Delhi District Court
Rajkumar Kapoor vs Sarvapriay Co. House Building on 13 February, 2025
IN THE COURT OF CIVIL JUDGE - 03
WEST DISTRICT, TIS HAZARI COURTS, DELHI
Presiding Officer: Sh. Kautuk Bhardwaj, DJS
Suit No. 607011/2016 Digitally signed
by KAUTUK
KAUTUK BHARDWAJ
CNR No. DLWT03-000006-1988 BHARDWAJ Date:
2025.02.13
16:58:21 +0530
In the matter of:
1. Sh. Raj Kumar Kapur (deceased)
Through his legal heirs:
a) Mr. Deepak Kapur (son)
R/o 15/2, Sarvapriya Vihar, New Delhi.
b) Sh. Vijay Kapur (son)
R/o Kristal Frankfurt, Germany
c) Smt. Sarita Singh Sekhon (daughter)
R/o 1501, Lokhandwala Campus,
Andheri, Mumbai.
2. Sh. Maharaj Kumar Kapur (deceased)
Through his LRs:
a) Smt. Kamla Kapur (widow).
b) Ranjan Kapur (son, deceased).
Through his respective legal heirs:
i) Smt. Neelam Kapur (widow).
ii) Mr. Ravin Kapur (son).
iii) Ms. Pallavi Kapur (daughter).
All R/o C-60, Sector 50, Noida, UP.
c) Ms. Ritika Madan (daughter)
R/o C-3, G.K., Enclave-I, New Delhi.
d) Ruchi Sharma (daughter)
R/o 24/18, 2nd Floor, East Patel Nagar, New Delhi.
3. Mr. Sanjay Kapur
S/o Late Sh. S.P. Kapur
R/o D-1052, New Friends Colony, New Delhi.
4. Mr. Subhash Chopra
S/o Late Ram Nath Chopra
R/o 104-A, Sarvapriya Apartment,
Sarvapriya Vihar, New Delhi-16.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 1 of 34
5. Smt. Shankuntla Bhandari (deceased)
Through her Legal Heirs:
a) Smt. Rama Rallan (deceased daughter).
Through her legal heirs:
i) Ms. Gunjan Chandra (daughter)
R/o EGI-47, Garden Estate, Opposite Guru
Dronacharya Metro Station, Gurgaon.
ii) Ms. Ritu Gulati (daughter).
R/o H-7, Maharani Bagh, New Delhi-110065.
iii) Mr. Arvind Rallan (son).
R/o 3rd Floor, A-37, Hauz Khas, New
Delhi-110033.
b) Smt. Indra Wadera (deceased daughter)
W/o Late Sohan Wadera.
Through her legal heir:
i) Mrs. Ritika Wadera (daughter)
R/o 1/21, Shanti Niketan, New Delhi
................. Plaintiffs
Vs.
1. Sarvapriya Cooperative House
Building Society Limited.
13/8 (15/9A), Basement, Sarvapriya
Vihar, New Delhi-16.
2. DDA Cooperative Societies Cell
Vikas Sadan, INA Market, New Delhi.
3. Sh. Punit Beriwala
S/o Sh. Shyam Sunder Beriwala
R/o 10/11, Sarvapriya Vihar, New Delhi-16.
4. Sh. Sunil Kapur
S/o Late Sh. Ram Kumar Kapur
R/o 704, Sea Green, 7 Banglow,
Varsova, Andheri, Mumbai.
5. Sh. Krishan Kumar Kapur (deceased)
Through his legal heir:
a) Smt. Gita Khorana (daughter).
Naggarjuna Apartments, C-Block,
5th Floor, Mayur Kunj, Delhi-96.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 2 of 34
6. Sh. S.P. Kapur (deceased)
Through his legal heirs:
a) Smt. Rashmi Nagrath (daughter).
W/o Late Ranjit Nagrath
R/o H. No. 2, Tolstoy Marg, New Delhi-01.
b) Smt. Pranav Kapur (daughter)
R/o G-32, Nizamuddin West, New Delhi.
.............. Defendants
Date of institution of Suit : 07/07/1988
Date on which judgment was reserved : 08/01/2025
Date of pronouncement of the judgment : 13/02/2025
JUDGMENT
1. The Case:
The present suit has been filed seeking the relief of declaration as to the ownership of the suit property and declaration qua illegality of the sub-lease executed as well as mandatory and permanent injunction.
2. Plaintiff's case 2.1 Briefly stated, the plaintiffs and the defendant no. 4 to 6 are stated to be the legal heirs of late Smt. Dhan Devi Kapoor. Smt. Dhan Devi Kapoor was stated to be the member of defendant no. 1 society and had been allotted a plot bearing no. 10/11, admeasuring 290 sq. yards. The plaintiffs have claimed that the entire consideration amount of Rs. 19,497/- @ Rs. 65/- per sq. yard had already been paid by Smt. Dhan Devi Kapoor. Subsequently, Smt. Dhan Devi Kapoor expired on 12/04/1980 leaving behind the plaintiffs and the defendant no. 4 to 6 as her heirs. It is the case of the plaintiffs that on 15/06/1981, the defendant no. 1 wrote a letter to Late Dhan Devi Kapoor informing her about the difficulties faced in the execution of perpetual lease with defendant no. 2. It CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 3 of 34 was further informed that in the said letter that requisite clearance for execution of perpetual lease and sub-lease has been obtained. The letter further recorded that the total cost of the developed plot after completing the formalities came to Rs. 30,450/- and hence, a demand for furthdr payment of Rs. 10,953/- was made. Plaintiff no. 2 vide his letter dated 07/02/1983 informed to the defendant no. 1 that his mother Smt. Dhan Devi Kapoor had expired and was survived by seven legal heirs. It was further informed that there was no existing Will of Late Dhan Devi. Vide the same letter, the cheque for a sum of Rs. 1,545/- was also enclosed in favour of defendant no. 1 towards the payment of 1/7 th of the balance amount of Rs. 10,953/-. It was further informed that other LRs would also furnish their respective shares towards the allotted plot. It is alleged that the cheque issued towards the part payment for balance amount was duly encashed by the defendant. Further, vide letter dated 19/06/1984, plaintiff no. 2 sent a reminder about part payment made by plaintiff. The said letter also contained the name and address of the other LRs for making the remaining payment. It is averred that plaintiffs were in receipt of letter dated 21/05/1984 from defendant no. 2 to show cause as to why the allotment of the plot should not be cancelled. The said letter further stated that execution of the lease should be registered within 30 days from the date of the said letter. The said letter was issued in the name of Smt. Dhan Devi. The letter dated 06/06/1984 in response to the show cause notice was issued by the plaintiff no. 3, defendants Pranav Kapoor and Rashmi Nagrah informing the defendant no. 2 about the death of Smt. Dhan Devi Kapoor and the fact that they were ready and willing to have sub-lease executed. It was further informed vide the said letter that there was no information qua the CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 4 of 34 execution of the sub-lease. It is alleged that the other plaintiffs who had not paid their shares repeatedly went to the office of defendant no. 1 to pay the balance amount for execution of the sub- lease. However, it was informed to them that probate/ the letter of administration is required to be received from the competent court. In pursuance of which, the plaintiffs had applied to the Hon'ble High Court of Delhi for the issuance of letter of administration. The plaintiff no. 2 had again sent a letter on 16/10/1986 informing that he had been visiting the office of defendant no. 1 to ensure that the allotted plot is registered / mutated in favour of the legal heirs and the defendant was reluctant to do so on the ground that they do not know whether Smt. Dhan Devi Kapoor had died intestate or otherwise. The filing of the letters of administration was also informed to the defendant. The grievances of the plaintiff accrues from the fact that on 26/06/1988 it was noted by plaintiff that bhumi pujan was being performed at the suit property and it had subsequently came to his knowledge that the suit property has been allotted to defendant no. 3. It is his case that the allotment to defendant no. 3 is illegal and arbitrary. Based on these facts, the present suit has been filed.
