Delhi District Court
Ms. Monika Bhuchar vs . State & Ors. on 25 January, 2016
Ms. Monika Bhuchar vs. State & Ors.
In the Court of Additional District Judge02, South District, Saket Courts
Complex, Room No. 602, 6th Floor, New Delhi
In the matter of :
GP No. 03/2015
Unique No. 02406C0302252015
Date of filing : 19.09.2015
Date of institution : 22.09.2015
Decision reserved on: 18.01.2016
Date of decision : 25.01.2016
Mrs. Monika Bhuchar, W/o Late Manish Bhuchar,
R/o C4/18, Safdarjung Development Area, New Delhi.
Presently residing at -
C4/145, Safdarjung Development Area, New Delhi.
... Petitioner
Versus
1. State (through the Collector, South),
D.C. Office, Old M.B. Road, Saket, New Delhi.
2. Smt. Devi Bhuchar, W/o Late Satish Chander Bhuchar
3. Shri Ashish Bhuchar, S/o Late Satish Chander Bhuchar
Both r/0 C4/18, Safdarjung Development Area, New Delhi.
At present - C4/145, Safdarjung Development Area, New Delhi.
... Respondents
GP NO. 03/2015 Page 1 of 19
Ms. Monika Bhuchar vs. State & Ors.
JUDGMENT
[on petition under section 13 of the Hindu Minority & Guardianship Act and Sections 8, 10 and 27 of the Guardians & Wards Act, 1890]
1. (Introduction) - Ms. Monika Bhuchar, wife of Late Manish Bhuchar, filed the petition that her minor children namely Ms. Sayesha Bhuchar (born on 10.09.1996) and Ms. Sukriti Bhuchar (born on 05.03.2001), each is having 5/54th share (in the newly constructed building bearing No. C4/18, measuring 237 sq. yards, situated at Safdarjung Development Area, New Delhi) in the property of their grandfather Shri Satish Chander Bhuchar. The petitioner requests to give permission to deal with such 5/27th share (i.e. 5/54th + 5/54th = 5/27th share) in terms of collaboration agreement, initially entered between Shri Satish Chander Bhuchar, Smt. Devi Bhuchar on the one side and M/s. S&B Constructions on the other side followed by supplementary agreement. With this introduction of purpose of filing the petition, the other features and matrix of the case are compiled in the following paragraphs 2 and 3.
2.1 (Status of Parties) - Shri Satish Chander Bhuchar's family tree comprises his wife Smt. Devi Bhuchar (respondent no. 2), son Shri Ashish Bhuchar (respondent no. 3) and son Shri Manish Bhuchar (since GP NO. 03/2015 Page 2 of 19 Ms. Monika Bhuchar vs. State & Ors.
deceased). The petitioner Smt. Monika Bhuchar is widow of Shri Manish Bhuchar and their minor children are namely Ms. Sukriti and Ms. Sayesha. The minor child Ms. Sayesha was born on 10.09.1996 (her birth certificate is now Ex. PW1/18 and her Adhar Card is now Ex. PW1/21) and Ms. Sukriti was born on 05.03.2001 (her birth certificate is now Ex. PW1/19 and her Adhar Card is Ex. PW1/20). Shri Manish Bhucher had expired on 29.01.2007 (his death certificate is now Ex. PW1/1). Subsequently, Shri Satish Chander Bhuchar expired on 27.06.2013 (his death certificate is now Ex. PW1/16).
2.2 (Status of Property) - Shri Gian Chander Bhuchar and Shri Satish Chander Sareen / Bhuchar were granted lease hold right in respect of property / plot of land measuring 237 sq. yards, bearing No. 18, Block C4 in residential colony known as Safdarjung Development Area, New Delhi, by registered lease deed dated 15.04.1965 (now Ex. PW1/2) and they raised two and a half storey building (hereinafter referred as the property), for which completion certificate dated 23.01.1969 (now Ex. PW1/3) was issued by the MCD.
