Upasana Gautam vs Krishna & Ors.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 31 AUGUST, 2026
IN THE MATTER OF:
# CNR No.DLHC010315832023
I.A. 39455/2024
IN
+ CS(OS) 481/2023
UPASANA GAUTAM .....Plaintiff
Through: Mr. Krishan Kumar, Mr. Anubhav
Kumar and Mr. Manish Sharma,
Advocates
versus
KRISHNA & ORS. .....Defendants
Through: Mr. Vikas Tiwari with Mr. Kumar
Deepraj, Advocates for D-4
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
I.A. 39455/2024
1. The present application has been filed by Defendant No.4 under Order
VII Rule 11(a) of the CPC rejection of plaint on the ground that there is no
cause of action on the basis of which the plaint has been filed.
2. The present suit is one for declaration, partition and permanent and
mandatory injunction. A perusal of the plaint shows that the Plaintiff who is
a global manager, business intelligence at CISCO has filed the present suit
against Defendants Nos.1 to 6.
3. It is stated by the Plaintiff that she being the biological daughter of
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Late Sh. Ram Kumar is entitled to the share in the movable and immovable
properties by Late Sh. Ram Kumar.
4. It is further stated that Late Sh. Bharat Ram died on 23.09.1983
leaving behind three daughters and one son, namely, Smt. Maya, Smt.
Krishna, Smt. Kanta and Sh. Suresh Gautam. The genealogy of Late Sh.
Bharat Ram is reproduced as under:
5. Ms. Upasana is the Plaintiff herein. Smt. Krishna, who is the daughter
of Late Bharat Ram and wife of Late Sh. Ram Kumar, is Defendant No.1.
Defendants No.2 to 6 are the children of Smt. Krishna and Late Sh. Ram
Kumar.
6. The contention of the Plaintiff in the plaint is that she is the daughter
of Defendant No.7-Smt. Kamlesh and Late Sh. Suresh, who passed away on
05.01.2019. It is further stated that Late Sh. Ram Kumar used to frequently
visit the family of Late Sh. Suresh and Smt. Kamlesh due to which he
developed affection towards Defendant No.7 Smt. Kamlesh.
7. It is further stated that Suresh entered into an illegitimate relationship
with Defendant No.7 as a result of which the Plaintiff herein was born on
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30.01.1988. It is the contention of the Plaintiff that Late Sh. Ram Kumar had
a special affection towards the Plaintiff herein as he used to call the Plaintiff
in the family functions and also used to celebrate the birthday of the Plaintiff
apart from managing Plaintiff’s education and health.
8. It is also stated by the Plaintiff that Late Sh. Ram Kumar used to treat
the Plaintiff like his natural daughter and it was also in the knowledge of
everyone including Defendant Nos.1 to 6 that Plaintiff is the
natural/biological daughter of Late Sh. Ram Kumar though in the official
record Sh. Suresh is the father of the Plaintiff.
9. It is further stated by the Plaintiff that particularly in November-
December, 2021, Defendant No.7 who is the mother of the Plaintiff was
suffering from kidney problem and was not keeping up with her health, due
to which she disclosed to the Plaintiff that she is the natural/biological
daughter of Late Sh. Ram Kumar and not of Late Sh. Suresh Gautam.
10. It is further contended by the Plaintiff that after coming to know about
her natural/biological father, the Plaintiff approached Defendant Nos.1 to 6
and requested them to accept her as a natural daughter of Late Sh. Ram
Kumar, however, Defendant Nos.1 to 6 refused to do the same.
11. It is stated by the Plaintiff that Defendant Nos.1 to 6 denied her
requests to accept the Plaintiff as a natural daughter of Late Sh. Ram Kumar
because acknowledging or admitting her as a natural daughter would
consequently result in a deduction of share in the movable and immovable
properties of Late Sh. Ram Kumar.