3. Upon service of summons of the suit, the defendants contested the present suit of the plaintiff and filed Written Statements (WS).
4. Defendant's case:
4.1 WS filed on behalf of defendant no. 1: The defendant no. 1 has taken the legal objection that the present suit is in contravention of mandate of Section 90 of the Delhi Cooperative Society Act and is also barred under the provisions of Section 93(1)(c) r/w Section 60 of the said Act. It is argued that the relief of CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 5 of 34 declaration is not sustainable without seeking the relief of possession of the suit property. Defendant no. 1 has further argued that the suit of the plaintiff is barred by the law of limitation. The present suit is also objected on the ground that it is under valued for the purposes of court fees and valuation. Defendant no. 1 has admitted that Smt. Dhan Devi was the member of the defendant no. 1 and had been allotted the suit property. The letter demanding the payment of the additional balance amount has also been admitted. The defendant no. 1 also admits the encashment of part payment made by plaintiff no. 2. It is his case that the plaintiffs are not entitled to become the members of the defendant no. 1 society or for allotment of any plot in the society as they were already having other properties. It is averred that plaintiffs have failed to make the additional payment of Rs. 10,953/- as admitted vide letter dated 15/06/1981 and in the absence of same, plaintiffs have no right to claim the suit property. It is accordingly submitted that the plaintiffs were disqualified as per Rule 25 of the Delhi Cooperative Society Act. 1972. Based on these facts, the defendant no. 1 has sought dismissal of the present suit.
4.2 WS filed on behalf of defendant no. 2: The defendant no. 2 averred that as per the terms of the lease with the society every allottee had to get the sub-lease executed within one year from the date of allotment. It is averred that letter dated 24/07/1986 and 06/09/1986 were received from the defendant no. 1 to the effect that Smt. Dhan Devi Kapoor had expired without leaving any nominee to whom the plot can be transferred and as per meeting held on 13/09/1988, the society had decided to cancel the allotment as no claimants had come forward. In pursuance to the said communication an advisory to issue a public notice was given CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 6 of 34 by the defendant and in response defendant no. 1 had executed a copy of the Indian Express and Nav Bharat Times dated 21/01/1987 and it was duly informed that nobody had submitted any claim. Defendant DDA had asked to defendant no. 1 to furnish an undertaking to the effect that the defendant no. 1 society shall be responsible for settlement of any claim filed on behalf of legal heirs of Smt. Dhan Devi Kapoor and further the society was directed to ascertain whether any inquiry qua the deceased allottee had been made. It was informed by the society vide its letter dated 23/03/1988 that the inquiry had not completed and the resolution to cancel the allotment was passed and the plot was re-allotted to defendant no. 3. Basis on these ground, defendant has sought the dismissal of the present suit.
4.3 WS filed on behalf of defendant no. 3: The defendant no. 3 has taken the same legal objections as raised by the defendant no.
1. It is his case that he had applied for a plot as first preference in the defendant no. 1 society and in case the plot was not allotted, he had opted for a flat as second preference. Defendant was allotted flat no. 1/3 in the society and subsequently the possession was handed over upon payment of consideration. It is alleged that defendant no. 3 requested for allotment of a plot instead of a flat and in anticipation of the allotment he surrendered the flat. On 15/04/1988, the suit property was allotted to the defendant no. 3.
Subsequently, all the legal formalities were completed and the sub- lease qua the suit property was executed. It is his case that the plot has been legally allotted to defendant no. 3. Based on these facts, the defendant has sought the dismissal of the suit.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 7 of 345. Issues: Upon completion of pleadings, the following issues were framed vide order dated 14/01/2009 by the Ld. Predecessor Court:-
1. Whether the plaintiff is entitled to decree of declaration as prayed for? OPP.
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP.
3. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
4. Whether the suit of the plaintiff is barred by the provisions of Delhi Cooperative Society Act? OPD
5. Relief.
6. Plaintiff's Evidence:
6.1 To prove his case, plaintiff no. 2 Maharaj Kumar Kapoor examined himself as PW-1 and tendered his evidence by way of affidavits Ex. PW-1/A, wherein he reiterated the facts as mentioned in the plaint and relied upon the following documents: -
Sr. Documents Exhibit/Mark
No.
