conveyance deed was executed by DDA, of the suit property, in the joint names of Indira and Pankaj. (xi) On the basis of the gift deed dated 23 December 2004, the second floor of the suit property was mutated Meenakshi’s favour on 7 July 2005. (xii) On 20 February 2008, Indira executed a gift deed, gifting her remaining half share of the ground floor of the suit property Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 to Pankaj. (xiii) This was followed by a Will executed by Indira on 16 March 2010, whereby her remaining undivided half share in the suit property was bequeathed to Pankaj. (xiv) It was at this juncture that Meenakshi instituted CS (OS) 643/2011 before the Senior Civil Judge, Dwarka, against Pankaj. (xv) On 22 March 2012, Indira executed a general power of attorney10, empowering Pankaj to deal with Indira’s share in the suit property. This was followed by a gift deed dated 2 April 2012, whereby Indira gifted, to Pankaj, her remaining half share in the first floor, the terrace and all other rights of Indira in the suit property. (xvi) Following this, on 30 August 2013, the entire suit property, excluding the second floor, was mutated by DDA in the name of Pankaj.

6. Pankaj therefore asserted that Meenakshi had no rights in the second floor of the suit property, save and except the rights which were gifted to her by Indira, vide gift deed dated 23 December 2004. The entire remainder of the suit property was belonged to Pankaj and stood mutated in his name. Meenakshi, therefore, had no right to seek partition of the suit property by metes and bounds. It was, therefore, Signature Not Verified 10 “GPA” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 submitted that the suit deserved to be dismissed. Replication

7. Responding to the written submissions filed by Pankaj, Meenakshi contended, in her replication, thus: (i) It was true that Meenakshi had executed a relinquishment deed dated 5 June 1984. However, the relinquishment deed did not specifically refer to her 1/4th share in the suit property. Besides, it was executed by her on the assurance that her interest in the suit property shall be protected. In any event, the relinquishment deed stood superseded by the written family settlement deed dated 21 July 1998, the covenants of which made it clear that the relinquishment deed was not to be acted upon. (ii) The gift deed dated 23 December 2004 had in fact been executed by Indira in furtherance of the written family settlement dated 21 July 1998. (iii) The ATS dated 10 October 1994 was executed by Indira essentially in order to establish Meenakshi’s rights over the second floor of the suit property. (iv) The conveyance deed dated 5 July 2004 could not be relied upon and was of no value as it was executed in violation of the covenants of the written family settlement dated 21 July Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024

1998. (v) Insofar as the purported gift deed dated 20 February 2008, executed by Indira, gifting her half share in the ground floor to Pankaj was concerned, Meenakshi denied that it was accepted by her. In fact, she asserted that the gift deed never came to her knowledge till it was provided during evidence in CS 58565/2016. In any event, the gift deed was invalid as Indira was not, at that time, in a sound disposing frame of mind. Moreover, if Indira had in fact gifted her half share in the ground floor of the suit property to Pankaj by the gift deed dated 20 February 2008, there was no explanation for the execution of the subsequent gift deed dated 2 April 2012. This itself indicated that the gift deed dated 20 February 2008 could not be relied upon. (vi) The gift deed dated 2 April 2012 was also invalid as Indira at that time was not in sound disposing state of mind. Meenakshi, therefore, reiterated her prayers in the plaint.

