Delhi District Court
Punit Beriwala vs Raj Kumar Kapur Deceased And Others on 1 September, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
DISTRICT JUDGE-06, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
RCA DJ No.17/2025
CNR No.DLST01-003031-2025
Punit Beriwala,
S/o shri Shyam Sunder Beriwala,
R/o 10/11, Sarvapriya Vihar,
New Delhi 110016. ....Appellant
(original defendant no.3)
VERSUS
1. Raj Kapur (deceased) ....Respondent no.1
(original plaintiff no.1)
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) ....Respondent no.2
(original plaintiff no.2)
Page 1 of 186
through his LRs:
a)Ranjan Kapur (son, deceased),
through his respectivbe 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 alte Sh. S.P. Kapur
R/o D-1052, New Friends Colony,
New Delhi. ....Respondent no.3
(original plaintiff no.3)
4. Mr. Subhash Chopra ....Respondent no.4.
S/o late Ram Nath Chopra (original plaintiff no.4)
R/o 104-A, Sarvapriya Apartment,
Sarvapriya Vihar, New Delhi 16.
5. Smt. Shankuntla Bhnadari (deceased) ....Respondent no.5
through her legal heirs: (original plaintiff no.5)
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.
Page 2 of 186
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.
6. Sh. Sunil Kapur ....Respondent no.6
S/o late Sh. Ram Kumar Kapur (original defendant no.4)
R/o 704, Sea Green, 7 Banglow,
Varsova, Andheri, Mumbai.
7. Sh. Krishan Kumar Kapur (deceased) ....Respondent no.7
through his legal heir: (original defendant no.5)
a)Smt. Gita Khorana (daughter)
Naggarjuna Apartments, C Block,
5th Floor, Mayur Kunj, Delhi 96.
8. Sh. S.P. Kapur (deceased) ....Respondent no.8
through his legal heirs: (original defendant no.6)
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.
9. Sarvapriya Cooperative House ....Respondent no.9
Page 3 of 186
Building Society Limited. (original defendant no.1)
13/8 (15/9A), Basement,
Sarvapriya Vihar, New Delhi 16.
10. DDA Cooperative Societies Cell, ....Respondent no.10
Vikas Sadan, INA Market, (original defendant no.2)
New Delhi.
Date of Institution : 27.02.2025
Date of Judgment : 01.09.2025.
JUDGMENT
1. This Court shall strive to decide and dispose off the captioned appeal filed by the appellant-original defendant no.3 (herein after referred to as appellant/ defendant no.3) impugning the judgement and the decree dated 13.02.2025 passed by the Ld. Civil Judge 03/WEST/THC/DELHI in Suit No. 607011/2016 (Titled Shri Raj Kumar Kapur & Ors. Vs. Sarvapriya Cooperative House Building Society Limited & Ors).
2. The original suit was filed in the year 1988 and was decreed by the Ld. Court of the Civil Judge 03/WEST/THC/DELHI on 13.02.2025. The contesting parties have undergone a long period of 37 years while contesting the suit under appeal.
3. In the interest of justice, this Court hereby deems it appropriate and necessary to capture all the necessary facts, circumstances, submissions and arguments of the contesting parties and state them in its judgement.
Page 4 of 186BRIEF FACTS
4. The present appeal was received by this Court which was checked and registered vide order dated 27.02.2025. The appeal was put up for consideration on 06.03.2025, which was adjourned for 12.03.2025.
5. On 12.03.2025, this Court did not assemble, and the appeal was accordingly fixed for 25.03.2025, and thereafter for 29.03.2025. On 25.03.2025, the Ld. Counsel for the appellant and the Ld. Counsels for Respondent numbers 1(A) and 6 were present before this Court. The Ld. Counsels for the parties apprised this Court that the suit was filed in the year 1988, and after a long litigation of 37 years, the suit was decided and disposed off by the Court of the Ld. Civil Judge vide its judgement dated 13.02.2025.
6. The parties, through their Counsels, requested this Court to hear and decide the present appeal expeditiously.
7. The Hon'ble High Court of Delhi at New Delhi vide its order dated 10.07.2025 passed in CM(M) 1196/2025 titled as Gita Khorana Vs Punit Beriwala & Ors directed this Court to make best endeavors to dispose of the appeal, in accordance with law, as early as possible.
8. An interim application seeking a stay on the operation of judgement and decree dated 13.02.2025 was filed along with the appeal.
9. After hearing the arguments of the parties, the Interim application seeking stay on the operation of the impugned judgement and decree dated 13.02.2025 was allowed by this Court vide its order dated 31.05.2025. The appellant was also directed to furnish a security Page 5 of 186 of Rs 25,00,000/- (Rupees Twenty Five Lac) by way on an interest yielding FD, which was to be attached, till the final disposal of the appeal. The earlier given undertakings were directed to remain in operation till the disposal of the appeal.
10. It is the case of the appellant that he is the rightful owner of Plot No. 10/11, Sarvapriya Vihar, New Delhi, by virtue of legally and validly executed and registered sale deed in his favor in the year 1988. In the appeal, and the accompanying application, it was submitted by the appellant that he has constructed his residence on the plot (suit property) in the year 1988 and has been residing therein with his family for the last 37 years.
11. The original suit was filed by the respondents-plaintiffs (also referred to as original plaintiffs/ respondents no. 1 to 8) claiming themselves to be legal heirs of one Lt. Smt. Dhan Devi Kapoor and seeking a declaration that late Smt. Dhan Devi Kapoor was the original owner of the suit property being Plot No. 10/11, Sarvapriya Vihar, New Delhi.
12. A further consequential relief was prayed that the said respondents-plaintiffs being the legal heirs are entitled to be substituted in her place in the records of Society (Respondent No. 9/ Society/ defendant no.1 in the suit) and DDA, (Respondent No. 10 herein/ defendant no.2 in the suit), and as a consequence a further relief was sought for declaring the sub-lease validly executed and registered in favour of the Appellant/Defendant No.3 as null and void and not binding on them.
Page 6 of 18613. A further relief of mandatory injunction was also seeking directions to the Society and DDA to execute a sublease in the favour of the respondents-plaintiffs, and permanent injunction against the Appellant/Defendant No.3 and respondent Nos. 9 & 10 from interfering and claiming any right in the suit property.
14. It was submitted on behalf of the appellant that the impugned judgement and decree dated 13.02.2025 was passed by the Court of the Ld. Civil Judge-03, West District, Tis Hazari Court without application of judicial mind, and is wrong, illegal, perverse and is liable to be reversed and set aside.
15. As submitted by the Ld. Counsel for the appellant, the impugned judgement and decree dated 13.02.2025 suffers from misconstruction of law and facts and contains contradictory findings. It has been submitted on behalf of the appellant that the impugned Judgement allegedly holds that the suit filed by Respondents-original plaintiffs is not maintainable.
16. The Appellant states that he is residing at the subject property with his family for the last 37 years and the relief granted in the impugned Judgement and decree has caused immense prejudice and harm to the appellant.
WRITTEN SUBMISSIONS/ ARGUMENTS ON BEHALF OF THE APPELLANT AND RESPONDENT NO. 9 (SOCIETY) WHICH HAVE BEEN RE-PPRODUCED IN VERBATIM, IN THE INTEREST OF JUSTICE:
Page 7 of 18617. It has been submitted and argued on behalf of the appellant as follows.
18. The present appeal has been preferred by the appellant (Defendant No.3) against Judgement and Decree dated 13-02-2025 passed by Civil Judge, 03/West/THC/Delhi in Suit No. 607011 of 2016. The appellant herein was the original Defendant No. 3 in the said suit proceedings. The Ld. Trial Court Judge in the impugned Judgement and order has clearly held that the suit filed by the Plaintiffs (Contesting Respondents 1 to 8 herein) is not maintainable and has further held that the Plaintiffs' claim of ownership of the suit property was not maintainable and the Plaintiffs could not have claimed ownership of the suit property in the facts of the present case. The Ld. Trial Judge has further held that mere issuance of an allotment letter by the Society does not confer any right and title over the property in favour of the Plaintiffs.
19. However, in spite thereof the Ld. Trial Judge has erroneously proceeded to pass a decree against the appellant holding the validly executed and registered Lease Deed in favour of the Appellant as null and void and further decreeing that the Lease Deed be executed in respect of the said property of the Appellant in favour of the respondents-plaintiffs.
20. The respondents have claimed that Late Smt. Dhan Devi Kapoor, a member of the Society, was allotted a plot in Sarva Priya Vihar by the respondent Society. However, no details of date of allotment have been produced or placed on record till date.
Page 8 of 18621. As submitted, It is a matter of admitted fact that no lease deed was ever executed in favour of Smt. Dhan Devi Kapoor. It was only stated that a plot has been earmarked in her favour, which was to be read in conjunction with the terms and conditions as envisaged in the offer letter/ agreement (not placed on judicial record till date).
22. It may be relevant to mention here that all members, at the time of so becoming members were required to sign and deposit a membership form and undertaking wherein it is clearly stipulated that:
"I understand further that the actual transfer of plot in my favour will be affected only after the full cost of land including development charges have been paid by me." (Pg 209 of the appeal)
23. The respondents have filed their claim as Legal Heirs on the strength of the alleged allotment of the suit property in favour of Smt. Dhan Devi Kapoor by the Society.
24. As per the pleadings and the facts of the case at hand, Smt. Dhan Devi Kapoor passed away on 12.04.1980 before the sub-lease for the said suit property was executed in her favour.
25. The Ld. Counsel for the appellant has stressed upon the fact that it may be relevant to mention here that prior to her death Smt. Dhan Devi Kapoor had not paid the total cost for the plot and balance was due, hence the agreement stood frustrated as per the Doctrine of Frustration.
26. Therefore, at the time of her death Smt. Dhan Devi Kapoor was not the owner of the suit property. Hence, she had no immovable property which could have been inherited by her Legal Heirs. The plot in question was only earmarked for allotment subject to Smt. Dhan Page 9 of 186 Devi Kapoor paying, clearing the entire dues and demands towards the said plot.
27. As submitted on behalf of the appellant, in the present case the ownership of the said plot had not been transferred to her. She was only entitled to get the suit property registered in her favour, provided the entire consideration was paid and she met the criteria for execution of the sub-lease as per the by-laws of the Society.
28. It has also been submitted on behalf of the appellant that Lt. Smt. Dhan Devi Kapoor was not the owner of the plot, at the time of her demise, and didn't have any title to the suit property which is also evident from the fact that the respondents also sought a prayer for getting the sub-lease executed in favour of the Legal Heirs in the present suit.
29. It has been averred further that after issuance of the allotment letter, Lt. Smt. Dhan Devi Kapoor had made part payment of a sum of Rs.19,497/- towards the price of the said plot. No lease was executed, nor the plot was handed over to late Smt. Dhan Devi Kapoor. Smt. Dhan Devi Kapoor expired on 12.04.1980.
30. As averred, this fact of her death was not informed by any of the respondents-plaintiffs to the Society and the DDA, even though one of the heirs, namely, Maharaj Kapoor, Original Plaintiff No. 2 (since deceased, represented through his L.Rs.) was a member of the Managing Committee of the Society.
31. The Society addressed letters dated 31.05.1981 15.06.1981 (Page No. 270) and 25.08.1982 to Smt. Dhan Devi Kapoor seeking Page 10 of 186 payment of balance amount of Rs.10,953/- towards total cost of plot within 15 days. However there was no response to the above letters till 1983 when the original Plaintiff Nos. 1 & 2 vide letter dated 07.02.1983, i.e. three years after the death of the original allottee, and in a belated response to the Society's said letter informed the Society regarding Smt. Dhan Devi Kapoor's demise.
32. It was further stated in the said letter that there were seven legal heirs of late Smt. Dhan Devi Kapoor. A cheque for Rs.1,565/- being 1/7th share of the said outstanding amount was attached with the said letter and it was stated that the remaining heirs will also make payment towards their respective shares towards the outstanding balance amount. (Page No. 271 & 272).
33. Thereafter, as submitted, began a series of exchange of letters between the Society and the respondents-plaintiff Nos. 1 & 2 seeking payment of the dues and submission of a succession certificate in their favour. It is pertinent to note that despite assuring that the legal heirs of Smt. Dhan Devi Kapoor will pay their corresponding share towards the dues, no such payment was made by any other purported legal heir.
34. In fact, due to the persistent inaction on the part of the respondents-plaintiffs, claiming themselves to be heirs and LRs of Smt. Dhan Devi Kapoor, a show cause notice was issued by DDA on 21.05.1984 to Smt. Dhan Devi Kapoor to get the sub-lease executed within 30 days or the allotment shall stand cancelled and the plot will be reallotted (letter at Page No. 273).
Page 11 of 18635. Despite responding to such notice, the respondents-plaintiffs failed to clear the pending dues and complete other formalities. Original Plaintiff No. 2 sent another letter on 19.06.1984 to the Society again stating that the purported Legal Heirs will clear their respective share of the dues and also gave another list of Legal Heirs. However, after this neither the dues were paid nor a succession certificate was produced.
36. The respondents-plaintiffs went radio silent. For six long years the respondents-plaintiffs failed to pay the balance amount and fulfil the necessary formalities. Despite the Society calling upon the Legal Heirs to produce a Succession Certificate as to the details of the legal heirs and legal representatives of deceased Smt. Dhan Devi Kapoor who died in 1981, the respondents-plaintiffs could not, and did not produce any Succession Certificate.
37. However, the respondents-plaintiffs informed the Society that they have applied for obtaining Succession Certificate on 08.10.1986 but no such Succession Certificate or Letters of Administration was obtained and submitted by the respondents-plaintiffs to the Society.
38. It is an admitted fact that even as on date no such Succession Certificate or Letters of Administration has been obtained.
39. Having received no payment towards the pending dues of Smt. Dhan Devi Kapoor for over six years, and having not received any Succession Certificate, the Society informed DDA that Smt. Dhan Devi Kapoor passed away without leaving behind any nominee and further action was to be taken.
Page 12 of 18640. On 31.01.1987 the Society issued a public notice calling upon the legal heirs of Smt. Dhan Devi Kapoor for the settlement of their deposits. The public notice clearly stated that the claims should be accompanied by a succession certificate. Thereafter the Society requested the DDA to cancel the allotment and to release the plot earmarked for Smt. Dhan Devi Kapoor for further allotment. Finally, on 11.04.1988 DDA cancelled the allotment in favour of Smt. Dhan Devi Kapoor (Page No. 220).
41. The Appellant herein is also an original member of the Society. The Share Certificate was issued by the Society in favour of the Appellant (Page No. 244). The Appellant's first preference was to have a plot allotted to himself as he has a large family, however, he was allotted a flat instead.
42. The appellant at the time of accepting the flat had informed the Society that he would surrender his flat immediately if a plot would become available in the future. The appellant apart from making enquiries also wrote letters to the Society that a plot may be allotted to him.
43. The appellant was in constant communication with the Society by way of letters in this respect. The Appellant wrote letters dated 27.09.1987 (Pg 252) and 02.03.1988 (Pg 256) seeking allotment of plot and gave his readiness to surrender his flat.
44. The Society responded by its letter dated 01.10.1987 (Pg 254). The appellant since the very beginning wanted a plot and was diligently following it up with the Society unlike the heirs of Smt. Dhan Devi Kapoor. Finally, the Society vide a letter dated 15.04.1988 Page 13 of 186 recommended to DDA the appellants name for allotment of the plot No. 10/11, Sarva Priya Vihar, New Delhi, previously earmarked for Smt. Dhan Devi Kapoor.
45. Such recommendation made by the Society was accepted by the DDA and by a letter dated 03.06.1988 DDA informed the Society about the approval and allotment of the said plot in favour of the Appellant (Pg 280). Thereafter, on 09.06.1988 a Sub-Lease was validly executed and registered in favour of the Appellant by the DDA (Pg 283).
46. The appellant from the very beginning had given a preference for a plot. While accepting his flat, he again stated that he would surrender the flat once the plot becomes available and the flat was never used.
47. As submitted, the society rightly weighed in needs of all its members. On the one hand there were respondents-plaintiffs who were dragging their feet in clearing the dues regarding the plot and on the other hand was another member of the society who was waiting for a plot to become available.
48. The society had been pursuing the matter of clearance dues since 1981 and finally in 1988 the allotment was cancelled and the process of re-allotment was started.
49. It has been submitted that even otherwise the preliminary finding of the Hon'ble High Court of Delhi in the interim order is not binding on this Court. The Hon'ble High Court in the said order clearly stated that the expression of opinion in this order is prima facie and will not affect the rights and contention of the parties to the suit.
Page 14 of 18650. After the execution and registration of the Lease Deed and handing over of the plot by the DDA to Appellant in June 1988, the appellant obtained sanction for construction and started construction at the plot in June 1988. It is thereafter that the respondents-plaintiffs suddenly woke up from their slumber and instituted the suit seeking the following reliefs:
(i) A decree for a declaration to the effect that Shrimati Dhan Devi Kapoor was the rightful owner and allottee of Plot No. 10/11 in village Serai Shah Ji, now known as SarvaPriya Vihar, New Delhi, and that after her death the plaintiffs No. 1 to 5 and the defendants No. 4 to 8 being her heirs and legal representatives are entitled to be substituted in her place in the records of the defendants No. 1 and 2 and a sub-lease executed and registered in the name of defendant No. 3 by the defendant No. 1 is illegal void and of consequence whatsoever and not binding on the plaintiffs No. 1 to 5 and the defendants No. 4 to 8.
(ii) A Mandatory Injunction be issued to the defendant No.1 and 2, ordering them to execute and get registered a sub- lease of plot No. 10/11 measuring 290 square yards in village Serai Shah Ji now known as SarvaPrivya Vihar New Delhi in favour of the Plaintiffs No. 1 to 5 and defendants No. 4 to 8 in the ratio of one seventh 1/7th each to the Plaintiffs No. 1,2,4,and 5 and the defendants No. 4 and 5 and one seventh collectively in the name of defendants No. Page 15 of 186 6 to 8 and Plaintiff No. 3 against the payment of the balance sum of Rs.7823.00
(iii) A permanent injunction be also issued restraining the defendants 1 to 3 from in any manner interfering or claiming any right in Plot No. 10/11 Seari Shah Ji now known as Sarva Priya Vihar New Delhi, belonging to the Plaintiff."
51. It has been submitted further that no relief against cancellation of allotment order issued by the DDA dated 11.04.1988 has been prayed for. In fact, there was no pleading in the suit that the cancellation of allotment was bad, arbitrary or illegal. The respondents-plaintiffs were aware of the cancellation when the suit was filed. Assuming though not conceding that the respondents were unaware of the cancellation, they became aware of it soon after filing of the suit.
52. The respondents-plaintiffs did not amend their pleadings and continued with the suit as originally presented. Having failed to challenge such cancellation of allotment by carrying out appropriate amendments of pleading and relief, it does not lie in the mouth of the respondents to argue that the court will have to first consider whether the cancellation was correct or not and if it concludes that such cancellation was illegal or incorrect that the allotment in favour of appellant must go.
53. Since the correctness of the cancellation was never questioned by the respondents, the appellant did not have the opportunity to Page 16 of 186 oppose the same. In fact, the appellant conversely argued before the Ld. Trial Court that, since cancellation of allotment has not been challenged nor any relief of setting aside the cancellation order has been sought, no relief can be granted to the respondents.
54. Further, since the cancellation of allotment remains valid and binding upon the respondents, they cannot question the allotment in favour of the Appellant who was allotted the plot when it became available for re-allotment, in accordance with the due process of law, after it was cancelled.
55. There were neither pleadings on the issue of cancellation nor was any issue framed by the respondents questioning the correctness or legality of the cancellation of allotment. It has been vehemently argued on behalf of the appellant that no issue could have been framed on the issue of cancellation in view of lack of pleadings in this regard.
56. The appellant, the Society (respondent no.9), the DDA (respondent no.10), all of them contested the suit by filing their Written Statements and have lead their evidence.
57. The Ld. Trial Court framed the following issues in the matter:
(i) Whether the Plaintiff is entitled to a decree of declaration as prayed for?
(ii) Whether the Plaintiff is entitled to a decree of a mandatory injunction as prayed for?
(iii) Whether the Plaintiff is entitled to a decree of a permanent injunction as prayed for?Page 17 of 186
(iv) Whether the suit of the Plaintiff is barred by the provisions of the Delhi Cooperative Societies Act?
(v) Relief.
58. Therefore, in view of lack of pleadings on this issue coupled with the fact that no relief has been sought to set aside the cancellation dated 11.04.1988 nor any Issue was framed by the respondents in this regard, the Ld. Trial Court gravely erred in going into the said issue at the stage of final arguments.
59. Challenging the sub-lease executed in favour of the Appellant cannot be stretched to such an extent to mean that the Court subsumes into itself the issue of cancellation of allotment of Smt. Dhan Devi Kapoor. It is pertinent to mention that the cause of action, if any, was between the family members of Lt. Smt. Dhan Devi Kapoor, DDA and the Society.
60. It has been submitted on behalf of the appellant that the plaintiffs-respondents never had any cause of action against the appellant. As such the basic element of any Civil Suit ie 'Causa Causans' has never been triggered in favour of the respondents and against the original defendant no.3 (ie appellant herein).
61. At the time of arguments before the Ld. Trial Court the Appellant had raised various legal objections, namely:
(i) The suit is barred by Section 34 of the Specific Relief Act because while seeking declaration of title/ownership the relief of possession wasn't claimed.Page 18 of 186
(ii) No relief can be granted by the Court which has not been specifically prayed for and no pleadings are there in support thereof. The Plaintiffs did not challenge the cancellation of allotment not sought any prayer in this regard.
(iii) A simpliciter suit of Injunction and declaration without asking for recovery of possession is not maintainable and no such relief of injunction and declaration simpliciter can be granted where the plaintiff is not in possession.
(iv) Suit filed by the Plaintiffs was not maintainable in view of Section 90 of Delhi Cooperative Societies Act, 1972.
They failed to send the mandatory notice prior to filing the present suit.
(v) The Plaintiffs were also otherwise ineligible and stands disqualified to get the sub-lease executed in their favour under provisions of by-laws 5 of by-laws of Defendant Society.
62. It has been argued further that while dealing with the prayer of declaration of title to the suit property the Ld. Trial Court correctly held that a suit for title without seeking the relief of possession is not maintainable. The Ld. Trial Court rightly followed the law as laid interpreted by the Hon'ble Supreme Court in the case Page 19 of 186 of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Vs. Chandran & Ors. reported in (2017) 3 SCC 702 and Vinay Krishna Vs. Keshav Chandra, 1993 Supp. (3) SCC 129 that a suit for title without seeking possession is not maintainable.
63. The Ld. Trial Court rightly rejected the arguments of deemed possession raised by respondents. The Ld. Trial Court held that "the Plaintiffs 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 is not maintainable".
64. The Ld. Trial Judge went on to hold, the Plaintiffs have even otherwise failed to establish that they were entitled to be declared as owners of the suit property.
65. The Ld. Trial Court relying on the judgement dated 07.05.2024 of the Hon'ble High Court of Karnataka in the case of Smt. Adhilakshmi & Ors Vs. Shree Chidanand in RFA No. 764 of 2010 held that the allotment letter does not confer any title.
66. The contentions of the respondents that allotment letter confers title was wholly rejected by the Ld. Trial Court. These findings given by the Ld. Trial Judge have not been challenged by any of the parties to the suit and have therefore attained finality.
67. However, the Ld. Trial Court despite holding the above, failed to dismiss the suit. The Hon'ble Supreme has in the Anathula Sudhakar Vs. P. Buchi Reddy & Ors. reported in (2008) 4 SCC 594, Executive Officer, Arulmigu Chokkanatha (Supra) and Vasantha (Dead) through L.Rs. Vs. Rajelakshmi @ Rajam (Dead) Page 20 of 186 through L.Rs. reported in (2024) 5 SCC 282 has laid down that a suit for title without seeking possession is not maintainable.
68. In all these cases the suits were ultimately dismissed as not maintainable, no further reliefs were granted to the Plaintiffs therein. In Smt. Adhilakshmi (Supra) Hon'ble Karnataka High Court dismissed the suit.
69. However, in the present case, surprisingly despite holding the suit as non-maintainable the Ld. Trial Court not only considers the consequential prayers therein but also decreed a non-maintainable suit for declaration wherein the respondents-plaintiffs have failed to prove their title.
70. Having held that the relief of declaration and injunction cannot be granted and the suit not being maintainable, the Ld. Trial Court could not have proceeded to, or venture into passing a decree declaring the lease deed in favour of the Appellant/Defendant No.3 as null and void.
71. Instead of dismissing the suit as not maintainable the Ld. Trial Court erroneously ventured into examining the prayer of declaration as to, "illegality and void nature of the sub-lease executed in the name of the appellant having already held that the respondents- plaintiffs have failed to establish the ownership in regards to the suit property the Ld. Trial Court could not have gone into the issue of the sub-lease executed in favour of the appellant.
72. The entire suit was premised on the fact that (i) Smt. Dhan Devi Kapoor was the owner of the suit property and therefore being her Legal Heirs, the respondents-plaintiffs were entitled to be Page 21 of 186 substituted in her place as owners and therefore the sub-lease in favour of the appellant is not binding on them.
73. All reliefs were premised on Smt. Dhan Devi Kapoor being declared the owner of the Suit Property. The rest of the reliefs were consequential and dependent upon the first prayer. When the Ld. Trial Court rejected the main relief/prayer, it, respectfully, could not have granted any of the ancillary reliefs that amounted to decreeing a non- maintainable suit.
74. The Hon'ble Supreme Court in the case of Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128 held:
"17. Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation.",
75. Therefore, once it has been held that the suit is not maintainable with regards to the prayer of declaration of ownership and the respondents have failed to prove their ownership then the suit ought to have been dismissed and consequential relief of the sub-lease of the appellant being "null and void" ought to have been also rejected.