1 Letter from Sarv Priya House Ex. PW-1/1
Building Society dated
15/06/1981
2 Letter from Maharaj Kumar Ex. PW-1/2
Kapoor dated 07/02/1983
3 Cheque dated 07/02/1983 of Rs. Ex. PW-1/3
1565/-
4 Affidavit dated 07/02/1983 Ex. PW-1/4
5. Letter dated 19/06/1984 Ex. PW-1/5
6. Cheque signed by Deepak Kapoor Ex. PW-1/6
dated 07/02/1983
7. Letter by Raj Kumar Kapoor dated Ex. PW-1/7 (colly) CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 8 of 34 Sr. Documents Exhibit/Mark No. 07/02/1983
8. Affidavit of Raj Kumar Kapoor Ex. PW-1/8 dated 07/02/1983
9. Letter dated 21/05/1984 from Ex. PW-1/9 DDA
10. Postal receipt and Ex. PW-1/10 (colly) acknowledgment between plaintiff and defendant no. 1
11. Letter from Maharaj Kumar Ex. PW-1/11 Kapoor to President of Sar Priya House Building Society 6.2 Plaintiff no. 3 Sanjay Kapoor examined himself as PW-2 and tendered his evidence by way of affidavits Ex. PW-2/A, wherein he reiterated the facts as mentioned in the plaint and relied upon the following documents: -
Sr. Documents Exhibit/Mark
No.
1 Letter dated 06/06/1984 from Ex. PW-2/1
Sanjay Kapoor
2 Postal receipt of Mr. H.K. Ex. PW-2/2
Sharma, Lease Administration
Officer, DDA
3 Acknowledgment receipt from Mr. Ex. PW-2/3
H.K. Sharma
6.3 LR of Plaintiff no. 1 Deepak Kapoor examined
himself as PW-3 and tendered his evidence by way of affidavits Ex. PW-3/A. CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 9 of 34 6.4 PW-1 & PW-3 were duly cross-examined by the Ld. Counsel for the defendants. No other witness has been produced by the plaintiff and PE was closed vide order dated 22/05/2024.
7. Defendant's Evidence:
7.1 To rebut the case of the plaintiff, defendant no. 1 examined its witness as DW-1 Sh. Avdhesh Kumar (Office Manager), who tendered his evidence by way of affidavit Ex.
DW-1/1 and relied upon the following documents :-
Sr. Documents Exhibit/Mark
No.
1. Copy of resolution / authority dated Ex. DW-1/A (OSR) 30/06/2024
2. Copy of extract of register of Ex. DW-1/C (OSR) members
3. Copy of notice published in Indian Ex. DW-1/I (OSR) Express (English) News Paper dt.
31/01/1987
4. Copy of notice published in Nav Ex. DW-1/J (OSR) Bharat Times (Hindi) News Paper dt.
31/01/1987
5. Copy of letter dated 11/04/1988 Ex. DW-1/K (OSR) issued by D2 to D1
6. Copy of letter dated 29/04/1988 Ex. DW-1/L (OSR) issued by the D1 to D3
7. Copy of letter dated 03/06/1988 from Ex. DW-1/M (OSR) the D2 to D1 7.2 Defendant no. 3 examined its witness as DW-3 Sh. Vinit Beriwala (brother of defendant no. 3), who tendered his evidence by way of affidavit Ex. DW-3/A and relied upon the following documents :-
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 10 of 34 Sr. Documents Exhibit/Mark
No.
1. Copy of letter dated 27/06/1986 Ex. DW-3/3 (OSR,
02 pages)
2. Copy of letter dated 24/07/1986 Ex. DW-3/4 (OSR)
3. Copy of letter dated 15/04/1988 Ex. DW-3/9 (OSR)
4. Copy of letter dated 28/04/1988 Ex. DW-3/10 (OSR)
5. Copy of letter dated 29/04/1988 Already exhibited as
Ex. DW-1/L
6. Copy of letter dated 03/06/1988 Already exhibited as
Ex. DW-1/M
7. Copy of lease deed dated Ex. DW-3/11 (OSR,
09/06/1988 16 pages)
7.3 DW-1 & DW-3 were duly cross-examined by Ld.
Counsel for the plaintiff. No other witness has been produced by the defendants and DE was closed vide order dated 22/11/2024.
9. Adjudication of the issues:
9.1 Bar of Delhi cooperative Society Act 9.1.1 It is the case of the contesting defendants that the cause of action forming the basis of the present suit can be said to be a dispute arising out of "the constitution, management or the business of a co-operative society" and as such by virtue of the provisions of the Delhi Cooperative Society Act (hereinafter "the Act"), there is a statutory embargo in filing of the present suit, rendering the suit non-maintainable. Defendants have invoked S. CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 11 of 34 60 r/w s. 93 and S. 90 of the Act. Ld counsels for the contesting defendants have vehemently emphasised on the objects of the Co-
operative society in terms of 3(1)(b) of the Bye-laws of the Society, to argue that the factual matrix would fall within the ambit of "the constitution, management or the business of a co-operative society". Be that as it may, a bare recapitulation of the litigation journey of the present suit, would disclose that the said objections have already been adjudicated upon and consequently have attained finality.
9.1.2 The legal objection raised by the contesting defendants were incorporated in the issues framed during the trial vide order dated 14.01.2009. Subsequently, an application under Order VII Rule 11 r/w Order XIV Rule 2 CPC was filed and the said application was disposed of as allowed by the Ld. Predecessor of this court. The said order of this court was set aside in the first appeal and subsequently the setting aside of the order was upheld in the second appeal before the Hon'ble High Court of Delhi. It would be profitable to reproduce the relevant extract of the observation made by Hon'ble Court on the above stated objections:
"Apparently though, thus, the objects of the respondent no.2 herein would include in terms of 3(1)(b) of the Bye-laws of the Society, allotment of residential houses/flats to its members, on terms and conditions as may be fixed by the society in accordance with the byelaws and such other conditions or in accordance with other conditions laid down by Registrar/Government/ Delhi Development Authority etc. for the construction of houses/flats by the members for their own use, however, this does not bring forth any object within the domain of the Registrar of the Delhi Co-operative Societies to adjudicate a dispute between a deceased member and her legal representatives who were not substituted in place of the deceased, the initial member when the said allottee had paid the full consideration as per the prevalent rate the time when she was allotted the plot, whereupon, the Society cancelled the allotment to Smt.Dhan Devi Kapoor despite CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 12 of 34 her having paid the entire consideration amount as per the previous rates of the land in question and thus, whether the legal heirs of the deceased Smt.Dhan Devi Kapoor could be ousted from the right to be substituted in place of Smt.Dhan Devi Kapoor despite the plaintiffs having informed the Society concerned i.e. the respondent no.2 to the present appeal of the demise of Smt.Dhan Devi Kapoor, with there being no dispute between the members of the Society as such for allotment of the land in question to the defendant no.3 i.e. the appellant herein pursuant to a cancellation of the membership of Smt.Dhan Devi Kapoor, in the facts and circumstances of the instant case where there has been a repeated correspondence for the substitution of the legal heirs of late Smt.Dhan Devi Kapoor, the original member in the Society to whom the plot No.10/11 had been allotted but the sub- lease deed had not been executed and despite the admitted communication to the Society of the demise of Smt. Dhan Devi Kapoor and knowledge thereof by the defendant no.1 i.e. the respondent no.2 to the present appeal, there was a cancellation of the allotment made in her name without even knowledge of the same being given to the legal heirs of the deceased Smt. Dhan Devi Kapoor which thus brings forth as rightly held by the learned ADJ vide the impugned judgment that the nature of the dispute was about the entitlement of the allotment of plot No.10/11 to the legal heirs of the deceased Smt. Dhan Devi Kapoor and does not in any manner relate to any dispute qua the constitution, management or business of the Society and thus, Section 60 of the Delhi Co-operative Societies Act, 1972 was not an impediment to the claims made by the legal heirs of late Smt. Dhan Devi Kapoor to the plot in question."
