State Consumer Disputes Redressal Commission
Gaurav Kumar vs Dlf Homes Panchkula Pvt. Ltd. on 14 September, 2021
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Execution Application No. : 419 of 2019 Date of Institution : 04.11.2019 Date of Decision : 14.09.2021 Gaurav Kumar S/o Shri Brijinder Das Kumar, R/o B1/85/GF, DLF Valley, Village Bhagwanpur, Tehsil and District Kalka, Panchkula (Haryana). (Now deceased) ...... Decree Holder/Complainant V e r s u s DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8-C, Chandigarh through its authorized representative. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12th Floor, DLF City, Phase-III, National Highway-8 Gurgaon through its Managing Director, Mr.Mohit Gujral. Directors and Authorized Representatives of DLF Homes Panchkula Pvt. Ltd. (Mr.Rajeev Singh, Mr.Surojit Basak, Mr.Gulbir Madan Singh and Mr.Vishal Gupta) SCO 190-191-192, Sector 8-C, Chandigarh and DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12th Floor, DLF City, Phase-III, National Highway-8 Gurgaon. .....Judgment Debtors/Opposite Parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Present through Video Conferencing:-
Ms.Smriti Kanwar, Advocate for the decree holder.
Ms.Tanika Goyal, Advocate for the judgment debtors.
Sh.Sunil Narang, Advocate for Mrs. Anitu Judge @Mona in MA/300/2020 as well as Mrs. Anitu Judge in person.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The moot question which arises in this execution application is, as to whether Zorawar Kumar son and only natural legal heir of deceased decree holder-Gaurav Kumar and who is (Zorawar Kumar) suffering from autism, should be divested of his rights over the property of his father, solely on the ground that an unregistered will is set up by Smt. Anitu Judge?
Background factual scenario:-
This case has a chequered history. In the year 2016, the decree holder-Gaurav Kumar (since deceased), had purchased unit bearing no.B1/85/GF in the project of the judgment debtors. When possession of the said unit was not offered by the promised date, he filed consumer complaint bearing no.670 of 2016, during pendency whereof possession was offered to him vide letter dated 15.11.2016. This Commission allowed the said consumer complaint vide order dated 30.01.2017 and the judgment debtors were directed to hand over physical possession of the unit in question to decree holder-Gaurav Kumar (since deceased) within a period of 30 days and also to pay compensation by way of interest @12% p.a. for the period of delay alongwith compensation for mental agony and harassment to the tune of Rs.1.50 lacs and also litigation expenses of Rs.35,000/-.
The said order of this Commission was challenged by the judgment debtors by filing first appeal bearing No.485 of 2017 before the Hon'ble National Commission, where as an interim measure, the judgment debtors were directed to deposit of Rs.5 lacs before this Commission.
The possession of the unit in question was handed over to the decree holder-Gaurav Kumar on 17.06.2017. The said appeal filed before the Hon'ble National Commission was disposed of vide order dated 01.08.2019 and the order impugned dated 30.01.2017 passed by this Commission was modified as under:-
"19. Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant. Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:
i) To send a copy of the occupation certificate to the Complainants along with offer of possession. The Appellant shall also direct the Jones Lang LaSalle - the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.
ii) It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries.
iii) Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.
v) Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs.50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc. The complainant shall not be entitled to any other amount over and above the amount mentioned above.
vi) In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later.", Since, the judgment debtors failed to get executed the sale deed and also did not make the payment of compensation for the period of delay and also lumpsum compensation of Rs.50,000/- in line with the order passed by the Hon'ble National Commission, as such, this execution application was filed by the decree holder-Gaurav Kumar.
On the first date of hearing, Counsel for the judgment debtors stated that let the amount of Rs.5 lacs already deposited before this Commission be released in favour of the decree holder and that the demand draft in the remaining amount of Rs.5,56,860/- has already been sent to the decree holder. Thus, this Commission vide order dated 08.11.2019, ordered release of amount of Rs.5 lacs to the decree holder.
On 30.01.2020, Counsel for the judgment debtors stated that demand draft in the sum of Rs.5,56,860/- was ready but due to demise of the decree holder-Gaurav Kumar on 12.12.2019, nobody collected the same and he made request to revalidate the same, so that the same could be placed on record in the name of Secretary of this Commission.
Unfortunately, decree holder Gaurav Kumar had died on 12.12.2019 leaving behind his sole natural legal heir i.e. his son Zorawar Kumar. Admittedly, Sh. Zorawar Kumar is a special child and suffering from autism (i.e. a person with disability and infact he can be said to be mentally ill). It is also admitted that the decree holder Gaurav Kumar during his life time has obtained divorce from his wife Smt.Sapna Kumar, vide decree of divorce dated 26.02.2016, passed by Family Court, Faridkot in HMA Petition No.138 of 19.08.2015.
Thereafter, an application was moved through email dated 22.05.2020 by Smt.Anitu Judge under the provisions of Order 22 Rule 3 read with Section 151 of Code of Civil Procedure for impleading her as the legal representative of Late Sh. Gaurav Kumar, deceased decree holder on the basis of unregistered will dated 08.10.2019. It is specifically pleaded in para no.2 and 3 of this application as under:-
"2. That Sh.Gaurav Kumar died on 12 Dec 2019, leaving behind the applicant as his sole legal heir/legal representative, on the basis of his WILL dated 08 Oct 2019 (Copy of WILL and Death Certificate Attached)
3. That there is no other legal heir/legal representative of the deceased except the applicant."
The said pleadings are supported by her affidavit.
