Delhi District Court
Smt. Seema vs Delhi Development Authority on 30 September, 2020
IN THE COURT OF SH. BHARAT AGGARWAL, LD. CIVIL
JUDGE-02, WEST, TIS HAZARI COURT, DELHI
SUIT NO.608656/2016
Smt. Seema
W/o Sh. Virender Kumar
R/o A-1/13-14, Hastal Vihar,
Holy Chowk, Uttam Nagar,
New Delhi - 110059
.........Plaintiff
Versus
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA,
New Delhi - 110023
..........Defendant
Suit filed on - 27/10/2014
Judgment reserved on - 22/09/2020
Date of decision - 30/09/2020
SUIT FOR DECLARATION AND MANDATORY
INJUNCTION
JUDGMENT:-
By this judgment I shall adjudicate a suit of declaration and mandatory injunction filed by the plaintiff against the defendant/DDA Suit No.608656/2016 Page No.1/29 whereby she has sought allotment of DDA flat on t h e basis of will executed by her mother, i.e., the original registrant. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the Plaintiff: -
1. The present suit has been filed by the plaintiff again st the defendant/DDA seeking a decree of declaration that the plaintiff is the sole beneficiary/mutatee of Registration bearing No.63015 an d File No.8(63015)92/LIG/NP (LIG Category) of DDA on the basis of Will dt.25/01/1999 executed by her mother Late Sm t. Sh eela Devi an d a mandatory injunction against DDA directing them to allot LIG category flat and subsequently handover the possession of t h e flat t o the plaintiff after receiving the dues/charges.
It is the case of the plaintiff that she is one of the legal h eirs of Late Smt. Sheela Devi, w/o Late Sh. Jeet Lal who expired on 28/07/2000. It is stated that Late Smt. Sh eela Devi booked a Jan t a Flat with the DDA vide registration No.36724 for which a deposit receipt dt.27/09/1979 was issued by DDA. That thereafter the registration of Late Smt. Sheela Devi was converted to LIG cat egory vide Registration No.63015 and File No.8(63015)92/LIG/NP. Th at DDA converted her registration into LIG category and t he sam e was informed to the plaintiff vide letter dt.25/08/1982 and conversion charges of Rs.3,501/- was also paid by Late Smt. Sheela Devi vide challan dt.05/09/1989.
It is stated that the mother of the plaintiff Late Smt. Sheela Devi during her life time executed a Will dt.25/01/1999 whereby she bequeathed her above said registration in favour of the plaintiff t o t he exclusion of all other legal heirs including her husband and the fat her Suit No.608656/2016 Page No.2/29 of the plaintiff namely Sh. Jeet Lal. It is further stated t hat t he ot her daughters of Late Smt. Sheela Devi being the sisters of plaintiff namely Ms. Suneeta and Ms. Veena are both the attesting witness t o the said Will dt.25/01/1999 whereby the plaintiff is the sole beneficiary of the suit flat. It is further stated t hat aft er t he death of Smt. Sheela Devi, plaintiff's father namely Sh. Jeet Lal in connivance of the officials of defendant/DDA made representation to the DDA for mutation of the registration in his favour, however, the sam e was n ot accepted. Later, other brothers and sisters of the plaintiff also m ade representations to the defendant/DDA for transfer of the said registration by concealing the Will dt.25/01/1999. It is stated that t he plaintiff is solely entitled to the suit flat as per the Will dt.25/01/1999 and the father of the plaintiff namely Sh. Jeet Lal had also expired on 18/02/2013 and her two brothers namely Sh. Ashok an d Sh . Ram esh have also expired without leaving behind any legal heir under the first class category.
It is stated that the plaintiff also served a legal notice dt.15/04/2014 to the defendant/DDA u/s 53B of the DD Act wh ereby the defendant was called upon to substitute the name of the plaintiff in place of Late Smt. Sheela Devi against the registration an d t o allot a LIG category flat in her favour. That despite receipt of the legal notice, DDA did not issue any response. In these circumstances, t he plaintiff has filed the present suit seeking declaration an d m andatory injunction against the defendant/DDA.
Pleadings of the Defendants: -
2. Written statement was filed on behalf of t h e defendant/DDA whereby inter alia it was admitted that Late Smt. Sheela Devi got herself registered for allotment of a Janta Flat under the New Pat tern Suit No.608656/2016 Page No.3/29 Registration Scheme (NPRS)-1979. It is fu rther admitted t hat h er registration was converted into LIG category vide letter dt.25/08/1992 and a new Registration No.63015 was given to her under the LIG category. It is also stated by DDA that the correct registration number was 62315 but inadvertently due to clerical mistake it was writ ten in the letter as 63015. It is further admitted by DDA t h at Sm t. Sh eela Devi was successful for allotment of LIG Flat No.771, Second Floor, Pocket-C, Block-A, Lok Nayak Puram in the draw of lots held on 27/09/2007 and accordingly vide letter dt.08/12/2008 she was requested to appear in the office of DDA alongwith the documents for verification. That son of the registrant Sh. Raj Kumar Kapoor intimated the death of his mother vide letter dt.30/06/2009 and requested for mutation of the registration in his favour and DDA vide letter dt.13/11/2009 asked Sh. Raj Kumar Kapoor to furnish documents to DDA. It is further st ated t hat on e Sh . B.L. Malhotra vide letter dt.25/06/2007, 17/04/2009 and 23/09/2009 was also representing for issue of allotment letter in respect of Smt. Sheela Devi. It is stated that since both, Sh. Raj Kumar Kapoor and Sh. B.L. Malhotra were representing for mutation/allotment of flat wh ich was registered in the name of Smt. Sheela Devi, therefore, both of t h em were requested to appear before DDA alongwith all the original documents. It is stated that thereafter one Sh. Jeet Lal vide letter dt.15/09/2010 stated that Smt. Sheela Devi was his wife and requested for transfer of registration in his favour on the basis of Will, but he did not furnish any Will. It is stated that since there was a dispute between the legal heirs and certain claims were made, therefore, mutation could not be carried out by DDA. Furthermore, it is submitted by DDA that since the legal heirs failed to submit the documents within the stipulated time period, therefore, t he mutation Suit No.608656/2016 Page No.4/29 could not be carried out and there was a civil suit bearing No.30/2011 pending between the parties. DDA has taken another objection that as per Section-213 of the Indian Succession Act, Will has to be first proved in the probate court and then only any claims can be m ade as per the Will alleged to be executed in favour of the plaintiff. It is further the argument of DDA that NPRS Scheme h as already been closed vide publication in the leading newspaper an d, t herefore, t he present suit is barred by delay and laches. It is further alleged by DDA that as the plaintiff was aware of the registration by DDA for a flat in favour of her mother, she should have applied for m u tation of registration, but she failed to do so.
