Jairaj Developers Llp vs Varendhishakt Prdhiesubhaag
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order reserved on: 27.10.2026
Order delivered on: 03.11.2026
+ CS(OS) 569/2023
JAIRAJ DEVELOPERS LLP ……Plaintiff
versus
VARENDHISHAKT PRDHIESUBHAAG ....Defendants
Advocates who appeared in this case:
For the Plaintiff: Mr. Raman Kapoor, Senior Advocate alongwith Mr.
Varun Kapoor, Mr. Atul Patni, Mr. Arun Vohra, Mr.
Jatin Julka, Ms. Parvi Jain and Mr. Mrutunjay
Mishra , Advocates.
For the Defendants: Mr. Sandeep Sethi, Senior Advocate alongwith Ms.
Akanksha Kaul, Mr. Harsh Sethi, Mr. Anant Nigam,
Mr. Raghav Luthra and Mr. Nitin Bajaj, Advocates
for Loxy Infrastructure Private Limited.
Ms. Amita Kumari and Mr. Gurmeet Bindra,
Advocates for D-2 & 3.
Mr. Varun Thakur and Mr. Satyam Nandan,
Advocates for applicant/intervenor alongwith Mr.
Rakesh Kumar, applicant/intervenor in person.
CORAM:
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
O R D E R
TUSHAR RAO GEDELA, J.
I.A. 29468/2026 (U/o XXXIX Rules 1 & 2 r/w Section 151 of CPC, filed on
behalf of the plaintiff
1. This is the second application filed by the plaintiff under Order XXXIX
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Rules 1 and 2 of the Code of the Civil Procedure, 1908 (hereinafter referred to as
“CPC” ) seeking the following prayers:
“In the light of the facts and circumstances stated hereinabove, it is most
respectfully prayed that this Hon’ble Court may be pleased to:
(a) Issue an ex parte ad interim injunction restraining the Defendants as well as
propsed impleader i.e., Sh. Rakesh Kumar, their agents, representatives,
attorneys, successors-in-interest, and all persons claiming through or under them,
from alienating, transferring, encumbering, parting with possession, or creating
any third-party rights in respect of the Suit Property bearing No. D-38, Defence
Colony, New Delhi, more particularly to the extent of the ½ (half) share therein
purchased by the Plaintiff through Smt. Kamal Kaur, pending the final
adjudication of the present suit;
(b) Direct the Defendants to maintain status quo with respect to the Suit Property
and to refrain from creating any further third-party rights or encumbrances
thereon;
(c) Direct the Sub-Registrar concerned not to register any document of transfer,
sale, gift, mortgage, or any other instrument creating any right, title, or interest in
the Suit Property in favour of any third party;
(d) Pass such other order or orders as this Hon'ble Court may deem fit and
proper in the facts and circumstances of the present case.”
2. The present suit has been filed, inter alia, seeking a decree of specific
performance of the Advance Payment Receipt dated 30.06.2017 (hereinafter
referred to as “APR” ) executed by late Ms. Kamal Kumar alias Kamal Kaur,
presently through her legal heir i.e. defendant no.1 claimed to be in respect of ½
share in the property bearing No. D-38, Defence Colony, New Delhi – 1100024,
admeasuring 333.33 square yards (hereinafter referred to as the “suit property” ), a
decree of declaration declaring that the Memorandum of Family Settlement dated
10.07.2023 (hereinafter referred to as “MoFS” ) executed by the defendants to be
illegal, unlawful, null and void ab initio amongst other reliefs of permanent and
mandatory injunction, and grant of status quo .
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3. It is noted that the present suit was rejected under the provisions of Order
VII Rule 11, CPC by this Court vide order dated 07.07.2025. Aggrieved by the
rejection, the plaintiff appealed the said order before the learned Division Bench of
this Court. The learned Division Bench vide the order dated 15.12.2025 in
R.F.A(OS) 69/2025 restored the present suit while setting aside the order dated
07.07.2025 passed by the learned predecessor Bench of this Court.