76. Consequently, relief of mandatory injunction directing execution and registration of sub-lease in favour of Legal Representatives also could not have been granted, and the same is alien to all established principles of law.
77. In this respect, the Appellant relies upon the Judgement of the Hon'ble Supreme Court in 'Padhiyar Prahladji Chenaji (Deceased) Page 22 of 186 Through Legal Representatives Vs. Maniben Jagmalbhai (Deceased) Through Legal Representatives and Others, being Civil Appeal No. 1382 of 2022 reported in SCC (2022) 12 Supreme Court Cases 128 (decided on March 3,2022) wherein the Hon'ble Supreme Court has held that, permanent injunction after holding that the Plaintiff had no title and dismissing the suit, the Plaintiff is not entitled to relief of permanent injunction or any relief whatsoever. The relevant paras being 24, 25, 26 and 30 are set out:
"24. From the impugned judgement and order passed by the High Court it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining Defendant 1 from disturbing the possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in Page 23 of 186 lawful possession of the suit land i.e. the possession of the plaintiff is "not legal or authorised by the law", the plaintiff shall not be entitled to any permanent injunction.
25. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate, must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispose him, except in due process of law.
26. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to Defendant 1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except by due process of law and Defendant 1 though may be the true owner has to file a substantive suit for recovery of possession."Page 24 of 186
....
"30. In view of the above discussion and for the reasons stated above, all the courts below have erred in granting permanent injunction in favour of the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against Defendant 1 - the true owner."
78. The Appellant is also relying upon a recent Judgement of the Hon'ble Supreme Court, namely, Nikhila Divang Mehta and Another Vs. Hitesh P. Sanghvi and Others, being Civil Appeal No. of 2025 (Arising out of S.L.P. ( C ) No. 13459 of 2024) reported in 2025 SCC Online SC 779 (Decided on April 15, 2025) wherein it has been clearly held by Hon'ble Supreme Court in Para 29 that, until the Plaintiff succeeds in the first primary relief, the other reliefs are dependent upon the first relief and cannot be granted. Consequently, once the plaint or suit is not maintainable the other and ancillary reliefs claimed therein also falls down. The relevant para 29 is set out herein:
"29. Lastly, the first appellate Court has ruled that in the suit, the plaintiff has claimed different reliefs and even if the plaint is barred by limitation in respect of one of the reliefs, it cannot be rejected in toto. The aforesaid submission is also without substance as upon the plain reading of the prayers made in the plaint, it is apparent that the primary relief claimed therein is to declare the Will and the Codicil to be null and void and also all subsequent proceedings thereto. In Page 25 of 186 addition to it, the plaintiff has claimed permanent injunction. The other reliefs are dependent upon the first relief and cannot be granted until and unless the plaintiff succeeds in the first relief. Therefore, once the plaint or the suit in respect of the main relief stands barred by time, the other ancillary relief claimed therein also falls down."
79. The Ld. Trial Court is conscious of the fact that the cancellation of allotment has not been challenged by the respondents-plaintiffs therein and therefore as per the law laid down by the Hon'ble Supreme Court in the Bachhaj Nahar Vs. Nilima Mandal & Anr. reported in (2008) 17 SCC 491 and Akella Lalitha Vs. Konda Hanumantha Rao & Anr. reported in 2022 SCC online SC 928, no relief can be granted.
80. However, while dealing with the facts of the present case the Ld. Trial Court Judge has erroneously ignored the binding law laid down by the Hon'ble Supreme Court.
81. Admittedly, there is neither any averment in the plaint stating that the cancellation was incorrect or illegal nor is there any prayer to set aside the cancellation of allotment in favour of Smt. Dhan Devi Kapoor. In absence of pleadings therefore no issue regarding correctness or illegality of cancellation of the allotment of Smt. Dhan Devi Kapoor has been framed.
82. No attempt was made by the Plaintiffs therein to amend their plaint and seek relief of setting aside of the cancellation dated 11/04/1988. The Hon'ble Supreme Court has in the case of Bachhaj Nahar and Akella Lalitha (Supra) has held that it is a settled law that relief not found in pleading should not be granted. If a Court considers Page 26 of 186 or grants a relief for which no prayer or pleading was made it would lead to miscarriage of justice.
83. When there is no prayer for a particular relief and no pleadings to support such relief, and when the Defendant has no opportunity to resist or oppose such a relief, if the Court considers and grants such a relief, it will lead to miscarriage of justice.
84. The Ld. Judge has erroneously recorded in para 9.4.1 that "it is there case that the original allotment made in the name of late Smt. Dhan Devi Kapoor was illegally cancelled and allotted to Defendant No. 3".
85. It is submitted on behalf of the appellant that such a finding and recording is totally erroneous because there is not a single averment in the entire plaint claiming the cancellation as illegal, nor any prayer has been sought in this regard, or issues been framed in the matter. The Ld. Trial Court could not have travelled beyond pleadings and permit the Plaintiffs to set up an entirely different case at the time of arguments.
86. It has been stressed further that the Ld. Trial Court further erroneously recorded in para 9.4.3 that the suit being hit by the provisions of Section 34 of Specific Relief Act was not argued. The Ld. Trial Court has further erred in observing in Para 9.4.3 that non- maintainability of the suit and the relief under provisions of Section 34 of Specific Relief Act was not argued.
87. As submitted, this is in total contradiction to the findings given by the Ld. Trial Judge in paragraphs 9.3.1 to 9.3.7. This was Page 27 of 186 specifically argued by the Appellant before the Ld. Trial Court and submissions were advanced in this regard.
88. The Ld. Trial Court further erred in holding that section 34 would not be applicable as the suit does not "seek declaration of title". The aforesaid is not only contrary to the paragraphs 9.3.1 to 9.3.7 of the impugned judgement but also the pleadings, issues, evidence and arguments of the parties before the Ld. Trial Court. The entire suit is premised on the basis that Smt. Dhan Devi Kapoor be declared the rightful owner of the property, without there being any rights in her favour.
89. Assuming though not conceding that the Ld. Trial Court was right in saying that this was not a suit for title but only against the allotment in favour of the appellant, even then the suit is hit by section 34 because in that case the respondents failed to seek the prayer for setting aside the cancellation of allotment, title to the plot and possession.
90. It has been argued on behalf of the appellant that if the present suit is not for title, the Ld. Trial Court gravely erred in directing execution of sub-lease in favour of the respondents-plaintiffs. Especially when there is a specific finding that they failed to establish ownership of Smt. Dhan Devi Kapoor.
91. Admittedly the respondents have failed to ask for the relief of possession of the suit property in the present suit and therefore the Ld. Trial Court rightly held that the suit was not maintainable. Further, the respondents-plaintiffs have even failed to ask for setting aside the cancellation order dated 11/04/1988 by DDA. In the absence of the Page 28 of 186 relief of possession and setting aside the cancellation, the present suit is also hit by the proviso of section 34 of the Specific Relief Act, 1963.
92. The Ld. Trial Court rightly held that the respondents are neither in possession nor have they asked for possession and therefore the suit was not maintainable.
"34. Discretion of court as to declaration of status or right.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
93. Without prejudice to the above, the respondents have conceded before the present forum that they are not, and were not seeking a declaration of ownership. In view of the said concession the present suit ought to be dismissed at the threshold being hit by section 34 and as being not maintainable.
94. If the respondents are not seeking a declaration of title, and they have not challenged the cancellation they become strangers to the suit property; therefore respondents would not have any locus standi to maintain suit only seeking cancellation of sublease registered in favour of a third party i.e. the Appellant.
Page 29 of 18695. Further, if the respondents weren't seeking the relief of declaration, then the direction of the Ld. Trial Court to DDA and the Society to execute a sub-lease in favour of the respondents is beyond pleadings and against all cannons of law.
96. The Hon'ble Supreme Court in the case of Executive Officer, Arulmigu Chokkanatha (Supra) observed that the Trial Court rightly dismissed the suit on the basis that the respondents-plaintiffs therein had filed suit for a mere declaration without relief for recovery, which is clearly not maintainable because of Section 34 of the Specific Relief Act.
97. Therefore, the contention that the issue of section 34 not being raised is incorrect. The Hon'ble Supreme Court in the case of Vasantha (Dead) through L.Rs. (supra) recently held that in view of proviso of Section 34 of the Specific Relief Act the Court could not have decreed the suit since the respondents-plaintiffs therein sought mere declaration without the consequential relief of possession.
98. The Ld. Trial Court erroneously holds that "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."
99. It is submitted by the appellants that the Ld. Trial Court then exceeds its jurisdiction and grossly errs in holding that the respondents-plaintiffs were not required to seek relief against cancellation of allotment separately.
100. In the absence of pleadings, no issues could have been framed on this point. In absence of the issue and pleadings, any evidence led Page 30 of 186 on it cannot be looked at by the Court. The Hon'ble Supreme Court in the case of Kalyan Singh Chouhan vs CP Joshi reported in (2011) 11 SCC 786 held the following:-
"24. Therefore, it is neither desirable nor required for the court to frame an issue not arising on the pleadings. The court should not decide a suit on a matter/point on which no issue has been framed. (Vide Bommadevara Venkata Narasimha Naidu v. Bommadevara Bhashyakarlu Naidu [(1901-02) 29 IA 76], Sita Ram v. Radha Bai [AIR 1968 SC 534], Gappulal v.Thakurji Shriji Shriji Dwarakadheeshji [(1969) 1 SCC 792 : AIR 1969 SC 1291] and Biswanath Agarwalla v. Sabitri Bera [(2009) 15 SCC 693 :
(2009) 5 SCC (Civ) 695] .)
25. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court.
The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. (Vide Sayad Muhammad v. Fatteh Muhammad [(1894-95) 22 IA 4 (PC)] )"
The Hon'ble Court further held :-
"28. Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead Page 31 of 186 evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration."
101. In the present case it has been the main argument of the appellant that since the cancellation of allotment has not been challenged, the Ld. Trial Court cannot adjudicate upon the legality or correctness of the same. The suit must be adjudicated on the pleadings and not beyond pleadings. The Ld. Trial Court cannot try to fill up the lacunae in the case of the Plaintiffs by its interpretation of facts. When the CPC specifically prohibits parties to fill up lacunae of their cases by amendment to pleadings, it would certainly mean even the Courts cannot do the same for a party.
102. It may also be relevant to mention herein that while dealing with the issue of limitation (para 9.2.4) and the issue of declaration of title (Para 9.3) the Ld. Trial Court holds that the present suit is for "declaration of title" and proceeds to hold the same is not maintainable because a prayer of possession has not been sought. However, while deciding the issue of section 34 of the Specific Relief Act and the execution of sub-lease in favour of the appellant, the Ld. Trial Court records a finding, inconsistent to its earlier finding, that the present suit is not for declaration of title.
103. As submitted on behalf of the appellant, the submitted arguments and submissions show a complete non-application of judicial mind on part of the Ld. Trial Court rendering the later portion of the judgement invalid. Apart from the above the Ld. Trial Court Page 32 of 186 again erroneously holds that correctness of allotment was never put in question by appellant.
104. The above finding of the Ld. Trial Court is contrary to the case at hand. Without prejudice to the above case of appellant before the Ld. Trial Court was that the correctness or otherwise of the cancellation of allotment of Smt. Dhan Devi Kapoor was never challenged by the respondents. Such contrary recording of facts and erroneous findings of the Ld. Trial Court as recoded in para 9.4.3 clearly show non-application of mind.
105. The Ld. Trial Court after holding that it cant go into the issue of cancellation of allotment goes on erroneously hold that the cancellation of allotment in favour of Smt. Dhan Devi Kapoor was not as per Delhi Cooperative Societies Rules. This was never pleaded, neither an issue was framed on it, nor a relief was sought against such cancellation. Therefore the Ld. Trial Court could not have adjudicated the said issue.
106. It has been re-iterated and stressed on behalf of the appellant that the cancellation of the allotment was done because the dues were never cleared by Lt. Smt. Dhan Devi Kapoor and her purported Legal Heirs for over 6-8 years. The respondents failed to produce even a succession certificate to get themselves substituted in her place.
107. The Society was never even provided with the death certificate of Smt. Dhan Devi Kapoor and the persons claiming to be legal heirs never produced any succession certificate or letters of administration to show that they were indeed the legal heirs and entitled to maintain a claim qua the suit property.
Page 33 of 186108. It may be relevant to mention here that the names of the legal heirs kept changing while the respondents-plaintiffs were communicating with Society. The affidavit (Ex. PW1/4 and PW1/8) accompanying the letter dated 07.02.1983 (pg 1707) shows seven legal heirs of Smt. Dhan Devi Kapoor including Mrs. Vimla Kapoor (Defendant No. 6 in suit). However, in a communication dated 19.06.1984 (Ex. PW1/5) (Pg 1715) by respondents-plaintiff No. 2 to the Society in the list of Legal Heirs the name of Mrs. Vimal Kapoor is removed and the names of her children i.e. Plaintiff No. 3, Shri Sanjay Kapoor and Defendant No. 7, Ms. Pranav Kapoor were included. Then again in a communication dated 16.10.1986 (Ex. PW1/11) (pg. 1717) by Plaintiff No. 2 the name of Smt. Vimal Kapoor is again included.
109. The Ld. Counsel has also submitted that it is also an admitted fact that the factum of the death of Smt. Dhan Devi Kapoor on 12.04.1980 was never informed or intimated by any of the purported Legal Heirs to Society or DDA. The Society by a letter dated 15.06.1981 called upon Smt. Dhan Devi Kapoor (Exb. PW-1/1) (Pg No. 270) to pay the balance consideration amount of Rs.10,953/- out of the total amount of Rs.30,450/-.
110. Original Plaintiff No. 1 and Plaintiff No. 2 ie the respondents wrote a letter for the first time to the Society intimating the death of Smt. Dhan Devi Kapoor and enclosing a cheque of Rs.1,565/- towards 1/7th share out of the balance remaining amount.
111. None of the others alleged Legal Heirs made any payment towards the balance consideration amount, which remained Page 34 of 186 outstanding even after the suit was filed. The Legal Heirs also failed to take any steps to make the application to the Society within 30 days of the death of Smt. Dhan Devi Kapoor as required under the Delhi Cooperative Housing Society Rules.
112. Even after a show cause notice was issued by DDA, the Legal Heirs showed no alacrity and kept dragging their feet on the issue. Finally, after six long years, the society took the decision to cancel the allotment.
113. It is also submitted on behalf of the appellant that the suit filed by the respondents-plaintiffs is also not maintainable in view of Section 90 of the Delhi Co-operative Societies Act, 1972. Section 90 states as under:
"90. Notice necessary in suits:
No suit shall be instituted against a co-operative society or any of its officers in respect of any act touching the business of the society until the expiration of three months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."
114. As per the above section, a notice in writing has to be sent and delivered to the Registrar stating the cause of action, name, description, place of residence of the Plaintiff and the relief claimed. After the delivery of the said notice the suit shall be instituted after the expiry of three months from the date of delivery of such notice and the Page 35 of 186 plaint shall also contain a statement that such notice has been delivered.
115. In the present case, admittedly no notice as required under Section 90 of the Act has been delivered, neither any such statement has been made in the plaint and as such the suit is barred, not maintainable and deserves to be dismissed.
116. In this connection, the appellant relies upon Judgements of the Hon'ble High Court of Delhi as under:
Krishak Bharti Co-operative Ltd. Vs. IFFCO TOKIO General Insurance Co. Ltd. & Ors. 2005(85) DRJ 183; Mahamedha Urban Cooperative Bank Ltd. Vs. Delhi State Cooperative Bank Ltd. 2015 SCC online Del 14597 : (2015) 150 DRJ 325), All India Handloom Fabric Marketing Cooperative Society Ltd. Vs. Phelps & Co. Pvt. Ltd. 2000 (53) DRJ (DB)
117. The Ld. Judge has clearly erred in not appreciating that the said provision of Section 90 was fully applicable in the facts of the present case and further that the said issue of Section 90 had not been decided by the Hon'ble High Court, as has been wrongly recorded in paras 9.1.3 and 9.1.4.
118. The objects of the Defendant No. 1, Society as per the Bylaws are as under:
"II. OBJECTS
3. Its objects shall be:
(i) To acquire either through outright purchase or on lease, land for:-Page 36 of 186
(a) The development and construction of residential houses/flats for giving to members, either on lease or on rent or by outright sale or on hire purchase system in the case of Group Housing provided that the ownership of land used for construction of flats shall always remain with the Society.
(b) Allotment to its members, on such terms and conditions as may be fixed by the Society in accordance with the by-laws and such other conditions as may be laid down by Registrar/Government/Delhi Development Authority etc. for the construction of houses/flats by the members for their own use.
........................................"
119. The dispute in the present case clearly touches upon the business of the Society and hence a notice under Section 90 was mandatory and in the absence of the same the present suit is bound to fail.
120. The abovementioned Judgements categorically hold that notice is a must and a necessity before instituting the suit. Non-service of such notice is fatal to the suit.
121. It is relevant to mention here that the Judgement of the Hon'ble High Court dated 04.08.2021 in RFA No. 203 of 2018 arising from this very suit holding that the jurisdiction of the Civil Court is not ousted only pertained to Section 60 and 93 of Delhi Co-operative Societies Act, 1972.
Page 37 of 186122. The said Judgement did not deal with Section 90 of the said Act and cannot preclude this Court from adjudicating the fact that a notice under Section 90 was mandatory.
123. The suit of the respondents-plaintiffs, apart from seeking such a declaration also challenges the allotment of a plot made by the Society in favour of its member and therefore also touches the business of respondent no. 9 Society, hence the notice was mandatory before the institution of the present suit.
124. Further, relief of mandatory injunction as made in prayer (ii) cannot be granted inasmuch as the said relief is discretionary. Mandatory injunction and perpetual injunction cannot be granted for the mere asking because of bar under the provisions of Section 38(2)
(c) as well as Section 41(h) & (i).
125. The Appellant further states that the prayers/reliefs claimed in Prayer (ii) and (iii) cannot be granted under the provisions of Section 41 (h) & (i) of the Specific Relief Act, 1963. The relevant portion of the section is as under:
"41. An injunction cannot be granted--
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;"
126. The respondents could have approached the Registrar under Section 60 of the Delhi Co-operative Societies Act, 1972 for an equally efficacious relief as has been claimed in the present suit.
Page 38 of 186127. The conduct of the respondents also disentitles them from any relief in terms of Sections 41(i) of the Specific Relief Act. The relevant portion is as under:
41. "An injunction cannot be granted--
(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court."
128. The respondents as per their own admission have been negligent and defaulter in:
a) Informing Defendant No. 1 Society about the death of Smt. Dhan Devi Kapoor for almost three years;
b) Despite of having received the demand in June, 1981 failed to make the payment of balance consideration amount towards the cost of the plot;
c) Failed to even furnish or submit death certificate of late Smt. Dhan Devi Kapoor to Defendant No. 1 Society;
d) Failed to take any steps even after issuing Show Cause Notice dated 21/05/1984 by Defendant No. 2 DDA;
e) Failed to comply with Rule 35(7) of Delhi Co-operative Societies Act, 1972;
f) The Plaintiffs (Contesting Respondents herein) and private defendants failed to obtain or submit the succession certificate/letters of administration to show that they were the legal heirs of late Smt. Dhan Devi Kapoor.Page 39 of 186
129. It has come out in evidence of PW-1 dated 05.04.2013 (Pg 557) that the original Plaintiff Nos. 1,2 and 5, Defendant No. 4, 5 ie the respondents, are all members and plot holders in the very same Society. Apart from the same Smt. Shanti Devi, mother of Plaintiff No. 4 was allotted a flat by the Society, which was transferred in the name of Plaintiff No. 4.
130. The daughter of Plaintiff No. 5 is a member of the Society and has been allotted a flat by the Society. Mother of Plaintiff No. 3, i.e. Defendant No.7 is also a plot holder in the same Society. In fact, PW-3 in his Cross-examination dated 26.09.2016 (pg 647) makes a categorical admission that all the LRs of Smt. Dhan Devi Kapoor are members of Defendant No. 1 Society and had been allotted plots/flats in society in the year 1980.
131. All of them have completed the formalities for their respective allotments with the respondent society. However, neither one of them informed the Society regarding the demise of Smt. Dhan Devi Kapoor.
132. It may be relevant to mention here that the original Plaintiff No. 2 was the Vice-President of the respondent no.9 Society from the period 1978-79 and a member of the Managing Committee till 1982. Further, original Plaintiff No. 5 was a part of the Managing Committee from mid 1970 to 1998.
133. Despite the above, no timely steps were taken by the respondents to inform the Society of the demise of Smt. Dhan Devi Kapoor.
Page 40 of 186134. It is also submitted that the respondents and other LRs are also not entitled to get any relief as they all stand disqualified to get the sub-lease executed in their favour being plot / flat holders within Delhi.
135. As submitted by the respondent-society, prior to execution of the sublease an affidavit is required by the persons that they do not hold any other plot or flat within Delhi. As already stated above all legal heirs are plot/flat holders within the respondent Society and Delhi.
136. It has also been argued on behalf of the appellant that the suit is also barred under the provisions of Section 60 of the Delhi Co- operative Societies Act, 1972, which provides for settlement of disputes. The relevant clauses of Section 60 are as under:
"60. Disputes which may be referred to 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 society or its committee against a paid employee of the society arises -
(a) .....
(b) between a member, past member or person claiming through a member, Page 41 of 186 past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present, or (2) For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-
operative society namely, -
(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(3) If any question arises whether a dispute referred to the Registrar under this section is or not a dispute touching the constitution, management or thee business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."Page 42 of 186
137. It has also been submitted by the Ld. Counsel for the appellant that under Section 93 (1) (c) the jurisdiction of the Courts is specifically barred to section 93 provides as under:
"93. Bar of jurisdiction of courts:
(1) Save as provided in this Act, no civil or
revenue court shall have any jurisdiction in
respect of-
(a) the registration of co-operative society or
its by-laws or of an amendment of a by-law;
(b) the removal of a committee;
(c) any dispute required under section 60 to be
referred to the registrar;
138. Therefore, as per Section 93(1) (c) read with section 60 there is a mechanism provided for settlement of the dispute qua the members and the Society by referring the same to the Registrar.
139. The respondents in the present suit could not have filed the present suit in view of the specific bar contained under Section 93(1)
(c) read with Section 60 of the Act and it was only appropriate for the respondents to have referred the disputes to the Registrar.
140. The appellant has relied upon the Judgement of the Division Bench of Hon'ble High Court of Delhi at New Delhi in the matter of Viresh and Another Vs. Registrar of Co-operative Societies and Others 2020 SCC online Del 2296.
141. It has also been argued that the dispute is between a person claiming through a member or deceased member and the Society and Page 43 of 186 as such the disputes are to be referred to Arbitration and the remedy of civil suit is clearly barred under Section 93(1) (c) of the Act.
142. It is pertinent to state here the fact that on an application filed under Order VII Rule 11 CPC by the Society in the present suit, by Judgement dated 19.07.2017 the Ld. Predecessor Trail Court Judge had dismissed the suit and the Plaint was rejected on the grounds of Section 60 and 93 (1) (c) of the Act.
143. However, the respondents had filed an appeal against the said Judgement and by a judgement dated 29.08.2018 the Ld. Additional District Judge, South District, Saket Court, New Delhi in RCA No. 62 of 2017 had set aside the said Judgement of the Ld. Predecessor Trial Court Judge.
144. Thereafter, the appellant had assailed the said Judgement before the High Court of Delhi at New Delhi in RSA No. 203/2018.
The issue in the said three proceedings was the non- maintainability of the suit of the respondents under provisions of Section 60 of the Delhi Cooperative Societies Act, 1972. The issue of Section 90 of the Act was not decided.
145. The appellant states that although the said Appeal RSA No. 2023 of 2018 filed by the appellant was heard and Judgement was reserved on 10/12/2018, however, the decision was delivered and pronounced only on 04/08/2021 i.e. almost after three years. It is stated that since the final arguments were heard on 10/12/2018 and the Judgement was reserved, there was no scope for the appellant to rely upon Viresh and Another Vs. Registrar of Co-operative Societies and Others 2020 SCC online Del 2296.
Page 44 of 186146. It has also been submitted that the judgement in the case (RSA No. 203/2018) was delivered after the Judgement in Viresh (Supra) although the hearing was concluded three years prior thereto. Accordingly, the said Judgement in Viresh (Supra) by Division Bench will prevail.
147. It is argued on behalf of the appellant that the said Judgement of the Ld. Division Bench in Viresh (Supra) holds the field and as such according to the said Judgement the suit is barred by Section 60 of the Act.
148. It is further the contention of appellant that as per the registered By-laws of Society (Respondent No. 9), the eligibility criteria of a person to be eligible to be a member of the Society is as under:
"5(i) Any person shall be eligible to be a member of the Society provided:
(a) he is resident in the jurisdiction of Municipal corporation of Delhi New Delhi Municipal committee,
(b) his written application for membership has been approved by majority of the Managing committee,
(c) his age is more than 18 years, except in the case of minor heir of the deceased member,
(d) he is not a member of other house building/group housing society Page 45 of 186
(e) he or his wife (she or her husband in case of a woman) or any of his/her dependents do not own a plot or a dwelling house/flat in Delhi / NDMC;
(f) directly or indirectly he does not deal in purchase or sale of house or land for construction of houses either himself or through any of his dependents;
(g) he has carried out the provisions of by law 11.
(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 any ex-member may transfer his shares to another member or applicant qualified under By-laws 5 and approved by the Committee or to a share transfer fund......"
149. It is submitted that admittedly most of the respondents are members of the same Society, and holding plots in the same Society and also some of the parties own plots and dwelling house/flat in Page 46 of 186 Delhi/NDMC and as such they are not eligible to claim any right in respect of the suit property or to be substituted or become member of the Society.