3. Consequently, replication was filed on behalf of plaintiff t o t he written statement of the defendant/DDA wherein inter alia the contents of the written statement were denied and those of t h e plain t were reiterated.
Plaintiff submitted in the replication that Sh. Raj Kumar Kapoor and Sh. B.L. Malhotra had no right to made representation t o the DDA for mutation/allotment of flat in their favour. Sh e fu rther submitted that there was never any Will in favour of Sh. Jeet Lal i.e. the father of the plaintiff and there is n o dispu te bet ween t he legal heirs as alleged by the defendant/DDA and there is connivance between the officials of the defendant and ot her legal h eirs of Lat e Smt. Sheela Devi to deprive the plaintiff from the flat in question. It is further stated by plaintiff that probate requirement of Sect ion-213 of Indian Succession Act is not applicable t o Delh i an d t here is n o need for the plaintiff to seek probate of the Will in the present case.
Suit No.608656/2016 Page No.5/29Issues: -
4. From the pleadings of the parties, following issues were framed in the suit vide order dt.07/06/2016: -
(a) Whether the suit of the plaintiff is barred by lim it ation?
OPD
(b) Whether the suit of the plaintiff is liable to be dism issed in view of Section-213 of Indian Succession Act? OPD
(c) Whether the plaintiff is entitled to the relief of declaration as prayed for in the plaint? OPP
(d) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in the plaint? OPP
(e) Relief, if any.
Evidence:-
5. In order to prove her case plaintiff led the following evidence :-
(a) Plaintiff got examined herself as PW-1 and led her evidence by way of affidavit which was taken on record and exhibited as Ext. PW-
1/A wherein she reiterated the averments made in t he plaint. PW-1 also relied upon certain documents which are as under:-
Identification Description
Mark
Mark-A Photocopy of the deposit receipt bearing Sl.
No.32396 dt.27/09/1979.
Mark-B Photocopy of the Certificate of Registration
issued by DDA.
Ex. PW-1/3 Photocopy of the payment challan bearing
(OSR) no.748528 dt.05/09/1989.
Suit No.608656/2016 Page No.6/29
Ex. PW-1/4 Photocopy of the letter dt.25/08/1992 issu ed by
(OSR) DDA for conversion.
Ex. PW-1/5 Photocopy of Will dt.25/01/1999 executed by
(OSR) Smt. Sheela Devi.
Mark-C Photocopy of death certificate of Smt. Sheela
Devi.
Ex. PW-1/7 The notice dt.15/04/2014 issued u/s 53B of DD
Act to DDA.
Ex. PW-1/8 Postal receipt with respect to legal notice.
Ex. PW-1/9 Original death certificate of Smt. Sheela Devi.
PW-1/plaintiff was cross-examined at length by the counsel for defendant/DDA whereby she stated that there is n o case pen din g in any court with regard to the property in question wit h respect t o t he legal heirs of deceased Smt. Sheela Devi. She further stated t hat sh e has no information as to whether any other legal heir of the deceased Smt. Sheela Devi had applied for mutation of registration. Sh e st ated that Sh. B.L. Malhotra is her Uncle/Mamaji. She fu rther st ated t hat she does not have any information as to whether deceased Sh. Jeet Lal who is the father of the plaintiff had also claimed for regist ration in his favour on the basis of any Will. She den ied t he su ggestion t hat there is dispute between the surviving legal heirs of Late Smt. Sh eela Devi. She stated that she had gone to the office of DDA for mutation of the flat in question in her name. She further stated that she approached the DDA office whereby it was stated that the NPRS Scheme is still in operation. The cross-examination of t he plaintiff reveals that she stood her testimony an d sh e was able t o prove h er case on the basis of the Will bearing Ex. PW-1/5 dt.25/01/1999 executed by Late Smt. Sheela Devi.
Suit No.608656/2016 Page No.7/29Thereafter, in order to prove the will Ex. PW-1/5, t he plaintiff got examined Smt. Veena Babbar as PW-2 who filed her evidence affidavit which was taken on record as Ex. PW-2/A. However, PW-2 was not cross-examined by the counsel for t he plaintiff and was dropped by the plaintiff as a witness vide order dt.20/02/2017 and thus, her testimony shall not be read in su pport of the Plaintiff.
(b) Plaintiff relied on the evidence of PW-3 i.e. Ms. Su nita being another sister of the plaintiff and daughter of Late Smt. Sh eela Devi. She filed her evidence affidavit which is taken on record and exhibited as Ex. PW-3/A and whereby inter alia sh e st at ed t hat h er mother Late Smt. Sheela Devi was the allottee of LIG Flat vide Registration No.63015 with the DDA and she desired that the said flat be given to the youngest unmarried daughter i.e. t he plain tiff. Sh e again stated that the Will dt.25/01/1999 was executed in her presence by her deceased mother and bears the thumb impression of her deceased mother. She further stated that the Will dt.25/01/1999 was executed by her mother out of her free will wit h out an y fear, force, fraud, misrepresentation, etc. to the exclusion of other legal heirs.
