Delhi District Court
Smt. Bindu Verma vs Shri Virender Kumar Verma on 23 October, 2019
DLCT010003002008
IN THE COURT OF SH. SANJEEV KUMAR-I
ADDITIONAL DISTRICT JUDGE-12, CENTRAL,
TIS HAZARI COURTS, DELHI
CSDJ No.13341/16
Smt. Bindu Verma
W/o Late Col. Ranjit Kumar Verma
R/o P-55, Ground Floor,
Kirbi Place, Delhi Cantt.
Delhi. ...Plaintiff
Versus
1. Shri Virender Kumar Verma
S/o Late Shri Ram Gopal Verma,
R/o Flat No.149, Vikas Puri,
New Delhi.
2. Shri Sanjeev Kumar Verma,
S/o Late Shri Ram Gopal Verma,
R/o 21/34, First Floor,
Patel Nagar,
New Delhi.
3. Shri Raj Kishan Verma (since deceased)
Through his legal heirs
(a) Smt. Sudesh Verma
Wd/o Late Sh. Raj Kishan Verma
(b) Shri Amit Verma
S/o Late Sh. Raj Kishan Verma
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 1 of 43
(c) Ms. Bhavna Bagga,
D/o Late Sh. Raj Kishan Verma
All R/o 195, Arjun Nagar,
Safdarjung Enclave, New Delhi-29.
4. Shri Jeewan Kumar Verma (since deceased)
Through his legal heirs
(a) Smt. Kusum Verma
Wd/o Late Sh.Jeewan Kumar Verma
(b) Smt. Neha Juneja,
D/o Late Sh.Jeewan Kumar Verma
(c) Shri Nikhil Verma
S/o Late Sh.Jeewan Kumar Verma
All R/o 47/5, Third Floor,
Ashok Nagar, New Delhi.
5. Smt. Raj Lata Verma
D/o Late Shri Ram Gopal Verma
R/o 26-A, Khukrain Apartments,
Sector-13, Rohini, Delhi.
6. Captain Vishal Verma
S/o Late Col. Ranjit Kumar Verma,
R/o P-55, Ground Floor,
Kibri Place, Delhi Cantt.Delhi.
7. Major Vikrant Verma,
S/o Late Col. Ranjit Kumar Verma
R/o P-55, Ground Floor,
Kibri Place, Delhi Cantt. Delhi.
8. The President
C.G.H.S.
Registered office at
667, Vikas Kunj,
Vikas Puri, New Delhi. ...Defendants
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 2 of 43
Date of institution : 15.07.2008
Date of reserving order : 15.10.2019
Date of decision : 23.10.2019
SUIT FOR PARTITION, POSSESSION AND
PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide the suit for partition, possession and permanent injunction filed by the plaintiff.
2. Brief facts as stated by the plaintiff are that plaintiff is the widow of Late Col. Ranjit Kumar Verma who was the son of Late Sh.Ram Gopal Verma. Her husband expired on 14.10.2000 and her father-in-law expired on 06.08.1998 leaving behind the following legal heirs:-
a) Smt. Shakuntla Devi Verma - Wife
b) Shri Raj Kishan Verma - Son
c) Col. Ranjit Kumar Verma - Son
d) Shri Jeevan Kumar Verma - Son
e) Shri Virender Kumar Verma - Son
f) Shri Sanjeev Kumar Verma - Son
g) Smt. Raj Lata Verma - Daughter
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 3 of 43
It is further stated that her father-in-law was the member of CGHS having its office at 667, Vikas Kunj, Vikas Puri, New Delhi and was allotted Flat no.197, Vikas Kunj, Vikas Puri, New Delhi which after his death was in joint possession of the legal heirs of Late Sh.Ram Gopal Verma which has never been partitioned. Plaintiff has learnt that defendants no.1 and 2 are proposing to sell the suit property or create third party interest, hence present suit has been filed seeking relief of partition of the entire properties as mentioned in Schedule-A and restrained the defendants from selling, mortgaging, letting out or creating third party interest in the suit properties.
3. Defendant no.1 has filed the written statement and counter claim for partition, possession and injunction, in which he has taken the preliminary objection that plaintiff has not disclosed that after the death of father of defendant no.1 partition of following properties has not taken place till date :-
(i) Flat No.187, Vikas Kunj, Vikaspuri, New Delhi.
(ii) H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi.
(iii) H.No.248, 3rd Floor, Ashok Nagar, Tilak Nagar, New CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 4 of 43 Delhi.
Further objection was taken that in view of Section 70 of the Delhi Cooperative Societies Act, 2003, the suit is barred.
