Sonia Sahni & Anr. vs Kamlesh Kapoor (Since Decd) Thr Lrs & Ors.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 28.07.2026
Date of decision: 22.08.2026
# CNR No. : DLHC010124622026
+ FAO(OS) 39/2026
SONIA SAHNI & ANR. .....Appellants
Through: Mr. Tushar Mahajan, Mr. Bhaavan
Mahajan & Mr. Tanmay Surana,
Advs.

versus

KAMLESH KAPOOR (SINCE DECD) THR LRS & ORS.
.....Respondents
Through: Ms. Raavi Birbal, Adv./Respondent
Nos. 2 & 3 (present in-person)

CORAM:
HON’BLE MR. JUSTICE VIVEK CHAUDHARY
HON’BLE MS. JUSTICE RENU BHATNAGAR
J U D G M E N T

1. The present appeal has been preferred by the Appellants under Section
10(1) of the Delhi High Court Act, 1996, assailing the Judgment dated
17.02.2026, passed by the learned Single Judge in I.A. No.4679/2023 in
CS(OS) 747/2022, whereby the application of the Appellants under Order XII
Rule 6 of the Code of Civil Procedure, 1908 (“CPC”), seeking a preliminary
decree of partition on the basis of admissions, was dismissed.
2. Briefly stated facts are that the Appellants instituted Civil Suit bearing
CS(OS) No.747/2022 seeking partition of property bearing No. H-18-19,
Kirti Nagar, New Delhi, measuring approximately 200 square yards
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 1 of 7

(hereinafter referred to as “the Suit Property”), which was purchased by
Late Smt. Harbans Kaur Oberoi, the grandmother of the Appellants through a
registered sale deed dated 26.03.1962. During her lifetime Late Smt. Harbans
Kaur Oberoi executed a registered Will dated 30.10.1998, whereby she
bequeathed the Suit Property to her children floor-wise: the entire ground
floor along with the roof rights above the second floor jointly to respondent
No.1 (Late Smt. Kamlesh Kapoor), Smt. Nirmal Mehta and Smt. Poonam
Wasan. The entire first floor to respondent No. 4 (Sh. Surender Oberoi) and
the entire second floor to the Appellants’ father. At the time of the bequest,
the second floor stood constructed to the extent of approximately 80 square
yards, out of the total permissible 200 square yards, in accordance with the
building bye-laws then in force. The Will further stipulated that the staircase
and passage on the ground floor would remain common for the use of all
beneficiaries.
3. For the sake of convenience, relevant portions 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. 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:

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 rio H-18-19 (GF), Kirti Nagar,
New Delhi, Smt. Nirmal Mehta w/o Shri S.L. Mehta rio
1-130, Kirti Nagar, New Delhi and Smt. Poonam Wason
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 2 of 7

w/o Shri K.N. Wason rio B- 11270, 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 ....”

4. Late Smt. Harbans Kaur Oberoi passed away on 03.01.2007, after
which the Appellants’ father became absolute owner of the second floor and
continued residing there with the Appellants, but disputes thereafter arose,
with the Appellants alleging that respondent No.2 obstructed their use of the
common passage and staircase compelling them to construct an external
spiral staircase. Following the death of the Appellants’ father in 2021, the
Appellants issued a legal notice dated 29.09.2022 calling upon the
respondents to partition the Suit Property by sale, in reply to which
respondent Nos.2 and 3 disclosed that they had vide registered sale deed dated
31.01.2019 purchased the shares of respondent No.1, Smt. Nirmal Mehta
and Smt. Poonam Wasan.
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 3 of 7

