IN THE HIGH COURT OF DELHI AT NEW DELHI

(Ordinary Original Civil Jurisdiction)

CS (OS) NO. OF 2014

IN THE MATTER OF:

Anita Anand
W/o Chander Jeet Anand
D/o Late Sh. Joginder Nath Kapur
And Legal Representative of deceased Defendant No. 1
R/o GH 10/10B, Sunder Apartments,
Outer Ring Road, Paschim Vihar,
New Delhi – 110087 … Plaintiff

VERSUS
1. Gargi Kapur (Deceased)
W/o Late Sh. Joginder Nath Kapur
R/o 12/19, Western Extension Area,
Karol Bagh, New Delhi – 110005

2. Lalit Kapur
S/o Late Sh. Joginder Nath Kapur
And Legal Representative of deceased Defendant No. 1
R/o 12/19, Western Extension Area,
Karol Bagh, New Delhi – 110005

3. Neelam Sarna
W/o Rakesh Sarna
And Legal Representative of deceased Defendant No. 1
R/o33, State Bank Nagar,
Outer Ring Road, Paschim Vihar,
New Delhi – 110063 … Defendants

SUIT FOR DECLARATION, PARTITION AND PERMANENT

INJUNCTION

MOST RESPECTFULY SHOWETH:

1. That the parties to the present suit are blood relatives. The

Defendant No. 2 is the real brother of the Plaintiff and

Defendant No. 3 is the real sister of the Plaintiff. Defendant No.

 1 is the wife of Sh. Joginder Nath Kapur and is also the mother

of the Plaintiff, Defendant No. 2 and Defendant No. 3.In fact all

the Class I legal heirs of Sh. Joginder Nath Kapur are a party to

the present suit before the Hon’ble Court. Defendant No. 3 has

only been arrayed as a pro forma party as she also has a 1/4th

share in the Suit Property.

2. A pedigree chart of the parties is as below:-

Sh. Joginder Nath Kapur Smt. Gargi Kapur

(Defendant No. 1)

Sh. Lalit Kapur Smt. Anita Anand Smt. Neelam Sarna

(Defendant No. 2) (Plaintiff) (Defendant No. 3)
(Son) (Married Daughter) (Married Daughter)

3. That in 1956, Sh. Chiranjeet Lal Kapur, father of Sh. Joginder

Nath Kapur, was allotted a plot of land admeasuring 200 sq.

yards, bearing No. 18/17, West Patel Nagar, New Delhi–

110008, by the Government of India under the extant law and

the rehabilitation and compensatory scheme of Rehabilitation

Ministry, Government of India, in lieu of various properties,

ancestral and self-acquired, and various businesses he had left

behind in Pakistan. Sh. Chiranjeet Lal Kapur started running a

business of educational tuition institute from the said property

and also started living in the said property with his wife, Smt.

Parvati Kapur, his son, Sh. Joginder Nath Kapur and Smt. Gargi

Kapur, Defendant No. 1 herein.

4. That Sh. Chiranjeet Lal Kapur died in 1957.Late Sh. Chiranjeet

Lal Kapur was survived by his wife, Smt. Parvati Kapur; his

sons Dilbagh Kapur, M. L. Kapur, Sh. Kulbhushan Kapur and

Sh. Joginder Nath Kapur; and a married daughter, Smt. Champa

Bhallanee Kapur. After attaining majority and completing their

education, Sh. Dilbagh Kapur, Sh. M. L. Kapur and Sh.

Kulbhushan Kapur had during the lifetime of Sh. Chiranjeet Lal

Kapur moved out of the family house with their families and

started their own domestic and business establishments

independent of their father. For many years prior to his demise,

Sh. Chiranjeet Lal Kapur was living in the said family house

with his wife, Sh. Joginder Nath Kapur and Smt. Gargi Kapur,

Defendant No. 1 herein.

5. That with the consent of his brothers and his mother, Sh.

Joginder Nath Kapur sold the said property and from the

proceeds thereof, purchased 1/2 share of the property

admeasuring 556 sq. yards bearing No. 12/19, Western

Extension Area, Karol Bagh, New Delhi – 110005 vide

Agreement to Sell dated 07.09.1981, in the name of his wife,

Defendant No 1 herein. Sh. Joginder Nath Kapur also got

executed an Irrevocable General Power of Attorney in his own

name. The said General Power of Attorney in the name of Sh.