150. It is also submitted that even otherwise because of the default in making payment of the entire consideration of the plot by late Dhan Devi Kapoor the allotment stood cancelled for non-performance & default and as such no right or relief can be claimed by any of the heirs of late Dhan Devi Kapoor inasmuch as the allotment was not complete.
151. It has also been submitted on behalf of the appellants that the Ld. Trial Court has completely failed in appreciating the purport of Section 26 of the Delhi Cooperative Societies Act, 1972 as well as Rules 25, 28 and 35 of Delhi Cooperative Societies Rules.
152. Section 26 of the Delhi Cooperative Societies Act clearly envisages that the Society (Respondent No.9) on the death of a member, may transfer the share of interest of the deceased member (when there is no nominee) to such person as may appear to the Committee of the Society to be the heir or legal representative of the deceased member, or pay to such heir/legal representative a sum representing the value of such member's share or interest in accordance with the Rules and By-laws of the Society. Proviso (ii) further provides that the Society shall transfer the share of interest of the deceased member to such heir/LRs. being qualified in accordance with the Rules and By-laws for membership of the Society.
153. Therefore, according to Section 26 of the Societies Act, Society has to transfer the share of interest of the deceased member to such Page 47 of 186 heir or legal representative, who may appear to the Committee to be only heir/Legal Representative of the deceased member.
154. In the present case, the Society had called upon the persons, namely, the original plaintiffs-respondents to produce a Succession Certificate so as to prove and establish who are the actual heirs/legal representatives of the deceased member, namely Dhan Devi Kapur.
155. However, admittedly no such Succession Certificate has been produced nor it was ever established in any manner whatsoever as to who are the actual heirs/legal representatives of the deceased member, namely, Dhan Devi Kapur.
156. Further, the proviso (ii) also provides that the Society shall transfer the interest of the deceased member to such heir/legal representative who qualify as per the rules and by-laws of the Society to the member of the Society.
157. Admittedly, the persons, namely, the respondents claiming themselves to be heirs/legal representatives of the deceased Dhan Devi Kapur were not qualified in accordance with the Rules and By-laws for membership of the Society.
158. Such disqualification arises under Rule 25 of Delhi Cooperative Societies Rules as well as By-law 5 (i) (d) & (e) and By- Law 5 (ii) of the Society.
159. The appellant further states that Rule 35 (6) of the Society Rules states that the Society shall invite claims or objections for the transfer of shares of the deceased and that after taking into consideration the claims or objections received either in response to the notice or otherwise, and after making enquiries the Committee Page 48 of 186 shall decide, as to the persons who in its opinion is/are the heirs/ legal representatives of the deceased member and shall thereafter proceed to act under Section 26 of the Societies Act.
160. Further, Rule 35 (7) clearly provides that in case the Committee of the Society refuses to transfer the share or interest of the deceased member, the persons claiming to be successors in interest shall file an appeal to the Registrar within 30 days of such refusal. The Registrar after hearing the Society and the applicant shall pass shall order as he may think it proper.
161. Therefore, first and foremost grievance of the respondents is that the Society failed to transfer the share/interest of the deceased Smt. Dhan Devi Kapoor, hence, the only remedy for the respondents- plaintiffs was to approach the Registrar in Appeal and the decision of the Registrar and any order passed by the Registrar would have been binding and final. Admittedly, the respondents-plaintiffs have not approached the Registrar in terms of Rule 35(7). It is pertinent to mention that the Plaintiffs themselves are relying upon Rule 35 of the Delhi Cooperative Societies Rules.
162. The respondents claim that in terms of Rule 35(6) they had staked a claim for the transfer of the share of the deceased Smt. Dhan Devi Kapoor but the Society failed to take any decision and refused transfer. It is submitted that if such was the case then the only remedy available to the respondents was under sub-rule 7 of Rule 35, namely, filing an appeal to the Registrar within 30 days of such refusal/date of the application.Page 49 of 186
163. Accordingly, even as per the own admission of the respondents, the present suit is not maintainable. Further during the cross- examination of PW-1 he was unable to show from the records any application filed by the LRs by which the joint request for transfer was made to the Society (Respondent No. 9 herein).
164. Appellant further states and submits that the Ld. Judge has relied upon the judgement in the case of S.K. Tandon Vs. The Registrar of Cooperative Societies, 69 (1997) DLT 632 to hold that Rule 25 is not attracted in the case of inheritance.
165. It is submitted that the Ld. Trial Judge has completely misconstrued the said judgement and the facts thereof. The said judgement is completely distinguishable on its facts, which are as under:
a) The Petitioner's father Mr. K.L. Tandon was enrolled as a member in 1979 and expired in 1983. The petitioner claimed right under a Will of his father and he was also nominated in the records of the Society as nominee.
b) The petitioner had obtained permission from the Registrar of the Society to hold dual membership under Rule 28 of the Societies Rules.
c) In the said case the concerned society had by-law 5 which specified the disqualification (This by-
law 5 is similar in the present case).
Page 50 of 186d) The Society in the said case also had By-law 9 which clearly stated and stipulated that the by- law 5 will not be applicable to the nominee or legal heir of the deceased member, which meant that from the joint reading of by-law 5 and 9 of the said society it is clear that if the acquisition is by inheritance then the disqualification under by- law 5 will not apply (Para 15 of the Judgement).
166. In the present case there is no such by-law 9 in the by-laws of the Society (Respondent No. 9 herein). The Ld. Judge in para 9.4.11 has clearly held that the amended rule 25 (1) (c) (i) cannot be retrospective in application but has proceeded to rely on the same by giving retrospective application to the said rule. It is an admitted fact that the said amendment was brought by notification 11.07.1995.
167. The appellant submits that even if the respondents have any right to get a plot, they still don't have and can't have any claim over the suit property /plot allotted to the appellant herein.
168. It is submitted that the Society has furnished an undertaking in the present suit that an alternative plot bearing plot no. 12/23 in Sarva Priya Vihar has been reserved for allotment to the plaintiffs- respondents and the said plot is still held by the Society. Therefore, at the best, the respondents can claim the plot which has been kept reserved for them by the Society.
Page 51 of 186OTHER JUDGEMENTS AND PARAGRAPHS CITED BY THE APPELLANT: I.S. SIKANDAR (D) BY LRS. V. K.SUBRAMANI (2013) 15 SCC 27L "15. The plaintiff further urged in the appeal that execution of the sale deed dated 30.05.1985 in favour of the 5th defendant for a sale consideration of an amount of Rs.48,000/- that is, Rs.3000/- in excess of what was agreed upon with the plaintiff, would demonstrate that the defendant Nos.1-4 took undue advantage and committed the breach of the terms and conditions of the contract. Further, it is urged that the above aspects of the matter has not been properly appreciated by the trial court while dismissing the suit for not granting the relief of specific performance in respect of the suit schedule property in favour of the plaintiff. It is also urged in the R.F.A. before the High Court that defendant Nos. 1-4 were required to secure permission under the ULCR Act and Income Tax Department to convey the suit property in favour of the 5th defendant, which further demonstrates that without such a permission, the registration of deed of conveyance in favour of the 5th defendant was impermissible, thereby the defendant Nos. 1-4 committed a serious breach of the obligation in terms of Agreement of Sale dated 25.12.1983."
"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit Page 52 of 186 schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.
38. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5."
"42. The legal principle laid down by this Court in the above case squarely applies to the facts of this case for the following reasons. In the instant case, undisputedly, the plaintiff did not get Agreement of Sale executed by paying the remaining consideration amount to the defendant Nos. 1-4 within the stipulated period of 7 months as agreed upon by him under Clause 6 of the agreement by asking the defendant Nos. 1-4 to get the necessary permission from ULCA and Income Tax Department after paying the layout charges to the concerned authorities for getting the sale deed executed in his favour. The plaintiff has not complied with the condition within the original stipulated period of five months and extended period of two months and even if the delay occurs in getting permission from the authorities, that period was over by July, 1984. It is an undisputed fact that the date of the institution of the original suit was nearly 11 months after expiry of the limitation period stipulated in the agreement to get the sale deed executed in favour of the plaintiff.Page 53 of 186
43. Both the trial court as well as the appellate court have not examined this important aspect of the case though the parties have agreed to perform their part of contract within seven months from the date of execution of the agreement as stipulated in clause 6. We have considered this aspect of the case on the basis of the period of 7 months stipulated in the Agreement of Sale and the same is answered in favour of the defendants."
.....
"45. The learned Senior Counsel for the 5th defendant also placed strong reliance upon the judgement of this Court in the case of N.P.Thirugnnam (dead) by Lrs. vs Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115, in support of the findings of the trial court on the above contentious issues wherein this Court has held that the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the original suit along with other attending circumstances and further the amount of consideration which he has to pay to the defendant Nos. 1-4 must be proved by the plaintiff.
Further, the plaintiff is required to prove the fact that right from the date of execution of the Agreement of Sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement. Further, he rightly contended the same by placing reliance upon another judgement of this Court in the case of P.R.Deb & Associates Vs. Sunanda Roy, (1996) 4 SCC 423 wherein this Court held that ("7.....
Page 54 of 186The plaintiff in a suit for specific performance must be ready and willing to carry out his part of the agreement at all material times.")
46. The correctness of the findings of fact recorded by the trial court on the contentious issue Nos. 4 & 5 is examined by us keeping in view the law laid down by this Court in the above referred case with reference to the undisputed facts in the case on hand namely, that the letter dated 16.03.1985 sent by the plaintiff would clearly go to show that the plaintiff was a defaulter and another letter dated 04.05.1985 sent by the plaintiff to the defendant Nos.1-4, would go to show that the plaintiff was not ready and willing to perform his part of contract to purchase the suit schedule property by paying remaining sale consideration amount to the defendant Nos.1-4 as per the sale agreement as he had been seeking time without justification. Further, the trial court has held that the court has to see conduct of the party as well as the attending circumstances of the case regarding whether readiness and willingness of the plaintiff can be inferred and further the learned trial Judge rightly relied upon the provision of Section 16(c) of the Specific Relief Act and appreciated evidence of PW-1, the plaintiff and came to the right conclusion and held that the plaintiff had not produced any document to show that he had the balance sale consideration amount of Rs.40,000/-, to pay to the defendant Nos.1-4 to get the sale deed executed in his favour.
47. Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration Page 55 of 186 amount to them. But, on the other hand the trial court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration to the defendant Nos. 1-4 though they demanded the same from him through their legal notices dated 06.03.1985 and 28.03.1985 which notices were served upon the plaintiff and despite the same he did not approach the defendant Nos.1-4 to get the sale deed executed in his favour even after service of notice, and, prior to issuance of the legal notice to him, he never offered to pay the balance consideration as agreed upon by him to them even though defendant Nos. 1-4 have complied with all the formalities required.
48. The learned Judge, on the question of readiness and willingness on the part of the plaintiff to perform his part of the contract to get the sale deed executed in his favour stated that performance of his obligation is mandatory as per Section 16 (c) of the Specific Relief Act and the law laid down in this regard by this Court which are referred to supra upon which the trial court has rightly relied upon and answered the contentious issues against him by recording valid and cogent reasons.
49. In view of the foregoing reasons, we are of the view that the learned trial judge has applied his mind consciously and correctly to the admitted facts and on proper analysis and appreciation, he has correctly recorded the finding of fact holding that the plaintiff has failed to perform his part of the contract in paying the remaining sale Page 56 of 186 consideration and made sincere efforts to get necessary permission from the Urban Land Ceiling Authority and the Income Tax Department by paying the conversion charges of the land to get the sale deed executed in his favour from the defendant Nos. 1-4 within the stipulated time of five months and further extended period of two months as per clause 6 of the agreement. The same has been erroneously set aside by the appellate court by recording its reasons by placing reliance upon the judgements of this Court in Nirmala Anands case (supra), Jawahar Lal Wadhwa Vs. Haripada Chakroberty (1989) 1 SCC 76; and A.Maria Angelenas case (supra).
50. The learned senior counsel has rightly submitted that the findings of fact on issue Nos.4 & 5 have been erroneously set aside by the learned Judge of the High Court by recording his reasons which are not supported by pleadings and legal evidence on record. The findings of the learned Judge of the High Court are contrary to the admitted facts and legal evidence on record.
51. We have carefully scrutinised the findings recorded by the trial court on the issue Nos.1,3,4 and 5 with reference to the pleadings of the case and legal evidence on record and the same have been erroneously set aside by the learned Single Judge in the impugned judgement and therefore, the same cannot be allowed to sustain in law.
52. The first appellate court has committed serious error both on facts and in law in reversing the findings of fact recorded on the contentious issues by referring to the decisions of this Court in the Page 57 of 186 impugned judgement on the aforesaid points which are totally inapplicable to the fact situation, and has erroneously set aside the findings of fact recorded by the trial court. Therefore, we are of the considered view that the submissions made by learned Senior Counsel on the basis of the findings and reasons recorded by the trial court in its judgement are well founded and the same must be accepted and accordingly we answer the point No. 3 against the plaintiff and in favour of the defendant No.5.
Answer to the Point No.4
53. Point No. 4 is also required to be answered in favour of the 5th defendant for the reason that sale consideration of Rs.48,000/- in respect of the suit schedule property has been paid to the defendant Nos. 1-4 after the termination of the earlier agreement with the plaintiff on 10.04.1985 vide notice dated 28.03.1985. Therefore, the contention urged on behalf of the plaintiff, that 5th defendant is not the bona fide purchaser, does not arise at all for the reason that the earlier agreement executed in favour of the plaintiff by the defendant Nos.1-4 was not subsisting, is the finding recorded by us in answer to the point No.1 and we have held that there is termination of Agreement of Sale dated 25.12.1983 by letter dated 28.03.1985 sent to him by them. Therefore, the findings recorded by the appellate court on this aspect stating that the defendant No.5 is not a bona fide purchaser cannot be allowed to sustain. Accordingly, we set aside the same in the above aspect.
Page 58 of 18654. Further, the High Court should have considered the relevant and important aspect of the case namely that the plaintiff is entitled to compensation as agreed upon by him under clause 12 of the Agreement of Sale which is in favour of defendant Nos. 1-4. It provides that the defendant Nos.1-4 have agreed that in the event of their failure to comply with the terms of the agreement they shall pay sum of Rs.10,000/- to the plaintiff and also such sum which is spent by him towards conversion charges and building plan charges. Similarly, the plaintiff had agreed that in the event of his failure to comply with the terms of the agreement the defendant Nos. 1-4 are entitled to forfeit the advance amount. This important aspect of the terms of the Agreement of Sale has not been noticed by the learned Judge of the High Court while reversing the judgement and decree of the trial court and granted the decree for specific performance in favour of the plaintiff in exercise of his discretionary power under sub-sections (1) and (2) of Section 20 of the Specific Relief Act. Further, in view of the foregoing reasons and statutory provisions of Sections 16(c), 20 (1) and (2) and 21(2) of the Specific Relief Act, the plaintiff is not entitled for a decree of specific performance in respect of the suit schedule property and also he had lost the right to seek a decree of specific performance."
R. KANDASAMY (SINCE DEAD) & ORS v. T.R.K. SARAWATHY & ANR, 2024/INSC/884, (2025) 3 SCC 513 "8.7 Seventhly, Mr. Dwivedi urged that the Agreement having stood cancelled at the instance of the sellers, not once but twice, it was Page 59 of 186 necessary for the buyer to seek declaration that the cancellation was bad and not operative and binding qua her and in the absence of such a prayer, the suit itself was not maintainable in law. However, Mr. Dwivedi fairly pointed out that no such point having been raised by the sellers in their written statement, the Trial Court did not frame an issue on such aspect. Nevertheless, it was argued that this was a substantial point of law concerning the Court's very jurisdiction, which ought to weigh in the mind of the Court while considering whether, at all, the relief of specific performance could be granted in favour of the buyer on the face of her omission/neglect to claim appropriate relief."
ABSENT A PRAYER FOR DECLARATORY RELIEF THAT TERMINATION OF THE AGREEMENT IS BAD IN LAW, WHETHER A SUIT FOR SPECIFIC PERFORMANCE IS MAINTAINABLE
22. This question has been considered by this Court in I.S. Sikandar v. K. Subramani (2013) 15 SCC 27 and answered in the following words:....
{"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law."} Page 60 of 186 (Emphasis supplied) "40. Having held thus, allowing the appeal is the inevitable result. However, before we part, there seems to be a discordant note struck by the decision in A. Kanthamani (supra) while distinguishing I.S. Sikandar (supra), which could create uncertainty and confusion. It is, therefore, considered worthwhile to attempt and clear the same.
41. A comprehensive reading of the two decisions reveals that in a fact scenario where the vendor unilaterally cancels an agreement for sale, the vendee who is seeking specific performance of such agreement ought to seek declaratory relief to the effect that the cancellation is bad and not binding on the vendee. This is because an agreement, which has been cancelled, would be rendered non-existent in the eyes of law and such a non-existent agreement could not possibly be enforced before a court of law. Both the decisions cited above are unanimous in their approval of such legal principle. However, as clarified in Kanthamani (supra), it is imperative that an issue be framed with respect to maintainability of the suit on such ground, before the court of first instance, as it is only when a finding on the issue of maintainability is rendered by trial court that the same can be examined by the first or/and second appellate court. In other words, if maintainability were not an issue before the trial court or the appellate court, a suit cannot be dismissed as not maintainable. This is what Kanthamani (supra) holds.
42. The aforesaid two views of this Court, expressed by coordinate benches, demand deference. However, it is noticed that this Court in Page 61 of 186 Kanthamani (supra) had not been addressed on the effect of non- existence of a jurisdictional fact (the existence whereof would clothe the trial court with jurisdiction to try a suit and consider granting relief), i.e., what would be its effect on the right to relief claimed by the plaintiff in a suit for specific performance of contract.
43. In Shrisht Dhawan (Smt) v. Shaw Bros. (1992) 1 SCC 534, an interesting discussion on 'jurisdictional fact' is found in the concurring opinion of Hon'ble R. M. Sahai, J. (as His Lordship then was). It reads:
"19. *** What, then, is an error in respect of jurisdictional fact A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad (Wade, Administrative Law. In Raza Textiles [(1973) 1 SCC 633] it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly. ***"
(emphasis supplied) Page 62 of 186 "44. Borrowing wisdom from the aforesaid passage, our deduction is this. An issue of maintainability of a suit strikes at the root of the proceedings initiated by filing of the plaint as per requirements of Order VII Rule 1, CPC. If a suit is barred by law, the trial court has absolutely no jurisdiction to entertain and try it. However, even though a given case might not attract the bar envisaged by section 9, CPC, it is obligatory for a trial court seized of a suit to inquire and ascertain whether the jurisdictional fact does, in fact, exist to enable it (the trial court) to proceed to trial and consider granting relief to the plaintiff as claimed. No higher court, much less the Supreme Court, should feel constrained to interfere with a decree granting relief on the specious ground that the parties were not put specifically on notice in respect of a particular line of attack/defence on which success/failure of the suit depends, more particularly an issue touching the authority of the trial court to grant relief if the 'jurisdictional fact' imperative for granting relief had not been satisfied. It is fundamental, as held in Shrisht Dhawan (supra), that assumption of jurisdiction/refusal to assume jurisdiction would depend on existence of the jurisdictional fact. Irrespective of whether the parties have raised the contention, it is for the trial court to satisfy itself that adequate evidence has been led and all facts including the jurisdictional fact stand proved for relief to be granted and the suit to succeed. This is a duty the trial court has to discharge in its pursuit for rendering substantive justice to the parties, irrespective of whether any party to the lis has raised or not. If the jurisdictional fact does not exist, at the time of settling the issues, notice of the parties must be Page 63 of 186 invited to the trial court's prima facie opinion of non-existent jurisdictional fact touching its jurisdiction. However, failure to determine the jurisdictional fact, or erroneously determining it leading to conferment of jurisdiction, would amount to wrongful assumption of jurisdiction and the resultant order liable to be branded as ultra vires and bad.
45. Should the trial court not satisfy itself that the jurisdictional fact for grant of relief does exist, nothing prevents the court higher in the hierarchy from so satisfying itself. It is true that the point of maintainability of a suit has to looked only through the prism of section 9, CPC, and the court can rule on such point either upon framing of an issue or even prior thereto if Order VII Rule 11 (d) thereof is applicable. In a fit and proper case, notwithstanding omission of the trial court to frame an issue touching jurisdictional fact, the higher court would be justified in pronouncing its verdict upon application of the test laid down in Shrisht Dhawan (supra).
46. In this case, even though no issue as to maintainability of the suit had been framed in course of proceedings before the Trial Court, there was an issue as to whether the Agreement is true, valid and enforceable which was answered against the sellers. Obviously, owing to dismissal of the suit, the sellers did not appeal. Nevertheless, having regard to our findings on the point as to whether the buyer was 'ready and willing', we do not see the necessity of proceeding with any further discussion on the point of jurisdictional fact here.
Page 64 of 18647. However, we clarify that any failure or omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact by itself cannot trim the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed, provided no new facts were required to be pleaded and no new evidence led."
SANGITA SINHA v. BHAWANA BHARDWAJ AND ORS 2025/INSC/450 :
"8. He contended that the subject suit was filed on the basis of an Agreement to Sell which stood cancelled and as such, the same was not maintainable. He submitted that existence of a valid agreement is sine qua non for grant of relief of specific performance. He pointed out that, in similar circumstances, this Court in R. Kandasamy (Since Dead) & Ors. vs. T.R.K. Sarawathy & Anr. (Civil Appeal No. 3015 of 2013 decided on 21st November 2024), had set aside the judgement and decree passed in favour of the Respondent No.1-buyer inter alia on the ground that a non- existent Agreement to Sell cannot be enforced by a Court of law.."
"18. Continuous readiness and willingness on the part of the Respondent No.1-buyer /purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct Page 65 of 186 must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree. A few of the said judgements are reproduced hereinbelow:-
A. In Gomathinayagam Pillai and Ors. vs. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under:-"6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon 1928 SCC OnLine PC 43: "In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit...."(emphasis supplied) B. In Vijay Kumar and Others vs. Om Parkash, 2018 SCC OnLine SC 1913, it has been held as under:- "6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and Page 66 of 186 willingness has to be shown throughout and has to be established by the plaintiff...."(emphasis supplied) C. In J.P.Builders and Another vs. A. Ramadas Rao and Another, (2011) 1 SCC 429, it has been held as under:-"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."(emphasis supplied) D. In Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead) By LRs. and Another, (2005) 6 SCC 243, it has been held as under:-"30.
It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in- chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records."
(emphasis supplied) Page 67 of 186 E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under:-"16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so..."(emphasis supplied) F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives & Ors. (supra), it has been held as under:-"16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform Page 68 of 186 his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115], it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani James [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5) "5. ... So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section Page 69 of 186 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved."(emphasis supplied)
19. Consequently, the readiness and willingness of the buyer to go ahead with the sale of the property at the time of the institution of the suit loses its relevance, if the Respondent No.1-buyer is unable to establish that the readiness and willingness has continued throughout the pendency of the suit.
20. After examination of the pleadings and evidence in the present suit as well as the conduct of the Respondent No.1-buyer, this Court is unable to agree with Respondent No.1-buyer that she was willing to perform the Agreement to Sell dated 25th January, 2008 and go ahead with the purchase of the property. This Court says so because admittedly, as noted above, the five demand drafts dated 7th February 2008 for Rs. 2,11,000/- (Rupees Two Lakh Eleven Thousand) were encashed by the Respondent No.1-buyer in July, 2008. The conduct of the Respondent No.1-buyer in encashing the demand drafts establishes beyond doubt that the Respondent No.1-buyer was not willing to perform her part of the Agreement to Sell and proceed with execution of the sale deed; for the Respondent No.1-buyer would not Page 70 of 186 have encashed the demand drafts if she was indeed willing to perform the contract and have a sale deed executed. Consequently, once it is established that the Respondent No. 1-buyer is not willing to perform the contract, the fact that the entire advance consideration/earnest money had not been returned to Respondent No.1-buyer is irrelevant and immaterial.."
......
"ABSENT A PRAYER FOR DECLARATORY RELIEF THAT CANCELLATION OF THE AGREEMENT IS BAD IN LAW, A SUIT FOR SPECIFIC PERFORMANCE IS NOT MAINTAINABLE
24. This Court further finds that the seller had admittedly issued a letter dated 7th February 2008 cancelling the Agreement to Sell dated 25th January 2008, prior to the filing of the subject suit on 5th May 2008. Even though the demand drafts enclosed with the letter dated 07th February, 2008 were subsequently encashed in July, 2008, yet this Court is of the view that it was incumbent upon the Respondent No.1-buyer to seek a declaratory relief that the said cancellation is bad in law and not binding on parties for the reason that existence of a valid agreement is sine qua non for the grant of relief of specific performance.
25. This Court in I.S. Sikandar (Dead) By LRs. v. K. Subramani and Others, (2013) 15 SCC 27 has held that in absence of a prayer for a declaratory relief that the termination of the agreement is bad in law, the suit for specific performance of that agreement is not maintainable. Though subsequently, this Court in A. Kanthamani Vs. Page 71 of 186 Nasreen Ahmed, (2017) 4 SCC 654 has held that the declaration of law in I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) regarding non-maintainability of the suit in the absence of a challenge to letter of termination is confined to the facts of the said case, yet the aforesaid issue has been recently considered in R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra) authored by brother Justice Dipankar Datta and the conflict between the judgement of I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) and A. Kanthamani Vs. Nasreen Ahmed (supra) has been deliberated upon. In R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra), it has been clarified that the appellate court would not be precluded from examining whether the jurisdictional fact exists for grant of relief of specific performance, notwithstanding the fact that the trial Court omitted or failed to frame an issue on maintainability of the suit. The relevant portion of the judgement in R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra) is reproduced hereinbelow:
{"25. What follows from A. Kanthamani (supra) is that unless an issue as to maintainability is framed by the Trial Court, the suit cannot be held to be not maintainable at the appellate stage only because appropriate declaratory relief has not been prayed.
xxx xxx xxx xxx
43. In Shrisht Dhawan (Smt) v. Shaw Bros., (1992) 1 SCC 534, an interesting discussion on 'jurisdictional fact' is found in the concurring opinion of Hon'ble R. M. Sahai, J. (as His Lordship then was). It reads:Page 72 of 186
"19. *** What, then, is an error in respect of jurisdictional fact A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad (Wade, Administrative Law. In Raza Textiles [(1973) 1 SCC 633] it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly.