9.1.3 Hence, there is categorical finding of the Hon'ble High Court that the present dispute does not concern the "the constitution, management or the business of a co-operative society" and thus the provisions of S. 60 of the Act shall not come into play. The contesting defendants have raised a very feeble argument that the adjudication done by the Hon'ble High Court only pertains to S. 60 r/w s. 93 of the Act and as such there is no adjudication on the applicability of S. 90 of the Act. The argument is neither supported by the record nor sustainable on merits. The objection qua the absence of prior notice was duly raised in the CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 13 of 34 appeal, as can be seen from the excerpt of paragraph no 13 of the order of the Hon'ble High Court:
"13. The defendant no.1 to that suit i.e. the Sarvapriya Cooperative House Building Society Ltd. arrayed as the respondent no.2 to the present regular second appeal contended that the suit was barred under Section 90 of the Delhi Cooperative Societies Act, 1972, in as much as, no prior notice had been given to the Registrar of Co-operative Societies before filing the suit, that the suit was barred under Section 93(1)(c) of the Delhi Cooperative Societies Act, 1972 r/w Section 60 which itself provided the machinery for settling disputes and was also barred under Rule 35(7) of the Delhi Cooperative Societies Rules 1973 which provided an alternative remedy of appeal to the Registrar of the Co-operative Societies."
9.1.4 Even on merits, a notice under s. 90 of the Act is mandated only when the suit touches upon the "the constitution, management or the business of a co-operative society". This particular jurisdictional fact has already been adjudicated by the Hon'ble High Court to be absent in the present factual matrix. Neither the contesting defendants can reagitate the said fact nor this court can enter into re-appreciation of this jurisdictional fact. The embargo under s. 90 of the Act cannot be pressed into service in the absence of satisfaction of this crucial ingredient.
9.1.5 Accordingly, there is no merits qua the present objection and the Issue No. 4 is decided in favour of the plaintiffs and against the contesting defendants.
9.2 Entitlement for Declaration and Injunction 9.2.1 Succinctly put, the gravamen of plaintiff's case is that the suit property had been allotted to Smt. Dhan Devi Kapoor, who had paid the full consideration of the plot. It is their case that the allotment of the plot/suit property to the defendant no. 3 is illegal and arbitrary act on the part of defendant no. 1 and 2. Based on CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 14 of 34 these grounds, plaintiffs have claimed Smt. Dhan Devi Kapoor and as corollary her legal heirs to be declared as owners of the suit property, declaration as to nullity of the lease executed in favour of the defendant no. 3, fresh execution of lease in favour of the legal heirs and injunction against interference with the suit property.
9.2.2 The appreciation of the facts and evidence as well as adjudication of the legal objections taken by the contesting defendants have been done in the ensuing paragraphs.
Suit valuation:
9.2.3 It is the case of the defendants that the suit has been undervalued for the purpose of court fees and pecuniary jurisdiction. It has been contended that the plaintiff was required to value the suit for the purposes of court fees and jurisdiction as per the market value and the market value of the suit property falls beyond the pecuniary jurisdiction of this court. During the course of final arguments, a specific query was posed to the Ld. Counsels for the contesting Defendants as to why the plaintiff was required to value the suit as per the market value of the property. In this regard, it has been argued that the plaintiffs ought to have claimed possession for the sustainability of their suit for declaration and as such were required to value the suit accordingly. The argument is devoid of any merit. Valuation has to be carried out on the basis relief claimed and not on the basis of what "ought" to be claimed.
The perils of not claiming a particular relief can at best have a bearing on the maintainability of the relief claimed but would not render the suit undervalued. Accordingly, it can be safely concluded that the objection as to valuation is not sustainable.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 15 of 34Suit barred by limitation:
9.2.4 It has been contested that the cause of action for filing of the suit accrued on 21.05.1984, when the show cause notice for cancellation of the allotment was received by the plaintiffs. It is argued that the limitation of three years, as per article 58 of Limitation Act, would begin when the right to sue first accrues i.e 21.05.1984. In this regard, reliance has been place upon the judgment of Khatri Hotels Pvt. Ltd. vs Union of India (2011) 9 SCC 126 and Hanumanthappa vs H.B Shiv Kumar (2016) 1 SCC
332. The dictum of the said judgments has not been disputed by the other party. However, on facts the argument of the defendant is misplaced. Plaintiffs have sought declaration as to the title as well as to the nullity of lease executed in favour of defendant no. 3.
Cause of action would mean and include every fact necessary in order to get the relief claimed. The cause of action for the relief of declaration as to tile, is not issuance of show cause notice, rather it is the challenge to the alleged title. It would be said to accrue on the said date when the plaintiffs came to know that title has been claimed by a third party. Notwithstanding the merits of the contention, it is the case of the plaintiffs that they are the owners by virtue of the allotment and the fact that the allotment has been cancelled came to their knowledge on 26.06.1988, hence the right cannot be said to have accrued prior to the said date. Similarly, as far as the relief qua lease deed is concerned the cause of action could not have accrued prior to date of its execution or knowledge thereto. The lease deed was executed on 09.06.1988. The present suit has been filed in the year 1988. Accordingly, the relief of declaration falls within the limitation period.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 16 of 349.3 Declaration as to the title of the suit property:
9.3.1 The said relief has been objected on technical ground as well as on the merits of the claim. It is the case of the contesting defendants that the plaintiff has sought the relief of declaration as to title without seeking the relief as to possession of the suit property and the relief is accordingly hit by the bar of proviso to S. 34 of the Specific Relief Act. The contesting defendants have relied upon catena of judgments to support their argument.