PW-3 was cross-examined by the counsel for defen dant/DDA whereby she stated that she does not have any knowledge as to whether anyone else approached the DDA for mutation of the registration. She stated that Sh. B.L. Malhotra is her Mamaji an d sh e had no knowledge as to whether Sh. Malhotra approached t he DDA for issuance of allotment letter in his favour. She denied the suggestion that the Will dt.25/01/1999 was n ot executed out of t h e free will and she stated that the Will dt.25/01/1999 bears her signature Suit No.608656/2016 Page No.8/29 at Point-D and was prepared in Tilak Nagar Market from a typist. Sh e stated that her mother was illiterate and it is n owhere written in t he Will Ex. PW-1/5 that the contents of the Will were explain ed t o h er mother in her language. However, she stated voluntarily that her mother had told the typist about her desire to execute the Will in favour of the youngest daughter i.e. the plaintiff. She st ated t hat n o other person was present at the time of execution of t h e Will except herself, her mother and her sister Ms. Veena.
On the statement of the counsel for plaintiff, plaintiff's evidence was closed vide order dt.20/07/2017.
6. In order to prove its case, defendant/DDA led t h e evidence of Sh. Jai Singh, Assistant Director (LIG Housing), DDA wh o filed h is evidence affidavit which was identified as Ex. DW-1/A. In his evidence affidavit inter alia he reiterated the contents of t h e writ ten statement and filed on record several documents which are as follows:-
Identification Description
Mark
Ex. DW-1/1 The letter dt.25/08/1992 issued by DDA t o lat e
Smt. Sheela
Ex. DW-1/2 Copy of letter dt.08/12/2008 issued by DDA t o
late Smt. Sheela.
Ex. DW-1/3 Copy of letter dt.30/06/2009 issu ed by Sh . Raj
Kumar to DDA
Ex. DW-1/4 Copy of letter dt.13/10/2009 issued by DDA t o
Sh. Raj Kumar
Ex. DW-1/5 Copy of acknowledgment receipt dt.25/06/2007.
Suit No.608656/2016 Page No.9/29
Ex. DW-1/6 Copy of letter dt.18/04/2009 issued by Sh. BL
Malhotra to DDA.
Ex. DW-1/7 Copy of letter dt.23/09/2009 issued by Sh. BL
Malhotra to DDA
Ex. DW-1/8 Copy of letter dt.27/10/2009 issued by DDA t o
(Colly two pages) Sh. BL Malhotra and another letter t o Sh . Raj
Kumar
Ex. DW-1/9 Copy of letter dt.15/09/2010 issued by Sh . Jeet
Lal to DDA
Ex. DW-1/10 Copy of letter dt.31/03/2011 issued by DDA t o
Sh. Jeet Lal
Ex. DW-1/11 Attested copy of public notice issued by
(Colly, two in Housing Department and in newspaper.
number)
DW-1 was cross-examined by the counsel for the plaintiff wherein inter alia he stated that he does not remember the registration number vide which Late Smt. Sheela Devi had applied for t h e Jan ta Flat. He stated that as per the records available, the Janta Registration number of Smt. Sheela Devi was 36724 dt.27/09/1979. During t he cross-examination photocopy of the deposit receipt bearing No.36724 and Certificate of Registration dt.18/06/1980 was shows by the counsel for plaintiff to DW-1 which were taken on record as Ex. DW- 1/P1 and DW-1/P2. The witness admitted both t he documents an d stated that Registration No.63015 was allotted t o Smt. Sheela Devi. He further stated that he cannot name the Clerk due to whom the registration number was wrongly written as 63015 in place of 62315 and he further stated that no corrigendum was issued by DDA in respect of the alleged clerical mistake.
Suit No.608656/2016 Page No.10/29He stated that DDA had intimated to the plaintiff regarding change of registration number at the time of allotment vide letter dt.08/12/2008 i.e. Ex. DW-1/2. It is pert inent t o m ention h ere t hat perusal of Ex. DW-1/2 i.e. letter dt.08/12/2008 issued by DDA t o t h e deceased Late Smt. Sheela Devi states the registration number as 62315, however, no such specific intimation regarding change in registration number was given in the letter.
Thereafter, on Ex. DW-1/5 which is an acknowledgment issued by DDA of certain documents received from Sh. B.L. Malhotra, t he witness admitted that subject mentioned in the said ackn owledgment is regarding "address change". Letter Mark-DW-1/P3 is on record whereby Sh. B.L. Malhotra requested for change of address in respect of Registration No.63015 addressed to Deputy Director, Housing, DDA dt.25/06/2007. DW-1 states that no such letter Mark- DW-1/P3 was written by Sh. B.L. Malhotra to DDA and no such letter was on his record. Thereafter, a letter Ex. DW-1/6 dt.18/04/2009 was issu ed from Sh. B.L. Malhotra to Assistant Director (LIG) DDA whereby the address of Sh. B.L. Malhotra was mentioned as the same address which was mentioned in Mark-DW-1/P3. In the said let t er Ex. DW- 1/6 Sh. B.L. Malhotra had also referred to earlier requ est for ch ange of address which was acknowledged by DDA on 25/06/2007.
DW-1 very pertinently stated that there was n o proof of fresh address of Smt. Sheela Devi. DW-1 further admitted that allotment of Flat No.771, Second Floor, Pocket-C, Block-A, Lok Nayak Puram was not against the Registration No.63015. He st ates t hat Ex. DW- 1/2 i.e. the letter for allotment of the flat t o Lat e Sm t. Sh eela Devi dt.08/12/2008 was sent by registered post. He admitted that the postal receipt in respect of Ex. DW-1/2 i.e. the letter dt.08/12/2008 h as n ot been filed by DDA on record. He further admitted t hat t he dispatch Suit No.608656/2016 Page No.11/29 number was mentioned on the letter but the dispatch register maintained by DDA was not placed on record by the DDA an d t here is no proof of delivery in respect of Ex. DW-1/2. He fu rther st ated that Ex. DW-1/4 is the letter written by the Assistant Director, LIG (H) to Sh. Raj Kumar whereby Sh. Raj Kumar was requested to attend to the office of DDA and submit the documents for further act ion. It is admitted by DW-1 that the record of the postal receipt or dispat ch register pertaining to Ex. DW-1/4 was not placed on record by DDA in the present case.