2.3 Shri Gian Chand Bhuchar expired on 16.11.2005, leaving GP NO. 03/2015 Page 3 of 19 Ms. Monika Bhuchar vs. State & Ors.
behind him his wife Smt. Savitri Sareen, a son Shri Vinod Kumar Sareen and a daughter Ms. Veena Kesar, they succeeded / inherited equally in half share in the said property, their half undivided share was mutated in the records of DDA, the mutation letter dated 23.02.2009 (now Ex. PW1/4) was also issued and later on, the lease hold rights in the said land was converted into free hold in the name of Shri Satish Chander Sareen @ Satish Chander Bhuchar, Smt. Savitri Sareen, Shri Vinod Kumar Sareen and Ms. Veena Kesar and conveyance deed dated 11.02.2010 (now Ex. PW1/5) has also been executed in their joint names. Meaning thereby, Shri Satish Chander Sareen @ Satish Chander Bhuchar had ½ undivided share in the property, the others Smt. Savitri Sareen, Shri Vinod Kumar Sareen and Ms. Veena Kesar, jointly had ½ undivided share (viz. 1/6th undivided share to each of the said three) and they become absolute joint owners of the property. 2.4.1 Smt. Savitri Sareen, through her special Attorney Mrs. Veena Kesar (now Ex. PW1/7), by way of registered gift deed dated 18.02.2010 (now Ex. PW1/6), transferred her 1/6 th share in favour of Shri Satish Chander Bhuchar @ Satish Chander Sareen.
GP NO. 03/2015 Page 4 of 19 Ms. Monika Bhuchar vs. State & Ors.
2.4.2 Shri Vinod Sareen, through his special Attorney Mrs. Veena Kesar (now Ex. PW1/10), by way of two gift deeds of 24.03.2010 and of 03.05.2010 {now Ex. PW1/8 and Ex. PW1/9 in respect of 1/12th share each}, transferred his 1/6th share in favour of Shri Satish Chander Bhuchar @ Satish Chander Sareen.
2.4.3 Thus, Shri Satish Chander Bhuchar @ Satish Chander Sareen became owner of property of undivided share to the extent of 5/6th (viz. his 1/2 share + 1/6th share received by gift deed + 1/6th share received by other two gift deeds = 5/6th share).
2.4.4. Mrs. Veena Kesar by way of two gift deeds of 24.03.2010 and of 03.05.2010 {now Ex. PW1/11 and Ex. PW1/12 in respect of 1/12 th share each}, transferred her 1/6th share in favour of respondent no. 2 Mrs. Devi Bhuchar. There was some rectification, the same was carried by way of registered rectification deed (now Ex. PW1/13). 2.4.5 Thus, Shri Satish Chander Bhuchar @ Satish Chander Sareen became owner of undivided 5/6th share and respondent no. 2 Mrs. Devi Bhuchar became owner of undivided 1/6th share in the property, which has been mutated in their names by mutation dated GP NO. 03/2015 Page 5 of 19 Ms. Monika Bhuchar vs. State & Ors.
16.07.2010 / letter (now Ex. PW1/14), by MCD, South Zone, R.K Puram, New Delhi.
2.5.1 The said Shri Satish Chander Bhuchar @ Satish Chander Sareen and Mrs. Devi Bhuchar entered into a collaboration agreement dated 09.05.2013 (now Ex. PW1/15) with M/s. S&B Construction partnership concern of Shri Satinder Singh, to redevelop / reconstruct the said property at latter's own expenses, which it developed as the basement, the ground floor, the first floor, the second floor and the third floor and it also paid a sum of Rs. 45 lacs to Shri Satish Chander Bhuchar @ Satish Chander Sareen and to Mrs. Devi Bhuchar (by way of a cheque of 09.05.2013 Rs. 25 lacs in favour of Shri Satish Chander Bhuchar @ Satish Chander Sareen and another cheque of 09.05.2013 Rs. 20 lacs in favour of Smt. Devi Bhuchar). Further, as per terms of collaboration agreement, M/s. S&B Construction deposited a sum of Rs. 25 lacs by way of another cheque dated 09.05.2013 in favour of Shri Satish Chander Bhuchar @ Satish Chander Sareen, being refundable security to be returned to M/s. S&B Construction at the time of completion of construction of a new building.
