Order 10

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 1 of 8
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CS 94/24
Himanshu Pandey Vs. Ashish Pandey
15.09.2025
Present : Ms. Shaila Parveen, Ld. counsel for the plaintiff
along with plaintiff.
Sh. Arsh Bhalla, Ld. counsel for defendant no.1 & 3.
Defendant no.2 in person.
1. Today the matter is fixed for order on application under
Order 6 Rule 17 CPC r/w section 151 of CPC filed on behalf of
the plaintiff and order on application under Order VII Rule 11 of
CPC filed on behalf of defendant no. 1 and 3. Arguments on
both the aforesaid applications were advanced by Ld. Counsel for
parties on the LDOH.
Application under Order 6 Rule 17 r/w section 151 of CPC filed
on behalf of the plaintiff
2. Application under Order 6 Rule 17 CPC r/w section 151 of
CPC has been filed on behalf of the plaintiff, praying for the
leave of the Court for amendment in the plaint for seeking the
relief of declaration that the registered Will dated 04.07.2018
executed by late Sh. Takeshwar Prasad Pandey, father of the
plaintiff and defendant no. 1 and 2 and husband of defendant no.
3, bequeathing Flat no. A-32, Pocket-A, Mayur Vihar, Phase-II,
Delhi-110091 in favour of defendant No.1, is null and void.
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 2 of 8
3. In the present application under Order 6 Rule 17 CPC,
plaintiff has sought declaration for said Will as null and void,
stating that testator of the said Will i.e. Sh. Takeshwar Prasad
Pandey, met with an accident in the year 2017 and lost his
memory after the said accident and was not aware of his actions,
therefore, he was not of sound mind after said accident. Thus, it
is submitted that testator Sh. Takeshwar Prasad Pandey lacked
testamentary capacity/capability at the time of execution of the
said Will in 2018. Intentionally submitted that defendant no.1
deliberately and intentionally had not disclosed the existence of
said Will at the time of Tehravi of late Sh. Takeshwar Prasad
Pandey on 14.05.2021 in which all the family members were
present. It is further submitted that the plaintiff was residing at
the suit property along with defendants no.1 and 3 till
09.03.2024. However, defendants no.1 and 3 never disclosed the
existence of the said Will. In view of these facts and
circumstances, it is submitted that it creates suspicion about the
existence of the said Will. It is further submitted that defendant
no. 3 has been suffering from schizophrenia for the last 32 years;
therefore, she is not able to express her intention properly. The
written statement and affidavit filed along with the written
statement are not as per her mandate.
4. The plaintiff has sought amendment in the plaint
incorporating the aforesaid facts as well as adding of prayer for
declaration of said Will dated 04.07.2018 as null and void.
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 3 of 8
Defendants no. 1 and 3 contested the present application by filing
a joint reply and averred that the present application has been
filed at a belated stage and the plaintiff is putting new facts
before the court and derailing the process of litigation; that the
registered Will dated 04.07.2018 has been executed by father of
defendant no. 1 with his free will and consent without any
pressure or compulsion from anyone and at the time of the
execution of the said Will the deceased father of defendant no. 1
was of sound mind; that the said Will was duly executed and
attested before the concerned Sub-Registrar; that the plaintiff and
other family members were well aware of the fact of the
execution of the aforesaid Will and the present suit has been filed
by the plaintiff in connivance with defendant no. 2 to merely
harass, humiliate and pressurize defendant no. 1 and 3 for the
purpose of extorting huge sums of money; that the amendment
sought by the plaintiff shall change the nature of the suit; and the
proposed amendment are neither essential nor required as the
same are based on false, frivolous, baseless allegations and
imaginary facts having no iota of truth. In view of this, it is
prayed on behalf of defendant no. 1 and 3 that the instant
application praying for amendment in the plaintiff be dismissed
with heavy cost.
5. Submission heard and perused the record.
6. It is the case of the plaintiff that he came to know about the
Will dated 04.07.2018 of his father i.e. Sh. Takeshwar Prasad
Pandey after the filing of the written statement by defendant no.
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 4 of 8
1 & 3 in the present. It is also the case of the plaintiff that his
father was not of sound mind at the time of execution of the said
Will on account of an accident he suffered in 2017. Further, there
are also averments qua undue influence having been exercised by
defendant no. 1 on the Late Sh. Takeshwar Prasad Pandey. On
the contrary, it is the case of defendant nos. 1 & 3 that the
plaintiff was aware of the said Will, and the testator Late Sh.
Takeshwar Prasad Pandey of the Will dated 04.07.2018 was of
sound mind at the time of execution of the said Will.
7. It is seen that the contention and counter contentions raised
by the plaintiff and defendant no. 1 & 3 are matters of trial, and
the court at this stage cannot decide the issue that the plaintiff
had knowledge of the Will dated 04.07.2018 and whether the
testator of the said Will, late Sh. Takeshwar Prasad Pandey was
of sound mind at the time of execution of the said Will.