Ld. Counsel for the defendant pointed out to t he difference in the address of Sh. Raj Kumar Kapoor as m entioned in Ex. DW-1/3 and the address on which DDA addressed its letter Ex. DW-1/4 to him. Thereafter, DW-1 stated that he was not sure whether DDA was a party in the civil suit No.36/2001 as stated in the evidence affidavit. He was also not aware about the outcome of the civil suit. He fu rther stated that he does not know whether any flat was allot ted t o an yone in respect of the Registration No.63015. From t he file pert aining t o Registration No.63015 he stated that it is not reflected t hat an y LIG Flat was ever allotted to Smt. Sheela Devi. He admitted t hat n o LIG Flat was ever allotted to Smt. Sheela Devi again st t he Registration No.63015.
Thereafter, defendant's evidence was closed upon the statement of the counsel for the defendant vide order dt.03/08/2017.
Decision with reasons :-
7. The arguments were heard on behalf of parties an d t he record has been carefully perused. Now, I shall give my issue-wise fin dings which are as under: -
Suit No.608656/2016 Page No.12/298. Issue No.(b) -
(b) Whether the suit of the plaintiff is liable to be dismissed in view of Section-213 of Indian Succession Act? OPD The onus to prove this issue was upon the defendant. The defendant has stated in the written statement that suit of the plaintiff is barred u/s 213 of the Indian Succession Act, 1925 as t h e entire case of the plaintiff is based on the alleged Will executed by Late Smt. Sheela Devi in favour of the plaintiff on 25/01/1999 Ex. PW-1/5 and admittedly the said Will is not probated in an y cou rt of law. In this regard, the defendant has relied upon Section-213 of t h e Indian Succession Act, 1925 which inter alia provides that no right of an executor or legatee can be established in any court of law u n less a court of competent jurisdiction has granted probate of the Will. On the other hand, Ld. Counsel for the plaintiff has submitted that such provision requiring probation of Wills is not applicable in the territory of Delhi.
It is not in dispute that the Will dt.25/01/1999 Ex. PW-1/5 was executed in by a Hindu in Delhi and is an unregistered will. For t h is controversy, it is relevant to rely upon certain observations of the Hon'ble High Court of Delhi in case titled as "Mrs. Winifred Nora Theophilus vs Mr. Lila Deane & Others on 10 July, 2001 {AIR 2002 Delhi 6, 2001 (62) DRJ 422}" wherein inter alia it was observed as follows:-
" 11. On interpretation of Section 213 read with Section 57 (a) and (b), the Cou rts h ave opined t hat where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to that Lt. Governor of Bengal or wit hin the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even Suit No.608656/2016 Page No.13/29 made outside but relating to immoveable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded t hat if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what t he various ju dgments cited by the learned counsel for the defendants decide. Therefore there is no problem in arriving at the conclusion that if the will is made in Delh i relat ing t o immoveable property in Delhi by Hindu, Buddhist, Sikh or Jain a, n o probate is required."
Upon perusal of abovementioned clear observations of t h e Hon'ble High Court of Delhi, it is not difficult to arrive at a con clu sion t hat there was no requirement for the plaintiff to obtain probate in respect of the Will Ex. PW-1/5 from the court having appropriate jurisdiction. In these circumstances, it cannot be stated that the suit of the plaintiff is liable to be dismissed u/s 213 of the Indian Succession Act, 1925. Hence, the objection of the defendant pertaining to requirement of t h e probation of will Ex. PW-1/5 is hereby dismissed.
Accordingly, issue no.(b) is decided in favou r of t h e plain tiff and against the defendant.
9. Issue No.(a), (c) (d) -
(a) Whether the suit of the plaintiff is barred by limitation?
OPD
(c) Whether the plaintiff is entitled to the relief of declaration as prayed for in the plaint? OPP
(d) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in the plaint? OPP The onus to prove issue no.(a) was upon the defendant an d t he onus to prove issue no.(c) and (d) was upon the plaintiff.
Suit No.608656/2016 Page No.14/29It is admitted position between the parties t hat t he plaintiff's mother Late Smt. Sheela Devi booked a Janta Flat with the DDA vide Registration No.36724 (as evident from the certificate of regist ration bearing exhibit No.DW-1/P2) for which deposit receipt dt.25/09/1979 was also issued by DDA being Ex. DW-1/P1. It is also undisputed that the registration of Late Smt. Sheela Devi was thereafter converted to LIG category vide Registration No.63015 and conversion ch arges of Rs.3,510/- was also paid by Late Smt. Sheela Devi vide challan bearing Ex. PW-1/3. DDA has stated that later on due to a clerical mistake the registration number was stated as 62315 in place of actual registration number which as per DDA is 60315. Adm ittedly, DDA did not issue any corrigendum in respect of this change and never took any action against the anonymous clerk wh o was at fau lt. Th e plaintiff has alleged foul play on the part of the DDA regarding change of this registration number which was never in formed t o t he plaintiff. DDA even though has stated that the Plaintiff was apprised about the change in the registration number, it has not placed on record any document establishing the same. It is very su rprising t o note that registration number has been suo motu changed by the DDA after 16 years of application without any intimation to the registrant/applicant. Even though, it h as been st ated in t he writ ten statement and argued on behalf of t h e defen dant t hat plain tiff was informed about the change in the registration number. However, there is no document and no evidence on record to show t hat t he plaintiff was ever informed about the change of registration number in respect of the Flat in question from 63015 to 62315 wh ich raises su spicion about the conduct of defendant/DDA in its affairs. This court is surprised to see the circumstances in which such registration n umber was changed by DDA by merely stating it to be a clerical error an d Suit No.608656/2016 Page No.15/29 not even informing the Plaintiff or the original registrant about su ch change. Such practice of the Defendant/ DDA is deplorable and highly condemnable.