*** (emphasis supplied)
44. Borrowing wisdom from the aforesaid passage, our deduction is this. An issue of maintainability of a suit strikes at the root of the proceedings initiated by filing of the plaint as per requirements of Order VII Rule 1, CPC. If a suit is barred by law, the trial court has absolutely no jurisdiction to entertain and try it. However, even though a given case might not attract the bar envisaged by section 9, CPC, it is obligatory for a trial court seized of a suit to inquire and ascertain whether the jurisdictional fact does, in fact, exist to enable it Page 73 of 186 (the trial court) to proceed to trial and consider granting relief to the plaintiff as claimed. No higher court, much less the Supreme Court, should feel constrained to interfere with a decree granting relief on the specious ground that the parties were not put specifically on notice in respect of a particular line of attack/defence on which success/failure of the suit depends, more particularly an issue touching the authority of the trial court to grant relief if the 'jurisdictional fact' imperative for granting relief had not been satisfied. It is fundamental, as held in Shrisht Dhawan (supra), that assumption of jurisdiction/refusal to assume jurisdiction would depend on existence of the jurisdictional fact. Irrespective of whether the parties have raised the contention, it is for the trial court to satisfy itself that adequate evidence has been led and all facts including the jurisdictional fact stand proved for relief to be granted and the suit to succeed. This is a duty the trial court has to discharge in its pursuit for rendering substantive justice to the parties, irrespective of whether any party to the lis has raised or not. If the jurisdictional fact does not exist, at the time of settling the issues, notice of the parties must be invited to the trial court's prima facie opinion of non- existent jurisdictional fact touching its jurisdiction. However, failure to determine the jurisdictional fact, or erroneously determining it leading to conferment of jurisdiction, would amount to wrongful assumption of jurisdiction and the resultant order liable to be branded as ultra vires and bad.
45. Should the trial court not satisfy itself that the jurisdictional fact for grant of relief does exist, nothing prevents the court higher in the Page 74 of 186 hierarchy from so satisfying itself. It is true that the point of maintainability of a suit has to looked only through the prism of section 9, CPC, and the court can rule on such point either upon framing of an issue or even prior thereto if Order VII Rule 11 (d) thereof is applicable. In a fit and proper case, notwithstanding omission of the trial court to frame an issue touching jurisdictional fact, the higher court would be justified in pronouncing its verdict upon application of the test laid down in Shrisht Dhawan (supra).
46. In this case, even though no issue as to maintainability of the suit had been framed in course of proceedings before the Trial Court, there was an issue as to whether the Agreement is true, valid and enforceable which was answered against the sellers. Obviously, owing to dismissal of the suit, the sellers did not appeal. Nevertheless, having regard to our findings on the point as to whether the buyer was 'ready and willing', we do not see the necessity of proceeding with any further discussion on the point of jurisdictional fact here."} "26. Since in the present case, the seller had issued a letter dated 07th February, 2008 cancelling the agreement to sell prior to the institution of the suit, the same constitutes a jurisdictional fact as till the said cancellation is set aside, the respondent is not entitled to the relief of specific performance.
27. Consequently, this Court is of the opinion that absent a prayer for declaratory relief that termination/cancellation of the agreement is bad in law, a suit for specific performance is not maintainable."Page 75 of 186 SUBMISSIONS ON BEHALF OF RESPONDENT NO. 9
SARVAPRIYA CO-OPERATIVE HOUSE BUILDING SOCIETY LTD:
169. The Ld. Trial Court Judge in the impugned Judgement has clearly held that the suit filed by the respondents 1 to 8 is not maintainable and has further held that the claim of ownership of the suit property was not maintainable and the respondents-plaintiffs could not have claimed ownership of the suit property in the facts of the present case.
170. The Ld. Trial Court Judge has further held that mere allotment letter by the Society does not confer any right and title over the property in favour of the respondents.
171. However, in spite thereof the Ld. Trial Court Judge has erroneously proceeded to pass a decree against the appellant holding that a validly executed and registered Lease Deed in favour of the appellant is null and void and further decreeing that the Lease Deed be executed in respect of the said property of the appellant in favour of the Plaintiffs-respondents.
172. The suit was filed by the original Plaintiffs-respondents no. 1-8 claiming themselves to be legal heirs of one Smt. Dhan Devi Kapoor and seeking a declaration that late Smt. Dhan Devi Kapoor was the original owner of the suit property being Plot No. 10/11, Sarvapriya Vihar, New Delhi.
173. A further consequential relief was prayed that the respondents as such being the legal heirs are entitled to be substituted in her place in the records of Respondent No. 9 and DDA, (Respondent No. 10), Page 76 of 186 and as a consequence a further relief was sought for declaring the sub-
lease validly executed and registered in favour of the appellant as null and void and not binding on them.
174. A further relief of mandatory injunction directing the Society (R-9) and DDA (R-10) to execute a sublease in their favour and permanent injunction against the appellant, and Respondent Nos. 9 & 10 from interfering and claiming any right in the suit property.
175. Late Smt. Dhan Devi became the member of the Respondent No. 9 in 1961 with an undertaking: "I understand further that the actual transfer of plot in my favour will be affected only after the full cost of land including development charges have been paid by me ." (Pg 209 of the Appeal).
176. On the basis of this membership form and the undertaking given by Late Smt. Dhan Devi Kapoor, she had been allotted the plot. However, Smt. Dhan Devi Kapoor passed away on 12.04.1980 without the payment of the full consideration amount, the development charges and without execution of the valid Sub-Lease Deed.
177. During her lifetime she had paid INR 19,497/- towards the plot. The total cost of the plot which was coming to total of INR 30,450/-, which was only partly paid.
178. Therefore, at the time of her death Smt. Dhan Devi Kapoor was not the owner of the suit property. Hence, she had no immovable property which could have been inherited by her Legal Heirs. The plot in question was only earmarked for allotment subject to Smt. Dhan Page 77 of 186 Devi Kapoor paying, clearing the entire dues and demands towards the said plot.
179. In the present case the ownership of the said plot had not been transferred to her. Lt. Smt. Dhan Devi Kapoor was only entitled to get the suit property registered in her favour, provided the entire consideration was paid and she met the criteria for execution of the sub-lease as per the By-laws of the Society.
180. Smt. Dhan Devi Kapoor was not the owner of the plot and didn't have any title to the suit property, which is also evident from the fact that the respondents also sought a prayer for getting the sub- lease executed in favour of the Legal Heirs in the suit.
181. The respondents do not have a clear title or any title to the suit property.
182. The demise of Smt. Dhan Devi Kapoor was not communicated to the Respondent No. 9 until years later. By letter dated 15.06.1981 (Page No. 270 of the Appeal), Respondent No. 9 called upon Smt. Dhan Devi Kapoor to deposit the outstanding amount of INR 10,953/- towards total cost of plot within next 15 days (time bound).
183. There was no response to such letter and the demise of Smt. Dhan Devi Kapoor was concealed from Respondent No. 9 until 07.02.1983. On 07.02.1983, in response to the Letter dated 15.06.1981 (after almost two years), two of the sons, Maharaj Kumar Kapoor and Raj Kumar Kapoor, each sent a letter to the Respondent No. 9 enclosing cheques for Rs.1,565/- being 1/7th share of the said outstanding amount (Page No. 1-9 of the Additional Documents filed by Respondent No. 9).
Page 78 of 186184. Subsequently, in late February 1983, another son, Shri Krishan Kumar Kapoor sent an inland letter and a cheque for Rs.1,565/- claiming his share.
185. Importantly, the cheque from Shri Krishan Kapoor (dated 26.02.1983, drawn on Oriental Bank of Commerce) was dishonoured on 09.03.1983 (Page No. 212 - 215 of the Appeal). Contents of these 3 letters also stated that the other purported LR.s will also pay their shares. It is pertinent to note that despite assuring that the purported legal heirs of Smt. Dhan Devi Kapoor will pay their corresponding share towards the dues, no such payment was made by any other purported legal heir. Even at the date of cancellation of the allotment such amount was not paid in full.
186. After a span of 3 years, the Respondent No. 9 was informed about the death of Smt. Dhan Devi Kapoor, vide letter dated 07.02.1983. On receiving such information, the Respondent No.9 forthwith notified the DDA, the lessor, of the property vide letter dated 20.05.1983 (Page No. 216 of the Appeal). In addition, when queried by the DDA, the Respondent No.9 provided Smt. Dhan Devi Kapoor's last known address by letter of 16.09.1983 (Page No. 217 of the Appeal).
187. These communications ensured that the DDA was made aware of all relevant facts and the whereabouts of the deceased allottee's family, as would be necessary for any action by the authority. In the meantime, the DDA, after the exchange of letters between the Respondent No. 9 and DDA, observed that the heirs had neither Page 79 of 186 obtained a succession certificate nor had fully paid the consideration amount.
188. DDA therefore issued a "Show Cause Notice" dated 21.05.1984 (Page No. 10 of the Additional Documents filed by Respondent No. 9), stating to cancelling the allotment of Plot 10/11 if the Sub-Lease is not executed within next 30 days. The Show Cause Notice clearly states that:
"In case you fail to ................... period it will be presumed that you are not interested in getting the plot registered and have no objection if allotment of the plot is cancelled ".
189. Further the contents of the Show Cause Notice states that "Please note that no further opportunity will be provided in any circumstances and the plot shall be put in the next draw of lots and reallocated without any claim, whatsoever, of yours". Reply to the Show Cause Notice came on 06.06.1984 (Page No. 11-13 of the Additional Documents filed by Respondent No. 9). However, neither the balance consideration was paid and nor there was any succession certificate provided by the alleged Legal Heirs.
190. Despite Respondent No. 9 calling upon the Legal Heirs to produce a Succession Certificate as to the details of the legal heirs and legal representatives of deceased Smt. Dhan Devi Kapoor, the respondents no. 1 to 8 could not and did not produce any Succession Certificate.
191. However, the respondents no. 1 to 8 informed respondent No. 9 that they have applied for obtaining Succession Certificate on Page 80 of 186 08.10.1986 (Page No. 14-16 of the Additional Documents filed by Respondent No. 9) but no such Succession Certificate or Letters of Administration was obtained and submitted by the Original Plaintiffs to the Society.
192. It is an admitted fact that even as on date no such Succession Certificate or Letters of Administration has been obtained.
193. Having received no payment towards the pending dues of Smt. Dhan Devi Kapoor for over six years and having not received any Succession Certificate, on 31.01.1987, the Respondent No.9 published public notices in The Indian Express (English) and Nav Bharat Times (Hindi). These notices reiterated that Late Smt. Kapoor's heirs should contact the Respondent No.9 within 15 days to claim her deposits etc. and prove succession by certificate (Page no. 218 and 219 of the Appeal).
194. The notices specifically warned that no claim could be entertained without a succession certificate. Despite these published notices, no valid claim was filed, neither the balance consideration was paid and nor there was any succession certificate provided.
195. After waiting for an appropriate time of over one year, as there was no claim / objection, on record. The Respondent No. 9 in 1988 requested the DDA to cancel the allotment and to release the plot earmarked for Smt. Dhan Devi Kapoor for further allotment.
196. The Appellant was also an original member of the Society. The Share Certificate was issued by the Society in favour of the Appellant/Defendant No.3 (Page No. 244 of the Appeal). The Page 81 of 186 appellants first preference was to have a plot allotted to himself as he had a large family, however, he was allotted a flat instead.
197. The Appellant at the time of accepting the flat had informed the Society that he would surrender his flat immediately if a plot would become available in the future. The Appellant was in constant communication with the Respondent No. 9 by way of letters in this respect. The Appellant wrote letters dated 27.09.1987 (Page No. 252 of the Appeal) and 02.03.1988 (Page No. 256 of the Appeal) seeking allotment of plot and gave his readiness to surrender his flat.
198. The Respondent No. 9 responded by its letter dated 01.10.1987 (Page No. 254 of the Appeal). Respondent No. 9 vide letter dated 15.04.1988 recommended to DDA the Appellant's name for allotment of the plot No. 10/11, Sarva Priya Vihar, New Delhi, previously earmarked for Smt. Dhan Devi Kapoor. Such recommendation made by the Respondent No. 9 was accepted by the DDA and by a letter dated 03.06.1988 DDA informed the Society about the approval and allotment of the said plot in favour of the Appellant (Page No. 280 of the Appeal).
199. Thereafter, on 09.06.1988 a Sub-Lease was validly executed and registered in favour of the Appellant by the DDA (page No. 283 of the Appeal).
200. The Appellant, while accepting his flat, stated that he would surrender the flat once the plot becomes available and the flat was never used. The Respondent No. 9 rightly weighed in needs of all its members.
Page 82 of 186201. As averred, on the one hand there were respondents-plaintiffs who were dragging their feet in clearing the dues regarding the plot and unable to provide any succession certificate and on the other hand was another member of the society who was waiting for a plot to become available.
202. The Respondent No. 9 had been pursuing the matter of clearance dues since 1981 and finally in 1988 the allotment was cancelled and the process of re-allotment was started.
203. As submitted on behalf of the Society-Respondent no.9, it is thereafter that the original plaintiffs (R1 to R8) suddenly woke up from their slumber and instituted the suit under appeal in 1988. With regards to the aforementioned suit, an errored Judgement and Decree was passed by the Ld. Trial Court in February, 2025, wherein the Ld. Trial Judge has although held that the reliefs as prayed by the original plaintiffs were not maintainable, but has granted relief in favour of the original plaintiffs, by declaring the validly executed and registered lease by the Respondent No. 9 in favour of Original Defendant No. 3 i.e., Sh. Punit Beriwala (Appellant herein) in respect of the suit property as null and void and directing Original Defendant No. 1 (the Respondent No. 9 herein) and the Original Defendant No. 2 (Respondent No. 10 herein) to facilitate the execution and registration of sub-lease of the suit property in favour of the Original Plaintiffs and other Defendants (being the L.Rs. of the deceased Smt. Dhan Devi Kapoor).
Page 83 of 186THE LD. TRIAL COURT IN PARAGRAPH 9.4.6 AND 9.4.7 HAS MISINTERPRETED THE LANGUAGE OF SECTION 26 OF THE DELHI CO-OPERATIVE SOCIETIES ACT, 1972 R/W RULE 35(6)(I) - (II) OF THE DELHI CO-OPERATIVE SOCIETIES RULES
204. While recording in para 9.4.6 that, "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." and "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".
205. It is submitted on behalf of the society that such a finding and recording is totally erroneous because Section 26 of the Delhi Co- operative Societies Act, 1972 provides that on a member's death the society "may transfer the share or interest of the deceased member to the person nominated in accordance with the rules... 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".
206. Rule 35(6)(i) and (ii) implements this by requiring that, if no nomination exists, the Society "shall, on the member's death, by public notice invite claims or objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice.", and thereafter "the Committee shall decide as to the person who in its opinion is the heir or the legal representative of the deceased member".
Page 84 of 186207. In plain terms, the interpretation of Sections 26 of the Delhi Co-operative Societies Act, 1972 and Rule 35(6)(i) and (ii) contemplates that Respondent No. 9 call for claims and objections via public notice (which was done via Public Notice dated 31.01.1987, Page no. 218 and 219 of the Appeal) and then decide based on the evidence (Succession Certificate / other proof of Succession) as to who are the Legal Heir of the deceased.
208. Nowhere does Sections 26 of the Delhi Co-operative Societies Act, 1972 and Rule 35(6)(i) and (ii) impose on the Society a proactive duty to hunt down or "find out" legal heirs beyond giving notice as wrongly interpreted by Ld. Trial Court in the Paragraph 9.4.6 and 9.7.7 of the Impugned Judgement where the Ld. Trial Judge have recorded that "in the present facts, 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."
209. Under the aforementioned Section and rules, the burden to prove heirship remains with the Legal Heirs. Section 26 and Rule 35 vest in the Society only a decision‐making role after claims are made Page 85 of 186 and the language of Section 26 clearly mandates the onus is only to decide and not to find out the legal heirs of the deceased.
LD. TRIAL COURT IN 9.4.6 AND 9.4.7 HAS GIVEN ERRORED FINDING THAT THE RESPONDENT NO. 9 HAS NOT FOLLOWED THE MANDATED PROCEDURE UNDER THE DELHI CO-OPERATIVE SOCIETIES ACT, 1972 AND RULES IN MANAGING THE ALLOTMENT AFTER THE DEATH OF THE ORIGINAL ALLOTTEE.
210. It is undisputed on the record that Smt. Dhan Devi Kapoor was a member of the Respondent No. 9. Her written application for membership dated 22.02.1961 is on record, and the Respondent No. 9's register of members contains her entry. As a duly admitted member, she was entitled to the privileges of an allottee when she secured Plot No. 10/11.
211. However, the undisputed fact is that Smt. Kapoor died on 12.04.1980 without executing a sub-lease and without the payment of the balance consideration amount, which was a pre-requisite for the valid execution of the Sub-Lease.
212. The Respondent No. 9's case is that it acted consistently with the requirements of the Delhi Co-operative Societies Act and its by- laws at each stage following her death.
213. As the full consideration amount not was paid by Smt. Dhan Devi Kapoor, by letter dated 15.06.1981, Respondent No. 9 called upon Smt. Dhan Devi Kapoor to deposit the outstanding amount of INR 10,953/-, and execute a valid Sub-Lease deed in her favour. This Page 86 of 186 was the first letter sent by the Respondent No. 9 for the payment and execution of the Sub-Lease which had the time bound of 15 days (Page No. 270 of the Appeal).
214. Steps were not taken within the stipulated time. There was no response to such letter and the Respondent No. 9 was uninformed about her death for 2 years. It was, only vide letter dated 07.02.1983, where information about the demise was given. However, neither there was any succession certificate attached nor there was full payment of consideration amount.
215. On receiving such information, the Respondent No.9 forthwith notified the DDA, the lessor, of the demise vide letter dated 20.05.1983 (Page No. 216 of the Appeal). In addition, when queried by the DDA, the Respondent No.9 provided Smt. Dhan Devi Kapoor's last known address by letter of 16.09.1983 (Page No. 217 of the Appeal). DDA on a request, consultation and information given by the Respondent No. 9 issued a Show Cause Notice on 21.05.1984 (Page No. 10 of the Additional Documents filed by Respondent No. 9) proposing to cancel the allotment unless the dues were paid, heirs produced proof of succession certificate and a valid sub-lease deed was executed within next 30 days.
216. With regards to the Show Cause Notice for the Cancellation; no steps were taken by purported LR.s to execute the Sub-Lease deed by providing succession certificate (even till date succession certificate is not provided) or payment of the balance consideration amount.
217. As the Respondent No.9 cannot move forward without the Succession Certificate as concrete evidence is required in order to Page 87 of 186 substantiate the claims, the Respondent No. 9, took the next step of public notices in two widely circulated newspapers on 31.01.1987 (Page no. 218 and 219 of the Appeal). These notices invited the legal heirs of Late Smt. Kapoor to come forward within 15 days to settle her account and submit a succession certificate. The notices explicitly stated that any claim would have to be accompanied by a succession certificate.
218. Publishing such notices is in consonance with the of Sections 26 and Rule 35(6)(i) and (ii) of the Delhi Co-operative Societies Act, 1972. The fact that the Respondent No.9 published notices in both English and Hindi newspapers demonstrates that it was scrupulously following the procedure. Importantly, these notices were addressed to "legal heirs" of the deceased.
219. The Respondent No.9 has effectively stated: "if anyone is entitled to Smt. Dhan Devi Kapoor's deposits etc., come forward now with the proper proof.", as provided in the due process under the Act and by-laws.
220. No heir made a valid claim in response to those notices. The Respondent No.9 did not simply cancel the allotment on its own authority; it awaited concrete proof of evidence i.e. Succession Certificate for 8 years where effectively 3 Notices were sent by Respondent No. 9 in 1981, 1984 and 1987, to the Plaintiffs and purported LR.s within a span of 8 years which was otherwise timebound.
221. The trial court's finding that due procedure was not followed cannot be justified on the evidence. On the contrary, the Respondent Page 88 of 186 No.9's conduct reflects meticulous adherence to the prescribed process: informing the allotment authority, inviting succession claims by public notice, and giving ample time to heirs.
222. No contention is made that the Respondent No.9 omitted any specific step required by the Delhi Co-operative Societies Act or the Respondent No.9's by-laws. Therefore, the Judgement recorded by the Ld. Trial Judge at 9.4.7 where he stated "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 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." is errored, wrong and is liable to be set aside in the present appeal.
IT IS THE SUBMISSION OF THE SOCIETY THAT THE RESPONDENTS NO. 1 TO 8 HAVE NOT SOUGHT ANY RELIEF AGAINST THE CANCELLATION OF ALLOTMENT EFFECTED BY THE DDA VIDE ORDER DATED 11.04.1988.
Page 89 of 186223. There were no pleadings in the suit alleging that the cancellation was illegal, arbitrary, or otherwise invalid. The respondents no. 1 to 8/ original plaintiffs were, in fact, aware of the said cancellation at the time of filing the suit.
224. Even if it is assumed, though not admitted, that they were unaware at the time of filing, they became aware of it shortly thereafter. Despite this, the respondents did not amend their pleadings to challenge the cancellation or seek appropriate relief in that regard, and instead proceeded with the suit in its original form.
225. Having failed to amend the plaint to question the validity of the cancellation, the respondents cannot now be allowed to argue that the Court must first determine the legality of the cancellation before considering the allotment in favour of the Appellant. Since the respondents never questioned the cancellation, the respondent no.9 society was not given an opportunity to respond to or contest such an issue. On the contrary, the society and the appellant had argued before the Ld. Trial Court that, in the absence of any challenge to the cancellation order or any relief sought to set it aside, the Plaintiffs- respondents are not entitled to any relief.
226. Moreover, as the cancellation of allotment continues to remain valid and binding upon the parties, the respondents are precluded from challenging the subsequent allotment made in favour of appellant, which occurred only after the plot was made available for re-allotment post-cancellation.
Page 90 of 186227. There were no pleadings by the respondents on the issue of cancellation, nor was any issue framed in this regard. In fact, no such issue could have been framed in the absence of relevant pleadings.
228. The Society, and the DDA all contested the suit by filing written statements, and by leading evidence. As submitted on behalf of the society, the Ld. Trial Court Judge has erroneously recorded in para 9.4.1 that "it is there case that the original allotment made in the name of late Smt. Dhan Devi Kapoor was illegally cancelled and allotted to Defendant No. 3."
229. It is submitted on behalf of the society that such a finding and recording is totally erroneous because there is not a single averment in the entire plaint claiming the cancellation as illegal, nor any prayer has been sought in this regard, or issues been framed in the matter.
230. The Ld. Trial Court could not have travelled beyond pleadings and permit the respondents no.1 to 8 to set up an entirely different case at the time of arguments.
LD. TRIAL COURT CORRECTLY HELD THAT A SUIT FOR TITLE WITHOUT SEEKING THE RELIEF OF POSSESSION IS NOT MAINTAINABLE, WHILE DEALING WITH PRAYER OF DECLARATION OF TITLE TO THE SUIT PROPERTY.
231. The Ld. Trial Court rightly rejected the argument of deemed possession raised by respondents-plaintiffs. The Ld. Trial Court held 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 Page 91 of 186 simpliciter suit for declaration of title without seeking possession is not maintainable".
232. The Ld. Trial Judge went on to hold, the respondents have even otherwise failed to establish that they were entitled to be declared as owners of the suit property. The Ld. Trial Court relying on the judgement dated 07.05.2024 of the Hon'ble High Court of Karnataka in the case of Smt. Adhilakshmi & Ors Vs. Shree Chidanand in RFA No. 764 of 2010 held that the allotment letter does not confer any title.
233. The contentions of the respondents no. 1 to 8 that allotment letter confers title was wholly rejected by the Ld. Trial Court. These findings given by the Ld. Trial Judge have not been challenged by any of the parties to the suit and have therefore attained finality.
234. However, the Ld. Trial Court despite holding the above failed to dismiss the suit. It is submitted that having held that the relief of declaration and injunction cannot be granted and the suit not being maintainable, the Ld. Trial Court could not have proceeded to or venture into passing a decree declaring the lease deed in favour of the appellant as null and void.
235. Instead of dismissing the suit as not maintainable the Ld. Trial Court erroneously ventures into examining the prayer of declaration as to, "illegality and void nature of the sub-lease executed" in the name of the Appellant.
236. Having already held that the plaintiffs-respondents have failed to establish the ownership qua the suit property the Ld. Trial Court could not have gone into the issue of the sub-lease executed in favour Page 92 of 186 of the Appellant. Once the Ld. Trial Court held that the title suit was not maintainable and that the respondents-plaintiffs failed to establish their title to the property, the suit should have been dismissed.
THE LEARNED TRIAL COURT ALSO ERRED IN HOLDING THAT SECTION 34 WAS INAPPLICABLE ON THE GROUND THAT THE SUIT DOES NOT SEEK A "DECLARATION OF TITLE."
237. This conclusion is not only inconsistent with the analysis in paragraphs 9.3.1 to 9.3.7 of the impugned judgement but also contrary to the pleadings, issues framed, evidence adduced, and arguments advanced by both parties during the trial.