4. On merits, the defendant no.1 has not denied that plaintiff is the widow of Late Col. Ranjit Kumar Verma or that he has not expired on 14.10.2000 or that father in law of the plaintiff was not the member of CGHS. However it is denied that Sh. Ram Gopal Verma had died intestate on 06.08.1998 but stated that he died on 03.08.1998 after making nomination of the suit property in the name of mother of defendants no.1 and 2 and once the nomination of the suit property has been made in the name of defendant no.1 as per Section 28 of the Delhi Co-operative Societies Act, 2003, there was no question of further creation of rights of any legal heirs in the said property. Further it is denied that all the legal heirs of Late Sh. Ram Gopal Verma were in joint possession of the suit property and stated that the suit property has always remained in possession of defendant no.2 and he used to pay all the dues towards maintenance. It is further stated that plaintiff has never stayed in the suit property. Late Sh. Ram Gopal CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 5 of 43 Verma had purchased a flat no.877, Sector-37, Noida and the said flat was sold in 1996-97 and from the consideration received against the said flat and income from joint family excluding husband of plaintiff, H.No.187, Vikaskunj, Vikaspuri; H.No.248, Ashok Nagar, Tilak Nagar, New Delhi and H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi were purchased. Thus it is prayed that plaintiff is not entitled to partition of the suit property.
5. The defendant no.1 has taken additional pleas for counter claim that the defendant also paid Rs.9,000/- to defendant no.3 for making payment towards consideration of house and shop no.195. It is further stated that all the joint family properties i.e. H.No.187, Vikaskunj, Vikaspuri; H.No.248, Ashok Nagar, Tilak Nagar, New Delhi and H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi are liable to be partitioned by metes and bound.
6. The plaintiff has filed replication to the written statement of defendant no.1 in which he denied the contents of the written statement as incorrect. It is stated that there is no reason for partition of the property bearing no.187, Vikaskunj, Vikaspuri, New Delhi, House No.195, Arjun Nagar, Safdarjung Enclave and CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 6 of 43 H.No.248, 3rd Floor, Ashok Nagar, New Delhi as the H.No.187, Vikaskunj, Vikaspuri was purchased by the plaintiff from her own funds in the year 2001 and H.No.195, Arjun Nagar, Safdarjung Enclave is the self acquired property of the defendant and property no.248, Ashok Nagar, Tilak Nagar has no concerned whatsoever either with the plaintiff or with the defendants.
7. Defendant no.2 has filed written statement in which also he has stated that Sh.Ram Gopal Verma was the member of Central Government Co-operative Land and Group Housing Society and flat no.197, Vikaskunj, Vikaspuri was allotted and the possession of the same was handed over to his father. On 26.12.2006, his mother died and by virtue of the nomination done by his mother, he become the rightful/ legal member and exclusive owner of the suit property. It is averred that as per Section 28 of the Delhi Co-operative Society Act, 2003, he shall claim the legal membership of defendant no.8 as well as the ownership of the suit property being nominee of Smt. Shakuntala Verma. Therefore, plaintiff and remaining defendants have no right, title and interest in the suit property and they cannot claim any sort of partition in the suit property. Further objection was taken that as per Section CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 7 of 43 70 of Delhi Co-operative Societies Act, 2003, Civil Court has no jurisdiction to entertain/ adjudicate any dispute between the co- operative society, member, nominees etc. Therefore this Court has no territorial jurisdiction.
8. On merits, the defendant has repeated the same contents as taken in the preliminary objections and prayed for dismissal of the suit.
9. Plaintiff has filed the replication to the written statement of defendant no.2 in which she denied the contents of the written statement of defendant no.2 as incorrect. It is stated by plaintiff that even if it is admitted that Smt. Shakuntala Devi was appointed as a nominee of Late Shri Ram Gopal Verma even then she was just like a Trustee on behalf of all the legal heirs of deceased Shri Ram Gopal Verma and she has no right to appoint legal heirs. Therefore defendant no.2 has not become owner and since property is owned by Late Sh. Ram Gopal Verma, therefore she is entitled for partition of the suit property. Further it is stated that Civil Courts have only jurisdiction to entertain the suit for partition and possession and therefore this Court has jurisdiction CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 8 of 43 and Section 70 of The Delhi Co-operative Societies Act is not applicable.
10. Defendants no.3, 4 and 5 have filed joint written statement in which they have taken the preliminary objection that suit is time barred and that plaintiff has not valued the suit as per the market price. On merits, defendants have denied the contents of the plaint as incorrect and it is stated that defendants have assured the plaintiff that as and when partition will take place among the legal heirs of Late Sh.Ram Gopal Verma she will be given her share in the suit property but the plaintiff with a view to harass them had filed the present suit.
11. Defendant no.8 / C.G.H.S. in his written statement (mentioned as response of defendant no.8) has stated that Flat No.197 was allotted in the name of Sh.Ram Gopal Verma who died on 03.08.1998 and the flat was transferred in the name of his wife Smt. Shakuntala Devi who was his nominee on 29.01.2000. Smt. Shakuntala Devi nominated her son Sh. Sanjeev Verma on 14.06.2000. Smt. Shakuntala Devi died on 26.12.2006. Sh.V.K. Verma informed that the flat be transferred in the name of CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 9 of 43 Sh.Sanjeev Verma on 12.02.2007. Mr. Sanjeev Verma, the nominee requested the society to transfer the flat in his name vide his letter dated 05.04.2008. Further Sh.Virender Verma one of the son of Smt. Shakuntala Devi had earlier submitted a Will executed by Smt. Shakuntala Devi in his favour dated 10.01.2006. However, he requested later on that he is withdrawing the said will and had no objection to the transfer of the same in the name of the nominee Mr. Sanjeev Verma. The remaining four brothers and one sister served a notice sent by T.K. Mukherjee, Advocate to the society office that the flat should not be transferred in the name of Sh.Sanjeev Verma since all the rest have interest in the property. As per Section 28 of the Delhi Cooperative Soceities Act 2003 the flat is to be transferred in the name of the nominee who acts like a trustee of the property. The case of transfer is however still pending since the other family members have invoked judicial proceedings.