10. It is the plaintiff's case that aft er t he death of h er m other on 28.07.2000, her father namely Sh. Jeet Lal in con nivance of cert ain officials of defendant/DDA made representation to the DDA for mutation of the registration, however, h is requ est was n ot acceded and, thereafter other brothers and sisters of t h e plaintiff also m ade representation concealing the existence of Ex. PW-1/5. It is the plaintiff's case that it is only her who is entitled t o t he allotment by DDA in view of Ex. PW-1/5. The plaintiff h as also relied u pon t he legal notice dt.15/04/2014 issued u/s 53B of DD Act bearing Ex. PW- 1/7 whereby DDA was called to process the application of mutation in favour of the plaintiff, however, as there was no response at the behest of the defendant/DDA, the plaintiff was constrained to file the present suit seeking declaration as sole beneficiary of the allotment and mandatory injunction against the defendant/DDA seeking allotment of the Janta Flat.
11. The DDA on the other hand had admitted the successful allotment in favour of Plaintiff's mother of LIG Flat No.771, Second Floor, Pocket-C, Block-A, Lok Nayak Puram in the draw of lot s h eld on 27/09/2007. The DDA also placed on record the letter dt.08/12/2008 Ex. DW-1/7 which is issued by DDA to Late Smt. Sheela Devi stating therein that she was allotted the aforesaid flat an d she was required to meet the concerned Assistant Director of DDA with the requisitioned documents. It is the case of DDA t h at Sh . Raj Kumar Kapoor i.e. the son of Late Smt. Sheela Devi intimated about Suit No.608656/2016 Page No.16/29 the death of his mother vide letter dt.30/06/2009 an d t he DDA vide letter Ex. DW-1/8 asked him to furnish all the requisite documents. It is further stated that Sh. B.L. Malhotra was also representing the issue of allotment on behalf of Smt. Sheela Devi and DDA vide let t er Ex. DW-1/8 also asked him to attend the office of DDA alongwith relevant original documents. It is further stated that one Jeet Lal vide his letter dt.15/09/2010 Ex. DW-1/9 stated t hat h e h as a will in h is favour from Late Smt. Sheela Devi, however, he did n ot fu rnish any Will. It is the main bone of contention of defendant/DDA that as there were disputes between the legal heirs and claims and cou nter-claims against each other, therefore, the mutation could n ot be carried ou t . Furthermore, as the NPRS Scheme has already been closed after wide publication in newspapers Ex. DW-1/11, the mutation cou ld n ot be effected and, therefore, the suit of the plaintiff is liable to be dismissed on account of delay and latches. During the final arguments, Ld. Counsel for DDA relied upon judgment dt. 15.02.2013 passed by Ld. SCJ, Dwarka Court in CS No. 257/11 whereby su it for injunction filed by Sh. Raj Kumar against Jeet Lal, Sunita an d DDA was dismissed. Raj Kumar (Plaintiff's brother) had sought injunction against DDA restraining it to mutate the flat in favour of Jeet Lal an d Sunita. The suit was dismissed inter alia on the ground that there was no cause of action as it was filed on mere apprehension and DDA was directed to effect mutation as per law and guidelines. However, admittedly no mutation has yet been effected by DDA in respect of the flat in question. He further relied on order dt. 23/12/2014 passed by Hon'ble Delhi High Court in W.P (C) no. 1750/14 by Sh. BL Malhotra seeking quashing of letter dt. 10.06. 13 issued by DDA whereby his request for mutation was rejected by DDA. The said writ petition was dismissed by the Hon'ble High Court inter alia on Suit No.608656/2016 Page No.17/29 ground of delay. However, admittedly the Plaintiff h erein was n ot a party in any of these cases and the present case in any event, is required to be adjudicated as per the facts an d evidence brou ght on record during the trial.
12. Plaintiff has relied upon the Will dt.25/01/1999 bearing Ex. PW-1/5 executed by Late Smt. Sheela Devi whereby she has bequeathed the suit property in favour of the plaintiff to the exclusion of all the other legal heirs. The said Will has also been proved on record by the plaintiff through the testimony of PW-3 Ms. Sunita being sister of the plaintiff and nothing substantial emerged from t he cross-examination of the PW-3 who withstood her testimony. For t he purpose of proving the will Ex. PW-1/5, it was required t hat t he will be proved as per the Indian Evidence Act, 1872. At this juncture, reference can be made to the observations of Hon'ble Supreme Court of India in in case titled as "Kashibai W/O Lachiram & Anr vs Parwatibai W/O Lachiram & Ors" on 25 September, 1995 {1995 SCC (6) 213, JT 1995 (7) 48}" wherein inter alia it was observed that a Deed of will is one of the documents which is necessarily required by law to be attested. Section-68 of the Evidence Act inter alia provides that one attesting witness shall be called for proving the execution in compliance of the said provision. PW-3 has in her testimony stated that the executrix Smt. Sheela had executed Ex. PW- 1/5 in her presence without any force, fraud or misrepresentation. Th e plaintiff has proved on record Ex. PW-1/5 i.e. the Will dt.25/01/1999 upon which plaintiff has based her entire case. Defen dant/DDA h as neither raised nor proved any allegation pertaining t o an y fou l play, forgery or misdeed in the execution or contents of t h e Will Ex. PW- 1/5. In these circumstances, it can be easily concluded t hat t he Will Suit No.608656/2016 Page No.18/29 Ex. PW-1/5 has been proved by the plaintiff on record as per wh ich the deceased Smt. Sheela Devi bequeathed allotment of the Janta Flat in question in favour of the plaintiff.