238. The foundational premise of the suit is that Smt. Dhan Devi Kapoor be declared the rightful owner of the subject property. Even assuming, without conceding, that the suit was not one for declaration of title but merely challenged the allotment in favour of Appellant, the suit would still fall foul of Section 34, as the respondents failed to seek the necessary reliefs specifically, setting aside the cancellation of allotment, declaration of title, and possession.
239. Furthermore, if the suit is indeed not for title, as observed by the Learned Trial Court, it seriously erred in directing the execution of a sub-lease in favour of the respondents-plaintiffs, especially in light of its own finding that the respondents-plaintiffs failed to establish the ownership of Smt. Dhan Devi Kapoor.
240. Respondent No. 9 submits that admittedly the original plaintiffs have failed to ask for the relief of possession of the suit property in the Page 93 of 186 present suit and therefore the Ld. Trial Court rightly held that the suit was not maintainable.
241. Further, the respondents have even failed to ask for setting aside the cancellation order dated 11/04/1988 by DDA. In the absence of the relief of possession and setting aside the cancellation, the present suit is also hit by the proviso of section 34 of the Specific Relief Act, 1963.
242. As averred on behalf of the society, the respondents-original plaintiffs have conceded before this Court that they are not, and were not seeking a declaration of ownership.
243. If the respondents-plaintiffs are not seeking a declaration of title, and they have not challenged the cancellation they become strangers to the suit property; therefore, respondents-plaintiffs would not have any locus standi to maintain suit only seeking cancellation of sublease registered in favour of a third party.
244. Further, if they weren't seeking the relief of declaration, then the direction of the Ld. Trial Court to DDA and the Society to execute a sub-lease in favour of the respondents-plaintiffs is beyond the pleadings and against all cannons of law.
245. Respondent No. 9 submits that while dealing with the issue of limitation (para 9.2.4) and the question of declaration of title (para 9.3), the Learned Trial Court held that the present suit was one for "declaration of title" and proceeded to find it non-maintainable on the ground that no relief for possession had been sought.
246. However, while adjudicating on the applicability of Section 34 of the Specific Relief Act and the matter concerning execution of sub-
Page 94 of 186lease in favour of the Appellant, the Ld Trial Court recorded a contradictory finding, that the suit is not for declaration of title.
247. This inconsistency reflects a complete non-application of mind on the part of the Ld. Trial Court and renders the latter portion of the judgement legally untenable. Additionally, the Ld. Trial Court further erred in holding that the validity of the allotment in favour of the Appellant was never challenged, which is factually incorrect and contrary to the submissions made.
THE SUIT FILED BY THE RESPONDENTS-PLAINTIFFS IS ALSO NOT MAINTAINABLE IN VIEW OF SECTION 90 OF THE DELHI CO-OPERATIVE SOCIETIES ACT, 1972.
SECTION 90 STATES AS UNDER:
"90. Notice necessary in suits:
No suit shall be instituted against a co-operative society or any of its officers in respect of any act touching the business of the society until the expiration of three months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."
248. As per the above section, a notice in writing has to be sent and delivered to the Registrar stating the cause of action, name, description, place of residence of the respondents-plaintiffs and the relief claimed. After the delivery of the said notice the suit shall be instituted after the expiry of three months from the date of delivery of Page 95 of 186 such notice and the plaint shall also contain a statement that such notice has been delivered.
249. The Ld. Judge has clearly erred in not appreciating that the said provision of Section 90 was fully applicable in the facts of the present case and further that the said issue of Section 90 had not been decided by the Hon'ble High Court, as has been wrongly recorded in paras 9.1.3 and 9.1.4.
250. The objects of the Society as per the Bylaws are as under:
"II. OBJECTS
3. Its objects shall be:
(i) To acquire either through outright purchase or on lease, land for:-
(a) The development and construction of residential houses/flats for giving to members, either on lease or on rent or by outright sale or on hire purchase system in the case of Group Housing provided that the ownership of land used for construction of flats shall always remain with the Society.
(b) Allotment to its members, on such terms and conditions as may be fixed by the Society in accordance with the by-laws and such other conditions as may be laid down by Registrar/Government/Delhi Development Authority etc. for the construction of houses/flats by the members for their own use.
........................................"
251. Given the above, the dispute in the present case clearly touches upon the business of the Society and hence a notice under Section 90 Page 96 of 186 was mandatory and in the absence of the same the present suit is bound to fail in view of the Judgements relied upon by the Appellant.
252. It is relevant to mention here that the Judgement of the Hon'ble High Court dated 04.08.2021 in RFA No. 203 of 2018 arising from this very suit holding that the jurisdiction of the Civil Court is not ousted only pertained to Section 60 and 93 of Delhi Co-operative Societies Act, 1972. The said Judgement did not deal with Section 90 of the said Act and cannot preclude this Hon'ble Court from adjudicating the fact that a notice under Section 90 was mandatory.
253. The present suit apart from seeking such declaration also challenges the allotment of a plot made by the Society in favour of its member and therefore also touches the business of Society, hence the notice was mandatory before the institution of the present suit.
254. Further, relief of mandatory injunction as made in prayer (ii) cannot be granted inasmuch as the said relief is discretionary. Mandatory injunction and perpetual injunction cannot be granted for the mere asking because of bar under the provisions of Section 38(2)
(c) as well as Section 41(h) & (i). Even otherwise also the reliefs of mandatory injunction and permanent injunction as well as the decree of declaration of the fact that the sub-lease executed and registered in the name of Defendant No. 3 is illegal, void and of no consequence cannot be given or granted in the absence of seeking cancellation of the said sub-lease deed. The bar under section 34 of the Specific Relief Act also applies here.
Page 97 of 186255. The Respondent No. 9 further states that the prayers/reliefs claimed in Prayer (ii) and (iii) cannot be granted under the provisions of Section 41 (h) & (i) of the Specific Relief Act, 1963.
256. The respondents-plaintiffs could have approached the Registrar under Section 60 of the Delhi Co-operative Societies Act, 1972 for an equally efficacious relief as has been claimed in the present suit. The respondents-plaintiffs however chose to file the present suit. The Hon'ble High Court vide a judgement dated 04.08.2021 held that the jurisdiction of the Civil Court is not ousted.
257. That does not mean that the respondents-plaintiffs could not have approached the Registrar for the same relief of getting the plot re-allotted to themselves.
IT IS ALSO SUBMITTED THAT THE PLAINTIFFS-
RESPONDENTS AND OTHER LRS. ARE ALSO NOT ENTITLED TO GET ANY RELIEF AS THEY ALL STAND DISQUALIFIED TO GET THE SUB LEASE EXECUTED IN THEIR FAVOUR BEING PLOT / FLAT HOLDERS WITHIN DELHI.
258. Prior to execution of the sublease an affidavit is required by the persons that they do not hold any other plot or flat within Delhi. As already stated above all legal heirs are plot/flat holders within the respondent Society and Delhi.
259. It is further the contention of Respondent No. 9 that as per the registered By-laws of Society, the eligibility criteria of a person to be eligible to be a member of the Society is as under:
Page 98 of 186"5(i) Any person shall be eligible to be a member of the Society provided:
(a) he is resident in the jurisdiction of Municipal Corporation of Delhi New Delhi Municipal committee,
(b) his written application for membership has been approved by majority of the Managing committee,
(c) his age is more than 18 years, except in the case of minor heir of the deceased member,
(d) he is not a member of other house building/group housing society
(e) he or his wife (she or her husband in case of a woman) or any of his/her dependents do not own a plot or a dwelling house/flat in Delhi / NDMC;
(f) directly or indirectly he does not deal in purchase or sale of house or land for construction of houses either himself or through any of his dependents;
(g) he has carried out the provisions of by law 11.
(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 any ex-member may transfer his shares to another member or applicant qualified under By-laws 5 and approved by the Committee or to a share transfer fund......"
Page 99 of 186260. It is submitted that admittedly most of the plaintiffs- respondents are members of the same Society, and holding plots in the same Society and also some of the parties' own plots and dwelling house/flat in Delhi/NDMC and as such they are not eligible to claim any right in respect of the suit property or to be substituted or become member of the Society.
261. It is respectfully submitted that even otherwise also because of the default in making payment of the entire consideration of the plot by late Smt. Dhan Devi Kapoor the allotment stood cancelled for non- performance & default and as such no right or relief can be claimed by any of the heirs of late Dhan Devi Kapoor inasmuch as the allotment was not complete.
RESPONDENT NO. 9 SUBMITS THAT RULE 35 (7) CLEARLY PROVIDES THAT IN CASE THE COMMITTEE OF THE SOCIETY REFUSES TO TRANSFER THE SHARE OR INTEREST OF THE DECEASED MEMBER, THE PERSONS CLAIMING TO BE SUCCESSORS IN INTEREST SHALL FILE AN APPEAL TO THE REGISTRAR WITHIN 30 DAYS OF SUCH REFUSAL.
262. The Registrar after hearing the Society and the applicant shall pass an order as he may think it proper. Therefore, first and foremost, if the grievance of the respondents-plaintiffs is that the Society failed to transfer the share/interest of the deceased Smt. Dhan Devi Kapoor, the only remedy for the respondents-plaintiffs was to approach the Page 100 of 186 Registrar in Appeal and the decision of the Registrar and any order passed by the Registrar would have been binding and final.
263. Admittedly, the respondents-plaintiffs have not approached the Registrar in terms of Rule 35(7). It is pertinent to mention that the respondents-plaintiffs themselves are relying upon Rule 35 of the Delhi Cooperative Societies Rules.
264. Respondents-plaintiffs claim that in terms of Rule 35(6) they had staked a claim for the transfer of the share of the deceased Smt. Dhan Devi Kapoor but the Society failed to take any decision and refused transfer. It is submitted that if such was the case then the only remedy available to the respondents-plaintiffs was under sub-rule 7 of Rule 35, namely, filing an appeal to the Registrar within 30 days of such refusal/date of the application.
265. Accordingly, even as per the own admission of the respondents-plaintiffs, the present suit is not maintainable. Further during the cross-examination of PW-1 he was unable to show from the records any application filed by the LRs by which the joint request for transfer was made to Respondent No. 9.
266. Lastly, Respondent No. 9 submits that as there is no valid Sub- lease deed executed in the favour of Smt. Dhan Devi Kapoor and she was merely an allottee. The purported LRs of the Smt. Dhan Devi Kapoor cannot claim inheritance, as she did not hold any title or ownership over the plot. Therefore, the findings given by the Trial Judge under 9.4.9 to 9.4.12 are errored and liable to be set aside.
267. Respondent No. 9 submits that even if the plaintiffs- respondents have any right to get a plot, they still don't have and can't Page 101 of 186 have any claim over the suit property /plot allotted to the Appellant herein. It is submitted that Respondent No. 9 has furnished an undertaking in the present suit that an alternative plot bearing plot no. 12/23 in Sarva Priya Vihar has been reserved for allotment to the plaintiffs-respondents and the said plot is still held by the Society. Therefore, at the best, plaintiffs-respondents can claim the said plot which has been kept reserved for them by Respondent No. 9.
THE LD. COUNSELS FOR THE RESPONDENTS-PLAINTIFF HAVE FILED COMMON-COMPOSITE SUBMISSIONS WHICH ARE STATED AS UNDER:
268. PER CONTRA, the Ld. Counsels for the respondents no. 1 to 8 (No.1 (a), l(b), l(c), 2(c), 2(d), 3, 4, 5-A(i), 6(b), and 7) ie the original plaintiffs being represented by same Counsels, have opposed the appeal, submissions, grounds and arguments advanced on behalf of the appellant, the Society and the DDA.
269. The Ld. Counsels have submitted that the appeal is bad in law, misconceived and malafide. The Ld. Counsels have also made submissions that the appellant has not approached this Court with clean hands, and intentionally hidden important facts from this Court, including the orders as passed by The Hon'ble High Court of Delhi at New Delhi in passed in I.A. 3626/88.
270. The Ld. Counsels have also argued that the appellant cannot be allowed to approbate and reprobate in the same breath with respect to the undertakings given by him. As such, the appellant is bound by his own undertakings. The Ld. Counsels have also submitted that the Page 102 of 186 undertakings as given by the appellant continue to be in operation, even during the pendency of the present appeal.
271. The Ld. Counsels have also emphatically pressed that if the impugned judgement is stayed/ set aside/ reversed, then the entire process would come to a standstill, after 37-38 years of litigation, thereby, seeking a dismissal of the present appeal.
272. It has further been submitted by the Ld. Counsels for the plaintiffs-respondents that no prejudice shall be caused to the appellant if the impugned judgement is not set aside/ reversed.
273. Admittedly, the Appellant and the Respondent No. 9 challenged the Judgement on the following points:-
a. "The impugned Judgement is bad in law as the Ld. Civil Judge Kautuk Bhardwaj -03, West, Tis Hazari Court Delhi failed to appreciate that the suit of the Plaintiffs therein is barred by provision of Delhi Cooperative Societies Act, 1972.
b. The cancellation of allotment of the Suit Property of Late Dhan Devi Kapur in legally valid and therefore, the subsequent allotment of the Suit Property to the Appellant by Respondent No. 9 is· valid in law."
274. In response to the submissions of the appellant and respondent no.9 that the legal heirs of the late Dhan Devi Kapur were disqualified as per section 25 of Delhi Cooperative Societies Act, 1972 as they have alternatives plots, and the suit of the respondents-plaintiffs is barred by Section 34 of the Specific Relief Act, 1963, it has been Page 103 of 186 submitted on behalf of the respondents-plaintiffs, the Appellant and Respondent No. 9 did not argue any other point before this Court during the course of oral hearing.
275. The Respondents No.1 (a), l(b), l(c), 2(c), 2(d), 3, 4, 5-A(i), 6(b), and 7 categorically deny all the above points taken by the Appellants and Respondent No. 9.
276. Late Smt. Dhan Devi Kapoor had made an application for membership of the society in writing on 22.01.1961 & the subject Property was allotted to Late Smt. Dhan Devi Kapoor. Smt. Dhan Devi Kapur paid for cost of land allocated by DDA to the Society over the years from 1961 onwards.
277. Late Dhan Devi Kapur paid all installments invoked by managing committee for the purposes of development of land for distribution amongst the restrictive list of members who were jointly developing the land in the true spirit of a Cooperative.
278. It has been submitted on behalf of the respondents No.1 (a), l(b), l(c), 2(c), 2(d), 3, 4, 5-A(i), 6(b), and 7 that the entire payment for the Suit Property of Rs. 19,497.00 as per the prevalent rate of Rs. 65/- per square yards was made by Late Smt. Dhan Devi Kapoor during her lifetime as evident of Letter dated June l 5, 1981 of the Defendant No. 1 (Exhibit PW 1/1).
279. Smt. Dhan Devi Kapoor expired on 12.04.1980, and did not nominate any Person according to the register of Membership of the society. The Society by a letter dated 15.06.1981 (Exhibit PW 1/1) called upon Smt. Dhan Devi to deposit further amount of Rs. 10,953/ Page 104 of 186 towards additional cost for execution of the sub-lease of the Suit Property.
280. By letter dated 07.02.1983 (Exhibit PW 1/2) Maharaj Kapoor sent a cheque for Rs.1,565/-Claiming 1/7th share in the plot of land. By letter of some date namely 07.02.1983 Shri Raj Kumar Kapoor also sent a cheque for Rs.1,565/- claiming 1/7 Share in plot (Exhibit PW 1/7).
281. Towards the end of February, 1983 Mr. Krishan Kumar Kapoor also sent an inland letter card stating therein about the death of Smt. Dhan Devi Kapoor and enclosed a Cheque for Rs.1565/- and claiming 1/7th share in the said plot.
282. No action was taken by the society pursuant to said letters and the respondents-plaintiffs kept following up with the Society. In between a 'Show Cause Notice' was issued by the Defendant No.2/ DDA in respect of the Suit Property (Exhibit PW-1/9), which was duly replied to be respondents-plaintiffs vide communication dated June 6th, 1984 (Exhibit PW-2/1).
283. The respondents-plaintiffs kept communicating with the society for transfer of plot in favor of the legal heirs of Late Dhan Devi Kapoor (Exhibit PW-1/5; Exhibit PW-1/11).
284. Finally, the Society got the allotment of Late Dhan Devi Kapoor cancelled by giving an undertaking to DDA that in case of any claim of the legal heirs of Late Dhan Devi Kapoor, the society shall be responsible to take care of the same.
285. The legal heirs of Late Dhan Devi Kapoor including the respondents-plaintiffs were not intimated about this cancellation.
Page 105 of 186Reference may be made to the Cancellation of allotment letter April 11, 1988 (Exhibit DW-1/K) and undertaking of the M/s Sarvapriya Cooperative House Building Society Limited before the Hon'ble High Court of Delhi.
286. The respondents-plaintiffs came to know the appellant has done 'bhumi pujan' on the Suit Property, which was a barren plot or land then, which led to filing of the suit by the respondents-plaintiffs.
287. The submissions against the specific points of the Appellant along-with finding of the Ld. Trial Court are as under:-
"The impugned Judgement is bad in law as the Ld Civil Judge -03, West, Tis Hazari Court, Delhi failed to appreciate that the suit of the Plaintiffs therein was barred by provision of Delhi Cooperative Societies Act, 1972"
288. It is submitted on behalf of the respondents-plaintiffs that following issue was framed by the Ld. Trial Court:-
Whether the suit of plaintiff is barred by the provision of Delhi cooperative society Act? OPP
289. After framing of issues, an application under Order 7 Rule 11 of CPC was filed by the society and following order was passed by the Ld. Trial Court on July 19 2017: -
"In view of this Court, the present dispute is touching the business of Co-operative Society i.e. defendant No.1 and in view of Section 60 & 93 of Delhi Co-operative Societies Act, 1972 the jurisdiction of Civil Court is barred and this matter cannot be tried by this Court. Accordingly plaint is rejected under Order 7 Rule 11 (d) CPC. File be consigned to Record Room after due compliance."Page 106 of 186
290. An appeal was filed by the respondents-plaintiffs against the said order being RCA No. 62/2017 and the following order was passed by the Ld. Predecessor Court on August 29 2018:-
" 6. I have heard arguments advanced by Ld. Counsel for the parties and gone through material available on record.
6.1. Late (Smt.) Dhani Devi Kapoor was member of the respondent no. 1 and was allotted plot number 10/11 for which the payment was made to the society. She died on 12th April 1980 and subsequent to that the society informed her about the additional charges to be paid. One of the legal heirs of the deceased reacted to this letter and informed the respondent no.1 society that there are in total seven numbers of legal heirs who should be informed independently. However, one of the LRs deposited his 1/7th share which was accepted by the respondent no. 1 society. Thereafter, some of the correspondences were also issued by the respondent no.1 society but eventually the letter dated 21.05.1984 was received from respondent no. 2/Delhi Development Authority (DDA) in the nature of showcause as to why the allotted plot be not cancelled for the reason that the allottee has not got executed a registered sublease. The legal heirs thereafter approached the respondent no. 1 which desired that because the deceased has not mentioned any nominee in the records, therefore appropriate letter of administration need to be obtained from the competent court. The legal heirs approached the Hon'ble High Court and the matter is still pending. However, it is a matter of record that the respondent no. 1 published newspaper notices on 21st January, 1987 asking the legal heirs to settle the dispute within 15 Page 107 of 186 days otherwise the allotment shall be cancelled. It has been stated by the respondent no. 1 that the allotment of plot were made by DDA. In this background, it is relevant to note that the respondent no. 2/DDA while filing the written statement admitted that the President of the respondent no. 1 society informed DDA that the allottee of plot no. 10/11 has died without leaving any nominee to whom the plot can be transferred and in the meeting on 13th September, 1986 with DDA, it was decided that the allotment may be considered. Subsequent to this, DDA accepted the proposal of the respondent no. 1 to cancel the allotment and there is series of events mentioned in the written statement of DDA stating that the abovementioned plot was reallotted to Sh. Puneet Beriwal and it was subleased on 9th June, 1988. 6.2 The instant suit was filed in Hon'ble High Court of Delhi on 4 th July, 1988 seeking declaration and injunction in respect of the abovementioned plot. Subsequent thereto, on account of change in pecuniary jurisdiction, it was transferred to the Court of The Ld. Senior Civil Judge.
6.3 The nature of dispute between the legal heirs of the allottee on one side and the society on the other side is that the allotment made to Smt. Dhan Devi Kapoor would not be cancelled and therefore, the abovementioned plot no. 10/11 cannot be dealt with any of the respondents.
6.4 The moot question now is whether the dispute above constitute dispute touching upon the constitution, management or business of the society or not:Page 108 of 186
6.5. I have given careful consideration to the gamut of the facts and find that the real nature of dispute is about the entitlement of allotment of plot number 10/11 which entails whether or not the society has acted in accordance with the procedures and Bylaws laid down in this regard while making cancellation of the allotment. It cannot be lost sight that the relief's claimed not against the respondent no. 1 but also against the DDA/respondent no. 2. It has already been discussed above that at the instance of the respondent no. 1 cancellation was made by DDA/respondent no. 2 and further it was the respondent no. 1 which submitted undertaking in the form of indemnity that in future if any claim arises due to cancellation agitated by the legal heir then the respondent no. 1 would be liable for the same. This fact alone would reveal that the action of the respondent no. 1 was not an independent but the same was carried through DDA and therefore any noncompliance of the procedures in this regard would not culminate into a dispute touching upon the business of the society particularly in view of the fact when the allotment was being made through DDA. In that event, the role of the respondent no. 1 at best can be a collaborator or facilitator whereas the entire control of the project was with DDA. It is alleged by the appellant that the respondent no. 1 did not follow the procedures but hurriedly proposed for cancellation of the plot which ultimately resulted into an uncomfortable situation of making allotment of the same plot to another person. This dispute is not touching upon the business of the society but it is merely related to improper Page 109 of 186 cancellation of one allotment resulting into improper reallotment to another person.
6.6. Hon'ble Delhi High Court in the case of Sh. R S Batra Vs. Burmah Shell Coop. Societies, RFA no. 768/2005 decided on 28.03.2012 held as under:
In view of the above, that disputes in the subject suit pertain to the claim of ownership of the property/flat, and there is no classical dispute between the members of the society or between persons who claim through the members or between the society and the members etc. as per section 60 of the Delhi Cooperative Societies 1972. The disputes in the suit are to the rival claims of ownership to the flat. 6.7. After making the aforesaid observation, it was held that the courts below have committed an error of holding that civil courts do not have jurisdiction to decide that disputes of this nature. 6.8. The thrust of the judgement above revolves around the fact that not each and every dispute where the cooperative society is involved can be held to be the dispute touching upon the business of the society. It is further a settled principle of law that the exclusion of jurisdiction of civil courts provided under any statute should be construed very narrowly and the relevant provisions should be interpreted by adopting purposive interpretation. The interpretation should be such that the purpose of the provisions should be given effect to and it should not be widened enough so as to engulf the plenary jurisdiction of Civil Courts of adjudication of the civil disputes. In the statue under consideration, the Delhi Cooperative Societies 1972, the purpose of providing exclusionary clause is to Page 110 of 186 protect the Cooperative Societies and ensure smooth running of its regular business. It is in this background that Section 60 of Act, 1972 has excluded three categories of disputes namely touching the Constitution, management or the business of the cooperative society.
The principle of Ejusdem Generis a Latin term which means "of the same kind," comes into play which means that the words in immediate vicinity constitute one group and should be interpreted similarly. The abovementioned protection from dispute encompassing constitution, management or the business have been put together with a view that the defined authority (the Registrar of Societies) would be more suitable to resolve these disputes. This interpretation is further supported from the fact that only limited class of litigants are eligible to avail this remedy. This limited class of litigants include members and their representatives etc. it is also relevant to appreciate that the defined authority does not possess adequate expertise to handle complex issues of civil dispute which necessarily involve taking of evidence and its appreciation. In this background, it can be understood that the complex issue of ownership would entail series of documents and evidence on behalf of contesting parties. In respectful guidance from the above mentioned decided case it can be concluded that the dispute in the present case does not qualify to be the dispute as defined in Section 60 of the Act, 1972. The Ld. Trial Court committed an error in holding that the jurisdiction of civil courts is barred, therefore, the order of the trial court is set aside.
7. In view of above discussion, the appeal of the appellant is allowed. Parties are left to bear their own cost."
Page 111 of 186291. Finally on Second Appeal being RSA No. 203/2018 filed by Appellant/ Defendant no. 3 following order was passed by Hon'ble High Court on August 4, 2021 :-
"50. Undoubtedly, the proceedings dated 03.03.1989 relate to directions of an ad interim prayer and the suit is yet to be concluded on completion of trial with the matter present being at the stage of cross-examination of PW-3, which cross-examination is to be conducted by the defendants, nevertheless, the aspect that the action of the respondent no. 2 in the instant case was not independent but was carried out through DDA i.e. the respondent no. 3 to the present appeal, itself makes it apparent that the matter does not exclusively relate to any dispute between stated members of the Society and the Society and cannot be stated to be related to the business of the society.
51. The objects of the Society i.e. the respondent no.2 to the present appeal i.e. the defendant no.4 to the suit vide By-laws framed in terms of the Delhi Co-operative Societies Act, 1972 and Delhi Cooperative Societies Rules, 1973 read to the effect:-
"3. Its objects shall be
(i) To acquire either through outright purchase or on lease, land for;
(a) The development and construction of residential houses, flats for giving to a member either on lease or on rent or by outright sale or on hire-purchase system in the case of Group Housing, provided that Page 112 of 186 ownership of land used for construction of flats shall always remain with the society.
(b) Allotment to its members, on such terms and conditions as may be fixed by the society in accordance with the bylaws and such other conditions as maybe laid down by Registrar/Government/ Delhi Development Authority etc. for the construction of houses/flats by the members for their own use. (ii)..... (iii) ..... (viii) ......", Apparently though, thus, the objects of the respondent no.2 herein would include in terms of 3(1)(b) of the By-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 bylaws 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 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 Page 113 of 186 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 judgement 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.