4. It is further noted that no interim orders have been passed by this Court in
the present suit. It may be relevant to this application to note the order dated
11.09.2024 passed by the learned predecessor Bench whereby, it was observed that
the plaintiff has no locus to claim any right, title or interest in the share of
defendant nos.2 and 3. Further that, the said defendants were at liberty to proceed
with the completion of sale with the third party without being hindered by the
pendency of the present suit. It was further clarified that the rigours of the Section
52 of the Transfer of Property Act, 1882 would not apply to the transfer effected
by the said defendants. The said application is still pending adjudication.
5. On the allegation, that defendant no.1 has entered into a sale transaction with
a third party, i.e., Loxy Infrastructure Private Limited, whose sale deed has been
presented before the concerned Sub-Registrar for registration, the present
application seeking the aforenoted prayers has been filed. One of the prayers
sought is to restrain the Sub-Registrar from further registering the sale deed.
CONTENTIONS OF THE PLAINTIFF:-
6. Mr. Raman Kapoor, learned senior counsel appearing for the plaintiff would
contend that the instant application has been preferred on gaining the knowledge
that the defendant no.1 has entered into some transaction with a third party to
dispose of the suit property by executing a sale deed, which is to be registered by
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the Sub-Registrar, Jangpura, Lajpat Nagar, Delhi. He would submit that the said
information was communicated by the Sub-Registrar vide the letter dated
19.10.2026. He would submit that it is on account of this communication that the
plaintiff has preferred the present application seeking interim stay.
7. Learned senior counsel would submit that so far as the first stay application
bearing I.A. No.17930/2024 is concerned, vide order dated 19.01.2024, it is noted
that the plaintiff did not press for the interim orders. He stated that this Court had
noted that defendant nos.2 and 3 have entered into an Agreement to Sell
(hereinafter referred to as “ATS” ) with two third-party vendees on the basis of a
consent decree dated 11.07.2023 passed in CS(OS) 281/2017 (hereinafter referred
to as “the previous suit” ).
8. He would submit that so far as defendant no.1 is concerned, the situation
may be different. In that, though in the previous suit a preliminary decree and a
final consent decree of partition was passed, however, the same was based on an
alleged MoFS dated 10.07.2023 executed between defendant nos.1, 2 and 3
collusively. He would submit that one of the prayers sought by the plaintiff in the
present suit seeks declaration that the MoFS dated 10.07.2023 is illegal, unlawful,
null and void ab initio . He would submit that the said prayer is premised on the
fact that the predecessor-in-interest of defendant no.1 namely late Smt. Kamal
Kaur, had executed an APR on 30.06.2017 in respect of the suit property, and thus,
any MoFS executed subsequently, cannot render the APR nugatory.
9. His contention in the aforesaid context was that in case this Court finally
passes a decree of declaration qua the MoFS as null and void, the rights of the
plaintiff to seek specific performance of the APR would be rendered unexecutable
and otiose inasmuch as third-party rights in the subject matter property would have
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been created. He would submit that the third-party purchaser has already
commenced demolition of the property, and thus, if not restrained, and the subject
property is demolished, the suit of the plaintiff for specific performance may be
rendered infructuous.
10. In order to set up his case, learned senior counsel drew attention to the plaint
and the factual narration in respect of as to how late Kamal Kaur acquired the
ownership of the suit property and that she was competent to execute the APR. His
contention was that late Smt. Harbans Kaur, who was the owner of the subject
property by virtue of a registered Will dated 22.07.1987, bequeathed the suit
property to her only surviving son Sh. Jagmohan Singh exclusively. He submitted
that Sh. Jagmohan Singh was single and on his death on 25.01.2017, the estate
devolved upon his Class-II legal heirs. He would submit that since only two sisters
survived, i.e., late Smt. Mohinder Kaur and late Kamal Kumar, and all the other
legal heirs having predeceased Sh. Jagmohan Singh, the property devolved equally
upon the surviving sisters.