12. From the pleadings of the parties, the following issues were framed on 29.01.2015:-
1) Whether plaintiff has concealed material facts and CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 10 of 43 for this suit deserves to be dismissed? OPD-1 and 2
2) Whether the family properties comprise of property no.Flat no.187, Vikas Kunj, Vikas Puri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.298, Ashok Nagar, Tilak Nagar as well? OPD1 and 2
3) Whether the suit is barred under the provision of Delhi Co-operative Society Act, 2003, Section 70?
OPD-1 and 2
4) Whether the present suit has been filed by the plaintiff in collusion with defendants no.3,4,6 and 7? OPD-1 and 2
5) Whether the suit property has always been in the possession of defendant no.2 alone exclusively?
OPD-1 and 2
6) Whether plaintiff has no right whatsoever in the
suit property? OPD-1 and 2
7) Whether defendant no.2 has already been a
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 11 of 43
nominee qua the suit property? OPD-1 and 2/
counter claimant
8) Whether the suit filed is time barred? OPD-3,4 and
5
9) Whether the suit is bad for want of proper
valuation? OPD-3,4 and 5
10) Whether suit is not maintainable in view of Section 28 of Delhi Cooperative Society Act, 2003? OPD-8
11) Whether plaintiff is entitled to the decree of partition as claimed with respect to the property i.e. flat no.197, Vikas Kunj, Vikas Puri, New Delhi? OPP
12) Whether plaintiff is entitled to the decree of injunction, as prayed? OPP
13) Relief
13. In order to prove its case, plaintiff has examined herself as PW1 and led his evidence by way of affidavit Ex.PW1/A. On the other hand, defendants have examined Sh.Virender Kumar CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 12 of 43 Verma, defendant no.1 as DW1 who led his evidence by way of affidavit Ex.DW1/1/A; Sh.Sanjeev Verma, defendant no.2 as DW2 who led his evidence through affidavit Ex.DW2/A and Sh.Satender Kumar Srivastava, Account Asstt. from Central Govt.Services Cooperative Group Housing Society as D2W2.
14. Arguments were heard from Ld.Counsel for the plaintiff as well as from Ld. Counsel for the defendants.
15. I have considered the submissions and gone through the records. My issuewise findings are as under:-
ISSUE NO.1 "Whether plaintiff has concealed material facts and for this suit deserves to be dismissed? OPD-1 and 2"
AND ISSUE NO.2 "Whether the family properties comprise of property no.Flat no.187, Vikas Kunj, Vikas Puri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.298, Ashok Nagar, Tilak Nagar as well? OPD1 and 2"
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 13 of 43
16. The issue no.1 and 2 are interconnected, hence I decide both these issues together. The onus to prove the said fact is upon the defendants. The defendant no.1 in the written statement has taken the preliminary objection that plaintiff has not disclosed that after death of father of defendant no.1, the partition of the joint family properties including flat no.187, Vikas Kunj, Vikas Puri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.298, Ashok Nagar, Tilak Nagar has not taken place till date as such all the above properties need to be partitioned by metes and bound among the LRs of deceased Sh.Ram Gopal Verma.
17. In order to prove the above averment, defendants have examined defendant no.1 Sh.Virender Kumar Verma as DW1 who in his testimony led through affidavit Ex.DW1/1/A has reiterated the same facts as stated in the written statement filed by him, hence same are not reiterated here. No document has been filed by the defendant/ DW1. In his cross-examination, he has stated that suit property should be partitioned only on the condition that when the properties mentioned in para 2 of his affidavit be partitioned. He denied the suggestion that husband of the plaintiff CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 14 of 43 was never given any money after selling the flat at Noida. He admitted that he has no document to show that any amount was given to the husband of the plaintiff after selling the flat at Noida. He has no document to show that the share from the property of his mother has been given to the plaintiff or her husband.
18. In my view self serving oral testimony is not sufficient to prove that property/ flat no.187, Vikaskunj, H.No.195, Arjun Nagar, Safdarjung Enclave and H.No.298, Ashok Nagar, Tilak Nagar are joint family property or that same was purchased from the fund provided by his father.
19. DW2 Sanjeev Verma in his testimony has not deposed a single word that above said properties were owned by his late father or were purchased from the income given by his father to plaintiff's husband after selling the NOIDA Flat thus he has not corroborated the testimony of defendant no.1/ DW1/1. DW3 is the witness who has only produced the record pertaining to the flat no.197, Vikaskunj, Vikaspuri, thus his testimony also does not help defendant no1 to prove that the above said properties were owned by Late Sh.Ram Gopal Verma. Thus from the CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 15 of 43 testimony of DW1/1 nothing has came out which proves that the properties bearing flat No.187, Vikas Kunj, Vikaspuri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.248, 3rd Floor, Ashok Nagar, Tilak Nagar, New Delhi belong to the father of the defendant no.1 or were purchased from the joint family income or from the sale of flat at Noida.