59. As has rightly been observed vide paragraph 52 hereinabove, the objects of Sarvapriya Cooperative House Building Society Ltd. i.e. the respondent no.2 to the present appeal do not bring forth that it falls Page 114 of 186 within the domain of the Registrar of Delhi Co-operative Societies to adjudicate a dispute between the legal representatives of a deceased member who were not substituted in place of the deceased despite the initial allottee having paid the full consideration at the time of the allotment as per the previous rates of the land in question and thereby ousting the right of the legal representatives of the deceased member to seek allotment of the land in question and the said aspect does not in any manner relate to any dispute qua the constitution, management or business of the Society and thus, Sections 60 & 93 of the Delhi Cooperative Societies Act, 1972 do not bar the jurisdiction of the Civil Courts as has rightly been held by the First Appellate Court and in view of the objects of the respondent no.2, it is apparent that there is no substantial question of law as urged by the appellants that arises in the instant case.
61. In the instant case thus, as rightly held by the learned First Appellate Court that jurisdiction of the Civil Courts for determination of the rights of the legal representatives of the deceased member of the Co-operative Society to whom the plot of land had been allotted before her demise and who had paid the entire consideration for the same at the stage of allotment, though, the lease and sub-lease were not executed in her favour by the respondent no.3 herein i.e. the DDA, the aspect as to whether despite the entire payment of the consideration due for the allotment at the relevant time when the plot had been allotted, could be cancelled by the respondent no.3 herein to the present appeal i.e. the DDA at the behest of the respondent no.2 for alleged non-payment of the enhanced rate of the plot of land by Page 115 of 186 legal representatives of the deceased member Smt.Dhan Devi Kapoor of the Society, coupled with the factum that there had been repeated.
292. The paragraph No. 3.1 to 9.1.5 of the Judgement dated February 13, 2025 deals with this point and finds the same in favour of the plaintiffs.
293. "The Cancellation of allotment of the suit property of Late Dhan Devi Kapur in legally valid and therefore, the subsequent allotment of the suit property to the appellant by respondent no.9 is valid in law"
294. In response to the above stated argument of the appellant that the cancellation of allotment of Late Dhan Devi Kapoor is only bogus but, in fact, malafide. The Appellant has tried to mislead this Court by simply submitting before this Hon'ble Court since the legal heirs of Late Dhan Devi Kapoor did not make payment of enhanced amount and did not furnish any succession certificate, the allotment was cancelled.
295. However, the Appellant completely ignored to highlight the law position applicable in the factual background of the present case, which has already been highlighted in order dated March 3, 1989 passed by the Hon'ble High Court of Delhi in the present suit as under:-
" ..... The transfer of interest, on the death of a member is to take under section 26 of the Co-operative Societies Act and Rule 35 (6) and (7) which read as under: -Page 116 of 186
26. (1) On the death of a member Co-operative Society may transfer the share or interest of the deceased member to the person nominated in accordance with 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 curtained in accordance. with the rules or by-laws;
Provided that:
(i) in the Case of a co-operative 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 __
(ii) in the case of co-operative society with limited liability, the society shall transfer the share or interest of the deceased member to such nominee heir or legal representative, a the case may be, being qualified in accordance with the rules and by-laws for member ship 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 expect 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 36 and unless within six months of the death of the member Page 117 of 186 prevented by an order of a competent court, pay to such nominee heir legal representative, as the case may be, all other money due to the deceased member from the society.
(3) all transfers and , payments made by a co-open accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person.
RULE 35(6)
(i) Where a member of co-operative society has not made any nomination, the society shall, on the member's death, by a 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 with the time specified in the notice.
(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.
Page 118 of 1867. 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.
Admittedly Smt. Dhan Devi has not made any nomination. In absence of nomination the share or interest was liable to be transferred to such person as may appear to the committee to be the heir or legal representative of Smt. Dhan Devi. Such person had to be qualified in accordance with the rules and by-laws. It seems clear that the share or interest of a deceased member cannot be transferred to a person who suffers from any of the disqualifications for being admitted as a member of the society. In such an eventually, the society will be required to pay only sums representing the value of such members share or interest as ascertained accordance with the rules or by-laws or interest of a deceased member can be transferred to a nominee, heir or legal representative, as the case maybe, only on such person being qualified, in accordance with the rules & by-laws, to become a member of the society.
Page 119 of 186In support of the contention that plaintiffs have no prima facie case, Mr. V.F.Singh, learned counsel for defendant no.3 relaying on provision (11) of section 26(1) submitted that their legal representative, were required to file an application before the Society claiming rights in the share or interest of the deceased member. Such an application was required to be filed within one month of the death but it was not filed and its effect, according to learned counsel, is that plaintiffs cannot claim any such right. The society was informed of death of Smt. Dhan Devi Kapur on 7th February, 1983. The Society had also received from one of the heirs his share of balance amount. The society had even asked the heir to obtain succession certificate from court. The decision to allot plot to defendant no.3 was taken by the Society in April 1988 and sub lease was executed in June 1988. Under Rule 35(6)(i) The society is required to invite claims or objections for proposed transfer of the share or interest of the deceased by a public notice exhibited at the office of the society specifying the time within which claims or objections may be filed. Rule 36(6)(ii) provides that after taking into considerations the claims or the objections received in reply to the notice or otherwise, ad after making such inquires as the committee considers proper in the circumstances prevailing, the committee has to decide as to the person who in its opinion is the heir or the legal representative of the deceased member and thereafter it has to 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 the deceased member within 30 days of the decision of the committee. It is not the plea of Page 120 of 186 the Society that the provisions of Rule 35(6) (i) & (ii) were complied with. Under provision (ii) of Section 26(i) it is not necessary for a heir or legal representative to file any application. The requirement of filing any application is only when a nominee, heir or legal representative wants to transfer his share to a someone else whose name is to be specified in the application. It is only such type of application which is required to be filed within one month of the death of the deceased member. The society has placed on record copies of the public notice do not even purport to invite claims/ objections as contemplated by Rule 35(6) (i). These public notices only say that the legal heirs are requested to contact the society for settlement of her deposits. The society had already cancelled the allotment of the plot in favour of Smt. Dhan Devi Kapur before issue of these notices. The question whether any of the legal heirs of Smt. Dhan Devi Kapur is qualified to become a member of the society does not even appear to have been examined by the society as the plea of the society is that it is not aware whether plaintiff no.3 and defendants no. 5 to 7 hold any property in Delhi or not. A reading of Section 26 of the Act and Rules 35(6) prima facie does not show that it is necessary for the legal heirs to file any application within one month of the death of the deceased. Under Section 26 share or interest of the deceased member is to be transferred in the manner prescribed in the rules. The rules cast an obligation on the society to invite claims or objections in the manner provided therein. As observed earlier, it is not the case of the Defendants that any claims or objections were invited in terms of the said rule."
Page 121 of 186296. The above undisputed fact together with law position highlighted by The Hon'ble High Court in the above said order makes is clear that, once the suit property was allotted to Lt. Smt. Dhan Devi Kaput only manner in which the same could have transferred to someone else after her death was by compliance of provision of Rule 35(6) of Delhi Co-operative Society Rule, 1973. As admittedly the defendant failed to do so, the cancellation of allotment is illegal.
297. It is necessary to point out herein when the Society' witness was 1973 asked in about compliance of Rule 35(6) of the Delhi Co- operative Society Rule, 1973 in the cross examination and the witness pointed to the advertisement published by the Society which is exhibited as EX.DW-1/J (Cross examination dated 14.08.2024);
"Q. Did defendant no.1 invite any claims/ objections as per Rule 35(6)(1) of Delhi Cooperative Societies Act after becoming aware of the death of Lt. Dhan Devi Kapoor?
Ans. We published advertisement in Newspaper which is already exhibited as Ex.DW-1/I(OSR) and Ex.DW-1/J (OSR). It is wrong to suggest that the advertisement exhibited as Ex.DW-1/I and Ex.DW-1/J are not invitation of claim as per Rule 35(6)(1) of Delhi Cooperative societies act.
298. A perusal Exhibited as Ex. DW-1/I and DW-1/J shows that it is not an invitation of claim as per Rule 35(6) of the Delhi Co-operative Society Rule, 1973 and the advertisement only refers to settlement of amounts. This has also been categorically held by the Hon'ble High Court of Delhi in the above captioned order dated March 3, 1989.
Page 122 of 186Therefore, apparently there is a noncompliance of the statutory provisions of the society.
299. The Hon'ble High Court also observes in the above said order, the stand of the appellant and the society that the respondents- plaintiffs should have written a communication to the society for transfer of the plot to their name within the 30 days of the death of late Smt. Dhan Devi Kapoor is also legally incorrect.
300. As regards allotment of the suit property to defendant No. 3 (appellant) is concerned, it has already been observed by The Hon'ble High Court in the above said order as under:
"the manner if allotment of the plot in favour of Defendant no.3 also casts a serious doubt about the whole process of allotment. Prompt action is certainly good but not the haste. In this case, on 14 th April, 1988, defendant no.3 surrenders the flat in anticipation of the allotment of the plot, on 15th April 1988, decision about the allotment is taken. On 28th April, 1988, Defendant no.3 writes to the society thanking it for allotment of plot in lieu of the flat and wanting to know the amount of refund he would get on surrender of the flat after adjustment of the cost of the plot. On 29 th April, 1988, he is intimated that Rs 3,80,161/- would be refunded to him. On 3 rd June, 1988, DDA approves the allotment, on June 9th, 1988 sub-lease is executed and on 10th it is requested. The plans are submitted to D.D.A. on 27th June 1988 nut the Bhumipujan and digging for construction starts on a day earlier i.e. 26th June 1988. These facts speak for themselves. "Page 123 of 186
301. Upon being asked in the cross-examination, the witness of Appellant/Defendant No. 3 categorically admits that:-
"It is correct that the sum of Rs. 5,00,063/- paid by Defendant No. 3 to Defendant No. 1 was the full and final payment in respect of flat no. 103, which was earlier allotted by Defendant no. 1 society to Defendant No. 3. It is correct that the transaction in respect of the flat no. 103 was complete on 24/07/1986 ....."
Q.ls it correct that prior to 14/04/1988, the Defendant No. 3 or you have never written any communication stating that Defendant No. 3/you are accepting the flat no.103 ; under protest· Ans. Yes. However, when we applied for a flat, we also requested for allotment of plot also." (Page no. 762 and 463 of The Court file)
302. These depositions of the witness of appellant clearly prove that the prima facie view of the Hon'ble High Court regarding the suspicious and illegal transfer of allotment of the Suit Property to Defendant No. 3 is absolutely correct.
303. Therefore, the established position of fact as well as law is that the allotment of the Suit Property was illegally cancelled in respect of Late Smt. Dhan Devi Kapur & her legal heirs and the same suspiciously and illegally allotted to Defendant No. 3.
304. Another important point to be considered regarding the illegal cancellation of allotment of late Smt. Dhan Devi Kapur is that admittedly the cancellation was done on the basis of an undertaking dated 15.01.1988 of the Society-Defendant No. 1, which is apparent from Ex. DW-1/K (Page No. 747 of Court file) which regards as under:-
Page 124 of 186"D/sir With reference to your letter dated 23.03.1988 on the subject cited above, I am directed to inform you that on the basis of an undertaking dated 15.01.88 furnished by the Hony. Secretary of the Society on behalf of Sarva Priya Coop. HBS LTD, The Commissioner Lands, DDA has been pleased to cancel the allotment of Plot no.11 Street no.10 in Sarva Priya Coop HBS. Ltd in the name of Smt. Dhan Devi Kapoor. The society is requested to make necessary entries in its records."
305. During the cross examination, the witness of the society- respondent no.9 was asked to furnish above said undertaking before the Court and the following was stated:-
"Q. The letter dated 11/04/1988 Ex.Dw-1/K refers to an undertaking dated 15.01.88 which was given by the Secretary of Defendant no.1 society to defendant no.2/ DDA. Can you please produce a copy of same ?
Ans. I have to check the records.(at internal page no. 4 Cross Examination dated 03.08.2024) In response the Defendant no.1 witness stated that :-
"I could not trace on the record of defendant no. I the undertaking dated 15/01/1988 furnished by defendant no. 1 to DDA, which is mentioned in document Ex.DWJ/K" (at internal page no.2 of the cross Examination dated 14.08.2024) .
306. The witness of defendant no.1 also admitted that the cancellation of the plot was approved by DDA only upon the undertaking of Defendant no.1:-
Page 125 of 186"Q. You have stated in para 17 of your evidence affidavit that defendant no.1 have allotted the suit property to defendant no.1 after completion of all formalities, can you tell us what all formalities were carried out by the defendant no.1 society?
Ans. The defendant no.1 society has taken approval from DDA/ defendant no.2.
It is correct that the approval of the DDA was given pursuant to the undertaking of Defendant no.1 dated 15.01.1988"
307. Hence, the stand of the defendant that the cancellation was carried out by due process of law is completely false and in fact, the affidavit of undertaking of defendant No.1 dated 17.01.1989 filed before this Court clearly stated as under:-
"3. In the said undertaking, the defendant no.1 society has already undertaken to settle claims of the plaintiff/legal heirs of the deceased Smt. Dhan Devi Kapoor at any later stage and the Delhi Development Authority on being satisfied by the said undertaking furnished along with the defendant no.1-society's letter dated 15.1.1988, accorded its permission to the society to cancel the allotment of late. Smt. Dhan Devi Kapoor.
4. The Defendant No.I-Society hereby undertakes once again to settle the claims of the Plaintiffs/ legal heirs of Smt. Dhan Devi Kapoor, subject, however to the Defendant No.1 Society's contentions/ submissions in the above mentioned suit. inter-alia, that the allotment of late Smt. Dhan Devi Kapoor is not heritable by her legal heirs and that the said allotment had been duly cancelled in accordance with law."Page 126 of 186
308. Hence, it is an admitted position of the society that the cancellation of allotment late Smt. Dhan Devi Kapur was approved by DDA only on an assurance that claims of legal heirs of late Dhan Devi Kapur shall be settled by the Society.
309. It is necessary to point out herein that the Counsel for Delhi Development Authority Respondent No. 10 in this appeal, stated during the oral submission that DDA had cancelled the allotment of Lt. Smt. Dhan Devi Kapur only on the undertaking of Respondent No. 9 Society that the right and interest of Legal heirs or Lt. Smt. Dhan Devi Kapur Shall be duly taken care of.
310. As averred on behalf of the respondents-plaintiffs, this fact itself establishes that the society and DDA are aware about the legitimate claims of the legal heirs of Dhan Devi Kapur and, despite the same, cancelled the allotment at their own cost, risk and consequences. Therefore, apparently the cancellation is illegal and the respondents-plaintiffs are entitled to a decree in terms of the prayer made in the suit.
311. The paragraph No. 9.4.4 to 9.4.7 of the Judgement dated February 13, 2025 passed by Ld. Civil Judge, Tis Hazari Court, Delhi deals with this point & finds the same in favour of the Plaintiffs. c. "The legal heirs of the Late Dhan Devi Kapur were disqualified as per section 25 of Delhi Cooperative Societies Act, 1972. They have alternatives plots in Delhi and therefore, relief in the suit should not have been granted."
312. The appellants have argued that Legal Heirs of late. Smt Dhan Devi Kapoor have alternative properties in Delhi and therefore all of Page 127 of 186 them are disqualified under Rule 25 of Delhi Cooperative Societies Rules 1973 and hence the suit property cannot not be allotted to the legal heirs of late Dhan Devi Kapoor.
313. In this regard, it is submitted that, as per the provision of Rule 25, in case of disqualification, the society is required to pass an order and the same is appealable to the Registrar of the Delhi Cooperative Society.
314. No order has been passed in the regard against the legal heirs Lt Smt. Dhan Devi Kapoor or Late Smt. Dhan Devi Kapoor. The respondent society never made any enquiry, and did not have any information of legal heirs of Lt. Smt. Dhan Devi Kapoor have alternative plots in this regards cross examine by defendant (page no. 713 of Trial Court Record):-
"It is wrong to suggest that the document Ex.Dw-1/K was never forwarded to the legal heirs of late Dhan Devi Kapoor. It is wrong to suggest that the document Ex.DW-1/K is forged fabricated or otherwise illegal document. It is correct to say that the defendant no.1 is aware about plot available with Maharaj Kapoor, Rajkumar Kapoor, Shakuntala Bhandari, Rashmi Nagrath in Sarvapriya Vihar society, however, defendant no.1 is not aware about ownership of property by other legal heirs of late Dhan Devi Kapoor in other parts of Delhi. However, no other legal heirs apart from the legal heirs mentioned herein above have property in SarvaPriya Vihar Society. The defendant no.1 did not carry out any inquiry to find out whether other legal heirs of late Dhan Devi Kapoor except ones mentioned herein above have any property in Delhi or not. I am not aware that Page 128 of 186 despite a person having a plot in a society, that person can claim another plot as legal heirs of any deceased member society."
315. The Ld. Counsels for the respondent-plaintiffs have impressed upon this Court to further peruse the cross examination of PW3 (page 671 to 673):
"I have no knowledge whether plot was allotted by defendant society to Smt. Indra Vadhera daughter of Smt. Shakuntala Bhandari. I have no knowledge whether Sh. Shubhash Chopra was allotted a flat by defendant society and sublease was executed in his favour. I have no knowledge whether Smt. Vimal Kapoor mother of plaintiff no.3 i.e. Sh. Sanjay Kapoor was allotted a plot by defendant. I have no knowledge whether plot allotted to Smt. Shakuntla Bhandari (plaintiff no.5) and flat allotted to Sh Subhash Chopra (plaintiff no.4) and no. 10/14 which is allotted to one of the member of family have been sold after allotment or not (vol. My father might have knowledge regarding the same.) Q. I put to you the family member whose name are given above who were allotted plots/ flats are not entitled to claim membership right or other interest of Smt. Dhan Devi Kapoor being disqualified? A. It is wrong after the death of Dhan Devi Kapoor they are legally entitled to claim membership/ share on the basis of inheritance.
316. Above deposition adequately proves all the legal heirs do not have alternative plots in Delhi.
317. At this stage, the Ld. Counsels for the respondents no.1 to 8 have relied upon the below mentioned judgement:Page 129 of 186
S.K. TANDON VS. THE REGISTRAR OF COOPERATIVE SOCIETIES, 69 (1997) DLT 632:
"(17) A reading of the Resolution passed by the Managing Committee and the sanction accorded by the Registrar under Rule 28 makes it clear that case of the petitioner stood on different fooling. The petitioner herein acquired the property by way of inheritance, therefore, it was wrong on the part of the respondents to apply rule 25 in the case of the petitioner as the property by the petitioner was acquired by transmission/ devolution. In the words of the Division Bench in the case of O.P.Sethi (supra): "THUS we are of the considered view that Rule 25(l)(c) is attracted in those cases where the properties arc 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 provision of the said Rules and by-
laws, referred to above. A contrary view, in our opinion, will not only make by-law 9 redundant but may also lead to unreasonable and anamolous results. For example, a member, on being granted membership of a housing Co-operative Society constructs a house on the plot sub-leased in his favour. He registered his only heir as nominee. During his life lime the said heir also himself/ herself acquires a residential house or a plot of land for construction of Page 130 of 186 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 favour. More so when the Act, the Rules and the by-laws arc 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 by-law 9 is intended to take care of such a situation.
(18) In the case of O.P.Sethi (Supra) the court was concerned with the question as to whether by inheritance petitioner could acquire properly from two different societies. After analysing the Act, rules and the by-laws the Court answered the question in the affirmative. In fact after the judgement of O.P.Sethi, the Lt. Governor realising the lacuna in the provision brought the amendment in the Rules vide Notification dated 11th July,1995. Rule 25 as amended reads as under:- "2.Amendment of Rule 25- In the Delhi Cooperative Societies Rules,1973, in Rule 25, in sub-rule (1), in clause (c) for sub-clause (i), the following shall be substituted, namely:- (i) he owns a residential house or a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free hold basis: Provided that disqualification as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of joint ancestral properties, whose share in the properly is less than 66.72 sq.meters (80 sq.yds.) whether the property is in a congested area or otherwise Page 131 of 186 and who do not own any plot/ house in the National Capital Territory of Delhi: Provided further that such co- sharers of joint ancestral properties shall not be entitled to allotment of another plot of land or become members of co-operative Housing Societies/ Group Housing Societies, if they are already allotted a plot/ flat by the DDA: Provided also that the disqualification as laid down in sub- rule (l)(c)(i) shall not be applicable in case .of a person who is already a member of a co-operative housing society/ group housing society, if subsequent to becoming such member he inherits/ acquires, by transmission/ devolution, any properly in the National Capital Territory of Delhi."
318. The Ld. Counsel has also relied upon another judgement of The Hon'ble High Court of Delhi at New Delhi in "Rashmi Nagrath vs M/s Sarva Priya Society" (LPA No. 89/1997 on November 25, 2016) wherein reliance has been placed on O.P. Sethi (supra), and has directed for the execution of sub-lease deed based on the same principle of law.
319. Thus it is clear that disqualification under Rule 25 of Delhi Cooperative Societies Rules, 1973 is not attracted in case of inheritance.
320. The Paragraph No. 9.4.8 to 9.4.10 of the Judgement dated February 13, 2025 passed by Ld. Civil Judge, Tis Hazari Court, Delhi deals with this point, and finds it in favor of the Respondents-Plaintiffs.
321. In response to the plea that the suit of the respondents- plaintiffs is barred by Section 34 of the Specific Relief Act, 1963, it Page 132 of 186 is submitted by the Ld. Counsels that in order to address submissions on this point it is necessary to point out to the prayer of declaration sought in the suit:
"A decree for declaration to the effect that Smt. Dhan Devi Kapoor was the rightful owner and allottee of plot no. 10/11 in village Serai Shah ji, now known as Sarva Priya Vihar, New Delhi and that after her death the plaintiff no.1 to 5 and the defendant no.4 to 8 being her heirs and legal representative are entitled to be substituted in her place in the records of the defendant no.1 and 2 and sub-lease executed and registered in the name of defendant no.3 by the defendant no.1 is illegal and void and of no consequences whatsoever, and not binding on the plaintiffs no.1 to 5 and the defendant no.4 to
8."
322. As submitted, a perusal on the above prayer shows that the suit of the respondents-plaintiffs is not a simpliciter suit of declaration of title. In fact, in the entire prayer only at one place the word 'owner' is used.
323. However, essentially the declaration sought by the respondents- plaintiffs is that the legal heirs of Late Dhan Devi Kapoor are entitled to replace her in the records of the society ie Sarvapriya Cooperative House Building Society Limited and Delhi Development Authority and all the rights of Late Dhan Devi Kapoor qua the Suit Property should devolve upon the Legal Heirs of Late Dhan Devi Kapoor i.e. execution of sublease in favor of legal heirs of Late Dhan Devi Kapoor in respect of Suit Property.
Page 133 of 186324. As submitted further, naturally, declaration is also sought that the Sublease Deed executed in favor of the appellant is null and void & illegal.
325. Therefore, the arguments of the appellant that the Suit is bad in law as possession is not prayed in present suit is completely false as present suit is not a simpliciter suit for declaration of title. All the judgements relied upon by the appellant to address submissions at this point deals with suits which are simpliciter suits for declaration without seeking possession.
326. Therefore, the ratio of the judgement relied by the Appellant does not hold good in the present case. Therefore, the Ld. Trial Court judge while holding that a simpliciter suit for declaration of title is not maintainable for without prayer for possession also held that present Suit is maintainable as it seeks other declaration as stated above.
327. The Paragraphs no. 9.4.l to 9.4.3 of the Judgement dated February 13, 2025 passed by Ld. Civil Judge, Tis Hazari Court, Delhi deals with this points and finds it in favor of the Plaintiffs, which reads as under:
"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.Page 134 of 186
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 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 Page 135 of 186 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 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 Page 136 of 186 about the correctness of the allotment being put into question. Thus, the relief of declaration is maintainable."
328. In respect of the plea raised by the appellant pertaining to the suit being barred by limitation it has also been submitted that society submitted before the Ld. Trial Court that the suit is barred by limitation as according to respondent no.9-society, the suit must have been filed within three years from the date of show cause notice issued by the DDA dated 21.05.1984 (Ex.PW-1/9).
329. In this regards, it is submitted on behalf of the respondents- original plaintiffs that the show cause notice does not give any cause of action to the respondents-plaintiffs as the same show cause notice was adequately responded to by the by reply dated 6th June 1984 (Ex.PW-2/1).
330. The paragraph No. 9.2.4 of the Judgement dated February 13, 2025 passed by Ld. Civil Judge, Tis Hazari Court, Delhi deals with this point & finds the same in favour of the Plaintiffs.
331. In respect of the plea that the respondents-plaintiffs have not filed adequate Court fees in the present suit, it was argued by the society and the appellant before the Ld. Trial Court that the respondents-plaintiffs have failed to file adequate court fess in the present suit. On a query by the Ld Trial Court, it was submitted by the appellant and the society that, the respondents-plaintiffs should have filed a suit for possession of the property and therefore the Court fees paid by the respondents-plaintiffs is inadequate for a suit for possession.
Page 137 of 186332. In this regard, the respondents-plaintiffs submitted that they ie the original plaintiffs are the masters of their suit. It was further submitted by the respondents that it is their prerogative to decide the relief which is being sought by them, and claimed in the suit. The appellants herein cannot decide the relief which was to be sought by the respondents-plaintiffs.
333. It has also been averred that the respondents had filed a suit for declaration and injunction, and appropriate Court fees in respect of the reliefs was paid by the respondents. It has also been submitted that no issue in regards to the same was framed by the Ld. Trial Court. The said issue is a mixed question of law and fact and it was required that an issue in this regard ought to have been framed and necessary evidence is led thereon.