 Joginder Nath Kapur stands incorporated by reference in the

Agreement to Sell dated 07.09.1981, and is part of the title

documents of the Suit Property. The said document also

manifests the intention of Sh. Joginder Nath Kapur to be de

facto in control of the Suit Property and conduct and control all

transactions pertaining to the same himself.

6. That Sh. Joginder Nath Kapur continued the business of

educational tuition institute on his portion of the Suit Property.

Thereafter during the later part of 1980s, the Sh. Joginder Nath

Kapur also through his funds acquired the remaining half of the

property, again in the name of Defendant No. 1. The Plaintiff

does not have any access to the documents pertaining to this

transaction as the same are in exclusive possession and custody

of Defendant Nos. 1 and 2. In the aforesaid manner, Sh.

Joginder Nath Kapur became the sole owner of the entire

property admeasuring 556 sq. yards bearing No. 12/19, Western

Extension Area, Karol Bagh, New Delhi – 110005 (hereinafter

referred to as the “Suit Property”). The suit property is bounded

thus:

EAST: Plot No. 12/20, Western Extension Area, Karol Bagh

WEST: Plot No. 12/18, Western Extension Area, Karol Bagh

NORTH: Main Arya Samaj Road.

SOUTH: Service Lane.

 A rough site plan where the Suit Property has been shown

encompassed in the colour ‘red’ is being filed with the Plaint.

7. That Sh. Joginder Nath Kapur purchased the entire Suit

Property in the aforesaid manner in the name of his wife, Smt.

Gargi Kapur, Defendant No. 1 herein who was a housewife.

The funds used in the acquisition of the Suit Property were

those of Sh. Joginder Nath Kapur and the Defendant No. 1 was

the recorded title owner only on paper. The Defendant No.1, it

may be noted, had no independent source of income to acquire

funds to purchase the Suit Property. Shri Joginder Nath was the

de facto and real owner of the Suit Property for all intents and

purposes.

8. That Sh. Joginder Nath Kapur purchased the Suit Property in

the name of his wife, Defendant No. 1 herein, so that she could

hold the same for the benefit of Sh. Joginder Nath Kapur and

their children (the Plaintiff, Defendant No. 2 and Defendant No.

3 herein).Defendant No. 1, being the mother of the Plaintiff,

Defendant No. 2 and Defendant No. 3 herein, and being the

wife of Sh. Joginder Nath Kapur, stood in a fiduciary capacity

towards all of them, and hence held the Suit Property in that

capacity. This fact was also publicly stated by Sh. Joginder

 Nath Kapur orally as well as in writing in letters written to the

Plaintiff. Therefore, even though Sh. Joginder Nath Kapur had

purchased the Suit Property in the name of Defendant No. 1,

Sh. Joginder Nath Kapur was the rightful and sole owner of the

Suit Property.

9. That Sh. Joginder Nath Kapur died intestate on 15.12.1987,

leaving behind the parties to the present suit as his legal heirs

enlisted in the Class I of the schedule to the Hindu Succession

Act 1956. All the properties of the Late Sh. Joginder Nath

Kapur, including the Suit Property, devolved upon the parties to

the present suit in equal proportion, thereby entitling the

Plaintiff to 1/4th share in, inter alia, the Suit Property.

Thereafter, Defendant No. 1 died on 12.02.2015 thereby

making the Plaintiff owner of 1/3 rd undivided share in the suit

property.

10. That it is pertinent to mention that the Plaintiff used to live at

the Suit Property till 1976, when the Plaintiff got married and

hence started living at her matrimonial home. Even after

marriage, the Plaintiff regularly visits the Suit Property with her

children to visit Defendant No. 1. Indeed the Plaintiff stays at

the Suit Property whenever she visits the Suit Property with her

children. The Plaintiff also has her belongings such as clothes,

documents, basic jewellery items etc, at the Suit Property,

 which are utilised when the Plaintiff and her children visit the

Suit Property. Since the Plaintiff is a joint owner of the Suit

Property, has her belongings at the Suit Property and regularly

visits the Suit Property, the Plaintiff is in constructive

possession of the Suit Property.

