Pran Nath Mallick vs Dr. Netar Prakash Mallick & Ors.
2000 Latest Caselaw 283 Del

ORDER

S.K. Agarwal, J.

1. This order will dispose of an application filed by respondent No. 3 New Friends Co-operative House Building Society ("the Society"), praying for setting aside and recalling the order dated 10.12.99 passed by this Court disposing of the appeal in terms of the compromise filed under Order 23, Rule 3 of the Code of Civil Procedure, 1908, by the appellant and the respondent Nos. 1, 2 and 4.

2. Brief facts are that the plaintiff/appellant filed a suit for declaration and injunction alleging therein that he was entitled to the plot No.C770 measuring 500 Sq. Yards, which was allotted to his mother Smt. Shanti Devi Malhotra, by the Society. The plaintiff prayed for setting aside the resolution dated 28.5.77 of the Society as also the order dated 23.1.76 of the Chairman of the Society permitting exchange of this plot No. C-770, measuring 500 Sq.Yards allotted to said Smt. Shanti Devi with the plot No.A-249, (300 sq yards) allotted to Mrs. Raj Kumari Malhotra by the Society, being illegal and oid.

3. It was pleaded in the suit that Sh. B.D. Mallick applied for the membership of the society in 1958; he died on 18.8.64; his widow Smt. Shanti Devi Malhotra applied for substitution of her name in records of the society, as a nominee of her husband, which was allowed, and plot No. C-770 was allotted to Smt.Shanti Devi. She had re-married to Dr. P.N. Rampal in London and became a non resident; she also died in 1988. Smt.Raj Kumari was the allottee of the plot No. A-249 measuring 300 Sq. yards in the same society. Smt.Shanti Devi and Mrs.Raj Kumari Malhotra applied for exchange of plot No. A-249 and C-770 between them, consequently a joint application was made by Smt. Shanti Devi and Mrs. Raj Kumari Malhotra, for exchange of plots which was allowed vide orders dated 23.1.76 and approved by the society vide its resolution dated 28.5.77. These orders were challenged in the suit. The defendants contested the same. The suit was dismissed by Mr.M.S.Rohella, Additional District Judge vide impugned judgment and decree dated 9.1.1991.

4. The appellant/plaintiff thereafter filed the above an appeal against the impugned judgment and decree dated 9.1.1991 impleading Dr. N.P. Mallick Ms. Nirmala Kumari Johnson, and Mrs. Raj Kumari Malhotra as respondents 1, 2 and 4 respectively and the society (applicants ) as respondent No. 3.

5. It may be mentioned here that respondent No.3, the Society was duly served, but none appeared on their behalf on any of the dates as and when the appeal was taken up for hearing, despite the fact that it continued to be listed for several days.

6. Appellant and the respondents 1, 2 and 4 moved the court praying for disposal of the appeal in terms of compromise, under which the appellant accepted, (i) the resolution dated 28.5.77 of the Society and (ii) the order dated 23.1.76 of the Chairman of the Society, as legal and binding between the parties. The appellant/plaintiff further accepted that the plot No. C-770, (measuring 500 Sq.Yards) exclusively belongs to Mrs. Raj Kumari Malhotra, (respondent No.4) without any claim or demand from the appellant or anybody else. The respondent Nos.1, 2 and 4, namely. Dr. N.P. Mallick, Ms. Nirmala Kumari Johnson and Mrs. Raj Kumari Malhotra on the other hand admitted and acknowledged the appellant Sh.Pran Nath Mallick, to be exclusive owner of the Plot No. A-249, "(300 sq. yards) without any claim or interest on the said plot, from the respondent Nos.1, 2 and 4. The appeal was disposed of vide order dated 10.12.99 in terms of the compromise.

7. It may further be noticed that order dated 27.2.96 during the preliminary hearing of the appeal by Mr. Ramesh Sharma, Registrar (Vigilance) of Delhi High Court, had been appointed as receiver for both of the plots i.e. A-249 and C-770, who was duly empowered to take possession of the plots. Ever since the plots are in possession of the Receiver.

8. Consequent upon recording the said compromise and disposal of the appeal in accordance therewith, the receiver was directed to secure the registration of sub-lease of these plots in the name of the respective parties, i.e. sub-lease deed of the plot No.A-249 (300 sq.Yards), in the name of appellant Sh. Pran Nath Mallick, and sub-lease of the plot No. C-770(500 sq. yards) in the name of Mrs. Raj Kumari Malhotra, (respondent No. 4) and to hand over possession to the respective parties as per the terms of compromise.

9. On 10th February, 2000 the Society, (respondent No.3) moved this application, praying for setting aside and recalling the order dated 10.12.99, disposing of the appeal in terms of the compromise and the order giving directions to the receiver. The appellant and the respondents 1, 2 and filed their replies, opposing the application. We have heard learned counsel for the parties and have been taken through the record.

10. Learned Counsel for the society/respondent No. 3 (applicant) while placing reliance on Section 26 of Delhi Co-operative Societies Act, and Rule 35 of Delhi Co-operative Societies Rule 1973 argued that since Sh. Pran Nath Mallick was not a member of the society; he never applied for membership of the society and, therefore, no allotment of the plot could be made in his name. Learned counsel for the appellant and the respondent Nos.1, 2 and 4 argued to the contrary.

11. We find no merit in the contention of the learned counsel for the society. It is not a case of allotment of the fresh plot to a member by the society. The allotment had already been made. Terms of allotment had already been complied with. After allotment, it is a case of transfer of the plot in the name of the legal representative of the allottee and nothing else. To be a member of society is quite different from being a nominee or legal representative. As per the settled law even a nominee cannot take away or effect the rights of the legal representative. Reference can be made in this regard to the decisions of this Court in Ashok Chand Aggarwal Vs. Delhi Administration 1998 Volume VII AD (Delhi) 639 and Sushila Devi Bhaskar Vs. Ishwar Nagar Co-operative House Building Society (1991) DLT 518.

12. Admittedly Pran Nath Mallick, appellant is one of the lagal representatives of Sh. B.D. Mallick, being his son, who was the original member of the Society Smt.Shanti Devi was the mother of the appellant, the nominee Of Shri B.D. Mallick who was allotted a plot No. C-770 by the Society. Other legal heirs and representatives of Smt.Shanti Devi have no objection to the registration of plot No. A-249 (300 sq.yards), in the name of the appellant. Once an allotment of a plot is made to its member or his nominee the Society cannot, in law say that nominee or legal representative of the member is not entitled to hold or inherit the plot, so allotted, merely because such a person is not its member. Needless to point out that after allotment is made, legal rights get vested in the member and society cannot stop inheritance of these vested rights on the heirs or legal representative, on the plea that such a person is not its member.

13. Therefore, the society/applicant cannot refuse registration of sublease in the name of the appellant, or the respondent No. 4, after a settlement between the parties has been arrived at. The objection raised by the society (applicant) has no force. The application is liable to be rejected.

14. For the foregoing reasons, application is dismissed. The society is directed to get the sub-lease registered in the name of the appellant and the respondent No. 4, as per the direction already issued on 10.12.99, subject, of course, to the payment of any legal dues of the Society and on fulfillment of other formalities in this regard by the parties. No order as to costs.