20. Hence, in view of above discussion I do not find self serving statement of DW1/1/ defendant no.1 reliable to believe that property no.187, Vikaskunj, H.No.195, Arjun Nagar, Safdarjung Enclave and H.No.248, 3rd Floor, Ashok Nagar, Tilak Nagar were purchased from joint family income. Therefore I held that defendants have failed to prove that the suit properties were joint family properties and need to be partition along with suit property.
21. On the other hand, plaintiff in para 2 of the preliminary objection of replication to the WS of defendant no.1 has stated that property no.187, Vikaskunj, Vikaspuri, New Delhi was purchased by the plaintiff from her own fund in the year 2001 and property no.195, Arjun Nagar, Safdarjung Enclave is the self acquired property of the defendant and property no.248, Ashok Nagar, Tilak CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 16 of 43 Nagar has no concerned whatsoever either with the plaintiff or with the defendants. In her cross-examination, she has denied the suggestion that Flat no.187, Vikaskunj, Vikaspuri is joint family property. She has stated that said flat is purchased by her after death of her husband. Her husband died on 14.10.2000 and same is her self acquired property and she can produce the documents if required with respect to the said flat. She has denied the suggestion that the said flat was purchased after selling the flat no.977, Sector-37A, Arjun Vihar, Noida. She has stated that her father-in-law used to take rent of flat no.977, Sector-37A, Arjun Vihar, Noida. She denied the suggestion that her late husband used to collect the rent of the said property which he used to deposit in the Dena Bank. She has also denied the suggestion that her father in law after selling the property no.997, Sector 37A, Noida has given the share to her and stated that her father in law after selling the said property had given the money to Sh.Virender Verma. She denied the suggestion that she has got any share in the property no.997, Sector 37A, Arjun Vihar, Noida. She has also denied the suggestion that she has pressurized her father in law to transfer the sale proceed of property no.997, Sector 37A, Arjun CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 17 of 43 Vihar Noida in the account of her husband. She denied the suggestion that the share of sale proceed of property no.997 was not given to any legal heirs. Thus from the aforesaid cross- examination of the plaintiff, nothing has came out in favour of the defendants to prove that the property no.997 were owned by Sh.Ram Gopal Verma or that any money was given to plaintiff after selling flat no.997, Sector 37A, Noida from which properties bearing flat No.187, Vikas Kunj, Vikaspuri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.248, 3 rd Floor, Ashok Nagar, Tilak Nagar, New Delhi were purchased.
22. Further as far as other property no.248, Ashok Nagar, Tilak Nagar is concerned, plaintiff has stated in the replication that neither plaintiff nor defendants have any concern with the said property. No suggestion has been given to plaintiff/ PW1 by the defendant that the said property was owned by late Sh.Ram Gopal Verma or by her or her husband. Neither any document has been produced to show that the said property was joint family property.
23. In view of the aforesaid facts and circumstances, I held that defendant has failed to prove that the plaintiff has CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 18 of 43 concealed any fact that the properties bearing flat No.187, Vikas Kunj, Vikaspuri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.248, 3rd Floor, Ashok Nagar, Tilak Nagar, New Delhi are the joint family properties which need to be partitioned of plaintiff and defendants. Therefore, both issues no.1 and 2 are decided in favour of the plaintiff and against the defendants.
ISSUE NO.3 "Whether the suit is barred under the provision of Delhi Co- operative Society Act, 2003, Section 70? OPD-1 and 2"
24. The onus to prove this issue is upon the defendants as defendants have taken the said objection. It is contended by Ld. Counsel for the defendants that as per Section 70(1) of the Delhi Cooperative Society Act, 2003, if any dispute arises between the member of the society same shall be referred to the Registrar and no Court shall have jurisdiction to entertain the proceeding in respect of such dispute, therefore suit is barred.
On the other hand, Ld. Counsel for the plaintiff has argued that the said section covers only the disputes which relate CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 19 of 43 to the constitution, management or the business of a co-operative society and not with respect to the partition of a property of a deceased member. Therefore this Court has jurisdiction to entertain the suit.
25. I have considered the arguments and gone through the record. Before giving my findings, it would be appropriate to reproduce Section 70(1) of the Delhi Cooperative Societies Act, 2003 which is as under :-
"70. Disputes which may be referred for arbitration. -
(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-
operative society other than a dispute regarding disciplinary action taken by the co-operative society or its committee against a paid employee of the co- operative society arises -
(a) among members, past members and persons claiming through members, past members and deceased members; or CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 20 of 43
(b) between a member, past member or person claiming through a member, past member or deceased member and the co-operative society, its committee or any officer, agent or employee of the co-operative society or liquidator, past or present; or
(c) between the co-operative society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the co-operative society; or
(d) between the co-operative society and any other co-operative society, between a co-operative society and liquidator of another co-operative society or between the liquidator of one co-
operative society and the liquidator of another co- operative society;
such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 21 of 43 any suit or other proceedings in respect of such disputes."