11. While referring to the previous suit filed by defendant no.2 herein/Sh.
Maninder Singh, he would contend that upon the death of late Kamal Kumar, who
was the defendant no.1 therein, the present defendant no.1 got himself impleaded
as the sole legal heir, and surreptitiously executed the MoFS with Sh. Maninder
Singh (defendant no.2) and Sh. Harinder Singh (defendant no.3 herein), LRs of late
Smt. Joginder Bedi and late Sh. Mohinder Kaur respectively. According to him,
since late Joginder Bedi predeceased late Jagmohan Singh, the right of devolution
of the suit property after the death of late Jagmohan Singh would fall only upon
late Kamal Kumar and late Mohinder Kaur. Thus, he would contend that Sh.
Maninder Singh, son of late Joginder Bedi had no right whatsoever. As a
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consequence, he would submit that the MoFS, prima facie, is an illegal and
unlawful document having been signed and executed by incompetent persons.
12. In the above context, learned senior counsel would contend that the APR
having been executed much prior to the MoFS, the rights of the plaintiff must be
preserved and protected during the pendency of the suit. Learned senior counsel
also read the paragraphs of the present plaint to submit that there is a doubt as to
whether the defendant no.1/Mr. Varendhishakt Prdhiesubhaag alias Baba Sahib is
really a legal heir of late Kamal Kumar, who was defendant no.1 in the previous
suit. Learned senior counsel emphasised that the execution of the MoFS; the
impleadment of Baba Sahib as legal heir of late Kamal Kumar; and the manner in
which the MoFS was executed; coupled with the passing of the consent decree on
the same day i.e. 11.07.2023, indicates clear collusiveness between the parties and
the clear attempt to deprive the plaintiff from enforcement of the APR.
13. Referring to the APR, learned senior counsel would submit that the intention
to transfer her share and interest in the suit property by late Kamal Kumar to the
plaintiff is apparent. Referring to the reply filed on behalf of late Kamal Kumar to
the contempt petition bearing CCP(O) No.70/2018 in the previous suit, he would
contend that the contents of the said reply demonstrates clear admission of late
Kamal Kumar having executed the APR as also having received a consideration of
Rs.21 lakh from the plaintiff. He would contend that even if the preliminary decree
and the final consent decree is taken into account, late Kamal Kumar had a clear
one-third right in the suit property. If that be so, he would submit that this Court
has to give precedence to the intention of late Kamal Kumar of transferring her
share in the suit property vide the APR dated 30.06.2017, which was prior to both
the preliminary decree and the MoFS.
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14. In order to explain the devolution of share or interest in the suit property
upon late Kamal Kumar, learned senior counsel would draw attention to the Will
dated 22.07.1987 purportedly executed by late Harbans Kaur. According to him,
clearly, once the Will bequeaths the property exclusively to late Jagmohan Singh,
and Sh. Jagmohan Singh had expired without leaving any legal heirs, the share and
rights in the property would devolve upon the surviving Class-II family members,
in which case, late Kamal Kumar was entitled to 50% of the suit property.
15. Thus, looked at it any which way, learned senior counsel would submit that
the interest of the plaintiff, whether it be one-third or one-half, must necessarily be
protected during the pendency of the present suit. According to him, once the third-
party rights are created and permitted to be registered, the suit of the plaintiff may
be rendered infructuous.
16. By referring to Unified Building Bye-Laws for Delhi, 2016, learned senior
counsel would submit that in any case no property can be demolished without first
obtaining a sanctioned plan. Since, no such sanctioned plan is available or applied
for, the third-party purchaser cannot be permitted to carry out demolition of the
built-up portion of the subject suit property. In other words, learned senior counsel
would contend that the third-party purchaser cannot be permitted to carry out
demolition in view of the prohibition in the said Bye-Laws.