8. From the rival pleadings, it is perfectly clear that there is hardly any aspect on which Pankaj and Meenakshi are ad idem, except for execution of the gift deed dated 23 December 2004. Else, Meenakshi asserts her title over the suit property on the basis of the oral family settlement dated 30 May 1981, (i) (ii) (iii) the gift deed dated 23 December 2004. the written family settlement dated 21 July 1998 and Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 As against this, Pankaj completely denies the existence of any oral family settlement dated 30 May 1981. Pankaj, instead, asserts his right over the entire suit property, except the second floor, on the basis of (i) (ii) an oral family settlement deed dated 1983, the relinquishment deed dated 5 June 1984 executed by Meenakshi, (iii) will dated 17 December 1984 executed by Jamuna Devi, (iv) mutation of the suit property in favour of Indira and Pankaj on 30 August 1987, (v) conveyance deed dated 5 July 2004 executed by DDA by which the suit property was conveyed in the joint names of Indira and Pankaj, (vi) gift deed dated 20 February 2008 executed by Indira purportedly gifting her half share in the ground floor of the suit property to Pankaj, (vii) will dated 16 March 2010 purportedly executed by Indira, bequeathing the remaining undivided half share in the suit property to Pankaj, (viii) gift deed dated 2 April 2012 by Indira, gifting her half share in the first floor of the suit property along with the terrace and other rights in the suit property to Pankaj and (ix) the mutation of the entire suit property except the second floor by DDA in the name of Pankaj on 30 August 2013. Meenakshi completely denies the existence of any oral family settlement of 1983. She also contends that the conveyance deed dated 5 July 2004 executed by DDA was invalid as it was in violation of the Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 family settlement dated 21 July 1998. She also challenges both the gift deeds dated 20 February 2008 and 2 April 2012 asserted by Pankaj.

9. It is in the backdrop of such a situation that we are required to examine whether the learned Single Judge was in error in refusing to treat issues (i), (ii), (iv), (v) as framed on 2 May 2023, as preliminary issues.

10. The following issues were framed by the learned Single Judge in the suit on 2 May 2023: i. Whether the plaintiff is guilty of willful concealment and suppression of material facts as mentioned in paragraph 3(I) (a) to (h) of the preliminary objections in the written statement? If so, whether the suit is liable to be dismissed on this ground? OPD ii. Whether the alleged Family Settlement dated 21.07.1998 was compulsorily registrable under Section 17(l)(b) read with Section 49 of the Registration Act, 1908? If so, what is the effect of it not having been registered? OPD iii. Whether the suit is liable to be stayed under Section 10 of the Code of Civil Procedure, 1908, in view of the previously instituted suit, namely. Civil Suit No. 58565/2016 pending in the Court of the Additional District Judge-03, Patiala House Courts, New Delhi? OPD iv. What is the effect of the Relinquishment Deed dated 05.06.1984 and the Gift Deeds dated 23.12.2004, 20.02.2008 and 02.04.2012 on the maintainability of the present suit? Onus on parties v. Whether the parties are bound by the alleged Family Settlement dated 21.07.1998? Onus on parties vi. Whether the plaintiff is entitled for a decree of partition of the property being Ground Floor, terrace/ roof rights of second floor, garage block and undivided free hold land admeasuring 403 Square Yards of Property No. A-11/2 5, Vasant Vihar, New Delhi- 110057 and half share thereof? OPP Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 vii. Whether the plaintiff is entitled for half of the share in all the moveable properties left behind by Late Mrs. Indira Aggarwal as mentioned in para 16 of the plaint? OPP viii. Whether 17.03.2010 is to be declared null and void? OPP the Will of Mrs. Indira Aggarwal dated ix. Whether the plaintiff is entitled for a decree of permanent injunction as prayed in para (d) of the prayer clause of the Plaint? OPP x. Relief, if any.” IA 15528/2023, in which the impugned order has been passed

11. The appellant moved IA 15528/2023, under Order XIV Rule 2(2) of the CPC, praying as under: “In the facts and circumstances of the case, it is respectfully prayed that this Hon’ble Court may be pleased to: (I) Decide/determine Issue No. 1, 2, 4 & 5 as purely the issues of law under Order 14, rule 2(2) CPC at the threshold/initial decide/determine issue no. 6, 7 & 9 that are directly dependent on the findings on the legal-issues aforesaid; consequently, itself; (II) In the alternative, under issue no. 3 staying the trial of the above captioned suit [i.e. CS (0S) No. 496/2021] under Section 10 CPC till the adjudication/disposal of ‘Previous Suit’, namely Civil Suit No. 58565/2016, presently in court of Mr. Gaurav Rao, ADJ-03, Patiala House, New Delhi. (III) Pass any further or other Order(s), direction(s), which are deemed fit, reasonable and expedient in the circumstances.”