26. From the aforesaid section, it is evident that the said provision only bar the disputes to be raised before Civil Court if it relates to the constitution, management or the business of a co- operative society and not with respect to any dispute which arises among the legal heirs of a member of society qua the flat/ property allotted by the society. A dispute between family members of a deceased member of society with respect to inheritance of property allotted by society does not fall in Section 70.
27. Further Section 9 of the CPC says that a Civil Court has jurisdiction to decided the case unless it is specifically barred. As stated above, Section 70 of the Delhi Cooperative Societies Act do not specifically bar the disputes with respect to the partition of a flat owned by deceased member of the society, therefore in these circumstances, I held that this Court has jurisdiction to decide the suit. Hence, issue no3 is decided in favour of the plaintiff and against the defendants.
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 22 of 43 ISSUE NO.4 "Whether the present suit has been filed by the plaintiff in collusion with defendants no.3,4,6 and 7? OPD-1 and 2"
28. The onus to prove the said issue is upon the defendants. Defendant no.1 in his written statement has stated that suit has been filed by the plaintiff in collusion with defendants no.3,4,6 and 7 but he has not explained in his testimony how the plaintiff and defendants no.3,4,6 and 7 are in collusion whereas defendant no.2 in his examination in chief has not stated a single line with respect to the collusion between the plaintiff and defendants no.3,4,6 and 7. From the cross-examination of the plaintiff/ PW1 I found that no suggestion has been given to her that she has filed the suit in collusion with defendants no.3,4,6 and 7, therefore I held that defendants have failed to prove that plaintiff and defendants no.3,4,6 and 7 are in collusion with each other. Hence, issue no.4 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.5 "Whether the suit property has always been in the possession of defendant no.2 alone exclusively? OPD-1& 2"
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 23 of 43
29. The onus to prove this issue is upon the defendants. The DW1 in his testimony has deposed that suit property has always remain in possession of defendant no.2 and all dues of the property is paid by the defendant no.2 from his self earning after the demise of late Sh.Ram Gopal Verma whereas in his cross- examination he has stated that he is in possession of the suit property thus he has given contradictory statement in his examination in chief and in his cross-examination. Thus his testimony do not prove that defendant no.2 was in exclusive possession of the suit property.
As far as testimony of DW2 Sanjeev Verma is concerned, he has deposed that he was married in the year 1996 with Ms.Ritu Verma and two children were borne out of the said wedlock and all of them continue to reside in the said flat and ration card bearing no.443134 dated 20.09.1996 was issued in the name of his father Sh.Ram Gopal Verma. However in his cross- examination he has admitted that the address of his children in the school record is given of Patel Nagar i.e. 21/34, First Floor, West Patel Nagar and volunteered that same was incorporated in the year 2005-06 and he admitted that he along with his wife and CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 24 of 43 children are also living in the said address. Thus from this admission of the defendant no.2 in the cross-examination, the shadow is created in his testimony that he has resided in the suit property i.e. 197, Vikaskunj, Vikaspuri or that he was in exclusive possession of the suit property. Therefore, I find force in the contention of Ld. Counsel for the plaintiff that since it is a joint family property owned by the father-in-law of the plaintiff, therefore all persons are in joint possession of the same. Hence I decided issue no.5 in favour of the plaintiff and agaisnt the defendants. ISSUE NO.8 "Whether the suit filed is time barred? OPD-3,4 and 5"
30. The onus to prove this issue is upon the defendants no.3,4 and 5 as they in their joint written statement have taken the said objection. Even in the written statement they have not stated how the same is barred by limitation. They did not lead any evidence to prove that suit is barred by limitation. Further on perusal of the testimonies of DW1/1 and DW2 I found that they have not deposed in their examination-in-chief led through affidavits Ex.DW1/1/A and Ex.DW2/A respectively that suit is CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 25 of 43 barred by limitation. Further from the cross-examination of plaintiff/ PW1 also it is evident that no suggestion has been given to her that suit is barred by limitation, therefore in these circumstances I held that defendants have failed to prove that suit is barred by limitation. Therefore issue no.8 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.9 "Whether the suit is bad for want of proper valuation? OPD- 3,4 and 5"
31. Plaintiff in her testimony has valued the suit property for the purpose of jurisdiction as Rs.15 lakhs and paid Rs.4780/- as Court fees on the same on her 1/18th share. The onus to prove this issue is upon the defendants no.3,4 and 5 as they in their joint written statement have stated that the plaintiff has not valued the suit as per the market value and the value of the suit in question is more than Rs.30 lakhs but they do not lead any evidence. Further on perusal of the testimonies of DW1/1 and DW2 I found that they have not disclosed a single line that the value of the suit property is more than Rs.15 lakhs neither they had produced any CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 26 of 43 documents. Further in the cross-examination of plaintiff/ PW1, no suggestion has been given to her that the value of the suit property was more than Rs.15 lakhs at the time of filing of the suit. Therefore, in these circumstances I held that defendants have failed to prove that the plaintiff has not properly valued the suit. Therefore, issue no.9 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.7 "Whether defendant no.2 has already been a nominee qua the suit property? OPD-1 and 2/ counter claimant"
