The main legal point established in the judgment is that a suit for declaration of a Will as forged and null and void, and for partition and possession of property, can be rejected under Order VII Rule 11 of the CPC if it is time-barred. Additionally, the terms of a registered deed cannot be contradicted or varied by oral agreement or statement.

Rajiv Sahai Endlaw, J.

1. This appeal under Section 10 of the Delhi High Court Act, 1966 impugns the order dated 15th March, 2013 (of the learned Single Judge of this Court exercising Ordinary Original Civil Jurisdiction in CS(OS) No.2521/2010 filed by the respondent / plaintiff) of dismissal of IA No.7092/2011 filed by the appellants / defendants under Order VII Rule 11 of the CPC.

2. Notice of the appeal was issued and vide ex parte ad-interim order dated 22nd April, 2013 which continues to be in force, the proceedings in the suit before the learned Single Judge were stayed. The respondent / plaintiff has filed a reply to the appeal. The counsels for the parties have been heard.

3. The respondent / plaintiff in the reply filed to the appeal has taken an objection to the very maintainability of the appeal contending that no appeal against the order of dismissal of application under Order VII Rule 11 of the CPC is provided for under Order XLIII Rule 1 of the CPC and such an order being not a judgment, no LPA or an appeal under Section 10 of the Delhi High Court Act also lies thereagainst. Reliance in this regard is placed on Shah Babulal Khimji Vs. Jayaben D. Kania (1981) 4 SCC 8 and on order dated 22nd March, 2011 of this Court in FAO (OS) No.92-93/2011 titled Satna Cement Works Vs. Delhi Development Authority.

4. We are afraid, the aforesaid contention is on a misreading of Shah Babulal Khimji (supra). The Supreme Court in the said judgment has rather held that where a Trial Court Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, for example, bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections undoubtedly adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. It was thus held that such an order even though keeps the suit alive, decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a “judgment” so as to be appealable to a larger Bench. To the same effect is the judgment of the Division Bench of this Court in Jyotika Kumar Vs. Anil Soni 156 (2009) DLT 685 and SLP (CC) No.10698/2009 whereagainst was dismissed in limine on 11th May, 2009. Insofar as the reliance on the order in Satna Cement Works (supra) is concerned, the same, rather than supporting the contention of the respondent / plaintiff, is also against the respondent / plaintiff. There is thus no merit in the objection of the respondent / plaintiff to the maintainability of the appeal.

5. As far as the merits of the appeal is concerned, we have perused the suit record. The respondent / plaintiff on 10th December, 2010 instituted the suit from which this appeal arises, for the reliefs of, i) declaration, of the Will dated 16th May, 1993 purportedly executed by Late Mr. S.P. Chibber, as forged, false, null and void; ii) declaration of the relinquishment deed dated 18th December, 2003 admittedly executed by the respondent / plaintiff as null and void and for cancellation thereof; iii) partition of the estate of Late Mr. S.P. Chibber including of property No.R-1, Nehru Enclave, New Delhi; and, iv) possession, directing the appellants / defendants to handover 1/4th share of property No. R-1, Nehru Enclave, New Delhi to the respondent / plaintiff, pleading:-

(i) that the respondent / plaintiff is the son from first marriage of the said Mr. S.P. Chibber; the appellant / defendant no.1 is the second wife and the appellants / defendants no.2&3 Mr. Parvesh Chibber & Mr. Mahesh Chibber are the sons of Mr. S.P. Chibber from the said second marriage;

(ii) that property No.R