On 22.05.2020, Counsel for the judgment debtors has informed this Commission that on the basis of the said unregistered will, the property, in question, has been transferred in the name of Mrs.Anitu Judge (alias Mona) aforesaid being sister and legal heir of Sh. Gaurav Kumar. Counsel for the judgment debtors has also placed reliance on 'No Objection Certificate' through affidavit dated 26.05.2020 (notarized in Victoria, Australia, by a Notary Public) of Sapna Kumar former wife of late Sh. Gaurav Kumar, stating therein that she has no objection for herself as well as for his son (Zorawar Kumar) to bequeath all the rights in favour of Mrs. Anitu Judge alias Mona.
We have heard counsel for the parties and have carefully gone through the material available on record.
Undisputedly, decree holder-Sh. Gaurav Kumar died on 12.12.2019. It is also not in dispute that the marriage of Sh. Gaurav Kumar and his erstwhile wife, Smt. Sapna Kumar had been dissolved vide aforesaid decree of divorce dated 26.02.2016. Sh. Gaurav Kumar deceased has thus left behind the legal heir i.e. his son namely Mr. Zorawar Kumar, who is admittedly suffering from autism.
Smt.Anitu Judge who is sister of deceased Gaurav Kumar is seeking the ownership of rights over the property in question, by superseding the line of natural succession on the basis of unregistered will which is allegedly executed on 08.10.2019. A bare perusal of said will, makes it clear that Zorawar Kumar son of Gaurav Kumar deceased is a special child and suffering from autism and now is in the custody of Ms. Sapna Kumar and residing in Australia.
The question which arises at this stage is as to whether, by mere production of the photostate copy of unregistered will, authorizes Mrs.Anitu Judge to get transfer the property in her name from the opposite parties without the order of any competent authority?. Recently, the Hon'ble Supreme Court of India in Jitendra Singh Versus The State of Madhya Pradesh & Ors., Special Leave Petition (C) No. 13146/2021, decided on 06.09.2021, held that if mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court, necessary mutation entry can be made. Relevant part of the said order reads as under:-
"....As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made..."
This Commission exercises the limited jurisdiction and is not a civil court. We adopt the summary procedure for disposal of the matters pending before us. In our considered opinion, merely on the basis of the aforesaid will, the transfer of the unit in question, so made by the judgment debtors, in the name of Mrs. Anitu Judge, is not sufficient to allow this execution application and to implead her as legal heir of deceased Gaurav Kumar. Besides this, the law requires that in such a situation permission be sought from a court of competent jurisdiction for transfer of the property on the basis of will.
Now another question arises as to whether autism is mental illness? The legal term 'autism" has been defined in Clause 2 (a) of THE NATIONAL TRUST FOR THE WELFARE OF PERSONS WITH AUTISM, CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE DISABILITIES ACT, 1999, as under:-
"2 (a) "autism" means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behavior."
Furthermore, Clause 2 (j) defines about the person with disability, as under:-
"persons with disability" means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability;
In the RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016, autism has been defined in Clause 2 (b) (THE SCHEDULE) SPECIFIED DISABILITY, as under:-
"2. (b) "autism spectrum disorder" means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person's ability to communicate, understand relationships and relate to others, and is frequently associated with unusual or stereotypical rituals or behaviours."
Furthermore, the Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personal and Training, vide Office Memorandum No.42011/3/2014-Estt. (Res.) dated 17.11.2014 has declared the persons suffering from autism as 'disabled persons'. Therefore, the provisions of Section 14 of "THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016" are also applicable to the present case which provides that the civil court is to grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the civil court, as the case may be, to determine the nature and manner of support to be provided. Relevant part of the Section 14 reads as under:-
"14. Provision for guardianship.--(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government:
Provided that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided."
Thus, the combined reading of the definitions in the aforesaid statutes and memorandum dated 17.11.2014 (ibid) makes it abundantly clear that a person suffering from autism is a person with disability and infact he can be said to be mentally ill. Under these circumstances, it is the duty of this Commission to take all measures, so far as necessary and appropriate, to ensure the welfare, protection of interests and the fundamental rights of Mr. Zorawar Kumar-the sole natural legal heir of Gaurav Kumar deceased.
However, in the present case, the judgment debtors have failed to explain this Commission, as to under what law/rules/regulations of the competent authority; they have transferred the property in question in the name of Mrs. Anitu Judge.
In view of peculiar facts and circumstances of this case, we are of the considered opinion that only the civil court of competent jurisdiction is competent to adjudicate the following issues:-
With regard to the mental condition and disability of Zorawar Kumar.
With regard to unregistered will dated 08.10.2019 as set up by Smt. Anitu Judge.
Accordingly, this execution application stands disposed of, with liberty to the parties to approach the civil court of competent jurisdiction. In view of above, miscellaneous applications bearing nos.300, 411, 418 and 91 of 2020 and also 1118 of 2019 are accordingly dismissed having been rendered infructuous.
However, in the meanwhile, the amounts of the share of Sh. Gaurav Kumar be kept in the shape of FDR and the same shall be released in favour of the party concerned, in accordance with the decree passed by the civil court. Similarly, unit-bearing no.B1/85-GF, DLF Valley, Panchkula, Village Bhagwanpur, Panchkula, Haryana, shall be transferred in the name of person as per the order of civil court.
Certified copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
14.09.2021 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
[PADMA PANDEY] MEMBER Sd/-
[RAJESH K. ARYA] MEMBER Rg