Delhi High Court
Sanjeev Vij vs Veena Vij on 6 August, 2025
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 89/2025 and I.A.3901/2025
Date of Decision: 06.08.2025
IN THE MATTER OF:
SANJEEV VIJ
S/O LATE SH. VISHWANATH VIJ
R/O C-547, 2ND FLOOR
DEFENCE COLONY, NEW DELHI - 24 .....PLAINTIFF
(Through: Mr. Vivek Sood, Sr. Advocate with Mr Akshat Aggarwal,
Advocate.)
Versus
VEENA VIJ
W/O LATE SH. VISHWANATH VIJ
R/O C-547, 2ND FLOOR
DEFENCE COLONY, NEW DELHI - 24 .....DEFENDANT
(Through: Mr. Dipesh Sharma, Advocate.)
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
JUDGEMENT
PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
I.A.5678/2025 (u/O VII R 11 CPC)
1. Heard learned counsel for the parties on the instant application
preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908.
2. Mr. Dipesh Sharma, learned counsel appearing for the applicant,
contends that the plaintiff has himself admitted in his reply to the application
that the property in question was inherited by the defendant from her
mother. It is thus his case that the property belonged to the maternal
grandmother of the plaintiff, over which the plaintiff possesses no
enforceable right.
Signature Not Verified Signature Not Verified
Signed By:AMIT KUMAR Signed SHARMA Signing Date:14.08.2025 By:PURUSHAINDRA 19:36:07 CS(OS) 89/2025 KUMAR KAURAV Page 1 of 4
3. He submits that the claim advanced in the suit is predicated upon an
alleged Will dated 18.11.2011, and inasmuch as the executant of the Will
remains alive, no cause of action has accrued in favour of the plaintiff as on
the date to institute the present civil suit. Learned counsel further urges that
the plaintiff may, at best, avail of alternative remedies available under law.
4. Per contra, Mr. Vivek Sood, learned Senior Counsel appearing for the
plaintiff/non-applicant, has drawn the attention of this Court to document P-
2, being the Will dated 18.11.2011, wherein the defendant has admitted that
the second floor of the property in question was constructed by the plaintiff
out of his own funds. He submits that, in view of such construction having
been effected by the plaintiff, the latter is entitled to seek a declaration of
ownership qua the said portion so long as the construction subsists.
5. Learned Senior Counsel has also referred to document P-1, namely,
the Will executed by the maternal grandmother of the plaintiff, Mrs. Savitri
Nanda, wherein the executant had unequivocally stipulated that all her
children shall exercise full rights of ownership over the respective portions
assigned and bequeathed to them, albeit with the prohibition that none of the
children shall, in any manner, dispose of or create a charge or lien on their
share of the property, whether by sale, mortgage, or otherwise.
6. The said Will further emphasized that the property shall not be
alienated outside the family and shall remain within the family members for
their benefit or that of their legal heirs.
7. It is thus contended by Mr. Sood that the plaintiff, being one of the
sons of the defendant, possesses an inherent right over the property in
question. He reiterates that, in any event, the issues raised necessitate a full
trial, wherein the parties may adduce oral and documentary evidence.
Signature Not Verified Signature Not Verified
Signed By:AMIT KUMAR Signed SHARMA Signing Date:14.08.2025 By:PURUSHAINDRA 19:36:07 CS(OS) 89/2025 KUMAR KAURAV Page 2 of 4
Accordingly, learned Senior Counsel submits that the instant application is
devoid of merit and warrants dismissal.
8. I have considered the submissions made by the learned counsel
appearing for the parties and have perused the record.
9. The instant civil suit seeks a declaration to the effect that the plaintiff
be adjudged the owner of the suit property bearing No. C-547, Second Floor,
Defence Colony, New Delhi-110024. The plaintiff further prays for
consequential relief, including an injunction, etc. The facts of the case
disclose that the defendant is the mother of the plaintiff and has inherited the
suit property, along with her siblings, from her mother. This position stands
admitted by the plaintiff, as evident from a perusal of the reply filed to the
application under Order VII Rule 11 of the Code of Civil Procedure, 1908.
The relevant excerpt from paragraph 2 of the said reply is reproduced
hereunder:-
“2. That the Plaintiff has specifically pleaded in the para 9 of the
plaint that “It is trite to mention herein that the Defendant always said
and admitted that though the property is inherited by the Defendant but
the suit property is entirely built by the Plaintiff through his resources
therefore, he is the Jut 02 real owner of the constructions of the suit
property with the permission of defendant and upto the date the
constructions stand, defendant cannot evict the plaintiff from suit
property.” Therefore, the Plaintiff is a permanent licensee till the
construction stands.”
10. The plaintiff’s case is premised on the contention that an arrangement
existed among the plaintiff, the defendant, and her siblings, all of whom
reside in the suit property, to construct their respective portions.
Consequently, the plaintiff asserts that he constructed the second floor of the
property bearing No. C-547, Defence Colony, New Delhi-110024, using his
own funds, thereby establishing a right over the said portion.
Signature Not Verified Signature Not Verified
Signed By:AMIT KUMAR Signed SHARMA Signing Date:14.08.2025 By:PURUSHAINDRA 19:36:07 CS(OS) 89/2025 KUMAR KAURAV Page 3 of 4
11. In the considered opinion of this Court, the plaintiff’s suit appears to
be founded on the assertion that, by virtue of having constructed the suit
property with his own funds and pursuant to the Will dated 18.11.2011, the
rights over the said portion have been bequeathed to him.
12. However, this contention does not constitute a valid cause of action in
favour of the plaintiff, given that the executant of the Will dated 18.11.2011
remains alive, rendering the Will inoperative as a basis for claiming rights
during the testator’s lifetime. On this aspect, reference can be drawn to
Section 3(64) in The General Clauses Act, 1897, which reads as under:-
“(64) will shall include a codicil and every writing making a voluntary
posthumous disposition of property;”
13. Consequently, the plaint fails to disclose a valid cause of action. The
documents annexed to the plaint also do not evince any enforceable right of
the plaintiff over the suit property. Unless the plaintiff can establish a clear
legal right giving rise to a cause of action, the claim advanced in the suit is
liable to be rejected. As regards the Will executed by the plaintiff’s maternal
grandmother, it is noted that the same does not form the basis of the instant
civil suit.
14. In view of the foregoing, this Court finds that no cause of action has
accrued to the plaintiff to institute the present civil suit.
15. Accordingly, the plaint stands rejected.
CS(OS) 89/2025 and I.A.3901/2025
16. In view of the decision passed in I.A.5678/2025, the instant civil suit,
along with pending application, stands dismissed.
PURUSHAINDRA KUMAR KAURAV, J
AUGUST 6, 2025/tr/sp
Signature Not Verified Signature Not Verified
Signed By:AMIT KUMAR Signed
SHARMA
Signing Date:14.08.2025 By:PURUSHAINDRA
19:36:07 CS(OS) 89/2025 KUMAR KAURAV Page 4 of 4