JUDGEMENT

VIBHU BAKHRU, J

1. Ms. Anjalli Bansall (hereafter ‘ the appellant ’) has filed the present intra-court appeal impugning an order dated 03.03.2017 (hereafter ‘ the impugned order ’) passed by the learned Single Judge, whereby the appellant’s application (being IA 12912/2015) under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereafter ‘ the CPC ’) seeking dismissal of the suit, being C.S (OS) No. 3966/2014 captioned ‘ Atul Bansal and Anr. v. Anjalli Bansall ’, was rejected.

2. The learned Single Judge had observed that respondent no.2 was claiming his share in the immovable property through his mother who Page 2 of 14 had died intestate and therefore, the said claim could not be rejected without trial on the basis that certain documents indicated that Commodore J.M.L. Bansal had disinherited respondent no.2.

3. The respondents had filed the above-mentioned suit, [being CS(OS) 3966/2014], inter alia, claiming rights in the basement and the ground floor of the built-up property bearing No. 26, Navjivan Vihar, New Delhi (hereafter ‘ the property ’). The basement and ground floor of the property along with “1/3rd share in stilts area/car parking space for two genset in stilts (after leaving space for two car parking for the owner/occupants of the third floor and also the area utilized for common facilities viz. stairs, passage etc.)”; “use of common areas, facilities and services”; and “32.5% undivided, indivisible and impartiable ownership rights in the plot of land measuring 250 Sq. Yds.” is hereafter referred to as ‘ the suit property ’. The respondents are claiming equal shares in the suit property and seek a decree of partition of the said property. The respondents also pray that the Gift Deed dated 27.02.2014, executed by their late father, Commodore J.M.L. Bansal, be declared as null and void. The appellant claims that on the basis of the documents produced by the respondents (plaintiffs) and the averments made in the plaint, it is established that the respondents have no right in the suit property.

4. In view of the above, the principal controversy that needs to be addressed is whether the respondents have any cause of action for seeking the relief as sought, on the basis of the averments made in the plaint. Page 3 of 14 Facts

5. Since the controversy involved relates to whether the plaint discloses any cause of action, it would be necessary to confine the consideration of the present appeal on the facts as asserted by the respondents in their plaint. The said facts are briefly stated hereunder:

5.1 The parties are siblings. Respondent nos. 1 and 2 are the sons of Late Commodore J.M.L Bansal and Late Smt. Shanta Bansal. And, the appellant is their daughter. Commodore J.M.L Bansal expired on 17.04.2014 at the age of eighty-six years. The respondents claim that at the time of his demise, he was suffering from Alzheimer’s Disease and Dementia. Smt. Shanta Bansal, mother of the parties also expired soon after, on 26.05.2014, at the age of eighty-three years.

5.2 On 14.06.2007, Commodore J.M.L Bansal executed a Will. In terms of his Will, his entire assets would devolve to his wife Smt. Shanta Bansal, in the event that he pre-deceased her. Thus, according to the respondents, Smt. Shanta Bansal became the absolute owner of the assets of Commodore J.M.L Bansal at the time of his demise.

5.3 Commodore J.M.L Bansal had acquired a plot of land (Plot No.26, Navjivan Vihar, New Delhi) on a leasehold basis in terms of a perpetual sub-lease dated 17.03.1972.

5.4 During the years of 1973-74, Commodore J.M.L Bansal constructed a two-storey residential house comprising of an independent ground-floor unit and a first-floor unit, along with a single Page 4 of 14 room with an attached bathroom on the second floor. On 02.03.2000, the prop