12. It is further stated by the Plaintiff that Defendant Nos.1 to 6 are aware
of the fact that Plaintiff is the natural daughter of Late Sh. Ram Kumar and
they further acknowledged this fact before family members and relatives.
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However, Defendants Nos.1 to 6 refused to accept the Plaintiff as a legal
heir of Late Sh. Ram Kumar.
13. It is further stated that Late Sh. Ram Kumar died on 22.10.2016
leaving behind Plaintiff as well as Defendant Nos.1 to 6 as his legal heir. It
is further stated that Late Sh. Ram Kumar has also left some movable and
immovable properties for which the Plaintiff requested the Defendants for
partition, however, Defendants Nos.1 to 6 refused to do so. Aggrieved by
this, the Plaintiff issued a legal notice dated 18.01.2022 to Defendant No.2
to 5 claiming her rightful share in the properties. The said notice was duly
served on the Defendants and reply to the said notice was also given on
24.01.2022.
14. Summons in the suit were issued on 11.09.2023. Issues have yet not
been framed in the present suit.
15. The present application is being filed by Defendant No.4 seeking
rejection of plaint on the ground of no cause of action as the present suit
filed by the Plaintiff is only based on the ground that she is the biological
daughter of Late Sh. Ram Kumar who is also the father of Defendant No.4.
16. It is stated that the entire case of the Plaintiff is based on a
conversation which she had with the Defendant No.7 i.e., her mother while
she was unwell that Late Sh. Ram Kumar is the biological father of the
Plaintiff and not Late Sh. Suresh Gautam and therefore the Plaintiff has filed
the present suit for partition of the estate of Late Sh. Ram Kumar.
17. It is further stated that there is no documentary or other evidence to
substantiate the claim of the Plaintiff and therefore the present suit cannot be
allowed to sent for a trial and the same is liable to be dismissed under Order
VII Rule 11 of the CPC.
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18. It is further stated in the application that the DNA report furnished by
the Plaintiff would match her DNA with the DNA of her biological mother
and sister, however, the same does not prove any relationship with Late Sh.
Ram Kumar and therefore the said report will not come to the aid of the
Plaintiff.
19. It is further stated that even if for the sake of argument, it is
considered that Plaintiff is the biological daughter of Late Sh. Ram Kumar,
then also the Plaintiff is not entitled to any share in the property as in that
case the Plaintiff would become an adopted daughter of Defendant No.7 and
Sh. Suresh Gautam and biological daughter of Defendant No.7 and Late Sh.
Ram Kumar, therefore, being adopted daughter of Defendant No.7 and Late
Sh. Suresh, the Plaintiff cannot claim share in the property of Late Sh. Ram
Kumar.
20. It is further stated that being a adopted child in another family, the
Plaintiff cannot claim any share in the estate of Late Sh. Ram Kumar
therefore the relief claimed by the Plaintiff is also barred under law and the
same is liable to rejected under Order VII Rule 11(d).
21. The Plaintiff has filed a reply to the said application wherein it is
stated that the present application is liable to be dismissed on the ground that
the Plaintiff in Paragraph 21 of the plaint has clearly disclosed the cause of
action leading to the filing of the present suit.
22. It is stated in the reply that the case of the Plaintiff is not that she is
the adopted child of Late Sh. Suresh and Defendant No.7 and rather it is that
she is the illegitimate child of Late Sh. Ram Kumar and Defendant No.7,
therefore, she has a right to claim partition in the estate of Late Sh. Ram
Kumar.
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23. Heard learned Counsel for the parties and perused the material on
record.
24. For the adjudication of the present Application, it is pertinent to refer
to Order VII Rule 11 of the CPC, which reads as under:
“ 11. Rejection of plaint.
The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) where the relief claimed is properly valued, but the
plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature
form correcting the valuation or supplying the
requisite stamp-paper, as the case may be, within the
time fixed by the Court and that refusal to extend such
time would cause grave injustice to the plaintiff.”
