Delhi High Court
D.D.A. vs Dr. K.K. Srivastava on 12 January, 2004
Equivalent citations: 109(2004)DLT849, 2004(73)DRJ60
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, R.C. Jain
JUDGMENT Dalveer Bhandari, J.
1. The appellant DDA aggrieved by the judgment of the Single Judge dated 4th March, 1999 has preferred this appeal before this Court with the request that the Order of the learned Single Judge be set aside. The learned Single Judge in view of the judgment of the Division Bench passed in Mrs. Vijaya C. Gursahaney v. Delhi Development Authority, reported in 1994 II AD Delhi 770 allowed the Writ Petition. The learned Single Judge has observed that the petitioner (respondent herein) has got a valid will, and probate having been issued by a competent Court the respondent cannot claim and demand unearned increase. He further submitted that the grant letters of administration of the will is final and binding. The respondent (appellant herein) could not go contrary to the settled law and claim and demand 50% unearned increase for mutating the property in favor of the petitioner (respondent herein).
2. Brief facts which are necessary for disposal of this appeal are recapitulated as under:-
The DDA had allotted the plot bearing No. E-7, East of Kailash, New Delhi to Sh. Jaswant Singh S/o Shri Shib Dayal. A perpetual lease deed of the plot executed between Jaswant Singh and the President of India under the Government Grant Act with regard to the aforesaid residential plot. On 20.6.1983 the original allottee Jaswant Singh died. On 19.6.1983 late Jaswant Singh is stated to have executed a will dated 19.6.1983 inter alia bequeathing the said plot in favor of Dr. K.K. Srivastava and Others. The respondent filed a Probate No. 119/84. The respondent was granted Letters of Administration under Section 290 of the Indian Succession Act, 1925 by the learned District Judge. On 23rd September, 1988 respondent made a request for mutation of plot No. E-7, East of Kailash, New Delhi in his favor. It is admitted in the Probate that the deceased allottee was not related, in any manner, to the respondent. The appellant DDA asked respondent to pay 50% unearned increase as per terms of perpetual lease deed since the transfer was not in favor of blood relation of Jaswant Singh. The respondent aggrieved by that order, filed a Writ Petition (CWP No. 1779/97) for quashing the letter dated 13.8.1986 by which he was asked to pay 50% unearned increase.
3. The Division Bench of this Court in Mrs. Vijaya C. Gursahaney v. Delhi Development Authority, reported in 1994 II AD Delhi 770 come to the conclusion that the decision of the appellant requiring the respondent to pay unearned increase and interest thereon is not legal and their communication dated 19.6.1992 and 17.9.1992 have no validity in law and are set aside. In this judgment the Division Bench has also commented on the policies of the DDA and observed that DDA cannot broad base its inquiry as per the policy decision extracted in that judgment, after the will has been mutated and the Letter of Administration has been granted.
4. The judgment of this Court has been challenged before the Supreme Court. Their Lordships of the Supreme Court by the judgment dated 26.8.2003 passed in Delhi Development Authority v. Vijaya C. gurshaney(Mrs. ), reported in (2003) 7 Supreme Court Cases 301 set aside the judgment of the Division Bench and in para 7 observed that DDA on 26.7.1988 with the approval of the Lt. Governor of Delhi formulated a policy and issued guidelines to be followed with regard to payment of 50% of the unearned increase in the value of the land inter alia on the basis of the will left by the deceased allottee. The guidelines are set out and we deem it appropriate to reproduce the same hereunder:
(1) certified copy of will left by the allottee;
(2) death certificate of the allottee;
(3) affidavit disclosing the particulars of the legal heirs whom the allottee had survived;
(4) no-objection of the legal heirs regarding mutation of the interest of the deceased in favor of the legatee(s);
(5) affidavit from the legattee declaring that the property in question had not passed on to him during the lifetime of the testator and no sale agreement/agreement for construction etc. had been executed by the testator in his/her favor, nor any GPA/SPA had been executed in his favor or in favor of a person nominated by him;
(6) the legatee may be asked to produce the certified copy of the assessment Order of income tax and house tax receipt showing the name of the person in whose name the property is being assessed;
(7) an undertaking from the applicant/legattee to the effect that if at any stage it is found out that the property had passed on to the legatee during the lifetime of the testator them it will be deemed to be a case of misstatement of facts, misrepresentation or fraud and the mutation in his/her favor shall stand terminated any the property shall automatically vest in the Lesser;
(8) indemnity bond from the legatee duly registered;
(9) in case the plot/flat was allotted through cooperative society, the NOC from the society;
(10) original registration certificate, fixed-deposit receipt, challan form, wherever necessary; and (11) such other documents as required to be obtained as per instructions issued from time to time or procedure laid down therefore.
5. The Court further observed that the High Court clearly erred in holding that merely because letters of administration are granted the appellants cannot inquire into the true nature of the transaction. It is settled law that a testamentary court, whilst granting probate or letters of administration does not even consider, particularly in uncontested matters, the motive behind executing of a testamentary instrument. A testamentary court in only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a probate or letters of administration does not confer title to property. They merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title even through probate or letters of administration have been granted.
6. It is also observed in the judgment, the rationale behind the formulation of its policies and guidelines issued by DDA is to curb illegal transactions in favor of persons not blood relation of the allottee, being practiced rampantly and the property being transferred by underhand sale in the garb of will and power of attorney etc. DDA has formulated a policy that in such cases the Department would ask for 50% of unearned increase in the value of property. It is always open to the appellants to inquire whether an alleged will is in actuality a sale in the garb of will in total disregard of the policy decision of the authority. Merely because probate/letters of administration are granted, would not preclude DDA from so inquiring.
7. In view of the pronouncement of their Lordships of the Supreme Court, in the facts and circumstances, this appeal has been allowed and the impugned judgment passed by the learned Single Judge is set aside because the judgment is based on the Division Bench judgment which has been set aside by the Supreme Court. Consequently, we direct the DDA to decide afresh the inquiry in the light of the judgment of the Supreme Court.
8. The respondent is directed to furnish documents 1 to 11 mentioned above within four weeks from today. Thereafter, DDA is given further period of two months to conclude the inquiry and take the final decision in the matter. The decision shall be communicated to the respondent within two weeks thereafter.
9. The appeal is accordingly allowed and disposed of. In the facts and circumstances, we direct the parties to bear their own costs.
10. Copy of this Order be given dusty to learned counsel appearing on behalf of parties.