13. During the course of arguments, the court h ad en quired from the Ld. Counsel for the defendant/DDA whether the aforesaid Flat in question which was allotted to Late Smt. Sheela Devi vide let t er Ex. DW-1/2 was ever allotted vide DDA to any other person. The Ld. Counsel for defendant/DDA responded in the negative and stated t hat the said Flat is kept vacant due to pendency of the present case. Perusal of the evidence led on record shows that the plaintiff has based her entire case on the Will Ex. PW-1/5 and the fact that the Flat was already allotted vide letter Ex. DW-1/2 and, therefore, it sh ould be allotted by DDA to its rightful owner. On the other hand, the main arguments on behalf of the defendant/DDA is that the plaintiff is n ot entitled to any allotment as Plaintiff never approached t he defen dant in pursuance of the letter issued by DDA for allotment of the Flat bearing Ex. DW-1/2 and thereafter the NPRS-1979 Scheme was closed after wide publication in newspapers.
It is quite evident on the record that pursuant to letter dt.08/12/2008 Ex. DW-1/2, DDA has not issued any letter cancelling the allotment of the LIG Flat No.771, Second Floor, Pocket-C, Block- A, Lok Nayak Puram which was allotted to Late Smt. Sheela Devi. It is quite evident that a right was creat ed in favour of t h e Lat e Smt. Sheela Devi when she was found successful for allotment of the aforesaid Flat as per the draw of lots and, therefore, u nder ordin ary circumstances upon her death such allotment should have been mutated by DDA in favour of the legal heirs of Late Smt. Sheela Devi.
Suit No.608656/2016 Page No.19/2914. DDA has argued that Sh. Raj Kumar Kapoor i.e. the brot her of the plaintiff, Sh. B.L. Malhotra (Uncle/Mama) and Sh. Jeet Lal (father of the plaintiff and husband of deceased Smt. Sheela Devi) approached DDA for mutation of the allotment vide letter bearing Ex. DW-1/3, Ex. DW-1/6 and DW-1/9 respectively. It is stated on behalf of defendant/DDA that it had issued letters to Sh. Raj Kumar bearing Ex. DW-1/4, to Sh. B.L. Malhotra Ex. DW-1/8 and to Sh. Jeet Lal Ex. DW-1/10 asking them to furnish the documents for purpose of allotment with the relevant documents in their favour but in response nobody approached the DDA. Such position is also adm it ted by t h e plaintiff who has stated in the plaint that other legal heirs of Late Smt. Sheela Devi were also applying with DDA for mutation in their favour, however, their request was never acceded to by the DDA an d only when the father of the plaintiff namely Sh . Jeet Lal expired on 18/02/2013 and the plaintiff's legal notice U/S 53B of DD Act dt.15/04/2014 was not responded to by DDA, that the plaintiff approached this court seeking mutation and allotment in her favour.
It is argued on behalf of the plaintiff that request for ch ange of address was also made to the DDA which is apparent from the perusal of the acknowledgment issued by DDA Ex. DW-1/5. Ex. DW-1/5 refers to the letter dt.25/06/2007 which is on record as Mark DW-1/P3 issued by Sh. B.L. Malhotra to the DDA informing about t he ch ange in address. It is the case of the plaintiff that despite t he requ est for change of the address already received by DDA on 25/06/2007, yet the DDA issued the letter dt.08/12/2008 Ex. DW-1/2 (i.e., t he letter which speaks of allotment of a particular Flat in favou r of Lat e Sm t. Sheela Devi) on the earlier address of Late Smt. Sheela Devi. Perusal of the documents Ex. DW-1/2, Ex. DW-1/5 and Mark-DW-1/P3 shows that despite being aware of about t he ch ange in address, t he Suit No.608656/2016 Page No.20/29 DDA issued the letter Ex. DW-1/2 only at the old address of Late Smt. Sheela Devi thus, denying t he opportunity t o t he Plaintiff t o approach the DDA. Hence, it cannot be stated t hat t he Plaintiff was aware about the allotment in 2008 itself and she could have approached the Defendant after successful allotment in favour of h er mother.
15. When DW-1/witness of DDA was asked about the postal receipt in respect of Ex. DW-1/2 i.e. the letter dt.08/12/2008 issued by DDA to Late Smt. Sheela Devi informing her about her allotment of the LIG Flat, DW-1 stated that postal receipt h as n ot been filed on record. It was further stated by him that DDA maintains the despatch register. However, it is very pertinent to note that defendant/DDA has not placed any dispatch register or proof of service regarding Ex. DW- 1/2.
As regards the other letters issued by DDA to the legal h eirs of Late Smt. Sheela Devi bearing Ex. DW-1/4, Ex. DW-1/8 or Ex. DW- 1/10, it was admitted by the witness that no postal receipt or dispat ch register was placed on record by the defendant/DDA to show proof of service. In view of the specific admission of DW-1, it is conclu sively established that the defendant has failed to prove on record t h at t he most essential letter being Ex. DW-1/2 was ever act u ally sen t t o t he address of Late Smt. Sheela Devi informing h er or h er su ccessor in interest about the successful allotment of LIG Flat in her favou r. It is also very pertinent to note on record that even though it has been submitted on behalf of defendant/DDA that there were disputes between the legal heirs of Late Smt. Sheela Devi, DDA neither mutated the Flat in favour of any of the legal h eir n or cancelled t he successful allotment in favour of Late Smt. Sheela.
Suit No.608656/2016 Page No.21/2916. Furthermore, relying upon Ex. DW-1/11 (Colly), DDA argu ed that public notices were issued whereby inter alia it was st at ed t hat the registrants under the NPRS Scheme, 1979 h ave been given t he allotments and eligible applicants have been allotted flats. It was further submitted that no allotment is pending as on date. The defendant has not even stated the date of issuance of these public notices Ex. DW-1/11. Even otherwise, DDA itself has adm itted t hat the allotment in favour of deceased Smt. Sheela Devi was never cancelled by DDA and, hence, even the issuance of Ex. DW-1/11 i.e. the public notices would not affect the righ ts of legal h eirs of Lat e Smt. Sheela Devi as it cannot be said that all eligible applicants h ave been given allotments, especially in light of the facts disclosed in t he present case.