8. Further, the present matter is at the initial stage, and issues
have not yet been framed. No prejudice shall be caused to the
defendants if proposed amendments are allowed, as defendants
no.. 1 & 3 shall have the right to contest the case of the plaintiff
by filing their amended written statement as well as cross-
examining the plaintiff's witnesses. Further, the amendment
sought by the plaintiff does not change the nature of the suit, as
the suit still remains a suit for partition with an additional prayer
of declaration of the Will dated 04.07.2018 as null and void.
Moreover, the amendments sought by the plaintiff in the plaint
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 5 of 8
are essential to decide all the questions in controversy between
the parties to the suit.
9. Keeping in view the aforesaid, the application under Order
6 Rule 17 CPC r/w section 151 of CPC stands allowed and the
amended plaintiff is taken on record.
10. The defendants are at liberty to file an amended written
statement within 30 days, with an advance copy to the plaintiff.
Upon receipt of the amended statement, the plaintiff is to file a
replication within two weeks.
Application under Order 7 Rule 11 CPC r/w section 151 of CPC
filed on behalf of defendant no. 1 & 3.
11. In the application under Order 7 Rule 11 CPC, the
defendant has averred that the plaint does not disclose any cause
of action for filing of the present suit as late Sh. Takeshwar
Prasad Pandey who was the absolute owner of the suit property
Flat no. A-32, Pocket-A, Mayur Vihar, Phase-II, Delhi-110091,
during his lifetime executed a registered Will dated 04.07.2018
bequeathing the suit property to defendant no. 1; that Flat no.
A-32, Pocket-A, Mayur Vihar, Phase-II, Delhi-110091 expired
on 04.05.2021 and the plaintiff was well aware of the factum of
the execution of the Will. It is further averred that the plaintiff
has not properly valued the suit for the purpose of the court fees
and jurisdiction.
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 6 of 8
12. The plaintiff contested the present application by filing a
reply. In the reply, the plaintiff relied upon the same averment as
he averred in his application under Order 6 Rule 17 of CPC,
praying for the amendment in the plaint.
13. Submission heard and record perused.
14. It is the case of the plaintiff that late Sh. T. P. Pandey was
not of the sound mind at the time of execution of the Will dated
04.07.2018, therefore, he lacked testamentary capacity. It is also
the case of the plaintiff; he came to know about the execution of
the said Will after filing of the written statement by defendant no.
1 & 3. On the other hand, defendant no.. 1 & 3 contend that the
Will dated 04.07.2018 was a validly executed Will complying
with all the legal requirements and the plaintiff knew the factum
of execution of the Will.
15. In view of contention and counter contention, it is a matter
of trial whether the late Sh. T. P. Pandey was of sound mind at
the time of execution of the said Will dated 04.07.2018 and
whether the plaintiff knew of the execution of the said Will from
the beginning. Therefore, the contention of defendants no.1 & 3
that the plaint does not disclose any cause of action is not tenable
at this stage.
16. As regards the ground that the suit has not been properly
valued for the purpose of the court fees and jurisdiction, and non-
payment of the requisite court fee is concerned, it is seen that the
plaintiff has valued the suit property @ Rs . 95 lakhs for the
purpose of the jurisdiction for the relief of partition and
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 7 of 8
possession. Defendants no. 1 & 2 have not placed on record any
document which shows undervaluation of the suit property by the
plaintiff. Therefore, the contention of defendants no. 1 & 2
regarding the suit not being properly valued is a matter of trial.
Further, it is averred on behalf of the plaintiff that he was in
constructive possession of the suit property. In the amended
plaint, the plaintiff has also averred that he was residing at the
suit property till 09.03.2024 i.e. at the time of filing the suit.
Moreover, there is no contention on behalf of defendant no. 1 &
3 that there is a complete ouster of the plaintiff from the suit
property. In such a situation, at this stage of the matter, it cannot
be concluded that the plaintiff is liable to pay ad valorem court
fees on the relief of partition and possession. In view of this, this
ground for non-payment of court fee is not maintainable at this
stage, and at the time of framing of issues, defendant no. 1 & 3
may press for framing of issue on the undervaluation of the suit
and non-payment of the requisite court fees.
17. For the foregoing reasons, the grounds for rejection of the
plaint cited by defendant no.. 1 & 3 in the application under
Order VII Rule 11 r/w section 151 of CPC are not maintainable,
and hence the application under Order VII Rule 11 r/w section
151 of CPC stands dismissed.
18. Put up for filing of amended written statement on behalf of
the defendants, filing of replication, filing of affidavit of
admission and denial of documents and framing of issues on
17.11.2025.
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CS 94/24 Himanshu Pandey Vs. Ashish Pandey Page no. 8 of 8
Nothing stated herein is tantamount to the expression of
opinion on the merits of the present case.
(SOMITRA KUMAR)
DJ-06, EAST/ KKD COURTS
DELHI/15.09.2025
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