32. It is contended by Ld. Counsel for the defendants that deceased Ram Gopal Verma has nominated his wife during his lifetime as member of the society for the purpose of mutating her name. It is further submitted that Smt. Shakuntala Devi during her lifetime has nominated defendant no.2 as her nominee and he filed an application for mutation but same is still pending in the society. Therefore defendant no.2 has become owner of the suit property. Hence the plaintiff has no right left in the suit property. CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 27 of 43
33. In support of his contention defendants have relied upon testimony of DW2 Sanjeev Verma who has deposed that his father Late Sh.Ram Gopal Verma was member of the Central Co- operative Land and Group Housing Society and was allotted a flat no.197, Vikaskunj, Vikaspuri by the society i.e. defendant no.8. He further deposed that his father nominated his mother Smt. Shakuntala Devi as his nominee in respect of the said flat in accordance with society rules and accordingly upon his death on 03.08.1998 the membership of the society and the said flat was transferred in the name of his mother and certificate dated 16.01.2006 was also issued in her favour by the society. He further deposed that his mother nominated him for transfer of share and interest in the said flat in the society on 14.06.2000 vide passbook of share certificate no.541 and accordingly entry in the passbook was made by the society as well as against the ownership record of the said flat and after the death of his mother he made an application dated 05.04.2006 to the society for transfer of the share certificate as well as flat in his name and also deposited outstanding dues of Rs.8361/- with the society vide receipt no.100045 dated 17.05.2008 but defendant no.8 society continued CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 28 of 43 to postpone the matter on one pretext or the other and failed to transfer the share certificate and the flat in his name.
In his cross-examination, he has admitted that address of his children in school record is given of Patel Nagar i.e. 21/34, First Floor, West Patel Nagar. He volunteered that same was incorporated in the year 2005-06. He admitted the suggestion that he along with his wife and children are also living in the said address. He denied the suggestion that he has wrongly mentioned his address as flat no.197, Vikaskunj, Vikaspuri, New Delhi in his affidavit. He admitted that his father has not executed any Will with regard to suit property. He admitted the suggestion that there is no document with him showing transfer of flat in his favour. In the house tax the flat has not been mutated in the name of his mother. He stated that his mother during her lifetime with the knowledge of all her children has nominated him that after her death the flat will be transferred in his name and no other children of his mother have any title in the suit property.
34. No suggestion has been given to the DW2 Sanjeev Verma that his name has not been entered in the passbook of his CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 29 of 43 mother as her nominee. Further from the document filed by D2W2 i.e. the form submitted by his mother when she was enroll as a member of the society, the name of Sh.Sanjeev Verma defendant no.2 is mentioned as nominee. Again no suggestion has been given to D2W2 that said document is false and fabricated document. Therefore in these circumstances, there is no ground to disbelieve the said document.
35. The defendants have also examined Sh.Satender Kumar Srivastava, Accounts Assistant of the Central Govt. Services Co-operative Land & Group Housing Society who has prove the document regarding allotment of the flat no.197 as D2W2/2 (Colly). He proved that the certificate of membership was transferred in the name of Smt. Shakuntala Devi on the death of Sh.Ram Gopal Verma on 03.08.1998 which was accepted by the society vide its letter dated 08.02.2000/07.04.2000. Further the membership form was submitted by Smt. Shakuntala Devi nominating her son Sh.Sanjeev Verma as her nominee, hence I held that defendant has been able to prove that he was nominated by his mother to become member after her death. Hence, I decide CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 30 of 43 the issue no.7 in favour of the defendant and against the plaintiff. ISSUE NO.6 "Whether plaintiff has no right whatsoever in the suit property? OPD-1 and 2"
AND ISSUE NO.10 "Whether suit is not maintainable in view of Section 28 of Delhi Cooperative Society Act, 2003? OPD-8"
36. Both the issue no.6 and 10 are interconnected as if issue no.10 is decided in favour of the defendant than plaintiff will not be entitle to partition of the property as defendant no.1 will become absolute owner of the suit property being nominee of Shakuntala Devi qua the suit property who was the nominee of her husband. Whereas if it it is proved that nomination of the defendant no.1 in the society qua the suit property does not barred the plaintiff to claim partition in the suit property as same is to devolve as per law of inheritance than plaintiff being one of legal heir/ widow of decease son of Ram Gopal who was owner of suit CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 31 of 43 property will be entitle to have share in the suit property and thus would be entitle to partition.
37. It is contended by Ld. Counsel for the defendant no.1 and 2 that as per Section 28 of the Delhi Cooperative Societies Act, 2003 the nomination in the society will have preference over the law of inheritance and since Shakuntala Devi has nominated defendant no.2, therefore defendant no.2 become the absolute owner of suit property hence same cannot be partitioned.