334. The same had not been done by the Trial Court. Hence the submission of the appellant was misplaced.
335. As submitted further on behalf of the respondents- plaintiffs, the paragraph No. 9.2.3 of the Judgement dated February 13, 2025 passed by Ld. Civil Judge, Tis Hazari Court, Delhi deals with this point & finds the same in favour of the respondents-plaintiffs.
336. In view of the above it is submitted that the Judgement deserves to be upheld to the extent of relief granted by the Ld. Trial Court which reads as under:-
"10. Relief:Page 138 of 186
"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 sublease 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. 2 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"
337. It is submitted by the Ld. Counsels that the respondents no. 1(a), 5(b)I, 6(b)II, 7(A) have also filed an application u/or 21 Rule 22 CPC to submit that the Ld. Trial Court has found (vide the judgement) that the execution of sub-lease deed infavor of appellant in respect of the suit property is bad in law and the legal heirs of Lt. Smt. Dhan Devi Kapoor are entitled to the suit property so a sub-lease deed Page 139 of 186 is directed to be executed in favor of the Legal Heirs of Lt. Dhan Devi Kapoor, so as a logical sequitur the Ld. Trial Court ought to have restrained the appellant from illegally using the suit property by granting prayer (iii) as mentioned in the suit.
338. In fact, as averred by the Ld. Counsels for the respondents- plaintiffs, the legal heirs of Lt. Dhan Devi Kapoor are entitled to adequate compensation of Rs 10,00,00,000/- (Rupees Ten Crore) for illegally using the suit property and depriving the legal heirs of Lt. Dhan Devi Kapoor from using the same for the last thirty Seven years. By not granting an injunction in terms of prayer (iii) of the suit in favor of the legal heirs of Lt. Smt. Dhan Devi Kapoor, the Ld. Trial Court has permitted the appellant to continue perpetrating the illegality using the suit property without having legal authority.
339. The respondents no. 1(a), 5(b)I, 5(b)II, 7(A) also beg to differ with the legal position interpreted by the Ld. Trial Court vide the judgement as the Ld. Trial Court failed to appreciate that the suit property of the respondents-plaintiff not only contained permanent injunction but also contained mandatory injunction which stands granted in favor of the plaintiffs-respondents.
340. It is further necessary to bring to the attention of this Court that possession of the Appellant over the Suit Property was conditional in terms of order dated March 3, 1989 passed by this Hon'ble High Court of Delhi High Court of Delhi "CS No. 1471/ 88 Delhi High Court Page 140 of 186 The manner of allotment of the plot in favor of defendant no.3 also casts a serious doubt about the whole process of allotment. Prompt action is certainly good but not the haste. In this case, on 14 th April, 1988, defendant no.3 surrenders the flat in anticipation of the allotment of the plot, on 15th April 1988, decision about the allotment is taken. On 28th April, 1988, Defendant no.3 writes to the society thanking it for allotment of plot in lieu of the flat and wanting to know the amount of refund he would get on surrender of the flat after adjustment of the cost of the plot. On 29 th April, 1988, he is intimated that Rs 3,80,161/- would be refunded to him. On 3 rd June, 1988, DDA approves the allotment, on June 9th, 1988 sub-lease is executed and on 10th it is requested. The plans are submitted to D.D.A. on 27th June 1988 nut the Bhumipujan and digging for construction starts on a day earlier i.e. 26th June 1988. These facts speak for themselves. In face of these facts, the argument that the allotment in favour of defendant no.3 was scrutinized and approved by three authorities i.e. Society, registrar of the co-operative society and the DDA is not of much significance particularly for determining the prima facie nature of the case. The execution of sub lease in favour of the defendant no.3 by itself cannot create any right and it has to be subject to rights of heirs of Smt. Dhan Devi.
On the question of balance of convenience, there can be no doubt about the necessity to preserve the property pending decision of the suit. The equities are, however, to be balance while considering whether defendant no.3 should be permitted to go ahead with the Page 141 of 186 construction or not. In the facts and circumstance of the case, I was inclined to restrain the defendant no.3 from making any construction but for the undertaking given by the defendant no.3 through his Counsel during hearing that he shall complete the house at his own risk, and cost subject to the outcome of the suit shall not alienate, transfer sell or part with the possession of the plot. Defendant no.3 has filed an affidavit giving undertaking to Court in aforesaid terms. Mr. Rohatgi, learned Counsel for the plaintiff, vehemently urged that the undertaking given by the defendant no.3 should not be accepted and the said defendant should be restrained from any construction on the plot. He submits that it is a clear case of malafide and many complications will arise if order of restrain is not passed against the defendant no.3. In my opinion the undertaking given by defendant no.3 will protect the interests of the plaintiff and in view thereof it is not necessary to restrain defendant no.3. The defendant no.3 will be bound by his undertaking given to the Court in the above terms. In view of the undertaking it is not necessary to restrain defendant no.3 from making construction or transferring, selling, alienating or parting with the possession of plot. However, in the affidavit of defendant no.3 giving the aforesaid undertaking the said defendant has not given any undertaking in regard to building being constructed by him on the plot. The relevant part of the affidavit of defendant no.3 reads as under:-
A. The I hereby give an undertaking that I shall complete the house on the plot in question at my own risk and cost subject to outcome of the Page 142 of 186 suit and appeal etc, and during the pendency of the suit and appeal, if any, I shall not alientate, transfer, sell or part with the possession of the plot in question.
B. Defendant no.3 has given undertaking not to alienate, sell transfer the plot in question but there is no undertaking in respect of the building. If defendant no.3 is not restrained from alienating, selling, transferring or parting with possession of the building, it is likely to create various complications. Accordingly, I restrain defendant no.3 from, in any manner, alienating, selling, transferring or parting with possession of the building being constructed on the plot in question.
C. The society has filed an affidavit of its president Mr. S.P. Gupta dated 17th January 1989, undertaking to settle the claims of the plaintiffs/legal heirs of Smt. Dhan Devi subject, however, to defendant no.1 society's contentions/ submission in the suit. Mr Gupta has filed further affidavit undertaking that in the event of plaintiffs being found entitled to enroll themselves as member of the society and if they are not visited with any statutory disqualification or disqualification under the by laws for allotment of plot, the society will reserve plot No. 12/23, measuring 151 sq. Yads. For allotment to the plaintiff and that this plot will not be allotted to any other member pending this suit nor the society will part with possession of the said plot. The area of the plot is 151 Sq. Y ds. I also accept the undertaking given in the affidavit of Mr. Gupta. The expression of opinion in this order is prime facie and will not effect the rights and contentions of the parties in the suit.Page 143 of 186
Accordingly, I.A. 3626/88 is allowed to the extent indicate above, the undertaking of defendant No.3 and Mr. S.P Gupta on behalf of the society are accepted Parties will bear their own cost."
341. In view there the Ld. Counsels through their application have argued and pressed upon this Court that the portion of the contained in paragraph 9.4.13 of the Judgement may be set aside and prayer (iii) of the Suit, which reads as under, may be granted in favor of the Plaintiffs/ legal heirs of late Dhan Devi Kapoor:-
"Permanent injunction be also issued restraining the defendants 1 to 3 from in any manner interfering or any right plot no 10/11 Serai Shahji now known as Sarvapriya Vihar New Delhi, belonging to the plaintiff."
342. In View of the above it is humbly prayed that the Judgement dated February 13, 2025 passed by Ld. Civil Judge -03, West, Tis Hazari Court, Delhi in suit No. 607011 of 2016 be upheld to the extent of the findings resulting into granting the reliefs to the respondents- plaintiffs/Legal Heirs of Lt. Smt. Dhan Devi Kapur and further relief of injunction in terms of prayer iii of the Plaint may be granted to the Plaintiffs/ Legal Heirs of Late Dhan Devi Kapur.
343. Heard and perused.
OBSERVATIONS AND REASONING:
344. The Ld. Counsels for the respective parties have advanced their arguments at length. The arguments on the appeal advanced by the Ld. Counsels were heard over a period of six (6) days. The Ld. Counsels Page 144 of 186 have rendered appropriate and necessary assistance to this Court, which has ultimately aided this Court in reaching its decision.
345. The parties have filed lengthy written submissions running into several pages, in support of their case, and have aptly performed their legal, and more so their moral duty of assisting the Court during the Course of the proceedings.
346. At the very beginning, the Ld. Counsels for the parties pressed for an expeditious disposal of the present appeal on account of the original suit being filed in the year 1988.
347. The Hon'ble High Court of Delhi at New Delhi vide its order dated 10.07.2025 passed in CM(M) 1196/2025 titled as Gita Khorana Vs Punit Beriwala & Ors directed this Court to make best endeavours to dispose of the appeal, in accordance with law, as early as possible.
348. The Ld. Counsels for the contesting parties have stated all the relevant facts, developments, pleadings, submissions, statute and precedents relied upon, which have been mentioned in the preceding paragraphs, and are not being repeated.
349. This Court, after perusing the facts, circumstances of the present appeal coupled with the arguments, judgements, and submissions of parties is inclined to formulate the following questions of law on the maintainability of the suit under appeal:
"Were the plaintiffs-respondents legally required to challenge the cancellation of allotment effected by DDA vide its order dated 11.04.1988 cancelling the allotment of Lt. Smt. Dhan Devi Kapoor ?"Page 145 of 186
"In the absence of seeking the relief seeking declaration against the order dated 11.04.1988 passed by the DDA, was the suit maintainable in its present form?"
350. The appellant and respondent no.9 Society are ad-idem in their pleadings and submissions, and have supported each others case throughout the course of the proceedings.
351. It is also apposite to mention that respondents-original plaintiffs are also not completely satisfied with impugned judgement as passed by the Ld. Civil Judge. The respondents-plaintiffs also filed a cross appeal against the impugned judgement dated 13.02.2025 wherein it has been stated that the Ld. Trial Court has found that the execution of sub-lease deed in favor of appellant in respect of the suit property is bad in law and the legal heirs of Lt. Smt. Dhan Devi Kapoor are entitled to the suit property so a sub-lease deed is directed to be executed in favor of the Legal Heirs of Lt. Dhan Devi Kapoor, so as a logical sequitur the Ld. Trial Court ought to have restrained Appellant from illegally using the suit property by granting prayer (iii) as mentioned in the suit i.e.
(iii) " permanent injunction be also issued restraining the defendant no.1 to 3 from in any manner interfering or any right plot 10/11 serai shah ji now known as Sarvapriya Vihar New Delhi, belonging to the plaintiff" (repeated in verbatim).
352. The appellant and respondent no.9 have raised identical grounds in the present appeal impugning the judgement passed by the Ld. Civil Judge.
Page 146 of 186353. The Ld. Trial Court in Paragraph 9.4.6. and 9.4.7. has misinterpreted the language of S.26 of The Delhi Cooperative Societies Act, 1972 r/w Rule 35(6)(I), (II) of the Delhi Cooperative Societies Rules:
354. This Court is inclined to observe that the finding given by the Ld. Trial Court in 9.4.6 "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." and "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", , is in contravention of the S.26 of The Act. The appellant has rightly argued that the finding is erroneous. The Ld. Trial Court has travelled beyond its mandate whilst reaching its above stated finding. The Ld. Trial Court has over looked the relevant evidence led by the appellant and the society.
355. Section 26 of the Delhi Co-operative Societies Act, 1972 provides that on a member's death the society "may transfer the share or interest of the deceased member to the person nominated in accordance with the rules... 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".
356. S. 26 of The Act has to be read in conjunction with Rule 35(6)
(i) and (ii) which states that if no nomination exists, the Society "shall, on the member's death, by public notice invite claims or objections for the proposed transfer of the share or interest of the Page 147 of 186 deceased within the time specified in the notice.", and thereafter "the Committee shall decide as to the person who in its opinion is the heir or the legal representative of the deceased member".
357. It is observed by this Court that at the time of demise of Lt. Smt. Dhan Devi Kapoor, no family member, legal heir, LR had been nominated by her on the records of the society and/or DDA.
358. In plain terms, the interpretation of Sections 26 of the Delhi Co-operative Societies Act, 1972 and Rule 35(6)(i) and (ii) contemplates that Respondent No. 9 call for claims and objections via public notice which was done via Public Notice dated 31.01.1987.
359. The Ld. Trial Court has wrongly interpreted the statute in Paragraphs 9.4.6 and 9.7.7 of the Impugned Judgement where the Ld. Trial Court Judge has recorded that:
"in the present facts, 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."
360. The Ld. Trial Court in paragraphs 9.4.6. and 9.4.7. has given a wrong finding that the respondent no. 9 has not followed the mandated procedure under the Delhi Co-operative Societies Act, 1972, and rules in Managing the allotment after the death of Page 148 of 186 the original allottee. Lt. Smt. Dhan Devi Kapoor was a member of the Respondent No. 9. Her written application for membership dated 22.02.1961 is on record, and the Respondent No. 9's register of members contains her entry. It is observed that as an admitted member, she was entitled to the privileges of an allottee when she secured Plot No. 10/11.
361. It is also a matter of record that Lt. Smt. Dhan Devi Kapoor died on 12.04.1980 without executing a sub-lease and without the payment of the balance consideration amount, which was a pre- requisite for the valid execution of the Sub-Lease. It is also observed that no nominee had been nominated by her prior to her demise.
362. It is observed that as the full consideration amount not was paid by Smt. Dhan Devi Kapoor, by letter dated 15.06.1981, Respondent No. 9 called upon Smt. Dhan Devi Kapoor to deposit the outstanding amount of Rs 10,953/-, and execute a valid Sub-Lease deed in her favour. It is suffice to say that Lt. Smt. Dhan Devi Kapoor could not have been termed as 'owner' of the subject property.
363. This was the first letter sent by the Respondent No. 9 for the payment and execution of the Sub-Lease which was time bound by 15 days. Steps were not taken by the LRs/ respondents-plaintiffs within the stipulated time. There was no response to the letter of respondent No. 9. The respondent no. 9 remained uninformed about her death for 2 years.
364. It is also observed that vide letter dated 07.02.1983, information about the demise was shared with respondent no.9. It is also an admitted fact that neither there was any succession certificate Page 149 of 186 attached with the letter, nor was the full payment of consideration amount given for the subject plot. In essence, the agreement between Lt. Smt. Dhan Devi Kapoor and the society, DDA stood frustrated.
365. On receiving such information, the Respondent No.9 forthwith notified the DDA, the lessor, of the demise vide letter dated 20.05.1983.
366. Following the principles of natural justice, DDA on information given by the respondent no. 9 issued a Show Cause Notice on 21.05.1984 proposing to cancel the allotment unless the dues were paid, heirs produced proof of succession certificate and a valid sub- lease deed was executed within next 30 days. Admittedly, the same was not done on behalf of Lt. Smt. Dhan Devi Kapoor.
367. It is observed by this Court that despite the issuance of the Show Cause Notice for the Cancellation, the respondents-plaintiffs failed to take the necessary legal steps, and could not execute the Sub- Lease deed by providing succession certificate.
368. This Court is also inclined to observe that the respondents- plaintiffs have not produced a succession certificate till date. This Court is also inclined to observe that the respondents-plaintiffs have also not paid the balance consideration amount/ dues to the society for the issuance of the subject plot. This Court can safely ascertain that even on the date of the pronouncement of the impugned judgement, it cannot be held that the respondents-plaintiffs had any rights in regards to the subject property ie Plot No. 10/11, Sarvapriya Vihar, New Delhi.
Page 150 of 186369. It is a matter of record that respondent no. 9 took the necessary step of publishing public notices in two widely circulated newspapers The Indian Express (English) and Nav Bharat Times (Hindi) on 31.01.1987. The public notices invited the legal heirs of Late Smt. Dhan Devi Kapoor to come forward within 15 days to settle her account and submit a succession certificate.
370. The notices explicitly stated that any claim would have to be accompanied by a succession certificate.
371. Publishing public notices can be considered as sufficient compliance with the of Sections 26 and Rule 35(6)(i) and (ii) of the Delhi Co-operative Societies Act, 1972.
372. It is observed that no heir made a valid claim in response to the public notices. The Respondent No.9 did not simply cancel the allotment on its own authority; it awaited the necessary proof of evidence i.e. Succession Certificate for 8 years where 3 Notices were sent by Respondent No. 9 in 1981, 1984 and 1987, to the Plaintiffs/ LR.s within a span of 8 years which was otherwise timebound. The Ld. Trial Court's finding that due procedure was not followed cannot be termed to be correct.
373. The findings given by the by the Ld. Trial Court Judge in para 9.4.7 of the impugned judgement are liable to be set aside.
374. The Ld. Trial Court Correctly held that a suit for title without seeking the relief of possession is not maintainable, while dealing with the prayer of declaration of title to the suit of the property.
Page 151 of 186375. It is observed that the Ld. Trial Court has taken contradictory stands which appear to be in juxtaposition to each other, and are mutually destructive.
376. On one hand the Ld. Trial Court rightly rejected the argument of deemed possession raised by Original Plaintiffs. The Ld. Trial Court held that "the Plaintiffs was never in possession of the suit property."
377. It is no more res-integra that 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 is not maintainable.
378. This Court is inclined to observe that the Ld. Trial Court went on to hold, the Plaintiffs have even otherwise failed to establish that they were entitled to be declared as owners of the suit property. The Ld.Trial Court has placed reliance on the judgement dated 07.05.2024 of the Hon'ble High Court of Karnataka in the case of Smt. Adhilakshmi & Ors Vs. Shree Chidanand in RFA No. 764 of 2010 and has held that the allotment letter does not confer any title.
379. Instead of dismissing the suit as not maintainable the Ld. Trial Court erroneously traversed beyond its given mandate by examining the prayer of declaration and illegal and void nature of the sub-lease executed in the name of the Appellant without determining, analyzing the issue pertaining to the cancellation of the allotment by DDA.
380. In regards to the submissions of the appellant and respondent no.9 that the respondents-plaintiffs have not sought any relief against the cancellation of the allotment effected by the DDA vide order dated 11.04.1988.
Page 152 of 186381. This Court is inclined to refer to the judgements and the paragraphs cited by the appellant:
I.S. SIKANDAR (D) BY LRS. V. K.SUBRAMANI (2013) 15 SCC 27 "15. The plaintiff further urged in the appeal that execution of the sale deed dated 30.05.1985 in favour of the 5th defendant for a sale consideration of an amount of Rs.48,000/- that is, Rs.3000/- in excess of what was agreed upon with the plaintiff, would demonstrate that the defendant Nos.1-4 took undue advantage and committed the breach of the terms and conditions of the contract. Further, it is urged that the above aspects of the matter has not been properly appreciated by the trial court while dismissing the suit for not granting the relief of specific performance in respect of the suit schedule property in favour of the plaintiff. It is also urged in the R.F.A. before the High Court that defendant Nos. 1-4 were required to secure permission under the ULCR Act and Income Tax Department to convey the suit property in favour of the 5th defendant, which further demonstrates that without such a permission, the registration of deed of conveyance in favour of the 5th defendant was impermissible, thereby the defendant Nos. 1-4 committed a serious breach of the obligation in terms of Agreement of Sale dated 25.12.1983."
"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of Page 153 of 186 the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.
(emphasis supplied)
38. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5."
43. Both the trial court as well as the appellate court have not examined this important aspect of the case though the parties have agreed to perform their part of contract within seven months from the date of execution of the agreement as stipulated in clause 6. We have considered this aspect of the case on the basis of the period of 7 months stipulated in the Agreement of Sale and the same is answered in favour of the defendants."
.....
"45. The learned Senior Counsel for the 5th defendant also placed strong reliance upon the judgement of this Court in the case of N.P.Thirugnnam (dead) by Lrs. vs Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115, in support of the findings of the trial court on the above contentious issues wherein this Court has held that the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the original suit along with other attending circumstances and further the amount of consideration Page 154 of 186 which he has to pay to the defendant Nos. 1-4 must be proved by the plaintiff. Further, the plaintiff is required to prove the fact that right from the date of execution of the Agreement of Sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement. (emphasis supplied) Further, he rightly contended the same by placing reliance upon another judgement of this Court in the case of P.R.Deb & Associates Vs. Sunanda Roy, (1996) 4 SCC 423 wherein this Court held that ("7..... The plaintiff in a suit for specific performance must be ready and willing to carry out his part of the agreement at all material times.")
46. The correctness of the findings of fact recorded by the trial court on the contentious issue Nos. 4 & 5 is examined by us keeping in view the law laid down by this Court in the above referred case with reference to the undisputed facts in the case on hand namely, that the letter dated 16.03.1985 sent by the plaintiff would clearly go to show that the plaintiff was a defaulter and another letter dated 04.05.1985 sent by the plaintiff to the defendant Nos.1-4, would go to show that the plaintiff was not ready and willing to perform his part of contract to purchase the suit schedule property by paying remaining sale consideration amount to the defendant Nos.1-4 as per the sale agreement as he had been seeking time without justification.
Further, the trial court has held that the court has to see conduct of the party as well as the attending circumstances of the case regarding whether readiness and willingness of the plaintiff can be inferred and Page 155 of 186 further the learned trial Judge rightly relied upon the provision of Section 16(c) of the Specific Relief Act and appreciated evidence of PW-1, the plaintiff and came to the right conclusion and held that the plaintiff had not produced any document to show that he had the balance sale consideration amount of Rs.40,000/-, to pay to the defendant Nos.1-4 to get the sale deed executed in his favour.
47. Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them. But, on the other hand the trial court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration to the defendant Nos. 1-4 though they demanded the same from him through their legal notices dated 06.03.1985 and 28.03.1985 which notices were served upon the plaintiff and despite the same he did not approach the defendant Nos.1-4 to get the sale deed executed in his favour even after service of notice, and, prior to issuance of the legal notice to him, he never offered to pay the balance consideration as agreed upon by him to them even though defendant Nos. 1-4 have complied with all the formalities required.
48. The learned Judge, on the question of readiness and willingness on the part of the plaintiff to perform his part of the contract to get the sale deed executed in his favour stated that performance of his obligation is mandatory as per Section 16 (c) of the Specific Relief Act and the law laid down in this regard by this Court which are referred to supra upon which the trial court has rightly relied upon and Page 156 of 186 answered the contentious issues against him by recording valid and cogent reasons.
49. In view of the foregoing reasons, we are of the view that the learned trial judge has applied his mind consciously and correctly to the admitted facts and on proper analysis and appreciation, he has correctly recorded the finding of fact holding that the plaintiff has failed to perform his part of the contract in paying the remaining sale consideration and made sincere efforts to get necessary permission from the Urban Land Ceiling Authority and the Income Tax Department by paying the conversion charges of the land to get the sale deed executed in his favour from the defendant Nos. 1-4 within the stipulated time of five months and further extended period of two months as per clause 6 of the agreement. The same has been erroneously set aside by the appellate court by recording its reasons by placing reliance upon the judgements of this Court in Nirmala Anands case (supra), Jawahar Lal Wadhwa Vs. Haripada Chakroberty (1989) 1 SCC 76; and A.Maria Angelenas case (supra). (emphasis supplied)
50. The learned senior counsel has rightly submitted that the findings of fact on issue Nos.4 & 5 have been erroneously set aside by the learned Judge of the High Court by recording his reasons which are not supported by pleadings and legal evidence on record. The findings of the learned Judge of the High Court are contrary to the admitted facts and legal evidence on record.
51. We have carefully scrutinised the findings recorded by the trial court on the issue Nos.1,3,4 and 5 with reference to the pleadings of Page 157 of 186 the case and legal evidence on record and the same have been erroneously set aside by the learned Single Judge in the impugned judgement and therefore, the same cannot be allowed to sustain in law.
54. Further, the High Court should have considered the relevant and important aspect of the case namely that the plaintiff is entitled to compensation as agreed upon by him under clause 12 of the Agreement of Sale which is in favour of defendant Nos. 1-4. It provides that the defendant Nos.1-4 have agreed that in the event of their failure to comply with the terms of the agreement they shall pay sum of Rs.10,000/- to the plaintiff and also such sum which is spent by him towards conversion charges and building plan charges. Similarly, the plaintiff had agreed that in the event of his failure to comply with the terms of the agreement the defendant Nos. 1-4 are entitled to forfeit the advance amount. This important aspect of the terms of the Agreement of Sale has not been noticed by the learned Judge of the High Court while reversing the judgement and decree of the trial court and granted the decree for specific performance in favour of the plaintiff in exercise of his discretionary power under sub-sections (1) and (2) of Section 20 of the Specific Relief Act. Further, in view of the foregoing reasons and statutory provisions of Sections 16(c), 20 (1) and (2) and 21(2) of the Specific Relief Act, the plaintiff is not entitled for a decree of specific performance in respect of the suit schedule property and also he had lost the right to seek a decree of specific performance."
Page 158 of 186R. KANDASAMY (SINCE DEAD) & ORS v. T.R.K. SARAWATHY & ANR 2024/INSC/884, (2025) 3 SCC 513:
"8.7 Seventhly, Mr. Dwivedi urged that the Agreement having stood cancelled at the instance of the sellers, not once but twice, it was necessary for the buyer to seek declaration that the cancellation was bad and not operative and binding qua her and in the absence of such a prayer, the suit itself was not maintainable in law.(emphasis supplied). However, Mr. Dwivedi fairly pointed out that no such point having been raised by the sellers in their written statement, the Trial Court did not frame an issue on such aspect. Nevertheless, it was argued that this was a substantial point of law concerning the Court's very jurisdiction, which ought to weigh in the mind of the Court while considering whether, at all, the relief of specific performance could be granted in favour of the buyer on the face of her omission/neglect to claim appropriate relief."
ABSENT A PRAYER FOR DECLARATORY RELIEF THAT TERMINATION OF THE AGREEMENT IS BAD IN LAW, WHETHER A SUIT FOR SPECIFIC PERFORMANCE IS MAINTAINABLE
22. This question has been considered by this Court in I.S. Sikandar v. K. Subramani (2013) 15 SCC 27 and answered in the following words:....