11. That Defendant No. 1 and Defendant No. 2, being joint owners

of the Suit Property alongwith the Plaintiff, live in the Suit

Property and are currently in possession of all the title

documents of the Suit Property. Defendant No. 2 continues to

derive income from the Suit Property and has acquired other

properties from the proceeds and earnings of the said income

from the Suit Property. It is submitted that since the Plaintiff is

joint owner, being the owner of a 1/4th share of the Suit

Property, and is in constructive possession of the Suit Property,

the Plaintiff is entitled to 1/4 th share in such income derived

from the Suit Property as well.

12. That in the month of July 2014,contrary to the settled

understanding between the parties for decades, the Plaintiff was

alarmed when the Defendant No. 2 approached the Plaintiff and

asked her to sign a Relinquishment Deed in exchange of a small

sum of money. Shocked by this demeanour, the Plaintiff

confronted Defendant No. 1 and Defendant No. 2 about their

intentions and demanded to see the original title documents of

the Suit Property. To the utter shock of the Plaintiff, Defendant

 No. 1 and Defendant No. 2 refused to show her the original title

documents of the Suit Property, insulted the Plaintiff and infact

told the Plaintiff that they are planning to sell the Suit Property

without giving the Plaintiff her rightful share in the sale

proceeds. Fervent requests made by the Plaintiff to Defendant

Nos. 1 and 2 to partition the Suit Property by mets and bounds

was blatantly refused by the said Defendants.

13. That concerned from this sudden hostile behaviour of

Defendant No. 1 and Defendant No. 2, the Plaintiff visited the

locality of the Suit Property in the first week of November,

2014 when the Plaintiff was informed by reliable sources and

local property dealers that Defendant No. 1 and Defendant No.

2 have been trying to sell the Suit Property behind the back of

the Plaintiff and thereby deprive the Plaintiff of her rightful

share in the Suit Property. Apprehending such illegal and

unlawful act on the part of Defendant No. 1 and Defendant No.

2, the Plaintiff has released a public notice in English as well as

Hindi newspapers on 08.11.2014, cautioning the general public

against such illegal and unlawful sale.

14. That the Plaintiff has approached Defendant No. 1 and

Defendant No. 2 many times seeking for a partition of the Suit

Property by mets and bounds, or in the alternate sell the Suit

Property and share the sale proceedings, but Defendant No. 1

 and Defendant No. 2 have refused to accede to the demands of

the Plaintiff. Defendant No. 1 and Defendant No. 2 are also

refusing to provide the Plaintiff with the title documents of the

Suit Property, or the copies thereof.

14A. That on 21.11.2014, when the Plaintiff visited the Suit Property,

the Plaintiff was shocked to find that the building on the Suit

Property was being demolished by Defendant Nos. 1 and 2

without the consent of the Plaintiff. The Plaintiff has been

informed that Defendant Nos. 1 and 2 are demolishing the

building on the Suit Property in haste, with the intention of

constructing a new building there in such a fashion that the

same would render the Suit Property incapable of being

partitioned by metes and bounds. Grave irreparable loss would

be caused to the Plaintiff, if the Defendants are not restrained

from demolishing the building on the Suit Property.

14B. That on 24.12.2014, the Plaintiff has received an advance copy

of an Interlocutory Application from the counsel of the

Defendant Nos. 1 and 2, wherein the said Defendants have

disclosed the factum of an alleged Gift Deed dated 03.10.2012,

executed by Defendant No. 1 in favour of Defendant No. 2,

purportedly gifting the entire Suit Property to Defendant No. 2.

It is submitted that the said Gift Deed dated 03.10.2012 is

invalid in law, inasmuch as the Defendant No. 1 not being the

 exclusive owner of the Suit Property and hence was not entitled

to have gifted the same to Defendant No. 2. The said Gift Deed

dated 03.10.2012 is therefore a dead letter, illegal, void, non est

and does not transfer any title or rights in the Suit Property.

15. That hence by way of the present suit, the Plaintiff prays for a

decree of declaration, declaring the property admeasuring 556

sq. yards bearing No. 12/19, Western Extension Area, Karol

Bagh, New Delhi – 110005 to be the property of Late Sh.

Joginder Nath Kapur, which has devolved upon his legal heirs,

the parties to the present suit.