GP NO. 03/2015 Page 6 of 19 Ms. Monika Bhuchar vs. State & Ors.
2.5.2 The salient modalities of the collaboration agreement (now Ex. PW1/15) are that it was agreed between Mr. Satish Chander Bhuchar alias Satish Chander Sareen and Mrs. Devi Bhuchar respondent no. 2 being the owners of property and M/s. S&B Construction being the builder that after the redevelopment of the above said property Mr. Satish Chander Bhuchar alias Satish Chander Sareen and Mrs. Devi Bhuchar will be jointly entitled to the following portion of the said property i. Entire Basement Floor;
ii. Entire Ground Floor;
iii. Entire Second Floor;
iv. Entire Third Floor;
v. Entire terrace rights over and, above the third floor of the newly constructed property; with right to raise further construction on the terrace, without any objection from the builder or its nominee(s) or the prospective buyer(s) of the first floor;
vi. Right of remaining area in the stilt for parking (excluding two cars parking space for the builder / owner of first floor); vii. Space for three servant utility with common w.c in the stilt; viii.Use of common areas, open areas, staircase, lift, back courtyard with free ingress and egress to the said portions of the said property;
ix. Proportionate undivided, indivisible and impartial ownership rights in the said plot of land measuring 237 square yards, bearing No. C4/18, situated at Safdarjung Development Area, New Delhi. GP NO. 03/2015 Page 7 of 19 Ms. Monika Bhuchar vs. State & Ors.
And M/s. S&B Construction will be entitled to the following portion of the above said property
1) Entire First Floor;
2) Right to space for two car parking in the stilt (as per plan to agreement);
3) Space for one servant utility with common w.c in the stilt;
4) Use of common areas, open areas, staircase, lift, back courtyards, with free ingress to the said portion of the said property.
5) Proportionate undivided, indivisible and impartial ownership rights in the said plot of land of the measuring 237 square yards, bearing No. C4/14, situated at Safdarjung Development Area, New Delhi. 2.6 It was also agreed between Mr. Satish Chander Bhuchar alias Satish Chander Sareen and Mrs. Devi Bhuchar on the one side and M/s. S&B Construction on the other side that they shall be entitled to sell, transfer, convey and assign their respective portion to any prospective buyer and to receive the sale consideration in respect thereof visavis they shall on or before the completion of the building execute all the necessary documents for giving the legal title to M/s. S&B Construction or its nominees / prospective purchasers of its respective portion in the said building without asking any additional payment. 2.7 After the execution of said collaboration agreement, Shri GP NO. 03/2015 Page 8 of 19 Ms. Monika Bhuchar vs. State & Ors.
Satish Chander Bhuchar and Mrs. Devi Bhuchar had handed over the possession the said property to M/s. S&B Construction on 10.05.2013, they also shifted to rented accommodation at C4/145, Safdarjung Development Area, New Delhi. In August 2013, M/s. S&B Construction demolished the existing structure and started reconstruction of new building in the said property.
2.8 But on 27.06.2013, Shri Satish Chander Bhuchar expired, leaving behind him, his wife / respondent no. 2, his son / respondent no. 3 and his other son's wife / petitioner and their two minor children. The 5/6th share of Shri Satish Chander Bhuchar devolved into three (notional) divisions viz. upon his wife Smt. Devi Bhuchar (viz. 5/6 th x 1/3rd = 5/18th share), upon his son Shri Ashish Bhuchar (viz. 5/6th x 1/3rd = 5/18th share) and remaining 5/18th (1/3rd of 5/6th share came to Smt. Monika Bhuchar, Ms. Sukriti Bhuchar and Ms. Sayesha Bhuchar (viz. 5/54th each share).