9.3.2 Per contra, it is contended by the plaintiffs that the LR's of Late Smt. Dhan Devi Kapoor are in "deemed" possession of the suit property. It is argued that the factum of possession has been averred in the plaint (See: paragraph no. 2 and 14 of the Plaint) as well as sworn in the evidence affidavit (See: Paragraph no. 23 of the evidence affidavit). Plaintiffs have further argued that even if no relief of possession has been claimed, the relief could not have been denied on the ground of maintainability. In this regard, Ld. Counsel for the plaintiff has relied upon Akkamma vs Vemavathi (Civil appeal no. 5884 of 2009, SC).
9.3.3 The claim of the plaintiffs is unsustainable as per the record and on merits. The plaintiffs have raised a flimsy line of argument that they are in deemed possession of the suit property. A bare perusal of the admitted record demolishes this argument. In their written submissions plaintiffs have themselves cited paragraph no. 2 and 14 of the Plaint to emphasis the factum of possession of the suit property. It would be profitable to reproduce the relevant paragraphs of the plaint:
Para 2 : "That Smt. Dhan Devi was a member of the defendant no. 1. She had been allotted a plot no. 10/11 CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 17 of 34 measuring 290 square yards in the land leased out to the defendant no. 1 by the defendant no. 2. She had paid during her life time the full consideration of Rs. 19,497/- at the rate of Rs. 65/- per square yard, the rate at which had been allotted to her in the first instance".
Para 14 : "That on 26/06/1988, the plaintiff noted that a havan (bhoomi poojan) was being performed at the site pf the plot allotted to and owned by Late Smt. Dhan Devi Kapoor i.e Plot No. 11/10. The plaintiffs were surprised and on further enquiry it transpired that the plot in question had been allotted to the defendant no. 3. The plaintiffs could not comprehend this thing. They could not understand as to the plot which was owned y Late Dhan Devi..." .
9.3.4 It is apparent from the above paragraphs that there is no whisper of averment qua possession of the suit property. It is merely averred that the suit property has been allotted to Late Smt. Dhan Devi, who has paid the consideration amount. The allotment of a plot would not imply that the party automatically came in the possession of the suit property. If it is to be so interpreted, it would lead to a legal anomaly where a party would come into possession of an immovable property without being endowed with the right, title or interest over the suit property. In the present facts, there is not a single positive averment in the entire plaint that the plaintiffs were in possession of the suit property. In fact, the assertion of possession is belied from plaintiff's own stance taken at the time of disposal of the interim injunction, as recorded in the order dated 03.03.1989 of the Hon'ble High Court of Delhi. Vide the said order the Hon'ble Court had permitted the construction on the plot by the defendant no. 3 in light of the undertaking given before the court CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 18 of 34 and furthermore the defendant was restrained with "transferring or parting with possession of building being constructed on the plot".
Plaintiffs cannot blow hot and cold on the aspect of possession. The claim of the plaintiffs that they are in "deemed possession"
does not align with the jurisprudence on possession. The mere fact that the plot has been allotted to Smt Dhan Devi Kapoor would not confer "possession" upon the plaintiffs. It is a settled law that possession consists "corpus possessionis" and "animus possidendi". The former envisages the power to use the property qua which the possession has been given and existence of grounds for the expectation that the possessor's use shall not be interfered with, while the later incorporates the intent to appropriate to oneself the exclusive use of the thing possessed. The moment it is admitted that the suit premises is being constructed upon by the defendant no. 3 (and presently stands constructed), the pivotal aspect of "corpus possessionis" cannot be said to exist. It can by no stretch of factual interpretation be said that the alleged possessor/plaintiffs are enjoying the property to the exclusion of other. The plaintiff exercises no control whatsoever over the property concerned and hence is not in a position to exclude the others from interference. Accordingly, when the case of the plaintiffs is seen through this jurisprudential prism there remains no doubt that the plaintiff was never in possession of the suit property. Once it is shown that the plaintiff is not in possession of the suit property, a simpliciter suit for declaration of title without seeking possession was not maintainable. (See: Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust vs. Chandran and Ors. (2017) 3 SCC 702 and Vinay Krishna vs Keshav Chandra 1993 Supt (3) SCC 129).CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 19 of 34
9.3.5 The reliance placed on Akkama & Ors. Vs. Vemavathi & Ors. shall not come to the aide of the plaintiffs. It has been rightly argued by the Ld. Counsels for the contesting defendants that the facts in Akkama (supra) is distinct from the present facts on the ground that the factum of possession was specifically pleaded in that case in contradistinction to the present facts, where the only time the factum of possession finds mention is in the evidence affidavit of the plaintiffs witness. Plaintiffs could not have sought to prove a fact which was not pleaded and is hence is hit by the most fundamental principles of civil procedure that a party cannot be allowed to prove beyond its pleadings. Hence, it may be concluded that the simpliciter relief of declaration in the absence of possession is not maintainable.
9.3.6 In addendum, the plaintiffs has even otherwise failed to establish that they were entitled to be declared as owners of the suit property. It is an admitted case that the allotment made to Late Smt. Dhan Devi never culminated into the execution of lease deed. The suit property has been perpetually sub-leased to defendant no. 1 society, who were further endowed with the power to sell or transfer to the members of the society. It is this sell or transfer to the party, which could have conferred title. The proof of independent title by way of transfer would have required documentary proof as per the Transfer of Property, Act. Nothing more, nothing less. The plaintiffs have not brought any documentary proof to show transfer of title, much less the documents mandated as per the Transfer of Property, Act. It is their case that the allotment in itself would confer the title to the suit property. The said contention is not sustainable in the eyes of law as it fails to meet the legal standards set by the Transfer of CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 20 of 34 Property, Act. The said view is fortified by the judgment of the Hon'ble High Court of Karnataka in Smt. Adhilakshmi & ors. Vs Shree Chidanand RFA no. 764 of 2010 filed by the defendant no.3, wherein the Hon'ble Court observed qua the facts therein:
"Even though the property has been allotted in favour of K.Thippanna, he died before its registration and subsequently after making necessary payment to the authority, the property has been transferred to the wife of the original allottee. Therefore, the said property becomes absolute property of Lakshmamma in terms of Section 8 of Hindu Succession Act. As such, it can be inferred that Lakshmamma is the absolute owner of the property. Mere allotment of the property in favour of K.Thippanna without its registration does not confirm any title over the said property."