17. Learned senior counsel had also referred to and extensively relied on the
judgement of the learned Division Bench dated 15.12.2025 allowing the appeal of
the plaintiff against the order of this Court dated 07.07.2025 rejecting the plaint
under Order VII Rule 11, CPC. Relying on the various paragraphs, he would
contend that the learned Division Bench had noted that the issues forming the
subject matter of the present suit regarding the validity of the Will as also the
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MoFS, etc., are matters that require evidence and cannot be decided summarily. On
that basis, learned senior counsel would submit that having regard to the
appreciation of all the relevant issues by the learned Division Bench in the
aforesaid judgement, it would be in the interests of justice to preserve the property,
which is the subject matter of the present suit.
CONTENTIONS OF THE PURCHASER - LOXY INFRASTRUCTURE
PRIVATE LIMITED:-
18. Mr. Sandeep Sethi, learned senior counsel appearing for the purchaser, M/s
Loxy Infrastructure Private Limited, would submit that the suit of the plaintiff is
predicated upon the APR which is not an enforceable document. At the outset, he
drew the attention of this Court to paragraph 6 of the plaintiff's impleadment
application, bearing I.A. No. 219/2021, filed in the previous suit, and submitted
that the plaintiff had himself stated therein that the “ATS was yet to be prepared”.
Meaning thereby, that the APR itself is not in the nature of an ATS, and thus, is
unenforceable.
19. He would further vociferously contend that even otherwise, the APR does
not constitute an ATS to fall within the scope and ambit of documents which are
enforceable under the Specific Relief Act, 1963. He would contend that it is trite
that for specific enforcement of any document claimed to be in the nature of an
ATS, it must necessarily contain four (4) essential ingredients, sans which, the
document would not qualify as an ATS, and thus, not enforceable. For the said
proposition, learned senior counsel would rely upon the judgement in Aggarwal
Hotels (P) Ltd. v. Focus Properties (P) Ltd., 1996 SCC OnLine Del 354, relevant
para is extracted hereunder:
“ 5. The four ingredients necessary to make an agreement to sell are: (i)
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particulars of consideration; (ii) certainty as to party i.e. the vendor and the
vendee; (iii) certainty as to the property to be sold; and (iv) certainty as to
other terms relating to probable cost of conveyance to be borne by the parties,
time, etc. If these ingredients are lacking in the agreement, the obligations
contemplated under Section 16 for specific performance for immoveable
property would not arise. It is in this background that the receipt dated June
17, 1995 has to be examined.”
The said proposition was also reiterated by the learned Coordinate Bench of
this Court in Amarjeet Singh v. Sharda Obhrai, 2006 SCC OnLine Del 1143 .
20. Moreover, learned senior counsel would further rely on Amarjeet Singh
(supra) to submit that it is a settled position in law that, for a document to be
construed as an ATS, at least 10% of the sale consideration is required to be paid
as earnest money. He would therefore contend that the plaintiff had failed to fulfil
any of the requisite conditions for construing the APR as an ATS. Relevant paras
of the said judgement are extracted hereunder:
“ 5. I do not find any merit in the contention of the Plaintiff. The sum of Rs 60
lakhs is approximately five percent of the total sale consideration if the
Plaintiff's case is to be accepted. As I have expressed in High Way Farms
(supra) normally at least 10% is paid as earnest money, thereby manifesting
that a sale contract has emerged from negotiations. The Receipt in question
can at best be seen as indicating that negotiations or talks in respect of the sale
of the Suit property were underway. The Plaintiffs pleading that an agreement
to Sell was to be executed, in fact, destroys his case. Apart from the Receipt not
fulfilling all the ingredients which are required for advancing to the conclusion
that an agreement had taken place between the parties, the pleadings or
understanding that an agreement to Sell was to be executed can lead only to
the conclusion other than that a concluded contract had not come into
existence. If the parties were consensus ad idem on all necessary points, an
agreement to Sell would inevitably have been executed.