Ld. Counsel for DDA has strongly relied upon Ex. DW-1/11 t o state that since the NPRS Scheme was closed, the plaintiff is not entitled to any relief for allotment. However, there is no merit in su ch argument of DDA. In these circumstances it is relevant to refer t o t h e observations of Hon'ble Delhi High Court in the matter titled as "Ravinder Kaur Vs. Delhi Development Authority {W.P.(C) 3570/2010} Date of Decision : April 05, 2013" which are as follows :-
15. In Abhay Prakash Sinha vs. DDA, W.P.(C) No.119/2007, on the aspect of public notices, the following observations made by a learned Single Judge of this Court are apposite:-
"10. Before this court, the sole reliance of the DDA is on the public notices which h ave been issued. It is apparent from the public notices t hat the DDA was conscious of the fact t hat several persons who were legitimately entitled to consideration for allotment of the flats on tail end Suit No.608656/2016 Page No.22/29 priority or other priorities, had been overlooked. Certainly, the petitioner cannot be faulted for t he failure of the DDA to consider the petitioner for allotment of the flat on a mere premise t hat t hey have issued public notices.
11. So far as the impact of such public notices effecting the private rights of the persons is concerned, it is required to be borne in mind t hat the applicants have been made to wait for decades for allotment of the flats. In t he in stant case, the petitioner has been waiting since the year 1979. Certainly, the citizens cannot be expected to be following newspapers of every single day for over 25 years keeping track of public notices which may be issued by the DDA. Such a plea on behalf of the DDA is bot h u nfair and unreasonable. The respondent cannot be permitted to so avoid the responsibility and liability to consider the petitioner for allotment of a flat in an appropriate draw of lots especially in the facts which have been noticed hereinabove.
12. My attention has been drawn to an order dated 20th March, 2007 passed in WP (C) No.11654/2006 entitled Subhash Ch ander Sethi Vs. Delhi Development Authority, wherein in similar circumstances, the court had rejected a plea taken by the DDA placing reliance on its public notices.
13. Another order dated 19th July, 2007 passed in WP (C) No.10570/2006 entitled Tajinder Kaur Vs. DDA has been placed before this court wherein the court has rejected the DDA's contention and reliance on the public notices which were issued by it to deprive the bona fide registrants who have been waiting for several decades, for allotment of the flats.
14. Mr. Kinra, learned counsel for the petitioner, also places reliance on an order dated 21st Ju ly, Suit No.608656/2016 Page No.23/29 2006 in Writ Petition (C) No.20250/2005 Jay Prakash Vs. DDA passed by this court.
16. This leaves me to consider the aspect of cost of th e flat to be paid by the Petitioner and t he con tention of the DDA's counsel that the Petitioner is liable t o pay interest at the rate of 12% per annum for the intervening period. Suffice it to st ate t hat in a recen t decision rendered by a Division Bench of this Court in LPA No.279/2008 titled "Basu Dev Gupta vs. D.D.A.", the Division Bench after referring to the decision of learned Single Judge in Raj Kumar Malhotra (supra) and the Division Bench in Abhay Prakash Sinha (supra), has repelled t he con tention of the counsel for the DDA to the effect that the DDA be permitted to charge interest at the rate of 12% per annum on the cost of the flat in view of t h e Circu lar dated 17th October, 2008 issued by the DDA. The Division Bench opined that it disapproved of this Circular insofar as it contradicts the mandamus issu ed by the learned Single Judge in Raj Ku mar Malhotra, which has been approved both by the Division Ben ch as well as the Supreme Court. It held t hat n o in terest would be charged on the price of the flat for the reason that DDA did not issue a Demand-cum-Allotment Letter to the Appellant when it was due. It further held that the registration amount with interest accrued thereon would be adjusted while calculating the amount due from the Appellant."
In view of the aforesaid observations no reliance can act ually be placed by the defendant/DDA upon the alleged public n otices Ex. DW-1/11 to submit that Plaintiff is assumed to be aware and h er case cannot be considered by DDA. Even otherwise, no date of publication has been stated in the document relied upon by DDA or in the pleadings. Upon queries of Ld. Counsel for plaintiff to DW-1, he failed to disclose the details of the meeting where the decision regarding closure of NPRS-1979 scheme was taken and he stated t hat Suit No.608656/2016 Page No.24/29 he does not have any document pertaining t o su ch m eeting. In t he considered opinion of this court mere issuance of pu blic n otices by DDA would not extinguish the right of a successful allottee who h as waited for about 28 years after applying for the allotment. Th erefore, in the considered opinion of this court, the publication in newspapers or notices relied upon by DDA would n ot h ave any bearing on t he successful allotment in favour of Late Smt. Sheela. Since the allotment in favour of Late Smt. Sheela Devi was never cancelled or closed by defendant/DDA, the right and interest of her successor st ill exists which is the Plaintiff in this case who has been legally bequeathed the rights in the suit flat as per Ex. DW-1/5. Merely because several persons approached the DDA about seeking mutation in their favour after demise of Smt. Sheela, DDA bein g a st at utory authority cannot be expected to avoid its responsibility and liability of allotting the flat to its rightful beneficiary.