9.3.7 The upshot of the above discussion is that the plaintiffs could not have claimed the ownership of the suit property in the absence of execution of the perpetual lease, as per law.
9.4 Declaration as to nullity of lease and Injunction qua execution of lease with the claimants 9.4.1 In addition to their relief for declaration as to ownership, the plaintiffs have also claimed declaration as to illegality and void nature of the sub-lease executed in the name of defendant no. 3 by the defendant no. 1. It is their case that the original allotment made in the name of Late Smt. Dhan Devi Kapoor was illegally cancelled and allotted to defendant no. 3.
9.4.2 It is the contention of the defendant no. 3 qua the maintainability of this relief that the plaintiffs have failed to challenge the cancellation of the allotment or seek any appropriate relief qua the same. It is argued that since the said relief has not been prayed, the same cannot be granted by this court. In this regard reliance has been placed upon Bachhaj Nahar vs Nilima Mandal & Anr. (2008) 17 SCC 491 and Amelia Lalitha vs. Konda Hanumantha Rao & Anr. 2022 SCC Online SC 928. In addition the CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 21 of 34 contesting defendants have defended the allotment made in favour of Defendant no. 3 on the strength of following facts:
That the LR's of Late Smt. Dhan Devi Kapoor were not eligible to become members of the Defendant no. 1 society and as a consequence the plot cannot be allotted to the LR's.
The LR's have failed to make payment of the balance consideration amount.
9.4.3 Although not argued, it would be pertinent to clarify that relief of declaration in the present form is not hit by the proviso to S. 34 Specific Relief Act, 1963 as it does not seek declaration as to title and even otherwise the further relief in the form of mandatory injunction has been sought in the suit. Next, the contention qua the non maintainability on the ground that allotment has not been challenged is also not sustainable. Plaintiffs herein are seeking the declaration as to illegality of the lease executed in favour of the defendant no. 3. It would be understood that every relief prayed for ought to be based on certain foundational facts, which take the form of cause of action for seeking the said relief. Party seeking the relief is not necessitated to further pray for the grant of these foundational facts. The limited onus is to prove these foundational facts in order to seek the entitlement of relief. In the present facts, the claim of declaration as to nullity of the lease deed is not based on any alien fact and is unequivocally premised on the alleged illegal cancellation of allotment and subsequent allotment to defendant no. 3. The plaintiff was not required to separately seek the relief qua cancellation of allotment, when the said fact was foundational fact or cause of action for seeking the relief of declaration. Hence, the dictum of Bachhaj (supra) and Amelia Lalitha (supra) would not CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 22 of 34 come to the aide of contesting defendant. Surprisingly, it has been argued by the defendant no. 3 that the correctness of the allotment was never put to question and the contesting defendants never had the opportunity to dispute the same. The contention is belied on the face of the record. The majority of cross examination set up and arguments led by the contesting defendants revolves around proving of the fact that the LR's of Smt. Dhan Devi Kapoor were not eligible to become the members of the society and consequently were not entitled for allotment. Needless to say, that these contentions and objections would not have been raised had the allotment itself would have not been put to question. Hence, the contesting defendants cannot claim to be oblivious to the claims qua the allotment. Accordingly, it can be safely concluded that there was no need for separately claiming the relief qua the allotment and the contesting defendants were well aware about the correctness of the allotment being put into question. Thus, the relief of declaration is maintainable.
9.4.4 Now, let us proceed to examine the relief on its merits.
The gravamen of the plaintiff's case is the non compliance of the procedure by the defendant no.1 society in cancellation and subsequent allotment of the suit property. In order to appreciate the contention of the plaintiffs, it would be profitable to reproduce the relevant law touching upon the facts in issue:
Section 26 of the Delhi Co-operative society Act: (1) On the death of a member a cooperative society may transfer the share of 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 of legal representative, as the case may be, a sum representing the value or such CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 23 of 34 member's share or interest as ascertained in accordance with the rules or bye-laws:--
Provided that -
i. in the case of a cooperative society with unlimited liability, such nominee, heir or legal representative, as the case may be, may require payment by the society of the value of the share or interest of the deceased member ascertained as aforesaid:
ii. in the case of co-operative society with limited liability, the society shall transfer the share of 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 society or on his application within one month of the death of the deceased member to any person specified in the application who is so qualified;
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 cooperative society shall, subject to the provisions of section 36 and unless within six months 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 Society.
(3) All transfers and payments made by a co-operative society in accordance with law provisions of this Section shall be valid and effectual against any demand made upon the society by any other person."
Rule 35 of the Delhi Co-operative Society Rules provides as under:--
"...(6)(i) Where a member of a co-operative society has not made any nomination, the Society shall, on the member's death, by public notice exhibited at the office of the society invite claims or objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice.CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 24 of 34
(ii) After taking into consideration the claim or objections received in reply to the notice or otherwise, and after making such inquiries as the committee considers proper in the circumstances prevailing, the Committee shall decide as to the person who in its opinion is the heir or the legal representative of the deceased member and proceed to take action under Section 26, subject to any appeal which may be filed to the Registrar by any person claiming the share or interest of deceased member within 30 days of the decision of the committee. The orders of the Registrar on such appeal shall be final and binding upon all concerned.
(7) If the Committee refuses to transfer the share or interest of the deceased member to his nominee or his successor-in-interest, or fails to take a decision on the application of such nominee of the successor-in-
interest as the case may be within 30 days of the date of such refusal or the date of such application, a nominee or any person claiming to be a successor-in-interest of the deceased member shall file an appeal to the Registrar, who after hearing the society and the applicant or any other person interested, shall pass such order as he may deem fit and on such condition as he may impose and order made by the Registrar shall be final and binding on all concerned."
Rule 25: Disqualification for Membership :
"(1) No person shall be eligible for admission as a member of a Cooperative society if he-
...(c) in the case of membership of a housing society:
(i) he owns a residential house of a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the Union Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or feeehold basis provided that disqualification as laid down in sub-rule (1)(c)
(i) shall not be applicable in case of persons who are only co-sharers of joint ancestral properties in congested localities (slum areas) whose share is less than 65.72 sq.meters (80 Sq. Yards) of land;CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 25 of 34
(ii) he deals in purchase of sale of immoveable properties either as principal or as agent in the Union Territory of Delhi; or
(iii) he or his spouse or any of his dependent children is a member of any other housing society, except otherwise permitted by the Registrar. (2) Notwithstanding anything contained in the rules or the bye-laws of the co-operative society, if a member becomes, or has already become, subject to any disqualifications specified in sub-rule (1) he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred...