38. On the other hand, it is contended by Ld. Counsel for the plaintiff that as per Section 28 of the Delhi Co-operative Societies Act, 2003 do not surpass the law of inheritance as provided in Hindu Succession Act, 1956 and in the absence of the will, the property of male Hindu died intestate should be transferred among his first class legal heirs. He contended that since late Ram Gopal Verma, the father-in-law of plaintiff and father of defendants had died intestate, therefore his properties will be devolved upon his first class legal heirs, hence Section 28 of the Act is not applicable.
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 32 of 43
39. I have considered the submissions and gone through the record. Whether Section 28 of the Act is applicable or not, it would be appropriate to reproduce Section 28 of the Delhi Cooperative Societies Act 2003 which is as under :-
"28. Transfer of interest on death of member. - (1) On the death of a member, a co-operative society shall transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member or pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member's share or interest as ascertained in accordance with the rules or the bye-laws:
Provided that -
(i) such nominee, heir or legal representative, as the case may be, may require payment by the co-
operative society of the value of the share or interest of the deceased member ascertained as CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 33 of 43 aforesaid; or
(ii) the co-operative society shall transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and bye-laws for membership of the co-operative society, or on his application within one hundred and eighty days of the death of the deceased member to any person specified in the application who is so qualified; and
(iii) no such transfer or payment shall be made except with the consent of the nominee, heir or legal representative, as the case may be.
(2) A co-operative society shall, subject to the provisions of section 45 and unless within three hundred and sixty-five days of the death of member prevented by an order of a competent court, pay to such nominee, heir or legal representative, as the case may be, all other moneys due to the deceased member from the co-
operative society.
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 34 of 43
(3) All transfers and payments made by a co-
operative society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the co-operative society by any other person."
40. From this Section it is evident that this provision is only with respect to the transfer of the interest on death of a member to its nominee who has been nominated according to the rules made in this behalf or if there is no person so nominated to transfer which appears to be legal representative of the said member. Thus this section nowhere overrule the law of inheritance which is in case of Hindu is Hindu Succession Act, 1956. I am fully agree with the contention of Ld. Counsel for the plaintiff that the nomination by a member of society in favour of somebody do not take the rights of the other legal representatives in the property owned by a deceased member and the nominee hold the property just like a trustee only on behalf of all the legal heirs of deceased member. In this regard, I rely upon the judgment titled as 'Abhay Sapru Vs. Chitralekha Bakshi & Anr.' dated 07.01.2008 passed by Hon'ble Mr. Justice Vipin Sanghi. In this case the plaintiff has CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 35 of 43 claimed that his mother nominated him as a nominee in terms of Section 27 of Delhi Co-operative Societies Act with respect to 1/3rd share each in the suit property which was a plot allotted by society. The Hon'ble High Court rejected the said contention of the plaintiff and hold that the 1/3rd share of the plaintiff will not devolved upon the plaintiff because the nomination has been made in his favour. The relevant para 22 is reproduced as below:-
"22. Issue (a) was framed as the Plaintiff had claimed ownership over the 1/3rd share of Late Smt.B.L. Kaul, being her nominee in the records of the society. The claim was based on the premise that a nominee in the records of a cooperative society succeeds to the interest of the member on the demise of such member, to the exclusion of the legal heirs of such member under ordinary law of succession. The above question is no longer Res-integra and stands fully settled by various judicial pronouncements. In Shri Ashok Chandra Aggarwala v. Delhi Administration and Ors., a single judge of this Court held that an interest of a member of a cooperative society in the lease of the property held CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 36 of 43 by him can devolve by testamentary or intestate succession and a third kind of succession (by nomination) cannot be created under Section 26 of the Cooperative Societies Act. The said decision was assailed by way of Letters Patent Appeal (LPA No.31/85 reported as 1998(7) AD (Delhi) 639) which came to be dismissed by a division bench and the order of the Single Judge was upheld. The Division Bench held that the principles laid down by the Apex Court in Sarbati Devi and Anr. v. Usha Devi AIR 1984 SC 346 were applicable in interpreting Section 26 of the said Act and Rule 35 of the Delhi Cooperative Societies Rules. The Division Bench also cited with approval the decision in Sushila Devi Bhaskar v. Ishwar Nager Cooperative House Building Society Ltd. and Ors. 45 (1991) DLT 318, wherein it was held that despite nomination in favor of a person, the property or the amount of the deceased, can be claimed by the heirs of the deceased in accordance with law of succession governing them. The right of the nominee is merely to get recognised as CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 37 of 43 the person who is charged with the responsibility of administering the estate in accordance with the Law of Succession. [See Vishin N. Khanchandani and Arn. v. Vidya Lachmandas Khanchandani and Anr.)] This issue is therefore decided against the Plaintiff and in favour of the defendant."
41. Considering the aforesiad facts and circumstances, I held that Section 28 of the Delhi Co-operative Societies Act 2003 do not bar plaintiff of the present case to seek partition of the suit property. Hence, I decide the issue no.10 in favour of the plaintiff and against the defendant.