12. The submissions of Pankaj, with respect to the prayer for trying Issues (i), (ii), (iv) and (v) as preliminary issues, as contained in the Signature Not Verified application, may be reproduced thus: Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 It may be appreciated that issue no. 1, 2, 4 & 5 are “3. predicated on specific plea(s) raised in the written-statement, as indicated hereinbelow, which is duly substantiated and supported with irrefutable, unquestionable and undeniable material on record.

3.1 Issue No. 1 is predicated on Preliminary Objection in para 3(I) title-head ’Willful concealment and Suppression of Material Facts’ in of Written Statement. The material concealments pertains to suppression of the following material facts, - (a) that in year 1984 Plaintiff relinquished her share in the suit- property vide registered Relinquishment Deed dated 05.06.1984 [ref. para 3(1)(a)]. that vide (b) registered Conveyance Deed dated 05.07.2002 the suit-property was registered in names of defendant and mother/Indira Aggarwal as joint co-owners. [ref. para 3(1)(d)]. that vide registered Gift Deed dated 23.12.2004 (c) defendant and mother/Indira Aggarwal as co-owners transferred/gifted the 2nd Floor of the suit-property to the Plaintiff/Meenakshi, which is not disputed. This document also admits the exclusive right of co-ownership of defendant and the mother over the suit- property. [ref. para 3(1)(e)]. (d) that vide registered Gift Deed dated 20.02.2008 mother/Indira Aggarwal transferred her undivided half share in GROUND FLOOR etc of the suit-property to defendant, which is also not in dispute. [ref. para 3(I)(f)]. (e) that vide registered Gift Deed dated 02.04.2012 mother/Indira Aggarwal transferred/gifted her undivided right in First Floor etc (remaining undivided half share) in favour of the defendant, which is under challenge in the ’previous suit’. [ref. para 3(I)(h)]. Note-1: Share gifted vide Gift Deed dated 02.04.2012 was part of mother’s bequest in her WILL dated 17.0.3.2010, which she later gifted to defendant. Note-2: Gift Deed dated 20.02.2008 was in the knowledge of the plaintiff and is also recorded in the recital of the subsequent Gift Deed dated 02.04.2012: nevertheless, plaintiff has not challenged Gift Deed dated 20.02.2008 and has instead limited the challenge against Gift Deed dated Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024

02.04.2012 alone in the ’Previous Suit’ (supra). Reference (f) concealments - also made to other factual Judgment and Pleadings in a Civil Suit No. (i) 794/1985 (inter-family suit) reflects that plaintiff herein duly admitted the relinquishment of her share admitted the suit-property to be exclusive property of the Defendant and mother [ref. para 3(I)(b)]. Execution of Agreement (ii) to Sell dated 10.10.1994 admits exclusive co-ownership of Defendant and mother over the suit-property. [ref. para 3(I)(c)] Conclusion - These documents [(a) to (e) above] are registered documents and are unchallengeable. In presence of these documents the suit-pleadings is farcical and partition claim is legally untenable. The suppression of the aforesaid facts/documents is a ’Material Concealment’ that affects the very maintainability of the suit, apart from being ’FRAUD UPON THE COURT"; it nullifies the principal suit-claim, in as much as, in presence of Gift Deed dated 20.02.2008 vis-(cid:224)-vis Ground Floor in favour of the defendant, claim for partition of Ground Floor is neither lawful nor entertainable and is barred by law; such claim is not tenable in law without declaration/cancellation law; law without declaration/cancellation of Gift Deed dated 20.02.2008, which though not prayed for in the suit, is otherwise is barred by law.” tenable

3.2 Issue No.2 is based on Preliminary Objection in para 3(III) "title-head ‘Consequence of Non-Registration of Family Settlement and its inadmissibility even for collateral purposes’. The said objection and the consequently Issue No. 2 goes to the root of the case and questions the very maintainability of the principal suit- claim of partition of Ground Floor as the plaintiff is tracking her right to the property under alleged Family Settlement. The issue, being ‘issue of law’ creating a bar to the suit, merits to be decided at the outset as preliminary issue.