The Plaintiff further prays for a decree of partition in favour of

the Plaintiff and against the Defendants thereby partitioning the

property admeasuring 556 sq. yards bearing No. 12/19, Western

Extension Area, Karol Bagh, New Delhi – 110005 by mets and

bounds according to the shares of respective parties; and

separate possession of the same be delivered to the parties or if

actual partition of the property is not possible, recourse may be

taken to the provisions of the Partition Act, 1893 so that each

shareholder gets its proper dues.

16. That the Plaintiff has come to know that the Defendants No. 1

and 2 are seeking to exclude the Plaintiff from her rightful

inheritance and are making efforts to exclusively sell and/or

create third party interest in the suit property. Incalculable

 injury will be occasioned to the Plaintiff and the litigation will

get protracted if the Defendant Nos. 1 and 2 succeed in their

designs. Accordingly the Plaintiff is entitled to a decree of

permanent injunction thereby restraining the Defendants, their

agents and representatives from selling, assigning, alienating,

creating third party interest or in any other way transferring or

parting with possession of share of Plaintiff in the Suit Property

to any third person.

17. That the cause of action in favour of the Plaintiff first arose

when Sh. Charanjeet Lal Kapur was allotted property described

in paragraph 3 by the Government of India. The cause of action

further arose when Late Sh. Joginder Nath Kapur acquired the

Suit Property from his funds on various dates. The cause of

action further arose when Late Sh. Joginder Nath Kapur died

intestate on 15.12.1987. The cause of action further arose in

July 2014 when Defendant No. 1 approached the Plaintiff and

asked her to sign a Relinquishment Deed. The cause of action

further arose when Defendant No. 1 and Defendant No. 2

refused to accede to the request of the Plaintiff to partition the

Suit Property by mets and bounds and revealed their actual

intentions to sell the property behind the Plaintiff’s back. The

cause of action again arose in November 2014 when the

Plaintiff found out from reliable sources and local property

dealers that Defendant No. 1 and Defendant No. 2 have been

 trying to sell the Suit Property behind the back of the Plaintiff

to her exclusion to deprive her of her legitimate inheritance.

The cause of action is continuing and subsisting in nature and

arises every day in favour of the Plaintiff and against the

Defendants. Cause of action further arose on 03.10.2012, when

Defendant No. 1 has allegedly executed a Gift Deed in favour

of Defendant No. 2 thereby allegedly gifting the entire Suit

Property to Defendant No. 2. Cause of action also arose in

favour of the Plaintiff on 21.11.2014, when the Plaintiff visited

the Suit Property and found that Defendant Nos. 1 and 2 are

demolishing the building on the Suit Property without the

consent of the Plaintiff. Cause of action further arose on

24.12.2014, when the Plaintiff received a copy of an

Interlocutory Application wherein Defendant Nos. 1 and 2 have

disclosed that Defendant No. 1 has allegedly executed a Gift

Deed in favour of Defendant No. 2 thereby allegedly gifting the

entire Suit Property to Defendant No. 2. Cause of action also

arose in favour of the Plaintiff on 21.11.2014, when the

Plaintiff visited the Suit Property and found that Defendant

Nos. 1 and 2 are demolishing the building on the Suit Property

without the consent of the Plaintiff.

18. That the present suit has been filed within the prescribed period

of limitation.
19. That the Suit Property is located at Karol Bagh, New Delhi.

Parties to the suit, including the Defendants are also residing in

Delhi. The entire cause of action arose in Delhi. Hence this

Hon’ble Court has territorial jurisdiction to entertain, try and

decide the present suit.

20. That for the purpose of jurisdiction and court fee is as under:-

a. The Suit Property is valued at Rs. 5,93,56,644/- (Rupees

five crore ninety three lac fifty six thousand six hundred forty

four only) as per the circle rate applicable as of 14.11.2014 for

the purpose of pecuniary jurisdiction and the relief of partition,

on which court fee of Rs. 19.50/- (Rupees nineteen paise fifty

only) has been fixed.

b. For the relief of declaration and permanent injunction

against the Defendants, the Suit is valued at Rs. 200/- (Rupees

two hundred only) each and accordingly court fee of Rs. 20/-

(Rupees twenty only) each is being affixed.

c. For the relief of declaration, declaring the alleged Gift

Deed dated 03.10.2012 to be null, void and non est in law, the

Suit is valued at Rs. 200/- (Rupees Two Only), and accordingly

appropriate Court fee is being affixed.