{"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit Page 159 of 186 schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law."} (emphasis supplied) "40. Having held thus, allowing the appeal is the inevitable result. However, before we part, there seems to be a discordant note struck by the decision in A. Kanthamani (supra) while distinguishing I.S. Sikandar (supra), which could create uncertainty and confusion. It is, therefore, considered worthwhile to attempt and clear the same.
41. A comprehensive reading of the two decisions reveals that in a fact scenario where the vendor unilaterally cancels an agreement for sale, the vendee who is seeking specific performance of such agreement ought to seek declaratory relief to the effect that the cancellation is bad and not binding on the vendee. This is because an agreement, which has been cancelled, would be rendered non- existent in the eyes of law and such a non-existent agreement could not possibly be enforced before a court of law. Both the decisions cited above are unanimous in their approval of such legal principle. However, as clarified in Kanthamani (supra), it is imperative that an issue be framed with respect to maintainability of the suit on such ground, before the court of first instance, as it is only when a finding on the issue of maintainability is rendered by trial court that the same can be examined by the first or/and second appellate court. In other words, if maintainability were not an issue before the trial court or the appellate court, a suit cannot be dismissed as not maintainable. This is what Kanthamani (supra) holds.Page 160 of 186
42. The aforesaid two views of this Court, expressed by coordinate benches, demand deference. However, it is noticed that this Court in Kanthamani (supra) had not been addressed on the effect of non- existence of a jurisdictional fact (the existence whereof would clothe the trial court with jurisdiction to try a suit and consider granting relief), i.e., what would be its effect on the right to relief claimed by the plaintiff in a suit for specific performance of contract.
43. In Shrisht Dhawan (Smt) v. Shaw Bros. (1992) 1 SCC 534, an interesting discussion on 'jurisdictional fact' is found in the concurring opinion of Hon'ble R. M. Sahai, J. (as His Lordship then was). It reads:
"19. *** What, then, is an error in respect of jurisdictional fact A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad (Wade, Administrative Law. In Raza Textiles [(1973) 1 SCC 633] it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly. ***"Page 161 of 186
(emphasis supplied) "44. Borrowing wisdom from the aforesaid passage, our deduction is this. An issue of maintainability of a suit strikes at the root of the proceedings initiated by filing of the plaint as per requirements of Order VII Rule 1, CPC. If a suit is barred by law, the trial court has absolutely no jurisdiction to entertain and try it. However, even though a given case might not attract the bar envisaged by section 9, CPC, it is obligatory for a trial court seized of a suit to inquire and ascertain whether the jurisdictional fact does, in fact, exist to enable it (the trial court) to proceed to trial and consider granting relief to the plaintiff as claimed. No higher court, much less the Supreme Court, should feel constrained to interfere with a decree granting relief on the specious ground that the parties were not put specifically on notice in respect of a particular line of attack/defence on which success/failure of the suit depends, more particularly an issue touching the authority of the trial court to grant relief if the 'jurisdictional fact' imperative for granting relief had not been satisfied... .(emphasis supplied) ....It is fundamental, as held in Shrisht Dhawan (supra), that assumption of jurisdiction/refusal to assume jurisdiction would depend on existence of the jurisdictional fact. Irrespective of whether the parties have raised the contention, it is for the trial court to satisfy itself that adequate evidence has been led and all facts including the jurisdictional fact stand proved for relief to be granted and the suit to succeed. This is a duty the trial court has to discharge in its pursuit for rendering substantive justice to the parties, irrespective of Page 162 of 186 whether any party to the lis has raised or not. If the jurisdictional fact does not exist, at the time of settling the issues, notice of the parties must be invited to the trial court's prima facie opinion of non- existent jurisdictional fact touching its jurisdiction. However, failure to determine the jurisdictional fact, or erroneously determining it leading to conferment of jurisdiction, would amount to wrongful assumption of jurisdiction and the resultant order liable to be branded as ultra vires and bad. (emphasis supplied)
45. Should the trial court not satisfy itself that the jurisdictional fact for grant of relief does exist, nothing prevents the court higher in the hierarchy from so satisfying itself. It is true that the point of maintainability of a suit has to looked only through the prism of section 9, CPC, and the court can rule on such point either upon framing of an issue or even prior thereto if Order VII Rule 11 (d) thereof is applicable. In a fit and proper case, notwithstanding omission of the trial court to frame an issue touching jurisdictional fact, the higher court would be justified in pronouncing its verdict upon application of the test laid down in Shrisht Dhawan (supra). (emphasis supplied)
46. In this case, even though no issue as to maintainability of the suit had been framed in course of proceedings before the Trial Court, there was an issue as to whether the Agreement is true, valid and enforceable which was answered against the sellers. Obviously, owing to dismissal of the suit, the sellers did not appeal. Nevertheless, having regard to our findings on the point as to whether the buyer was Page 163 of 186 'ready and willing', we do not see the necessity of proceeding with any further discussion on the point of jurisdictional fact here.
47. However, we clarify that any failure or omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact by itself cannot trim the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed, provided no new facts were required to be pleaded and no new evidence led."(emphasis supplied) SANGITA SINHA v. BHAWANA BHARDWAJ AND ORS 2025/INSC/450 "8. He contended that the subject suit was filed on the basis of an Agreement to Sell which stood cancelled and as such, the same was not maintainable. He submitted that existence of a valid agreement is sine qua non for grant of relief of specific performance. He pointed out that, in similar circumstances, this Court in R. Kandasamy (Since Dead) & Ors. vs. T.R.K. Sarawathy & Anr. (Civil Appeal No. 3015 of 2013 decided on 21st November 2024), had set aside the judgement and decree passed in favour of the Respondent No.1-buyer inter alia on the ground that a non- existent Agreement to Sell cannot be enforced by a Court of law.."(emphasis supplied) "18. Continuous readiness and willingness on the part of the Respondent No.1-buyer /purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct Page 164 of 186 must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree.(emphasis supplied) ...A few of the said judgements are reproduced hereinbelow:- A. In Gomathinayagam Pillai and Ors. vs. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under:-"6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon 1928 SCC OnLine PC 43: "In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit...."(emphasis supplied) B. In Vijay Kumar and Others vs. Om Parkash, 2018 SCC OnLine SC 1913, it has been held as under:- "6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and Page 165 of 186 willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff...."(emphasis supplied) C. In J.P.Builders and Another vs. A. Ramadas Rao and Another, (2011) 1 SCC 429, it has been held as under:-"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."(emphasis supplied) D. In Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead) By LRs. and Another, (2005) 6 SCC 243, it has been held as under:-"30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in- chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records." (emphasis supplied) Page 166 of 186 E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under:-"16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so..." F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives & Ors. (supra), it has been held as under:-"16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and Page 167 of 186 circumstances whether the plaintiff was ready and was always ready to perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115], it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani James [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5) "5. ... So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two Page 168 of 186 circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved."(emphasis supplied)
19. Consequently, the readiness and willingness of the buyer to go ahead with the sale of the property at the time of the institution of the suit loses its relevance, if the Respondent No.1-buyer is unable to establish that the readiness and willingness has continued throughout the pendency of the suit.
20. After examination of the pleadings and evidence in the present suit as well as the conduct of the Respondent No.1-buyer, this Court is unable to agree with Respondent No.1-buyer that she was willing to perform the Agreement to Sell dated 25th January, 2008 and go ahead with the purchase of the property. This Court says so because admittedly, as noted above, the five demand drafts dated 7th February 2008 for Rs. 2,11,000/- (Rupees Two Lakh Eleven Thousand) were encashed by the Respondent No.1-buyer in July, 2008. The conduct of the Respondent No.1-buyer in encashing the demand drafts establishes beyond doubt that the Respondent No.1-buyer was not willing to perform her part of the Agreement to Sell and proceed with execution of the sale deed; for the Respondent No.1-buyer would not have encashed the demand drafts if she was indeed willing to perform the contract and have a sale deed executed. Consequently, once it is established that the Respondent No. 1-buyer is not willing to perform Page 169 of 186 the contract, the fact that the entire advance consideration/earnest money had not been returned to Respondent No.1-buyer is irrelevant and immaterial.."
......
"ABSENT A PRAYER FOR DECLARATORY RELIEF THAT CANCELLATION OF THE AGREEMENT IS BAD IN LAW, A SUIT FOR SPECIFIC PERFORMANCE IS NOT MAINTAINABLE
24. This Court further finds that the seller had admittedly issued a letter dated 7th February 2008 cancelling the Agreement to Sell dated 25th January 2008, prior to the filing of the subject suit on 5th May 2008. Even though the demand drafts enclosed with the letter dated 07th February, 2008 were subsequently encashed in July, 2008, yet this Court is of the view that it was incumbent upon the Respondent No.1-buyer to seek a declaratory relief that the said cancellation is bad in law and not binding on parties for the reason that existence of a valid agreement is sine qua non for the grant of relief of specific performance. (emphasis supplied)
25. This Court in I.S. Sikandar (Dead) By LRs. v. K. Subramani and Others, (2013) 15 SCC 27 has held that in absence of a prayer for a declaratory relief that the termination of the agreement is bad in law, the suit for specific performance of that agreement is not maintainable. Though subsequently, this Court in A. Kanthamani Vs. Nasreen Ahmed, (2017) 4 SCC 654 has held that the declaration of law in I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) regarding non-maintainability of the suit in the absence of a challenge to letter of termination is confined to the facts of the said Page 170 of 186 case, yet the aforesaid issue has been recently considered in R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra) authored by brother Justice Dipankar Datta and the conflict between the judgement of I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) and A. Kanthamani Vs. Nasreen Ahmed (supra) has been deliberated upon. In R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra), it has been clarified that the appellate court would not be precluded from examining whether the jurisdictional fact exists for grant of relief of specific performance, notwithstanding the fact that the trial Court omitted or failed to frame an issue on maintainability of the suit. The relevant portion of the judgement in R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra) is reproduced hereinbelow:
{"25. What follows from A. Kanthamani (supra) is that unless an issue as to maintainability is framed by the Trial Court, the suit cannot be held to be not maintainable at the appellate stage only because appropriate declaratory relief has not been prayed. (emphasis supplied) xxx xxx xxx xxx
43. In Shrisht Dhawan (Smt) v. Shaw Bros., (1992) 1 SCC 534, an interesting discussion on 'jurisdictional fact' is found in the concurring opinion of Hon'ble R. M. Sahai, J. (as His Lordship then was). It reads:
"19. *** What, then, is an error in respect of jurisdictional fact A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, Page 171 of 186 tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad (Wade, Administrative Law. In Raza Textiles [(1973) 1 SCC 633] it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly.
***
44. Borrowing wisdom from the aforesaid passage, our deduction is this. An issue of maintainability of a suit strikes at the root of the proceedings initiated by filing of the plaint as per requirements of Order VII Rule 1, CPC. If a suit is barred by law, the trial court has absolutely no jurisdiction to entertain and try it. However, even though a given case might not attract the bar envisaged by section 9, CPC, it is obligatory for a trial court seized of a suit to inquire and ascertain whether the jurisdictional fact does, in fact, exist to enable it (the trial court) to proceed to trial and consider granting relief to the plaintiff as claimed. No higher court, much less the Supreme Court, should feel constrained to interfere with a decree granting relief on the specious ground that the parties were not put specifically on notice in respect of a particular line of attack/defence on which Page 172 of 186 success/failure of the suit depends, more particularly an issue touching the authority of the trial court to grant relief if the 'jurisdictional fact' imperative for granting relief had not been satisfied. It is fundamental, as held in Shrisht Dhawan (supra), that assumption of jurisdiction/refusal to assume jurisdiction would depend on existence of the jurisdictional fact. Irrespective of whether the parties have raised the contention, it is for the trial court to satisfy itself that adequate evidence has been led and all facts including the jurisdictional fact stand proved for relief to be granted and the suit to succeed. This is a duty the trial court has to discharge in its pursuit for rendering substantive justice to the parties, irrespective of whether any party to the lis has raised or not. If the jurisdictional fact does not exist, at the time of settling the issues, notice of the parties must be invited to the trial court's prima facie opinion of non- existent jurisdictional fact touching its jurisdiction. However, failure to determine the jurisdictional fact, or erroneously determining it leading to conferment of jurisdiction, would amount to wrongful assumption of jurisdiction and the resultant order liable to be branded as ultra vires and bad.(emphasis supplied)
45. Should the trial court not satisfy itself that the jurisdictional fact for grant of relief does exist, nothing prevents the court higher in the hierarchy from so satisfying itself. It is true that the point of maintainability of a suit has to looked only through the prism of section 9, CPC, and the court can rule on such point either upon framing of an issue or even prior thereto if Order VII Rule 11 (d) Page 173 of 186 thereof is applicable. In a fit and proper case, notwithstanding omission of the trial court to frame an issue touching jurisdictional fact, the higher court would be justified in pronouncing its verdict upon application of the test laid down in Shrisht Dhawan (supra). (emphasis supplied)
46. In this case, even though no issue as to maintainability of the suit had been framed in course of proceedings before the Trial Court, there was an issue as to whether the Agreement is true, valid and enforceable which was answered against the sellers. Obviously, owing to dismissal of the suit, the sellers did not appeal. Nevertheless, having regard to our findings on the point as to whether the buyer was 'ready and willing', we do not see the necessity of proceeding with any further discussion on the point of jurisdictional fact here."} "26. Since in the present case, the seller had issued a letter dated 07th February, 2008 cancelling the agreement to sell prior to the institution of the suit, the same constitutes a jurisdictional fact as till the said cancellation is set aside, the respondent is not entitled to the relief of specific performance.
27. Consequently, this Court is of the opinion that absent a prayer for declaratory relief that termination/cancellation of the agreement is bad in law, a suit for specific performance is not maintainable."
(emphasis supplied)
---xxxx---
After a perusal of the judgements, this Court is duty bound to observe that the Ld. Trial Court has erroneously held:
Page 174 of 186"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."
382. It is observed that the appellants have rightly argued that the Ld. Trial Court has exceeded its jurisdiction and has erred in holding that the respondents-plaintiffs were not required to seek relief against cancellation of allotment.
383. In the present case it has been the main argument of the appellant that since the cancellation of allotment of the plot issued by DDA has not been challenged, the Ld. Trial Court cannot adjudicate upon the legality or correctness of the same, without there being a specific relief seeking the cancellation as bad in law. The suit must be adjudicated on the pleadings and not beyond pleadings.
384. The Ld. Trial Court has not mentioned its reasons and observations in support of the below mentioned findings given by it in the impugned judgement;
"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 Page 175 of 186 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 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 Page 176 of 186 about the correctness of the allotment being put into question. Thus, the relief of declaration is maintainable."
385. Such a finding to ulta-vires the established precedents and principles of the law, which are no more res-integra. The impugned judgement was pronounced on 13.02.2025.
386. It is apposite to observe at this point that the judgement of I.S. Sikandar(supra) was authored by The Hon'ble Supreme Court of India in the year 2013. The ratio propounded in the judgement has been referred to and followed by The Hon'ble Supreme Court of India in several other judgments including R.Kandasamy (supra) & Sangita Sinha (supra), being one of the most recent judgements.
387. At the time of pronouncing the impugned judgement, the Ld. Trial Court has overlooked the decision/ ratio as held by The Hon'ble Supreme Court of India, rendering the impugned judgement untenable.
388. In light of the above cited judgements of The Hon'ble Supreme Court of India, this Court is inclined to observe that the suit of the respondents-plaintiffs is hit by the law, ratio and precedents propounded by The Hon'ble Apex Court of India, and could not have been permitted to continue without seeking the necessary relief against the order of cancellation dated 11.04.1988 issued by The DDA cancelling the issuance/ allotment of the plot issued to Lt. Smt. Dhan Devi Kapoor.
389. Other grounds/ pleas and objections pressed by the appellant and the society are as follows:
Page 177 of 186 Suit filed by the respondents-plaintiffs was not maintainable in view of Section 90 of Delhi Cooperative Societies Act, 1972. They failed to send the mandatory notice prior to filing the present suit.
The respondents-plaintiffs were also otherwise ineligible and stood disqualified to get the sub-lease executed in their favour under provisions of bye-laws 5 of bye-laws of Defendant Society.
The respondents-plaintiffs were also ineligible to file the suit, as in the case of a society refusing to transfer the share or interest of a deceased member, the persons claiming to be successors in interest shall file an appeal to the registrar within 30 days of such refusal as per Rule 35 (7) as per The Delhi cooperative Societies Rules.
390. It is a matter of record that the respondents-plaintiffs have adopted a lackadaisical approach toward enforcement of their own rights. The Society was informed about the death of Smt. Dhan Devi Kapoor after a period of almost three years; The respondents-plaintiffs received the demand letters in June, 1981. Despite the receipt of the letters, the respondents-plaintiffs failed to make the payment of balance consideration amount towards the cost of the plot; The respondents-plaintiffs have not been able to produce a succession certificate/ letters of administration in their favour, till date; The respondents-plaintiffs did not to take the necessary steps even after receiving a Show Cause Notice dated 21/05/1984 from DDA. It is Page 178 of 186 settled law that the law does not come to the aid of those litigants who choose to sleep on their own rights - "vigilantibus non dormientibus iura subveniunt" which means "the laws aid those who are vigilant, not those who sleep".
391. As is held in the above cited judgements of The Hon'ble Supreme Court of India, a party seeking specific performance and equity must always be 'ready and willing' to perform its corresponding obligations and duties as enshrined in the corresponding covenants.
392. Evidently, the presence of 'readiness and willingness' on the part of the respondents-plaintiffs being a miss is writ large.
393. On the other hand, no re-buttal/ satisfactory precedents have been cited on behalf of the respondents-plaintiffs in response to the plea of the appellant that the suit of the respondents-plaintiff 'was and is maintainable' without seeking the necessary relief of declaration against the order of cancellation of allotment of the plot, issued by the DDA vide its letter dated 11.04.1998.
394. The Ld. Counsel for the respondents-plaintiffs has relied upon the below mentioned judgements in support of their case:
S.K. TANDON VS. THE REGISTRAR OF COOPERATIVE SOCIETIES, 69 (1997) DLT 632 "(17) A reading of the Resolution passed by the Managing Committee and the sanction accorded by the Registrar under Rule 28 makes it clear that case of the petitioner stood on different fooling. The petitioner herein acquired the property by way of inheritance, therefore, it was wrong on the part of the respondents to apply rule 25 Page 179 of 186 in the case of the petitioner as the property by the petitioner was acquired by transmission/ devolution. In the words of the Division Bench in the case of O.P.Sethi (supra): "THUS we are of the considered view that Rule 25(l)(c) is attracted in those cases where the properties arc 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 provision of the said Rules and by-
laws, referred to above. A contrary view, in our opinion, will not only make by-law 9 redundant but may also lead to unreasonable and anamolous results. For example, a member, on being granted membership of a housing Co-operative Society constructs a house on the plot sub-leased in his favour. He registered his only heir as nominee. During his life lime the said heir also himself/ herself acquires a residential house or 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 favour. More so when the Act, the Rules and the by-laws arc silent on the question as to what will happen to the property after the death of the member in such a Page 180 of 186 situation. We feel, the latter part of by-law 9 is intended to take care of such a situation.
(18) In the case of O.P.Sethi (Supra) the court was concerned with the question as to whether by inheritance petitioner could acquire properly from two different societies. After analysing the Act, rules and the by-laws the Court answered the question in the affirmative. In fact after the judgement of O.P.Sethi, the Lt. Governor realising the lacuna in the provision brought the amendment in the Rules vide Notification dated 11th July,1995. Rule 25 as amended reads as under:- "2.Amendment of Rule 25- In the Delhi Cooperative Societies Rules,1973, in Rule 25, in sub-rule (1), in clause (c) for sub-clause (i), the following shall be substituted, namely:- (i) he owns a residential house or a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free hold basis: Provided that disqualification as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of joint ancestral properties, whose share in the properly is less than 66.72 sq.meters (80 sq.yds.) whether the property is in a congested area or otherwise and who do not own any plot/ house in the National Capital Territory of Delhi: Provided further that such co- sharers of joint ancestral properties shall not be entitled to allotment of another plot of land or become members of co-operative Housing Societies/ Group Housing Societies, if they are already allotted a plot/ flat by the DDA: Provided also that the disqualification as laid down in sub- rule (l)(c)(i) shall Page 181 of 186 not be applicable in case .of a person who is already a member of a co-operative housing society/ group housing society, if subsequent to becoming such member he inherits/ acquires, by transmission/ devolution, any properly in the National Capital Territory of Delhi."
395. As submitted on behalf of the respondents-plaintiffs, a subsequent judgement namely "Rashmi Nagrath vs M/s Sarva Priya Society" (LPA No. 89/1997 on November 25, 2016) also passed by The High Court of Delhi also relies upon O.P. Sethi Judgement and directs for execution of sub-lease deed based on the same principle of law.
396. No other judgements/ precedents have been cited on behalf of the respondents-plaintiffs.
397. Upon a perusal of the judgements of SK. Tandon (supra) and Rashmi Nagrath(supra), this Court is inclined to observe the cited precedents do not come to the aid and rescue of the respondents-plaintiffs.
398. The judgements propounded by The Hon'ble Supreme Court of India are the law of the Land as per Article 141 of The Constitution of India. All other Courts/ forums/ Tribunals are bound by the precedents of The Supreme Court of India, and can tread no different line.
399. The Ld. Counsels for the appellant and the society have pressed upon the issue of maintainability of the suit under appeal, which goes to the very root of the matter. During the course of the arguments, attention was also drawn to the fact that the issue of maintainability of the suit was raised before the Ld. Trial Court.
Page 182 of 186400. It is settled law that once the issue of maintainability of a suit is writ large, then, all the incidental and ancillary pleas/ grounds/ defences are required to adjudicated once the issue of maintainability as been decided.
401. Evidently, the Ld. Trial Court failed to analyze and adjudicate upon the issue of maintainability of the suit under appeal in accordance with the settled principles of law, which appears to be the main point of determination in the present appeal.
402. The Ld. Trial Court did touch upon the plea of maintainability of the suit at several instances but has not decided the issue in accordance with law of the land.
403. The Ld. Trial Court framed the issues:
(i) Whether the Plaintiff is entitled to a decree of declaration as prayed for?
(ii) Whether the Plaintiff is entitled to a decree of a mandatory injunction as prayed for?
(iii) Whether the Plaintiff is entitled to a decree of a permanent injunction as prayed for?
(iv) Whether the suit of the Plaintiff is barred by the provisions of the Delhi Cooperative Societies Act?
(v) Relief.
but overlooked the issue of the maintainability of the present suit.
404. As held by The Hon'ble Supreme Court of India in Sangita Sinha (supra), R.Kandasamy (supra), and I.S. Sikandar (supra), Page 183 of 186 the Higher Courts, even at the appellate stage cannot be precluded from examining the issue of maintainability even if an issue in respect of the same was not framed during the Course of the Trial.
405. In view of the above mentioned facts, circumstances, pleadings, submissions, arguments and the judgements relied upon, this Court, without prejudice to the other available rights and contentions of the parties, is of the opinion that the suit under appeal is hit by the judgements of The Hon'ble Supreme Court of India, and should not have been allowed to continue in its existing form.
406. The Ld. Trial Court has erred in allowing and decreeing the suit of respondents-plaintiffs.
407. Deriving support and strength from the above cited judgements of the Apex Court of The Land, the questions of law formulated are answered accordingly:
"Were the plaintiffs-respondents legally required to challenge the cancellation of allotment effected by DDA vide its order dated 11.04.1988 cancelling the allotment of Lt. Smt. Dhan Devi Kapoor ?"
408. The formulated question of law is required to be answered in the affirmative. The respondents-plaintiffs i.e. the LRs of Lt. Smt. Dhan Devi Kapoor were legally obligated to seek the relief of declaration against the order of the DDA dated 11.04.1988 cancelling the allotment issued in favor of the Lt. Smt. Dhan Devi Kapoor, and impugning it as 'bad in law'.
Page 184 of 186"In the absence of the relief seeking declaration against the order dated 11.04.1988 passed by the DDA, was the suit maintainable in its present form?"-
409. In the absence of the relief seeking declaration against the order dated 11.04.1988 passed by the DDA cancelling the allotment of the subject property ie Plot No. 10/11, Sarvapriya Vihar, New Delhi, the suit of the respondents-plaintiffs should have been dismissed on the ground of maintainability, as the suit is hit by several judgements of The Hon'ble Apex Court.
410. In light of the above stated, the present appeal deserves to be allowed, and is hereby allowed.
411. The judgement dated 13.02.2025 passed by the Ld. Civil Judge 03, West District, Tis Hazari Courts, Delhi in Suit No. 607011/2016 titled as Shri Raj Kumar Kapur & Ors. Vs. Sarvapriya Cooperative House Building Society Limited & Ors is hereby set aside.
412. Needless to say, since the appeal filed by the appellant is allowed, the application filed by the respondents-plaintiffs u/or 21 rule 22 CPC, is also disposed off as dismissed being rendered infructuous. No separate order need be passed.
413. Security/FDR deposited by the appellant in compliance of the order dated 31.05.2025 be de-attached by this Court, and be released in favor of the appellant/ GPA holder against a proper receiving/ endorsement.
414. Parties to bear their own costs.
415. File be consigned to record room.
Page 185 of 186416. Trial Court Record along with copy of the order be sent back to Ld. Trial Court.
417. Copy of the judgment be given Dasti.
Announced in the open Court on 01.09.2025.
Digitally (Sunil Beniwal) Sunil signed by Sunil beniwal Date:
District Judge-06(South), beniwal 2025.09.01 14:19:01 +0530 Saket Courts, New Delhi Page 186 of 186