6. I have no hesitation in concluding that a prima facie case has not been
disclosed by the Plaintiff. Since no agreement to Sell had emerged the usual
and normal presumption that a contract for the conveyance of immoveable
property would not normally be compensated in terms of money, does not come
into operation. The balance of convenience is not in favour of the Plaintiff who
has, prima facie, merely thrown in a small fraction of the price being
negotiated between the parties with a view to, at the highest, give some
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semblance of formality or seriousness to his offer. The Plaintiff would
therefore not suffer any irreparable loss or injury. The interest of justice would
be adequately met if the defendant is directed to deposit the said sum of Rs 60
lakhs with the Registrar General of this Court within four weeks from today. I
order accordingly. If the Plaintiff is desirous of withdrawing his Suit, the said
sum would be made over to him.”
(Also see: Highway Farms vs. Chinta Ram, 2000 SCC OnLine
Del 244 )
21. In the aforesaid context, learned senior counsel contended that the APR in
the present case does not possess the essential ingredients as postulated in the said
judgements, thus is not an enforceable document. Since the APR is unenforceable,
according to him, there is any amount of doubt as to whether the plaintiff would at
all succeed in its case of specific performance.
22. Learned senior counsel would invite attention of this Court to the first stay
application bearing IA No.17930/2023, particularly to paras 6 and 7, to submit that
inspite of the allegations in the said paragraphs, this Court did not grant any stay
till date. In fact, drawing attention to the order dated 19.01.2024, learned senior
counsel would submit that the plaintiff did not even press the same at the
appropriate stage. In such circumstances, learned senior counsel would contend
that once the defendant no.1 has already signed and executed the sale deed in
favour of the purchaser, the plaintiff cannot create any impediment to the mere
registration of such sale deed.
23. Learned senior counsel also contended that the plaintiff was represented by a
counsel when this Court passed the preliminary decree on 23.01.2020 as is
reflected from the order sheet itself. Despite this knowledge, the plaintiff never
questioned or challenged the same. He would contend that the purported Will on
the basis whereof the plaintiff claims that late Kamal Kumar had been bequeathed
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the suit property had not seen the light of the day as recorded in the order dated
23.01.2020. If that be so, the rights of the plaintiff as claimed over the whole
property as alleged in the APR itself gets diluted and unenforceable. There cannot
be specific performance of part of a property when the APR claims the transaction
was for the whole of the suit property.
24. Accordingly, it is submitted that no interim stay is warranted at this stage.
ANALYSIS AND CONCLUSION:-
25. This Court has heard learned senior counsel for the plaintiff as well as the
senior counsel for the purchaser of the part portion of the suit property from
defendant no.1 and also examined the documents on record.
26. It may be of some significance to examine the factual contours of this case
and the orders that have been passed in the present case as also those in the
previous suit since the same is intrinsically intertwined with the case at hand.
27. It is a matter of record that defendant no.2 herein had instituted the previous
suit for partition seeking his 1/3rd share in the suit property, arraying late Kamal
Kumar (predecessor-in-interest of defendant no.1 herein) as defendant no.1 and
late Mohinder Kaur as defendant no.2. By the order dated 05.06.2017, the learned
Coordinate Bench of this Court passed an interim order directing the parties to
maintain status quo with regard to the title and possession of the suit property. The
said order is extracted hereunder:
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28. The aforesaid observations manifest, that the interim orders directing status
quo to be maintained as regards title and possession, was passed having regard to
the fear and apprehension that the defendants therein may be lured, forced, coerced
or misled into executing documents transferring or alienating the suit property by
certain property brokers in the vicinity at that point in time. It appears the
apprehension was predicated on the information that defendant no.1 therein was in
possession of the title deeds and both the defendants were aged 82 and 93 years
respectively.