Rule 28: Prohibition of membership in two co-operative societies- No individual, being a member of a primary co-operative society of any class shall be a member of any other co-operative society of the same class without the general or special permission of the Registrar, and where an individual has become a member of two co-operative societies of the same class either or both of the co-operative societies shall be bound to remove him from membership upon written requisition from the Registrar to that effect.
Relevant excerpts of the Bye-laws of the Defendant no. 1 society:
5(i) Any person shall be eligible to be a member of the Society provided:
...(d) He is not a member of other house building/group housing society... ...5(ii) Every person seeking membership of the society shall sign a declaration to the effect that he or his wife (she or her husband) or any of his/her dependents does not own a dwelling house or plot in Delhi and that he/she is not a member of any other cooperative house building/group housing society...
...9(1) A member or the nominee or successor of an ex-member may transfer his shares to another member or applicant qualified under bye- law 5 and approved by the Committee or to a share transfer fund created by the society out of its profit and shall then be paid the value of his shares, less any sum due from him to the society. No transfer of share or interest shall however be made unless a member has held such shares for CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 26 of 34 not less than one year but the condition of bye-law 5 will not be applicable to the nominee or legal heir of the deceased member.
9.4.5 S. 26 of the Act envisages the eventuality of the death of the allottee. In such case the share is required to be transferred to the nominee or the legal heir, as applicable. It is an admitted position that the original allottee had not made any nomination. In such a scenario, the allotment was mandated to be transferred to the legal heir or representative of the deceased allottee. The Defendant society has failed to act in accordance with this mandate which has resulted into illegal cancellation of the allotment and subsequent allotment. The reasons for the said observation has been discussed in the ensuing paragraphs.
9.4.6 The Act and the corresponding Rules puts a positive onus on the Society to ensure that upon the death of the original allottee the property is transferred to the legal heir or representative. The nature of positive onus can be gauged from S. 26 of the Act and the Corresponding rule 35(6)(i). S. 26 requires that the property should be transferred to such person as "may appear to the committee" to be heir or representative of the deceased allottee. Clearly, the society was duty bound to carry out the exercise of finding out the legal representative or heir of Late Smt. Dhan Devi Kapoor. Rule 35(6)(i) and (ii) elaborates the manner in which the said inquiry is to be conducted. It directs the society to invite claims or objections for the proposed transfer of the share by a public notice exhibited at the office of the society.
Upon following this procedure the "Committee shall decide as to the person who in its opinion is the heir or the legal representative of the deceased member and proceed to take action under Section 26". These rules have been given a complete miss by the society. In CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 27 of 34 the present facts, in order to prove the compliance of the Rule 35(6)(i) the defendant no.1 has relied upon Ex. DW-1/I and DW-1/J, which is newspaper publication. The extract of English newspaper/Ex. DW-1/I is reproduced below:
"The legal heirs of late Smt. Dhan Devi Kapoor w/o Late Lala Sant Ram are hereby requested to contact the sarvapriya cooperative house building Society Limited, 15/9A, basement, Sarvapriya Vihar, New Delhi - 110016, for settlement of deposits, etc with the society within 15 days of this notice. The claim must be accompanied by succession certificate..."
9.4.7 It does not require any meticulous appreciation to come to the conclusion that the above said notice is defective and not in accordance with the requirement of the rule. The law mandates issuance of notice for the purposes of inviting claims or objections for the transfer of share of the deceased allottee. Whereas, the notice issued by the defendant society merely calls the LR's for settlement of dues. The intent of the public notice is further demonstrated in letter of the society Ex. DW-1/DX-3, the letter goes on to record that the notices were published "so that her deposits with the society could be reimbursed to him/them". Clearly, this is in complete disregard to the statutory obligation casted upon the Society. The notice was thus defective and cannot be taken to be in compliance of the above said rule. The illegality doesn't end here. Admittedly, the defendant society had asked for obtaining the succession certificate from the LR's (see paragraph no. 13 of the evidence affidavit of DW-1). However, for unexplained reason or cause, the defendant society didn't even wait for the certificate to be produced and went on to cancel the allotment. One of the objections taken by the society is the delay and non payment of complete consideration amount by the CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 28 of 34 Plaintiffs. However, there was no occasion for the plaintiffs to pay the balance consideration amount. It is only once the LR's of the deceased allottee have been identified after the exercise followed in the above said rule, could the question of payment of consideration amount have been raised. There can be no question of payment, if the society had failed to ascertain by whom it is to be paid. Interpreting otherwise, would turn the statutory scheme on its head. Similarly, the defendant society cannot shrug off its responsibility to conduct inquiry and expect the claimants to file affidavit on the point of inquiry. There was no onus upon the claimants to take steps within 30 days from the date of the death of the original allottee. The second proviso to s. 26 of the Co- operative Society Act shall come into play only when the LR's/nominee intends to transfer their share, which is not the case in the present facts.
9.4.8 Next, it is the objection of the contesting defendants that the legal heirs of Late Smt. Dhan Devi were not entitled to be members of the society or for allotment of the plot. It is their case that all legal heirs of Late Smt. Dhan Devi were already in possession and ownership of other properties and hence were not eligible to be members of the society and consequent allotment. (See: Rule 25 of the Delhi Co-operative Society Rules, 1973). There is no gainsaying that legal heirs were required to be qualified for being members of the society, as per the rules and bye-laws of the society. Per contra, it is the argument of the plaintiffs that the legal heirs are entitled for allotment of the suit property. It is his case that all the legal heirs were not having alternate plots in Delhi and even otherwise the disqualification prescribed under Rule 25 is not attracted in the case of inheritance.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 29 of 34Reliance in this regard has been place upon the judgment of the Hon'ble High Court in the case of S.K Tandon vs The Registrar of Co-operative Society 69 (1997) DLT 632. There is merit in the submission of the plaintiffs, the reasons have been discussed henceforth.