42. Now coming to the issue no.6, as per plaintiff testimony, Sh. Ram Gopal Verma was the owner of suit property who had died leaving behind:
(a) Smt.Shakuntala Devi Verma (widow),
(b) Sh.Raj Kishan Verma (son),
(c) Col. Ranjit Kumar Verma (son),
(d) Sh.Jeewan Kumar Verma (son), CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 38 of 43
(e) Sh. Virender Kumar Verma (son),
(f) Sh. Sanjeev Kumar Verma (son)
(g) Sh.Raj Lata Verma (daughter).
She further deposed that her husband who is also father of defendants no.6 and 7 also died intestate leaving behind her, defendant no.6 and 7 i.e. Captain Vishal Verma and Major Vikrant Verma and her mother in law also died on 26.12.2006.
43. It is not the defense of the defendants that any Will was executed by Sh.Ram Gopal Verma or Smt. Shakuntala Devi either in the pleadings or in their evidence or that plaintiff is not the widow of Late Col. Ranjit Kumar Verma or that Late Col. Ranjit Kumar Verma was not the son of late Sh.Ram Gopal Verma or they were not the Hindu.
44. As stated above, the defendants no.1 and 2 have only claimed that plaintiff has no right in suit property only on the basis that the nomination of the flat has been made by their mother in favour of defendant no.2 in the form submitted to the society but otherwise there is no dispute that plaintiff is the daughter in law of CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 39 of 43 Sh.Ram Gopal Verma and Smt. Shakuntala Devi. Sh. Ram Gopal Verma who were the initial owner/ member of the flat and Smt. Shakuntala Verma in whose name the flat was mutated after death of Sh.Ram Gopal Verma on the basis of the nomination. Thus plaintiff being the widow of the deceased son of Sh.Ram Gopal Verma and Smt. Shakuntala Devi is their class I legal heir as per schedule 1 of the Hindu Successions Act.
45. In these circumstances I held that Hindu Succession Act will apply and the property of deceased Ram Gopal Verma and Shakuntala Devi will be divided as per Schedule 1 of the Hindu Succession Act, 1956, among his son Sh. Virender Kumar Verma, Sh. Sanjeev Kumar Verma, Smt.Raj Lata Verma. and legal heirs of Sh.Raj Kishan Verma (deceased son), class I heir of Sh.Jeewan Kumar Verma (deceased son), Col. Ranjit Kumar Verma (deceased son).
Plaintiff and her two sons Captain Vishal Verma and Major Vikrant Verma will be entitled to 1/18th share each in the suit property. Defendant no.1, 2 and 5 will be entitled to 1/6th share each whereas defendant no.3(a)(b)(c) will be entitled to 1/18th CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 40 of 43 share each and defendant no.4(a)(b)(c) will be entitled to 1/18the share each in the suit property. Issue no.6 is decided accordingly in favour of the plaintiff and against the defendants. ISSUE NO.11 "Whether plaintiff is entitled to the decree of partition as claimed Swith respect to the property i.e. flat no.197, Vikas Kunj, Vikas Puri, New Delhi? OPP"
AND ISSUE NO.12 "Whether plaintiff is entitled to the decree of injunction, as prayed? OPP"
46. In view of my findings of above issues, I held that plaintiff is entitled to the decree of partition of the suit property and further I held that plaintiff is also entitled to the decree of permanent injunction restraining the defendants from selling, transferring, mortgaging or creating third party interest in the abovesaid suit property. Issue no. 11 and 12 are decided accordingly in favour of plaintiff and against the defendants CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 41 of 43 RELIEF
47. In view of my findings of above issue I held that defendants are not entitle to partition of properties i.e, Flat no.187, Vikas Kunj, Vikas Puri, New Delhi, H.No.195, Arjun Nagar, Safdarjung Enclave, New Delhi and H.No.298, Ashok Nagar, Tilak Nagar. Hence counter claim of defendant no.1 is hereby dismissed.
Further I pass a preliminary decree holding that parties are having share in suit property i.e. flat no.197, Vikas Kunj, Vikas Puri, New Delhi in the following manner:-
Plaintiff, defendant no.6 and 7 - 1/18th each Defendant no.1 - 1/6th Defendant no.2 - 1/6th Defendant no.3 (a) to 3(c) - 1/18th each Defendant no.4 (a) to 4(c) - 1/18th each Defendant no.5 - 1/6th And the suit property is to be partitioned accordingly. Further I pass a decree of permanent injunction in favour of plaintiff and against the defendants restraining them from selling, transferring or creating any third party interest in the suit property CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 42 of 43 till the suit property is divided among the parties as per their share. Preliminary decree sheet be prepared accordingly.
48. Now to come up for passing of final decree for partition of suit property by metes and bound.
Announced in the open Court on 23.10.2019. (Sanjeev Kumar-I) Additional District Judge-12, (Central), Tis Hazari Courts, Delhi.
Digitally
signed by
SANJEEV
SANJEEV KUMAR
KUMAR Date:
2019.10.23
16:28:33
+0530
CS No.13341/16 Bindu Verma Vs. Virender Kumar Verma & Ors. Page No. 43 of 43