29. The present suit for specific performance is premised on the APR dated
30.06.2017 alleged to have been executed by late Kamal Kumar in favour of the
plaintiff. It is clear that the said APR was signed and executed after the interim
order dated 05.06.2017 was passed and in force on that day. The said APR is
extracted hereunder:
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30. It is relevant to note that Sh.Harinder Singh, defendant no.3 herein and the
LR of late Mohinder Kaur in the previous suit, upon gaining the knowledge that
the plaintiff in the present suit has advertised for sale of the subject property,
initiated contempt proceedings bearing CCP(O) 70/2018 directed against the
representatives of the present plaintiff and late Kamal Kumar citing wilful
violation of interim order dated 05.06.2017.
31. Vide the order dated 27.09.2019, the Court called upon the present plaintiff
to file an affidavit explaining how the suit property had been listed as one of the
properties available for sale. Pursuant to the aforesaid order, the then Authorised
Representative of the plaintiff, Sh. Shubhash Arora, had filed an affidavit stating
that the aforesaid listing had occurred due to a miscommunication and that the suit
property was neither intended to be listed for publication nor had it been published
at any point in the past. The relevant extract from the affidavit filed by the
Authorised Representative of the plaintiff is reproduced hereinbelow:
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32. It is also pertinent to note the stand taken by the late Kamal Kumar in her
reply to the contempt proceedings initiated against her. The relevant paragraphs of
her reply to the contempt proceedings are also extracted hereunder:-
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33. Pertinently, the stand of late Kamal Kumar as regards the APR is that she
did not have the knowledge of the interim order dated 05.06.2017; that though she
had signed the APR, yet the cheque of Rs.21 lakh of Kotak Mahindra Bank
mentioned therein was never deposited by her in her account; that the subsequent
deposit was neither with her consent nor to her knowledge; that the said deposit
was fraudulent; that she does not intend to sell the property and that she has not
created any third party interest in the said property.
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34. It is interesting to note that vide order dated 23.01.2020, while considering
the contempt petition and submissions seeking passing of preliminary decree in the
partition suit, the Court restrained the present plaintiff from advertising the sale of
the suit property in any manner and also imposed costs of Rs. 20,000/- on account
of the plaintiff's failure to file the proper affidavit with clear facts as how the
property on which an order of injunction was passed from being sold, featured for
sale in their brochure.
35. It is further a matter of record that late Kamal Kumar, in her written
statement filed in the previous suit, claimed the existence of a Will left by late
Harbans Kaur to assert that defendant no. 2 herein did not have any share in the
suit property. However, it appears that no such Will was ever produced before the
Court, nor did she possess the original Will. This aspect was recorded by the
learned Coordinate Bench in the order dated 23.01.2020, and after considering the
submissions, passed a preliminary decree in the previous suit declaring the rights to
the extent of 1/3rd share each to the Sh. Maninder Singh (plaintiff therein), late
Kamal Kumar (defendant no.1 therein), and Mohinder Kaur (defendant no.2
therein) in the suit property. The order dated 23.01.2020 passed by this Court in the
previous suit is extracted hereunder:
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36. The Court in the previous suit while passing the aforesaid preliminary decree
has found as a fact that late Kamal Kaur had not produced the Will of late Harbans
Kaur and in fact observed in para 5 that she admitted to not being in possession of
any such Will. Thus, by the aforesaid order, the Court had clearly granted a
preliminary decree in favour of (i) the plaintiff therein, i.e., Sh. Maninder Singh
(defendant no.2 herein); (ii) defendant no.1 therein i.e., late Kamal Kumar
(defendant no.1 herein); and (iii) defendant no.2 therein, i.e. Sh. Harinder Singh
(defendant no.3 herein).
37. It is also a matter of record that the said order dated 23.01.2020 was
challenged by late Kamal Kumar before the learned Division Bench in an appeal
bearing R.F.A.(OS) No.8/2021, which was dismissed on merits on 15.02.2021. It
may be of some significance to reproduce the relevant paras of the judgement
dated 15.02.2021 as under:
“1. Present appeal has been filed challenging the order dated 23rd January 2020
whereby a preliminary decree of partition of the property had been passed by the
Ld. Single Judge.