21. Accordingly, this Hon’ble Court has pecuniary jurisdiction to

entertain, try and decide the present suit.

22. That as mentioned above, Defendant No. 1 and Defendant No.2

are in possession of all the title documents of the Suit Property

and hence the Plaintiff has made averments in the present plaint

based on the facts known to the Plaintiff. The Plaintiff prays for

leave of this Hon’ble Court and reserves her right to amend the

plaint as and when additional material facts come to her

knowledge.

PRAYER

In the facts and circumstances mentioned herein above, the

Plaintiff most respectfully pray that this Hon’ble Court may

graciously be pleased to:

a) Pass a decree of declaration, declaring that the Plaintiff

and Defendants No. 1 to 3 are equal owners of the

property admeasuring 556 sq. yards bearing No. 12/19,

Western Extension Area, Karol Bagh, New Delhi–

110005;

b) Pass a preliminary decree of partition in favour of the

Plaintiff thereby partitioning the property admeasuring

556 sq. yards bearing No. 12/19, Western Extension

 Area, Karol Bagh, New Delhi–110005 and declaring the

Plaintiff to be an owner of 1/4th share of the Suit

Property;

c) Pass a final decree of partition in favour of the Plaintiff

and against the Defendants thereby partitioning the

property admeasuring 556 sq. yards bearing No. 12/19,

Western Extension Area, Karol Bagh, New Delhi –

110005 by mets and bounds according to the shares of

respective parties and separate possession of the same be

delivered to the parties or if actual partition of the

property is not possible, recourse may be taken to the

provisions of the Partition Act, 1893 so that each

shareholder gets its proper dues;

d) Pass a decree of permanent injunction thereby restraining

the Defendants, their agents and representatives from

selling, assigning, alienating, creating third party interest

or in any other way transferring or parting with

possession of share of Plaintiff in the Suit Property to any

third person;

e) Pass an appropriate order/decree to award cost of the suit

in favour of the Plaintiff and against the Defendants;

f) Pass a decree of declaration, declaring that the Gift Deed

dated 03.10.2012 is illegal, null, void, non est and does

not create any right and/or interest of the Defendant No.

2 in the property admeasuring 556 sq. yards bearing No.

12/19, Western Extension Area, Karol Bagh, New Delhi-

110005, or the building thereon; and;

g) Pass a decree of permanent injunction thereby restraining

the Defendants and their agents, assignees and

representatives from demolishing, constructing any new

building or in any way damaging the property

admeasuring 556 sq. yards bearing No. 12/19, Western

Extension Area, Karol Bagh, New Delhi-110005, or the

building thereon without the consent of the Plaintiff; and

 j) Pass such other and further order(s) as this Hon’ble Court

may deem just, fit and proper in the facts and

circumstances of the case in favour of the Plaintiff.

Plaintiff

Through

VERIFICATION

I, Anita Anand, the Plaintiff above named do hereby verified that

contents of Para 1 to Para 16 of above plaint are true and correct to
our personal knowledge and the legal submissions made therein and
contents of para 17 and para 22 of above plaint are based upon legal
advice received and same are believed to be true and correct. Last
paragraph is a prayer clause to this Hon’ble Court.

Verified at New Delhi on this day of September 2015.

Plaintiff
 IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS) NO. OF 2014
IN THE MATTER OF:
Anita Anand … Plaintiff
VERSUS
Gargi Kapur & Ors. … Defendants

AFFIDAVIT
I, Smt. Anita Anand, aged about 61 years, wife of Sh. Chander Jeet

Anand, D/o Late Sh. Joginder Nath Kapur, R/o GH 10/10B, Sunder

Apartments, Outer Ring Road, Paschim Vihar, New Delhi – 110087,

do hereby solemnly affirm and declare as hereunder : -

1. That I am the Plaintiff in the above mentioned case and fully

conversant with the facts of the present case and therefore, am

competent to depose the present affidavit.

2. That the contents of para 1 to 16 of the plaint are true and

correct to my knowledge and the contents of para 17 to 22 of the

plaint are true and correct as per the legal advised received and

believed by me to be true.

Deponent

Verification :

Verified at New Delhi on this .09.2015 that the contents of

the above affidavit are true and correct to my knowledge. No part of it
is false and nothing material has been concealed therefrom.

Deponent