25. The law relating to rejection of a plaint under Order VII Rule 11 of
the CPC is crystallized through various judgments of the Apex Court. The
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Apex Court in Popat and Kotecha Property v. State Bank of India Staff
Assn., (2005) 7 SCC 510, has held as under:
“ 13. Before dealing with the factual scenario, the
spectrum of Order 7 Rule 11 in the legal ambit needs
to be noted.
14. In Saleem Bhai v. State of Maharashtra [(2003) 1
SCC 557] it was held with reference to Order 7 Rule
11 of the Code that the relevant facts which need to be
looked into for deciding an application thereunder are
the averments in the plaint. The trial court can exercise
the power at any stage of the suit — before registering
the plaint or after issuing summons to the defendant at
any time before the conclusion of the trial. For the
purposes of deciding an application under clauses (a)
and (d) of Order 7 Rule 11 of the Code, the averments
in the plaint are the germane; the pleas taken by the
defendant in the written statement would be wholly
irrelevant at that stage.
15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal
[(1998) 2 SCC 70] it was held that the basic question
to be decided while dealing with an application filed
under Order 7 Rule 11 of the Code is whether a real
cause of action has been set out in the plaint or
something purely illusory has been stated with a view
to get out of Order 7 Rule 11 of the Code.
16. The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order 7 Rule 11 of the Code taking care
to see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first
hearing by examining the party searchingly under
Order 10 of the Code. (See T. Arivandandam v. T.V.
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Satyapal [(1977) 4 SCC 467] .)
17. It is trite law that not any particular plea has to be
considered, and the whole plaint has to be read. As
was observed by this Court in Roop Lal Sathi v.
Nachhattar Singh Gill [(1982) 3 SCC 487] only a part
of the plaint cannot be rejected and if no cause of
action is disclosed, the plaint as a whole must be
rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property
[(1998) 7 SCC 184] it was observed that the averments
in the plaint as a whole have to be seen to find out
whether clause (d) of Rule 11 of Order 7 was
applicable.
19. There cannot be any compartmentalisation,
dissection, segregation and inversions of the language
of various paragraphs in the plaint. If such a course is
adopted it would run counter to the cardinal canon of
interpretation according to which a pleading has to be
read as a whole to ascertain its true import. It is not
permissible to cull out a sentence or a passage and to
read it out of the context in isolation. Although it is the
substance and not merely the form that has to be
looked into, the pleading has to be construed as it
stands without addition or subtraction of words or
change of its apparent grammatical sense. The
intention of the party concerned is to be gathered
primarily from the tenor and terms of his pleadings
taken as a whole. At the same time it should be borne
in mind that no pedantic approach should be adopted
to defeat justice on hair-splitting technicalities.
20. Keeping in view the aforesaid principles the reliefs
sought for in the suit as quoted supra have to be
considered. The real object of Order 7 Rule 11 of the
Code is to keep out of courts irresponsible law suits.
Therefore, Order 10 of the Code is a tool in the hands
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of the courts by resorting to which and by searching
examination of the party in case the court is prima
facie of the view that the suit is an abuse of the process
of the court in the sense that it is a bogus and
irresponsible litigation, the jurisdiction under Order 7
Rule 11 of the Code can be exercised.”
26. Rejection of plaint under Order VII Rule 11 CPC can only be done
on six grounds enumerated therein. The main contention of the Defendants
in the present application is that pleadings in the plaint does not disclose any
cause of action as the same are vague in nature. While determining that
whether the Plaint discloses any cause of action, the Court is not required to
make an elaborate enquiry into the questions of law or facts which are
doubtful or complex in nature. The only enquiry that can be done for want of
cause of action under Order VII Rule 11 CPC is to ascertain that whether the
averments/allegations levelled in the plaint are sufficient to accrue the right
on the Plaintiff to sue other party.