2. Learned counsel for the appellant states that the learned Single Judge had
erred in exercising her power under Order XII Rule 6, CPC. He submits that the
impugned order was passed on the assumption that Sardarni Harbans Kaur had
died intestate. He emphasises that the Single Judge ought to have taken into
consideration that the division of the property was to take place as the property
left behind by late Sardar Jagmohan Singh, who is the brother of the Appellant
and not as the property of late Sardarni Harbans Kaur and in such an event, no
legal right arises in favour of the respondent/plaintiff.
3. He submits that the learned Single Judge erred in treating the non-production
of the original will as an admission by the appellant of the non-existence of the
registered will. He points out that the photocopy of the will was duly placed on
record which was ignored by the learned Single Judge.
4. Per contra, learned counsel for respondent/plaintiff states that the impugned
order dated 23rd January, 2020 was a consensual order. She states that
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subsequently on 15th July, 2020 and 11th December, 2020 the appellant had
reiterated her consent and had even stated that she will coordinate with the Local
Commissioner in execution of the sale deed and other necessary documents. She
has, today in Court, handed over a copy of the order dated 11th December, 2020.
5. In rejoinder, learned counsel for the appellant states that the earlier counsel
had misguided the appellant and suppressed material facts from her.
6. A perusal of the order dated 11th December, 2020 reveals that on the said date,
the appellant’s counsel in the presence of the appellant had stated, in virtual
hearing, that the appellant would cooperate with the Local Commissioner for
execution of the sale deed and other necessary formalities. Consequently, the
appellant is today estopped from contending to the contrary.
7. In any event, on a perusal of the order dated 15th July, 2020 and 11th
December, 2020, this Court is of the view that the impugned order was a
consensual order.
8. We are also not able to comprehend as to why the said order of dated 11th
December, 2020 had not been placed on record by learned counsel for the
appellant, especially considering the fact that present matter is a Regular First
Appeal and the entire trial court record should have been filed.
9. Further, as the appellant has not filed an application for review of the order
dated 23rd January, 2020, this Court is of the view that the impugned order calls
for no interference. Accordingly, the present appeal and application are
dismissed.”
38. It is not disputed that late Kamal Kumar did not further challenge the
judgement dated 15.02.2021 which became final and binding. It appears that late
Kamal Kumar thereafter sought review of the order dated 23.01.2020 whereby the
preliminary decree for partition was passed, vide the Review Petition No.60/2021.
It is a matter of record that the said review petition was dismissed vide judgement
dated 16.12.2022 based on the doctrine of merger of the consent decree with the
judgement dated 15.02.2021 passed by the learned Division Bench and that no
review petition would be maintainable. None of these orders appear to have been
assailed any further.
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39. Thereafter, vide the order dated 10.01.2023, this Court recorded that late
Kamal Kumar had left for her heavenly abode. Subsequently, defendant no.1,
claiming to be the sole legal heir of late Kamal Kumar, along with defendant nos. 2
and 3, entered into and reduced into writing a MoFS dated 10.07.2023. It is further
a matter of record that, subsequent to the execution of the said MoFS, the Court
vide order dated 11.07.2023, impleaded defendant no.1 as a legal heir of late
Kamal Kumar on the same date, took the said MoFS on record, and on the basis
thereof, passed a consent final decree. The order dated 11.07.2023 disposing of the
suit and passing the consent final decree is extracted hereunder:
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40. Having regard to the above, the following aspects clearly emerge: (i) the
APR was executed at a time when an order of status quo with regard to the title
and possession of the suit property was already in force vide order dated
05.06.2017; (ii) the alleged executant of the APR categorically recused herself
from proceeding further with the intention to sell the suit property; and (iii) Kamal
Kumar also categorically admitted in her reply to the contempt petition that she
had not presented the cheque for Rs.21 lakh under the APR, and that the amount
subsequently credited to her bank account had been deposited without her
knowledge.