17. The argument of the Ld. Counsel for Defendant/DDA pertaining to the law of limitation or delay and laches is also bereft of any merit. As observed above, DDA has miserably failed to prove t h e delivery or even despatch of Ex. DW-1/2, i.e., letter of allot ment in favour of Late Smt. Sheela. Defendant has also failed to prove that the Plaintiff was aware about the allotment of a flat in favour of her mother. It is apparent from record that Late Smt. Sheela was await ing for allotment in her favour for almost two decades and after her demise in year 2000, her legal heirs were kept waiting for several years before successful allotment in draw of lots. In these circumstances, it is neither appropriate nor just for the Defendant statutory authority to rely upon the doctrine of delay and latches considering its own conduct in the present case. At this juncture, it is Suit No.608656/2016 Page No.25/29 relevant to refer to the observations of Hon'ble Delhi High Court in "Kaushlya Madan & Anr. vs Delhi Development Authority on 23 May, 2018 {RFA 535/2011 & CM NO.7422/2012}", which are as under :-
"13. In the absence of a proper communication of the allotment or demand thereupon, there cannot be any cancellation due to non-payment. Moreover, even the alleged cancellation was not communicated to the Plaintiffs. Thus the Trial Court was in error in holding t hat t he letter dated 13th September, 2002 was not sent an d n o relief is liable to be granted as the original record of DDA was n ot summoned by the Plaintiff. No purpose wou ld h ave been served in summoning the original record of t h e DDA as a perusal of the original record which has now been summoned even before this Court, shows that the DDA h as not maintained its records properly. Th e Plaintiff t ried t o obtain electronic and other records from the DDA as is evident from the applications under Order XI Ru le 12 an d the orders raised thereon. Even the letters wh ich h as been admittedly received are not on the original record. The original postal receipt (registered post) cannot be disbelieved, inasmuch as in law, under the General Clau ses Act, 1897 a letter sent by registered post is deemed to h ave been delivered as it is held by the Supreme Court in N. Parameswaran Unni v. G. Kannan & Anr. (2017) 5 SCC
737. The Plaintiffs have made repeated efforts but the DDA has been completely repulsive to any attempt m ade by t h e Plaintiffs to sort out the matter. It has adopted a citizen unfriendly attitude. The Trial Court‟s remark t hat it does not matter whether the demand cum allotment letter were sent to D-II/76, Janak Puri, New Delhi or D-11/76, Jan ak Puri, New Delhi, is also erroneous inasmuch as if t h e m ain letter i.e. the demand cum allotment letter was sen t t o t he wrong address by the DDA, then it cannot be seen to justify the cancellation of the allotment. Even Exh ibit DW-1/6 is not a cancellation but a mere recommendation t o cancel, which cancellation was not done at any point by t h e DDA. The Trial Court has, therefore, originally invoked clause 27/28 of the brochure. The Plaintiffs are entitled to the relief prayed for.Suit No.608656/2016 Page No.26/29
In view of the aforesaid observations and the fact that DDA has failed to prove the delivery or despatch of Ex DW-1/2, the arguments of the Ld. Counsel for the defendant/DDA that t he su it is barred by limitation or is liable to be dismissed on the ground of delay and latches are bereft of any merit. In the considered opinion of this court it would be extremely unjust to deny a person who was made t o wait for several decades for an allotment of a flat by DDA, his rightful allotment on the ground of mere technicalities. In the considered opinion of this Court, in the absence of any form al cancellation t he allotment still stands in favour of Lat e Sm t. Sh eela an d keeping in view that the flat in question was never re-allotted, there is an existing right in favour of the Plaintiff over the suit flat . Accordingly, issue no.(a), (c) and (d) are decided in favour of the plaintiff and against the defendant.
Relief:-
18. The plaintiff has been able to prove the Will Ex. PW-1/5 on record as per the rules of evidence. In the considered opin ion of t h is court, plaintiff alone is entitled to the allotment of the Flat in question and hence, it would only be appropriate and just that plaintiff be allowed to ripen the fruits of seeds which were sown by h er m other about 40 years back in the year 1979. As it was stated by Ld. Counsel for defendant/DDA that the LIG Flat No.771, Second Floor, Pocket- C, Block-A, Lok Nayak Puram has been kept vacant and has not been allotted to any other person in light of the present dispute, defendant/DDA is hereby directed to mutate the allotment in favour of the plaintiff herein and furthermore handover t he possession of t h e same after executing a perpetual lease deed and con veyance deed in Suit No.608656/2016 Page No.27/29 favour of the plaintiff. It is hereby clarified that the plaintiff shall only be liable to make the payment as per similarly situated applicants who paid for allotments as per the draw of lots held on 27/09/2007 as stated in Ex. DW-1/2 i.e. letter dt.08/12/2008.
For any reasons, if the abovementioned flat is n ot available, DDA is hereby directed to allot an equivalent flat of similar size, quality, construction, area and locality in favour of t h e Plaintiff on rates applicable as mentioned above. Defendant/DDA is direct ed t o comply with the directions in this judgment within two m onths from today.
19. Issue no.(e) -
In view of the findings given on issues no.(a) to (d), documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has proved her case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby decreed and following reliefs are awarded to the plaintiff:
(A) A decree of declaration thereby declaring the plaintiff as the sole beneficiary/mutatee of Registration bearing No.62315 (i.e., amended registration number) and File No.8(63015)92/LIG/NP (LIG Category) on the basis of Will dt.25/01/1999 executed by her m other Late Smt. Sheela Devi.
(B) A decree of mandatory injunction in favour of plain tiff an d against the defendant/DDA thereby directing the defendant/DDA t o mutate the allotment of LIG Flat No.771, Second Floor, Pocket-C, Block-A, Lok Nayak Puram in favour of the plaintiff herein and further more handover the possession after executing a perpetual lease Suit No.608656/2016 Page No.28/29 deed and conveyance deed in favour of the plaintiff. It is hereby clarified that the plaintiff shall only be liable to make the paym ent as per similarly situated applicants who paid for the draw of lots held on 27/09/2007 as stated in Ex. DW-1/2 i.e. letter dt.08/12/2008. For an y reasons, if the abovementioned flat is not available, DDA is h ereby directed to allot an equivalent flat of similar size, quality, construction, area and locality in favour of the Plaintiff on rates applicable as mentioned above. DDA is directed to comply with t he directions in this judgment within two months from today.
(C) Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
Digitally signed byBHARAT BHARAT AGGARWAL AGGARWAL Date: 2020.09.30 17:28:01 +05'30' (BHARAT AGGARWAL) Civil Judge, Delhi (West)-02 Pronounced, through video conferencing through Cisco Webex application on 30/09/2020.
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