CS(OS)--1771/2012. Case: MAHIMA AND ORS Vs. DDA & ANR. High Court of Delhi (India)
| Case Number | CS(OS)--1771/2012 |
| Citation | NA |
| Judgement Date | July 18, 2014 |
| Court | High Court of Delhi (India) |
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th July, 2014 + CS(OS) 1771/2012, IAs No.11180/2012 (u/O 39 R-1&2
17219/2012 ( of the defendant no.2 u/O 39 R-4 r/w 151 CPC) 17220/2012 (of the defendant no.2 u/S 151 CPC)
MAHIMA AND ORS ..... Plaintiffs
Through: Ms. Maninder Acharya, Sr. Adv.
Mr. S.N. Khanna, Adv.
Versus
DDA & ANR ..... Defendants
Through: Ms. Alpana Pandey, Adv. for D-1.
Mr. D.K. Sharma, Adv. for D-2.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
-
The three plaintiffs have instituted this suit for the reliefs
(i) declaration that they are the absolute owners of MIG Flat No. ADPitam Pura, New Delhi under the Family Settlement dated 29th November, 2006 executed by the plaintiff no.1 and the defendant no.2 Shri Anil
(ii) mandatory injunction directing the defendant no.1 DDA to mutate the flat from the name of the defendant no.2 Sh. Anil Arora to the name plaintiffs; (iii) mandatory injunction directing the defendant no.2 to handover to the plaintiffs all the requisite documents pertaining to the said flat; and,
CS(OS) 1771/2012 Page 1 of 39
permanent injunction restraining the defendant no.2 from creating any party interest in the said flat, pleading:-
(a) that the plaintiff no.1 was married to the defendant no.2 on
January, 1987 and out of the said wedlock the plaintiffs Udita Arora and Pulkita Arora were born;
(b) that the plaintiff no.1 and the defendant no.2 were involved numerous litigations and after a long standing litigation in courts of law, the plaintiff no.1 and the defendant no.2 agreed settle all their disputes amicably out of Court and accordingly Family Settlement dated 29th November, 2006 supra was between plaintiff no.1 acting for herself and on behalf of the minor plaintiff no.3, plaintiff no.2 and defendant no.2;
(c) that the primary reason for execution of the said Family Settlement was to take care of the pre-existing right of maintenance and bringing, residence, marriage expenses of the plaintiffs who in possession of the said flat since much prior to the execution the Family Settlement;
CS(OS) 1771/2012 Page 2 of 39
(d) that after the execution of the said Family Settlement, the no.1 as per the terms thereof consented for a decree of divorce mutual consent and the marriage of the plaintiff no.1 and defendant no.2 was dissolved by a decree of dissolution marriage by mutual consent dated 19th December, 2006;
(e) that the said flat had been originally allotted by the defendant no.1 DDA to one Shri Om Parkash and had changed hands from time to time and at the time of the execution of the Family Settlement defendant no.2 was the owner thereof on the basis of GPA and Will dated 26th September, 1995;
(f) that under the aforesaid Family Settlement, the defendant gave the plaintiffs lifetime interest of residence in the aforesaid flat owned by him; the said lifetime interest of residence was in lieu of all existing present and future rights of the plaintiffs as to residence, maintenance and marriage expenses;
(g) that as per the mandate and force of Section 14(1) of the Succession Act, 1956, the plaintiffs have become the sole absolute owners of the said flat;
CS(OS) 1771/2012 Page 3 of 39
(h) that the defendant no.2 had in the year remarried and his wife was claiming that the defendant no.2 had executed a the said flat in her favour;
(i) that the plaintiffs on 26th April, 2011 approached the no.1 DDA for converting the leasehold rights in the said flat freehold in favour of the plaintiffs and also deposited a bank for Rs.59,200/- towards conversion charges; and,
(j) however the defendant no.1 DDA had refused such owing to non-submission by the plaintiffs of complete chain GPAs and Agreement to Sell.
-
Summons of the suit and notice of the application for interim relief issued to the defendants and vide ex parte ad interim order dated 1st
the defendant no.2 was restrained from transferring, encumbering or selling the said flat or any part thereof and/or from making any additions,
thereto.
-
The defendant no.1 DDA has contested the suit by filing a statement inter alia on the ground that since the plaintiffs had not submitted the complete documents and not deposited the conversion fee and also
CS(OS) 1771/2012 Page 4 of 39
submitted the complete chain of GPAs and Agreement to Sell, hence conversion case was still pending for want of compliance on behalf plaintiffs.