41. Prima facie, it is apparent that late Kamal Kaur was declared to be the
shareholder to the extent of 1/3rd in the suit property on the basis of general law of
succession and not testamentary disposition. That part of the findings was not only
recorded by this Court in the order dated 23.01.2020, but also upheld by the
learned Division Bench in a regular appeal filed by late Kamal Kumar herself. If
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that be so, the claim of the plaintiff to 50% of the suit property cannot be sustained.
42. It must be recalled that the plaintiff was represented by a counsel on the day
when the preliminary decree of partition was passed in the previous suit. Yet, from
23.01.2020 till the final decree of partition was passed on 11.07.2023, the plaintiff
did not initiate any legal action to assert or safeguard its rights under the said APR.
Nothing prevented or precluded the plaintiff from asserting its rights, assuming it
had any rights over 1/3rd share in the suit property after the preliminary decree was
passed, against late Kamal Kaur who was alive at that time and had expired only in
January, 2023. Undeniably, the plaintiff instituted the present suit only after the
final decree was passed. It is of some relevance that the plaintiff did not even
challenge the final consent decree.
43. It is clear that the preliminary decree crystallised the rights of late Kamal
Kaur to the extent of 1/3rd share in the suit property. Subsequently, by the
execution of the MoFS, defendant no.1 herein, asserted his rights over that 1/3rd
share, which fell to late Kamal Kaur. Not only was the present defendant no.1
impleaded but the MoFS was accepted and the final consent decree was passed.
44. Apart from the above, a cumulative reading of all the past transactions and
events, including the preliminary decree as well as the final consent decree propels
this Court to form a prima facie view that the APR, whether or not it falls within
the purview of an “ATS”, possibly may not be an enforceable document, having
regard to the fact that it was executed at a time when an order of status quo with
regard to the title and possession of the suit property was already in force.
45. It is also a settled position in law that, in a partition suit, it is the preliminary
decree which is required to be challenged. This is for the reason that the rights of
the parties with respect to their respective shares, as well as the apportionment
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thereof, are conclusively determined and adjudicated at the stage of passing of the
preliminary decree. The final decree merely gives formal expression to the
modalities by which the shares and apportionment, already determined under the
preliminary decree, are to be worked out. Thus, the purported challenge to the
MoFS, which culminated in the passing of the final decree in the previous suit,
appears to be a mere bogey and may not enure to the benefit of the plaintiff.
46. That in terms of Section 97 of the CPC, parties are required to challenge a
preliminary decree, failing which the findings or correctness recorded or reached
by the Court in such preliminary decree cannot be challenged in an appeal against
the final decree, if any. ( See: Mool Chand v. Director, Consolidation, (1995) 5
SCC 631; Venkata Reddy v. Pethi Reddy, 1962 SCC OnLine SC 320 )). The
aforesaid law has been quoted by this Court only to reiterate that once the finding
of fact regarding late Kamal Kumar not being in possession of the original Will of
late Harbans Kaur has been recorded in the order granting the preliminary decree,
and further upheld by the appellate court, the said Will cannot now be made basis
of the claim in the present plaint. This observation is made in addition to and not in
repugnancy of the earlier observation that no legal action was initiated by the
plaintiff on the basis that late Kamal Kaur was declared as 1/3rd share holder in the
suit property.
47. Having regard to the aforesaid, this Court is of considered opinion that the
plaintiff has failed to make out a prima facie in his favour. The balance of
convenience also does not lie in favour of the plaintiff. No irreparable loss or
injury which cannot be compensated in terms of money would be caused to the
plaintiff.
48. In that view of the matter, this Court is not inclined to pass any interim
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orders in favour of the plaintiff and against the defendant no.1 or the purchaser.
Accordingly, the application is dismissed.
49. Needless to observe that nothing in this order shall tantamount to expression
on merits.
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50. List on the date already fixed, i.e., 25.11.2026.
TUSHAR RAO GEDELA
(JUDGE)
NOVEMBER 03, 2026
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