On 23.01.2014, on the eve of completion of structure of new building (hereinafter referred as newly constructed building / property), a supplementary collaboration agreement (now Ex. PW1/17) was executed and entered by Smt Devi Bhuchar, Ashish Bhuchar and Monika Bhuchar (she being natural guardian and mother of minors, also GP NO. 03/2015 Page 9 of 19 Ms. Monika Bhuchar vs. State & Ors.
signed the said supplementary agreement) and M/s. S&B Construction in continuation of previous collaboration agreement (now Ex. PW1/15). Moreover, at the time of this supplementary agreement, the legal heirs of Shri Satish Chander Bhuchar had returned refundable security amount of Rs. 25 lacs to M/s. S&B Construction.
In terms of collaboration agreements, Shri Satish Chander Bhuchar and Smt. Devi Bhuchar are under obligation in the collaboration agreement to transfer the first floor of newly constructed building in favour of M/s. S&B Construction or its nominee / prospective purchaser and in the supplementary agreement, the legal heirs of Shri Satish Chander Bhuchar have agreed to apply and obtain permission of guardianship and sale of minors' share in the portion of new constructed building in favour of M/s. S&B Construction.
2.9 In terms of the above said collaboration agreement dated 09.05.2013, the legal heirs of Shri Satish Chander Bhuchar @ Satish Chander Sareen including the minors are under the obligation to transfer entire first floor of the newly constructed building / property, right of space for two cars parking in the stilt, space for one servant utility with common WC in the stilt, use of common area, open area, staircase, lift, back GP NO. 03/2015 Page 10 of 19 Ms. Monika Bhuchar vs. State & Ors.
courtyard with free ingress and egress to the above said property bearing No. C4/18, Safdarjung Development Area, New Delhi along with proportionate undivided indivisible and impartial ownership rights in the said plot of land of the measuring 237 sq. yards in favour of M/s. S&B Construction or its nominee / prospective purchaser. In the said portion which is to be transferred to M/s. S&B Construction or its nominee / prospective purchaser, the minors namely Ms. Sukriti Bhuchar and Ms. Sayesha Bhuchar have 5/27th share (viz. 5/54th of each minor).
3. The petitioner has custody of both minor children, she has been looking after the minors since their birth and after the death of her husband and of Shri Satish Chander Bhuchar both the minors have been continuously in her care and custody vis a vis she is also looking after their share in property. The petitioner. being natural guardian and mother of the minors, is entitled, fit and best person to be appointed guardian in respect of shares of minors in the said property, she is competent to act for them and for their welfare and for their advantage. The petitioner has no adverse interest against the minors but she has paramount interest and welfare of minors. The petitioner also gives her declaration (now Ex. PW1/22) in this regard.
GP NO. 03/2015 Page 11 of 19 Ms. Monika Bhuchar vs. State & Ors.
The respondent no. 2 has also performed part of her obligation under the collaboration agreement towards M/s. S&B Constructions and transfer of share of minors along with other legal heirs of Shri Satish Chander Bhuchar in favour of M/s. S&B Construction or its/ his nominees / prospective buyers is also for the welfare and benefit of minors and other legal heirs of deceased Satish Chander Bhuchar, otherwise they shall face consequences of the breach of the terms and conditions of collaboration agreement, since said M/s. S&B Construction has already performed major part of obligation by constructing the entire structure of new building and now obligations of the legal heirs of Shri Satish Chander Bhuchar and of minors are left. That is why petition to permit her to deal with 5/27th share of minors in the entire first floor of newly constructed building, right of space for two cars parking in the stilt, space for one servant utility with common WC in the stilt, use of common area, open area, staircase, lift, back courtyard with free ingress and egress to the above said property bearing No. C4/18, Safdarjung Development Area, New Delhi along with proportionate undivided indivisible and impartial ownership rights in the said plot of land of the measuring 237 sq. yards in favour of M/s. S&B Construction or its nominee / prospective purchaser. There was no other similar application GP NO. 03/2015 Page 12 of 19 Ms. Monika Bhuchar vs. State & Ors.
was ever since made. The parties resides within the jurisdiction of this court and property is also located in this court.