-
The defendant no.2 has also contested the suit by filing a statement inter alia on the grounds:-
(a) that the suit had been filed to curtail the probable rights newly born child from the second marriage;
(b) that the Family Settlement does not give any ownership the flat to the plaintiffs;
(c) that the claim of the plaintiffs before the defendant no.1 DDA conversion of the leasehold rights in the flat into freehold name of the plaintiffs had been rightly rejected;
(d) that the plaintiffs want to grab the property;
(e) denying that the plaintiffs were in possession of the said flat to the execution of the Family Settlement and pleading that the defendant no.2 who was in possession of the said flat as owner
CS(OS) 1771/2012 Page 5 of 39
thereof and the plaintiffs were residing with him as wife children;
(f) that as per the terms of the Family Settlement the rights plaintiffs in the said flat are restricted;
(g) that the plaintiff no.1 is employed with the Income Department and earning a handsome salary;
(h) the question of applicability of Section 14(1) of the Succession Act did not arise as the defendant no.2 who owner of the flat is still alive; and,
(i) that the plaintiffs have no rights to the said flat except in the Family Settlement.
-
Though replications have been filed by the plaintiffs but need is not to refer thereto.
-
The suit was listed on 20th March, 2014 for framing of issues and hearing on the application for interim relief when attention of the counsel the plaintiffs was invited to Section 14 (2) of the Hindu Succession Act was enquired whether not the plaintiffs, having come into use and
CS(OS) 1771/2012 Page 6 of 39
of the said flat on the terms contained in the Memorandum of Settlement dated 29th November, 2006, were disentitled from asserting other rights in the said flat and whether not the plaintiffs could at best the defendant no.2 from acting in contravention thereof.
-
The counsel for the defendant no.2 on 20th March, 2014 stated that defendant no.2 is willing to abide by the said Memorandum of Settlement and shall not sell / transfer / encumber the said flat till either three plaintiffs have a right of residence therein and shall not disturb possession, use and enjoyment of the plaintiffs of the said flat and shall any other thing prejudicial to the rights of the plaintiffs under the Memorandum of Family Settlement.
-
On request of the counsels opportunity of hearing was granted. counsels were thereafter heard on 26th March, 2014 and 2nd April, 2014.
-
Section 14 of the Hindu Succession Act on which the claim plaintiffs is premised is as under:-
“ 14. Property of a female Hindu to be her absolute property
(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of
CS(OS) 1771/2012 Page 7 of 39
this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this Sub-Section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-Section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”
-
While it is the case of the plaintiffs that they have become the owners of the said flat under Sub-Section (1) supra, it is the case defendant no.2 that the rights of the plaintiffs in the said flat are under Memorandum of Family Settlement and thus under Sub-Section (2) remain unaffected by the provisions of Sub-Section (1).
-
For proper appreciation of the aforesaid aspect, it is appropriate reproduce in entirety herein below the Memorandum of Family Settlement:-
CS(OS) 1771/2012 Page 8 of 39
“ MEMORANDUM OF FAMILY SETTLEMENT
This Memorandum of Settlement is executed on 29th day of November, 2006 amongst:
i) Anil Arora S/o Sh. H.L. Arora,
R/o AD-29-A, Pitampura, Delhi -110088 (Party of the First Part)
ii) Smt. Mahima Arora W/o Sh. Anil Arora (Party of the Second Part)
iii) Ms. Udita Arora D/o Sh. Anil Arora (Party of the Third Part)
iv) Pulkita Arora D/o Sh. Anil Arora (Minor)
through her mother Mahima Arora and natural guardian (Party of the Fourth Part)
(Party No.(ii) to (iv) resident of AD-21-C, Pitampura, Delhi-110088.
The expression First Party, Second Party, Third Party and Fourth Party unless context means otherwise, shall mean and include their heirs, representatives, successors, assigns etc.
WHEREAS the litigation between Party of the First Part and Party of the Second Part are going on in different Courts and now they have decided to settle the disputes between them and to take the divorce by mutual consent between Mahima Arora and Anil Arora.
AND WHEREAS the First Party and the Second Party were married to each other according to Hindu Rites and Ceremonies on 22.01.1987 in Delhi.
AND WHEREAS Ms. Udita Arora and Ms. Pulkita Arora were born from the said wedlock and Pulkita Arora is minor.
AND WHEREAS the differences arose between the parties and following litigations were pending between First Party and Second Party.
...
To continue reading
Request your trial