3.3 Issue No. 4 & 5 by its very language are purely legal issues to be determined at the threshold as mandated u/Or.14, r. 2(2) CPC. Obviously, the effect of Relinquishment Deed dated 05.06.1984 and Gift Deeds dated 23.12.2004,20.02.2008 and 02.04.2012 (challenged in previous suit) on the maintainability of Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 the present suit is to be determined at this stage itself, in as much as, the issue goes to the root of the matter. Also, as the plaintiff has based her right to share in Ground Floor on alleged Family Settlement, issue no. 5 needs to be determined at this stage itself. The issue thus merits to be decided at the outset as preliminary issue. ***** The contentions in para 2 & 3 (supra) ex-facie reflects that 4. Issue no. 1, 2, 4 & 5 are purely the ‘issues of law’ and raises a legal bar to the very maintainability of the suit, and merits to be determined/decided at the initial state itself as ‘preliminary issues’, which is also a mandate w/Or. 14, rule 2(2) CPC.

5. Further, as the decision on Issue no. 1, 2, 4 & 5 will also rule and govern issue no. 3, 5, 6 & 9, it is imperative to decide the said issues at this stage itself, so as to narrow down the scope of the suit to the real and entertainable limit. The Impugned Order

13. By order dated 18 December 2023, the learned Single Judge has dismissed IA 15528/2023.

14. The reasoning of the learned Single Judge may be reproduced thus: “7. From the aforesaid, what emerges is that while issue no. (i) pertains to wilful concealment on the part of the plaintiff, issue no. (ii) pertains to the family settlement. Similarly issue (iii) pertains to the relinquishment deed and the three gift deeds. In my considered view, neither the question as to whether the plaintiff is guilty of willful concealment nor can the question as to whether the family settlement dated 21.07.1998, the relinquishment deed or the three gift deeds are binding on the parties can be effectively determined unless evidence is led by both sides. Even the question as to what would be the effect of the relinquishment deed as raised in issue no. (iv) would also be a factual issue requiring appreciation of evidence. Though issue no.(ii) as has been urged vehemently by the learned counsel for the defendant on the face of it appears to be a legal issue, in my view even this question cannot be effectively decided without appreciating the nature and scope of the family Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 settlement as also the circumstances in which it was entered into. This would also necessarily require appreciation of evidence in detail and therefore I am of the considered opinion that all these issues are primarily factual issues. In the light of the aforesaid, I find absolutely no merit in the 8. plea of the defendant to treat these issues as preliminary issues. I have also considered the submissions of the learned counsel for the defendant that the present suit is required to be stayed under Section 10 CPC, on account of the pendency of a suit before the learned ADJ, Patiala House Courts wherein the plaintiff has challenged the validity of a gift deed dated 02.04.2012, but find no merit therein. It needs to be noted that in the present suit, the plaintiff has not sought cancellation of the gift deed dated 02.04.2012, which besides the relief of permanent injunction, is the main relief sought in the suit pending before the learned ADJ. On the other hand, in the present suit the plaintiff has sought partition not only of the ground floor but also of the roof rights of the second floor, the terrace block and the undivided freehold land measuring the property No. A-11/25, Vasant Vihar, New Delhi. She has also prayed for declaring the will dated 16.03.2010, purportedly executed by her mother, as null and void. Consequently, the scope of the issues arising in the two suits is substantially different. Even the prayers in the present suit are much wider. I am, therefore, of the view that this is not a fit case where the proceedings in the present suit should be stayed during the pendency of the suit before the learned ADJ.”

15. Aggrieved by the aforesaid order, the appellant has filed the present appeal.

16. We have heard Mr. Rajesh Gupta, learned Counsel for the appellant and Mr. Pushkar Sood, learned Counsel for the respondent, at length. Rival Contentions

17. Mr. Gupta submits that issues (i), (ii), (iv) and (v), as framed on 2 May 2023, are purely legal issues which did not require leading of Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 any evidence and, therefore, ought to have been decided as preliminary issues. He submits that the learned Single Judge has not adduced any satisfactory reason to reject the said request as made by the appellant.