4. It is relevant to mention here, that the petitioner had filed an application before the Family Court, Saket, however, her petition was returned because it is for appointment of guardian for property of minors, which was beyond its jurisdiction, that is why, this petition has been represented before the Ld. District Judge, South District, Delhi.
5. The citation to the petition was issued and published in the Statesman dated 06.10.2015, in the Court Complex Saket, Office of Sub Divisional Magistrate and at the address of property in question, however, no one from the general public came to participate in the proceedings.
5.2 The respondent no.3 appeared personally and also for respondent no.2, they had filed their no objections to the petition before the Family Court, South District, Delhi and same was adopted in the present proceedings too.
5.3 Since no one came forward either from the general public GP NO. 03/2015 Page 13 of 19 Ms. Monika Bhuchar vs. State & Ors.
nor any opposition from other respondents, consequently, it was treated as noncontentious matter and the petitioner was asked to lead evidence.
6. (Evidence) - In order to establish the petition, petitioner Ms. Monika Bhuchar came into witness box as PW1, she deposed on the lines of petition, coupled with documents (which have already been referred with detail in paragraphs 2 and 3, above). Then petitioner's evidence was closed.
7. (Final Submissions) - At the stage of final hearing, petitioner's counsel Shri R.S. Verma, Advocate made final submissions, based on pleading and evidence that the circumstances are self explanatory as to how the need has arisen for petitioner to file petition, which is for welfare minors. This happens because of demise of Shri Satish Chander Bhuchar, who had originally his self acquired property with Gian Chand visavis some share by way of Gifts. It may appear that minors are not getting anything out of deal in respect of their shares, however, the petitioner has to perform obligation with regard to M/s. S&B Construction as per collaboration agreement but for remaining property, both the minors will have also shares. Thus, it is not to be construed any prejudice GP NO. 03/2015 Page 14 of 19 Ms. Monika Bhuchar vs. State & Ors.
to any one. Moreover, there is not opposition to the petition from any quarter. The petition deserves to be allowed to that extent, no other prayer is pressed for since the petitioner is natural guardian and mother of minor daughters.
FINDINGS : 8.1 The contentions of counsel for petitioner are assessed in the light of evidence on record and of statutory provisions of laws, also of the Guardians and Wards Act 1890 and the provisions of Section 8(2) of the Hindu Minority and Guardianship Act. The petitioner has led all documentary record in evidence (which have already mentioned with facts in the aforementioned paragraphs) in respect of status of parties and the property, collaboration agreements, besides the shares of legal heirs of deceased Shri Satish Chander Bhuchar and also shares in the multistorey newly built property coming to minors (i.e. 5/27th of each minor), since deceased died intestate. There is no opposition to the petition and these facts.
8.2 The testimony of petitioner remained unchallenged and un rebutted, nothing is appearing to infer that the petitioner (being natural GP NO. 03/2015 Page 15 of 19 Ms. Monika Bhuchar vs. State & Ors.