27. The Apex Court in the case of Liverpool & London S.P. &I Assn.
Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512 held as under:
“ 139. Whether a plaint discloses a cause of action or not
is essentially a question of fact. But whether it does or
does not must be found out from reading the plaint itself.
For the said purpose the averments made in the plaint in
their entirety must be held to be correct. The test is as to
whether if the averments made in the plaint are taken to
be correct in their entirety, a decree would be passed.
Cause of action
140. A cause of action is a bundle of facts which are
required to be pleaded and proved for the purpose of
obtaining relief claimed in the suit. For the
aforementioned purpose, the material facts are required
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to be stated but not the evidence except in certain cases
where the pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue influence.
141. Order 7 Rule 14 of the Code of Civil Procedure
provides as follows:
“14. Production of document on which plaintiff sues or
relies.—(1) Where a plaintiff sues upon a document or
relies upon document in his possession or power in
support of his claim, he shall enter such documents in a
list, and shall produce it in court when the plaint is
presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state
in whose possession or power it is.
(3) Where a document or a copy thereof is not filed with
the plaint under this rule, it shall not be allowed to be
received in evidence on behalf of the plaintiff at the
hearing of the suit.
(4) Nothing in this rule shall apply to document produced
for the cross-examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh his memory.”
28. The Apex Court in the case of Vinod Infra Developers Ltd.
V.Mahaveer Lunia and Ors., 2025 SCC OnLine SC 1208 held as under:-
“ 8. The position of law is that rejection of a plaint under
Order VII Rule 11 CPC is permissible only when the
plaint, on its face and without considering the defence,
fails to disclose a cause of action, is barred by any law,
is undervalued, or is insufficiently stamped. At this
preliminary stage, the court is required to confine its
examination strictly to the averments made in the plaint
and not venture into the merits or veracity of the claims.
If any triable issues arise from the pleadings, the suit
cannot be summarily rejected. Keeping in mind this
settled principle of law, we proceed to examine whether
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the High Court was justified in rejecting the plaint under
Order VII Rule 11 CPC.”
29. The principal argument raised by the Applicant in the present
application is that the pleadings in the plaint are vague in nature as there is
no material on record to demonstrate that father of the Defendant No.4 is
also the biological father of the Plaintiff which is the only basis to file the
present Suit seeking partition in the estate of the father of Defendant No. 4
i.e., Late Sh. Ram Kumar.
30. It is the contention of the Plaintiff that she is the daughter of
Defendant No. 7 Smt. Kamlesh and Late Sh. Suresh who is the brother of
Late Sh. Ram Kumar. It is further contended by the Plaintiff that Defendant
No.1 is the legally wedded wife of late Sh. Ram Kumar and Defendant
Nos.2 to 6 are children of the Defendant No.1 and late Sh. Ram Kumar.
31. It is the specific case of the Plaintiff that Late Sh. Ram Kumar used to
frequently visit the family of Late Suresh Gautam and during that period
Late Sh. Ram Kumar developed liking towards the Defendant No.7 mother
of the Plaintiff. Consequently, late Sh. Ram Kumar and Smt. Kamlesh
entered into an illegitimate relationship out of which the Plaintiff was born
on 30.01.1988.
32. It is further stated by the Plaintiff that late Sh. Ram Kumar had a
special liking towards the Plaintiff as he used to come to the birthday
celebration of the Plaintiff and also provided a special attention towards the
health and education of the Plaintiff. It is also contended by the Plaintiff that
relatives of the Plaintiff were also aware about the relation of Late Sh. Ram
Kumar and Plaintiff. It is stated by the Plaintiff that though she herself was
not aware about the relation she had with late Sh. Ram Kumar, however, the
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Defendant No.1 to 6 had knowledge that Late Sh. Ram Kumar is the
biological father of the Plaintiff.