5. The Appellants thereafter filed for partition of the Suit Property by sale
and distribution of the sale proceeds. During the pendency of the Suit, the
Appellants filed I.A. No.4679/2023 under Order XII Rule 6 CPC seeking a
preliminary decree of partition, on the ground that respondent Nos. 2 to 4 had,
in their respective Written Statements, admitted the Appellants’ share and
right in the second floor of the Suit Property as well as the factum of the Will
dated 30.10.1998, leaving nothing further to be adjudicated for the purpose of
a preliminary decree. The said application was dismissed by the learned
Single Judge vide the impugned Judgment dated 17.02.2026, leading to the
filing of the present appeal.
6. By way of the impugned Judgment, the learned Single Judge dismissed
the said application and held that the jurisdiction to render judgment on
admissions under Order XII Rule 6 CPC is discretionary and is to be
exercised only where the admission is clear, unambiguous, unconditional, and
made with an intention to be bound by it. In the absence of any admission on
this aspect in the Written Statements, the learned Single Judge declined to
exercise jurisdiction under Order XII Rule 6 CPC. Further held that a perusal
of the Will showed that the suit property was already demarcated floor-wise
and already stood partitioned and the only surviving question, whether the
Appellants were able to effectively enjoy the property, could be answered
only after evidence was led.
7. Learned counsel for the Appellants submits that the second floor is a
barsati structure and is in a dilapidated condition. The construction is more
than sixty years old and any attempt to fully utilise the 200 square yard area
would require fresh structural foundation work and renovation which is not
possible due to financial constraints. Further submits that the intention of the
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 4 of 7

joint properties being partitioned is to give a person the monetary value
equivalent of his percentage share in the joint property and if physical
division of the existing construction is not possible, then a person will not get
the monetary value of his percentage share. Also states that there is no proper
staircase leading to their portion because of which they have to use an
external spiral staircase to reach the second floor. In view of these
circumstances, it is averted that there is no practical option left except to sell
their share in the suit property.

8. Per contra , learned counsel appearing for respondent Nos. 2 and 3
submits that the Suit itself is highly belated and is used as a device to
pressurise them into a sale for the Appellants’ benefit. Further submits that
Suit Property having been bequeathed floor-wise under the Will dated
30.10.1998, already stands divided and distributed amongst the parties, with
each beneficiary in possession of and holding full right of disposal over
his/her respective share, no further partition is therefore maintainable.
Respondent Nos. 2 and 3 deny having obstructed the Appellants’ access to the
common passage or staircase, asserting that a cemented staircase at the rear of
the Suit Property has existed since inception and that it was the Appellants
themselves who constructed the spiral staircase.
9. We have heard the learned counsel for the parties and perused the
material placed on record.
10. The question that arises for consideration is whether the Appellants are
entitled to a preliminary decree of partition in respect of the Suit Property or
not?
11. A perusal of the Will shows that specific floors were allotted to each
beneficiary, while the staircase and passage were kept common. Each
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 5 of 7

beneficiary was given the right to hold, enjoy and dispose of his/her portion as
an absolute owner. The Appellants’ father accepted the bequest under the
Will, took exclusive possession of the second floor and continued to enjoy it
during his lifetime. He neither claimed any right over the other floors nor
challenged the Will or the division made under it. The Appellants do not
dispute or challenge the Will either, rather their claim for partition rests
entirely upon it. Such a long and undisputed conduct shows that the different
specific portions allotted under the Will were actually accepted and acted
upon by the beneficiaries. The grievances raised by the Appellants regarding
obstruction of the common staircase, the dilapidated condition of the second
floor and their inability to reconstruct it, do not change this position. These
are at best, grievances relating to the exercise of individual ownership over an
already partitioned portion which cannot be called for fresh partition and can
only be decided after the parties have led evidence, and not merely on the
basis of the allegations made by the Appellants.
12. Since the Will is not disputed, and has never been challenged by any
party at any point in time, there is no basis left to treat this property as
undivided. A beneficiary who accepts a Will without disputing it, and enjoys
specific portions of property inherited by him/her, cannot thereafter seek a
partition of a property treating it to be joint. A partition suit, and more so a
preliminary decree of partition, can only be sought where a property
continues to be held jointly and still needs to be divided, that stage in the
present case is already over. For this reason, the very foundation on which a
preliminary decree of partition would rest is absent, and the claim of the
Appellants cannot succeed.
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 6 of 7

13. For the reasons aforesaid, we are of the considered view that the
Impugned Judgment dated 17.02.2026 does not call for any interference and
the present appeal being devoid of merit, stands dismissed.
14. All pending applications, if any, also stand disposed of.



VIVEK CHAUDHARY
(JUDGE)



RENU BHATNAGAR
(JUDGE)
AUGUST 22, 2026/ tr
Signature Not Verified
Signed By:PRATIBHA
KUMARI
Signing Date:02.09.2026
13:54:35

FAO(OS) 39/2026 Page 7 of 7