18. To support his submissions, Mr. Gupta urges as under: (i) Issue (ii) is a pure question of law. The family settlement deed dated 21 July 1998 created a right and, therefore, was compulsorily registrable. He relies, for this purpose, on paras 10 to 13 of the judgment of the Supreme Court in Sita Ram Bhama v Ramavtar Bhama11. He further submits that the respondent cannot possibly seek to rely on the family settlement dated 21 July 1998, in view of the fact that Meenakshi had herself earlier relinquished her right over the suit property vide relinquishment deed dated 5 June 1984. (ii) Mr. Gupta thereafter took us through the written submissions tendered by him. He submits that Meenakshi was a witness to the conveyance deed dated 5 July 2004 and could not, therefore, seek to rely on the gift deed dated 23 December

2004. (iii) Insofar as the gift deed dated 20 February 2008 was concerned, Mr. Gupta submits that it was never challenged by Meenakshi, despite the existence of the gift deed being within her knowledge. Signature Not Verified 11 (2018) 15 SCC 130 Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 (iv) Inasmuch as the gift deed of 20 February 2008 found mentioned in the gift deed of 2 April 2012, Mr. Gupta submits that Meenakshi could not now seek to complain against the gift deed dated 20 February 2008, for the first time in the suit instituted by her in 2016. (v) Mr. Gupta submits that the prayer of Meenakshi that the suit property be partitioned by metes and bounds was based on the premise that Indira had died intestate in 2008. She could not have in any case sought such partition in view of the gift deed date 20 February 2008 whereby Indira gifted her half share in the ground floor of the suit property to Pankaj.

19. In view of these facts, Mr. Gupta submits that the learned Single was in error in holding that issues (i), (ii), (iv) and (v) could not be decided as preliminary issues because they required recording of evidence.

20. In support of his submissions regarding Order XIV Rule 2(2) of the CPC, Mr. Gupta places further reliance on the judgments in Sukhbiri Devi v UOI12 and Sathyanath v Sarojamani13.

21. Insofar as the prayer for stay of trial of the CS (OS) 496/2021, in view of the pendency of the earlier instituted CS 58565/2016 before the learned District Court at Patiala House was concerned, Mr. Gupta places reliance on the judgments of the Supreme Court in Aspi Jal v Signature Not Verified 12 2022 SCC OnLine SC 1322 13 (2022) 7 SCC 644 Digitally Signed By:AJIT KUMAR Signing Date:02.09.2025 11:14:47 FAO(OS) 4/2024 Khushroo Rustom Dadyburjor14 and Santosh Kumar v Ashok Chand15.

22. The principles culled out by the Supreme Court in Aspi Jal, to decide whether a case for staying the trial in a subsequent suit, on the ground of pendency of an earlier instituted suit between the parties was, or was not, made out, was whether a finding in the earlier instituted suit would operate as res judicata in the later suit. Applying this principle, Mr. Gupta submits that Meenakshi has sought to challenge the validity of the gift deed dated 2 April 2012 in CS 58565/2016 on the same basis on which he seeks to challenge the validity of the will dated 16 March 2010, which was that Indira was not in a sound disposing state of mind at the time of execution of either of these documents. The finding of the learned Trial Court, apropos Indira’s state of mind, as it would return in CS 58565/2016, would, therefore, operate as res judicata in CS (OS) 496/2021. The learned Single Judge was, therefore, in his submission, in error in refusing to stay the trail by of CS (OS) 496/2021, awaiting the outcome of suit CS 58565/2016.

23. Responding to the submissions of Mr. Gupta, Mr. Sood submits that the learned Single Judge was perfectly justified in holding that the issues, which the appellant desired to be decided as preliminary issues, were issues requiring trial and recording of evidence. He further submits that the discretion of the learned Single Judge in this regard have to be respected and, if the learned Single Judge felt that the Signature Not Verified