33. It is stated by the Plaintiff that she came to know from her mother in
the month of November/December 2021 that Late Sh. Suresh Gautam is not
the biological father of the Plaintiff and the Plaintiff is the natural/biological
daughter of Late Sh. Ram Kumar. It is the case of the Plaintiff that after
coming to know that Late Sh. Ram Kumar is her biological father, the
Plaintiff approached Defendant No 1 to 6 and requested them to accept her
as daughter of the Late Sh. Ram Kumar, however, Defendant No.1 to 6
denied to accede to this request of the Plaintiff. It is also stated by the
Plaintiff that she also approached the son of Defendant No.2 and other legal
heirs of the Defendants, however, none of them agreed to go for their DNA
test.
34. It is the case of the Plaintiff that Late Sh. Ram Kumar is the biological
father of the Plaintiff and she is the illegitimate child of the Late Sh. Ram
th
Kumar and Defendant no. 7, therefore, the Plaintiff is entitled to 1/7 share
in the estate of the late Sh. Ram Kumar. The Plaintiff in her plaint is relying
on a particular DNA test of the Plaintiff, her mother i.e., Smt. Kamlesh and
Ms. Aarti (Daughter of Smt. Kamlesh and Suresh Gautam) which took place
on 17.08.2022 and the results clearly demonstrates that Smt. Kamlesh is the
mother of the Plaintiff and Plaintiff and Ms. Aarti are half-blood sisters. The
onus to prove the averments rests on the shoulder of the Plaintiff and the
same can only be determined during the trial after leading evidence.
35. Undoubtedly, Late Sh. Ram Kumar and Late Sh. Suresh have both
passed away, and therefore, at this juncture there is no method of finding out
the paternity of the Plaintiff. The Plaintiff has waited till Ram Kumar passed
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away, which definitely goes against the Plaintiff but whether the paternity
can be proved by DNA testing of the siblings or whether medical evidence
can be produced to prove the paternity through any other source even though
Ram Kumar had passed away is something which can be decided only in
trial.
36. Smt. Kamlesh, i.e., the mother of the Plaintiff is still alive and she can
come to the witness box and testify in favour of the Plaintiff. She can testify
whether the Plaintiff is the daughter of Ram Kumar or not. Even the children
of Smt. Kamlesh and Late Sh. Suresh can testify to support the case of the
Plaintiff. Undoubtedly, the Plaintiff has not filed any document apart from
the averments made in the plaint and the DNA test does not show the
paternity but the assertions of the Plaintiffs can be proved through other
medical evidence and best witness would be the mother of the Plaintiff.
37. Further, the contention of the Plaintiff that everyone one in the family
of the Plaintiff including relatives were also aware about the relationship of
Late Sh. Ram Kumar and the Plaintiff can only be determined after leading
evidence during trial.
38. Even though at this juncture the case of the Plaintiff looks weak but
the ingredients of Order VII Rule 11 of the CPC are not fully satisfied at this
juncture and this Court is not inclined to deprive the Plaintiff an opportunity
of trial to prove her case. The question of probabilities is not the test to be
applied at the time of hearing an application under Order VII Rule 11 of the
CPC and even if there is a semblance of chance of the Plaintiff to prove her
case by leading evidence, the court must desist from applying the provisions
of Order VII Rule 11 of the CPC. At the stage of deciding an application
under Order VII Rule 11 of the CPC, this Court cannot go into the strength
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or weakness of the case.
39. The contention that the Plaintiff is a natural/biological daughter of
the late Sh. Ram Kumar or the Plaintiff is an illegitimate child of Late Sh.
Ram Kumar and Defendant No.7 is a disputed question of fact which
requires trial as the same can only be determined after leading evidence in
the trial.
40. In view of the above, the present application is dismissed.
CS(OS) 481/2023 & I.A. 39839/2024
41. List before the learned Joint Registrar for completion of pleadings on
12.10.2026.
SUBRAMONIUM PRASAD, J
AUGUST 31, 2026
KG
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