9.4.9 It would be understood that the present facts concerns devolution by way of inheritance of a plot allotted to a deceased member of the society. The limited issue which arises is whether the allotment by way of inheritance would attract the bar enshrined in Rule 25(1)(c). The issue has been answered in succinct and categorical manner by the Hon'ble High Court in the case of O.P. Sethi vs. The Lt. Governor and Ors. (05.08.1991 - DELHC) :
MANU/DE/0678/1991, wherein the Hon'ble Court observed:
"1) We are of the considered view that Rule 25(l)(c) is attracted in those cases where the properties are held benami. Having come to this conclusion, there seems to be little difficulty in holding that the said rule cannot apply in the cases where properties are acquired by transmission/devolution. We feel that Rules 25 and 35 of the said Rules have to be read in different contexts. The former takes care of the cases of acquisition of membership or its transfer and the latter the cases of transmission etc. The view, which we have taken, we feel, will give a harmonious construction to the provisions of the said Rules and bye-laws, referred to above. A contrary view, in our opinion, will not only make bye-law 9 redundant but may also lead to unreasonable and anomalous results. For example, member on being granted membership of a housing co-operative society constructs a house on the plot subleased in his favor. He registers his only heir as his nominee. During his life time the said heir also himself/herself acquires a residential house of a plot of land for construction of residential house. It will be extremely unreasonable if on the death of the member, the said heir is told that he/she having incurred disqualification as per rule 25, membership and property of the deceased could not be transferred in his/her favor. More so when the Act, the Rules and the bye-laws are silent on the question as to what will happen to the property after the death of the member in such a situation. We feel the latter part of bye-law 9 is intended to take care of such a situation."CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 30 of 34
9.4.10 The sum and substance of the above discussion is that when the allotment is by way of inheritance, the bar under Rule 25(1)(c) shall not come into play. Any interpretation otherwise (as suggested by the contesting defendants) would lead to following legal and logical follies:
Frustration of the testamentary succession qua such allotment.
Rendering the latter half of the Rule 9(1) of Bye-law of the defendant society otiose. The said rule, inter-alia, reads as:
"No transfer of share or interest shall however be made unless a member has held such shares for not less than one year but the condition of bye-law 5 will not be applicable to the nominee or legal heir of the deceased member."
9.4.11 The above said interpretation as observed in O.P. Sethi (supra) is also in consonance with the existing rule post its amendment by virtue of which the rule has been qualified by an exception: "Provided also that the disqualification as laid down in sub-rule (1)(c)(i) shall not be applicable in case of a person who is already a member of a cooperative housing society/group housing society, if subsequent to becoming such member he inherits/acquires, by transmission/devolution, any property in the National Capital Territory of Delhi." Needless to mention, that there cannot be a retrospective application of the said proviso, however it can be safely taken to be the validation of the legislative intent as prescribed in O.P. Sethi (supra). In the present facts, the claimants being the legal heirs of Late Smt. Dhan Devi would be duly protected by the dictum of O.P. Sethi (supra) and would not attract the bar of Rule 25(1)(c). In addendum, the rule does not envisage an automatic disqualification. In order to claim that the CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 31 of 34 Legal heirs were disqualified, the rule 25(4) mandates an order of the Registrar. The defendant society on its own motion could not have declared or disqualified the membership of the legal heirs.
9.4.12 It would be pertinent to record that the Ld. Counsel for the Plaintiff has objected to the documents exhibited by DW-1 on the ground that it has not been executed by the witness. The objection of the plaintiff is misconceived, there is no embargo in proving of a document by a non executant. The said witness is stated to be Manager of the defendant no. 1 society, there is no prohibition of a witness deposing from his own knowledge derived from the record. It is a settled law that the document can be proved by a witness who can vouchsafe for the truth of the facts in issue. (See: Ramji Dayawala v. Invest Import: AIR 1981 SC 2085). The fact that the witness had joined the society after the date of transaction would also have no bearing. It would be ridiculously impractical to expect in such setup that only those witnesses could be allowed to depose who were present at the time of transaction or were executant. Hence, there is no irregularity in the manner of proving of the documents.
Conclusion 9.4.13 The claimants have successfully been able to show that the allotment of the suit property has been illegally cancelled by the defendant no. 1 society, without following the procedure prescribed by law. As sequitur, the act following the illegal cancellation i.e subsequent act of allotment to defendant no. 3 and execution of lease would automatically be a nullity in the eyes of law. However, the claimants could not have sought protection qua interference with the suit property without actually having the possession or right on the property. As discussed above, the CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 32 of 34 claimants are not in possession of the suit property. The right qua the suit property for possession and protection of this possession would accrue only once the sub-lease is executed in favour of the claimants. Moreover, a relief of simpliciter permanent injunction (not mandatory injunction, see para 13 of the Anathula (supra)) could not have been sought in the absence of possession. (See: Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 (Appeal (civil) 6191 of 2001). No relief is made out qua prayer clause (iii).
9.4.14 Issue no. 3 is decided against the plaintiffs/claimants and in favour of the contesting defendants.
10. Relief:
In light of the categorical findings as discussed above, the plaintiffs shall be entitled for the following relief:
A) The lease executed and registered in the name of defendant no. 3 by defendant no. 1 is null and void. Issue no. 1 is decided in favour of the plaintiffs/claimants to this limited extent.
B) Defendant no. 1 and 2 shall facilitate the execution and registration of sub-lease of the suit property in favour of the Legal Representatives of the Late Smt. Dhan Devi Kapoor.
The execution shall be subject to payment of the balance consideration amount by the legal heirs after deduction of the admitted amount of Rs. 1,545/-. It is clarified that the actual individual share of the legal representatives over the suit property shall be determined as per the Hindu Succession Act and the present order will not tantamount to partition of share (as prayed in the prayer clause b). Issue no.
CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 33 of 342 is decided in favour of the plaintiffs/claimants and against the contesting defendants, in the above said terms.
C) All interim application(s) stand dismissed as infructuous.
11. No order as to costs.
12. Decree sheet be prepared accordingly.
13. The original documents filed by the parties be returned against due acknowledgment after filing of the certified copies of the same by the concerned parties, as per rules.
14. File be consigned to Record Room after due compliance.
Digitally signed by Announced in open KAUTUK KAUTUK BHARDWAJ BHARDWAJ Date: 2025.02.13 court on 13.02.2025 16:58:28 +0530 (KAUTUK BHARDWAJ) CIVIL JUDGE-03/WEST THC/DELHI/13.02.2025 CS SCJ 607011/16 RAJKUMAR KAPOOR Vs. SARVAPRIYA CO. HOUSE BUILDING Page 34 of 34