In an appeal filed before the Delhi High Court under Section 10(1) of the Delhi High Court Act, 1996, assailing a Judgment dated 17-02-2026, whereby the appellants’ application under Order XII Rule 6 of the Code of Civil Procedure, 1908, seeking a preliminary decree of partition on the basis of admissions was dismissed, a Division Bench of Justice Vivek Chaudhary and Justice Renu Bhatnagar refused to interfere with the impugned judgment and dismissed the appeal for being devoid of merit.
The appellants instituted a civil suit seeking partition of the subject property, measuring approximately 200 square yards, which was purchased by the appellants’ grandmother through a registered sale deed dated 26-03-1962. During her lifetime, the grandmother executed a registered will dated 30-10-1998, whereby she bequeathed the suit property to her children floor-wise: the entire ground floor along with the roof rights above the second floor jointly to respondent 1 and two others; the entire first floor to respondent 4; and the entire second floor to the appellants’ father. The will also stipulated that the staircase and passage on the ground floor would remain common for the use of all beneficiaries, except the first floor.
The grandmother passed away on 03-01-2007, after which the appellants’ father became the absolute owner of the second floor and continued residing there with the appellants, but disputes arose and the appellants alleged that respondent 2 obstructed their use of the common passage and staircase, compelling them to construct an external spiral staircase. Following their father’s death in 2021, the appellants issued a legal notice dated 29-09-2022 calling upon the respondents to partition the suit property by sale, in reply to which respondents 2 and 3 disclosed that they had, by a registered sale deed dated 31-01-2019, purchased the shares of respondent 1 and two others.
Thereafter, the appellants filed for partition of the suit property by sale and distribution of the sale proceeds. During the pendency of the suit, the appellants filed an application under Order XII Rule 6 CPC seeking a preliminary decree of partition, on the ground that respondents 2 to 4 had, in their respective written statements, admitted the appellants’ share and right in the second floor of the suit property as well as the factum of the will dated 30-10-1998, leaving nothing further to be adjudicated for the purpose of a preliminary decree. The said application was dismissed by the Single Judge by the impugned Judgment, leading to the filing of the present appeal.
After perusing the will, the Court found that specific floors were allotted to each beneficiary, while the staircase and passage were kept common. Each beneficiary was given the right to hold, enjoy, and dispose of his/her portion as an absolute owner. The appellants’ father accepted the bequest under the will, took exclusive possession of the second floor, and continued to enjoy it during his lifetime. It was stated that the appellants did not dispute or challenge the will, rather their claim for partition rested entirely upon it. Such long and undisputed conduct showed that the different specific portions allotted under the will were actually accepted and acted upon by the beneficiaries.
The Court stated that the appellants’ grievances regarding obstruction of the common staircase, the dilapidated condition of the second floor, and their inability to reconstruct it did not change this position, and were, at best, grievances relating to the exercise of individual ownership over an already partitioned portion, which could not be called for fresh partition and could only be decided after the parties had led evidence, not merely on the basis of the allegations. Since the will was not disputed, and had never been challenged by any party at any point in time, the Court said that there was no basis left to treat the property as undivided. It was stated that a beneficiary who accepts a will without disputing it and enjoys specific portions of property inherited, cannot thereafter seek a partition of a property treating it to be joint.
The Court stated that a partition suit, and more so a preliminary decree of partition, can only be sought where a property continues to be held jointly and still needs to be divided, and that this stage in the present case was already over. Hence, the Court held that the very foundation on which a preliminary decree of partition would rest was absent, and that the appellants’ claim could not succeed. It was stated that the impugned Judgment did not call for any interference, and the present appeal, being devoid of merit, stood dismissed.