mother of minors) has adverse interest to the minors and the petition is under beneficial social legislation, the minors should not be burden or left to face possible legal consequences in respect of newly built property by M/s. S&B Construction, who carried construction under collaboration agreement vis a vis it/he has to to be given agreed portion in the said property. This exercise is also to be called from grandchildren (minors) / legal heirs of Shri Satish Chander Bhuchar but being minors, they not competent to perform such legal obligations and petitioner seeks her appointment for them to deal with their share in the property and to the extent of 5/27th share (viz. 5/54th of each minor) to fulfill the obligation, along with others towards M/s. S&B Construction in the collaboration agreements (i.e. to transfer entire first floor in the multistorey newly constructed building, right of space for two cars parking in the stilt, space for one servant utility with common WC in the stilt, use of common area, open area, staircase, lift, back courtyard with free ingress and egress to the above said property bearing No. C4/18, Safdarjung Development Area, New Delhi along with proportionate undivided indivisible and impartial ownership rights in the said property / land measuring 237 sq. yards in favour of M/s. S&B Construction or its nominee / prospective purchaser). This request of petitioner is within the parameter of law. GP NO. 03/2015 Page 16 of 19 Ms. Monika Bhuchar vs. State & Ors.
8.3 Therefore, petitioner Ms. Monika Bhuchar being natural mother and natural guardian of minors, is appointed and permitted to deal with the shares of minors/wards in the property and to the extent of 5/27th share (viz. 5/54th of each minor) to fulfill the obligation, alongwith others, towards M/s. S&B Construction in the collaboration agreements [that is, transfer entire first floor in the multistorey newly constructed building, right of space for two cars parking in the stilt, space for one servant utility with common WC in the stilt, use of common area, open area, staircase, lift, back courtyard with free ingress and egress to the above said property bearing No. C4/18, Safdarjung Development Area, New Delhi along with proportionate undivided indivisible and impartial ownership rights in the said property / land measuring 237 sq. yards in favour of M/s. S&B Construction or its nominee / prospective purchaser]. The petitioner will furnish to the Court forthwith copy of deed or deeds / documents executed while performing said obligations for minors.
However, this permission will not extend to other portions in the newly constructed building, since each ward / minor (namely Ms. Sayesha Bhuchar and Ms. Sukiriti Bhuchar) has also share in the remaining property.
GP NO. 03/2015 Page 17 of 19 Ms. Monika Bhuchar vs. State & Ors.
8.4 Although, as per material and evidence on record, no more amount is to be realized from M/s. S&B Constructions, however, if any amount is discovered or received, then actual realized and share of minors will be informed to the Court forthwith; the minors' shares in such amount will be utilized for and for the benefit of minors, in buying the government securities or bonds or to be kept in fixed deposit in the scheme fetching maximum return in the bank, which will also be apprised to the court forthwith. In the eventuality, bonds or securities or fixed deposit receipts are bought, the same will be for the period or renewed period which will go upto the age of maturity, to be computed from their date of birth. The income to be generated from such deposits, will also be utilized for the welfare of minors children and the court will be apprised thereof.
The petitioner will be bound by the provisions of the Hindu Minority and Guardianship Act r/w the provisions of the Guardian and Wards Act, 1890, which defines rights and obligations of the guardian appointed to deal with the property. To ensure its compliance, the petitioner will furnish administration bond within one month from today and appropriate certificate (to the petitioner as guardians of minors to GP NO. 03/2015 Page 18 of 19 Ms. Monika Bhuchar vs. State & Ors.
deal property of minors), will be issued after furnishing of such administration bond.
Accordingly, the petition stands disposed off.
File be consigned to record room.
Announced in the open Court today (Inder Jeet Singh) th Monday, 5 Magha, Saka 1937 Addl. District Judge02 (South) Saket, New Delhi / 25.01.2016 GP NO. 03/2015 Page 19 of 19 Ms. Monika Bhuchar vs. State & Ors.
GP No. 03/2015
25.01.2016
Present : Proxy counsel for petitioner.
None for State / general public / respondent no. 1.
Respondents no. 2 in person and for respondent no. 3. Vide separate judgment announced today, the petitioner's petition is allowed and in terms of judgment, the petitioner will furnish administration bond within one month from today and appropriate certificate (to the petitioner as guardians of minors to deal property of minors), will be issued after furnishing of such administration bond.
Accordingly, the petition stands disposed off.
File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
N New Delhi /25.01.2016
GP NO. 03/2015 Page 20 of 19