Surander Kumar Bhasin And Anr. vs Delhi Development Authority
2003 Latest Caselaw 486 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. A perpetual sub-lease deed was executed on 15.1.1973 in favor of one Smt. Maya Wanti in respect of property A-176, New Friends Colony, New Delhi. Smt. Maya Wanti passed away on 21.1.1983 and prior to her demise executed a registered Will dated 22.7.1982 bequeathing the said property in favor of Shri Kundan Lal Bhasin who was also the nominee of Smt. Maya Wanti in the records of the society. Shri Kundan Lal Bhasin was the son of Shri Mahesh Das Bhasin. Smt. Maya Wanti was the wife of Shri Gokul Chand Bhasin. Shri Mahesh Das Bhasin and Shri Gokul Das Bhasin were brothers. Thus bequeath was made in favor of her husband's nephew.

2. Shri K.L. Bhasin also passed away soon thereafter on 17.3.1983 and prior to his demise had executed a Will dated 1.2.1983 bequeathing the said property jointly in favor of the petitioners, his sons with a lifetime interest in favor of his wife. After the demise of Shri Kundan Lal Bhasin, Smt. Kamla Rani Bhasin, his wife applied to DDA for transfer of plot in her name. This request was not accepted in terms of letter dated 23.6.1988 by the respondent stating that since the Will has been made outside the purview of the blood relation of the sublessee and the policy decision in respect thereof has not been finalised, the case would be examined after the policy guidelines are received in this regard. Smt. Kamla Rani Bhasin also passed away on 3.7.1988.

3. The petitioners applied for grant of probate of the Will dated 1.2.1983 in Probate Case No. 140/1991. This Will was executed by Shri Kundan Lal Bhasin, father of the petitioners. The consequences of the Will dated 22.7.1982 of Smt. Maya Wanti was also considered in the same probate proceedings. The petitioner also applied for letters of administration. The probate was granted on 13.1.1992 and the letter of administration was issued on 27.2.1992.

4. The petitioners addressed a letter dated 22.8.1997 enclosing the relevant documents and asking for the mutation of the property in their name. Certain subsequent communications ensued whereby the petitioners were called to submit further documents. These documents are stated to include letters in respect of re-payment of loan by Smt. Maya Wanti availed of from Shri K.L. Bhasin and the petitioner. However, the request of the petitioners was rejected vide letter dated 5.6.2000 stating that the petitioners are required to pay 50% unearned increase and that the amount for the same would be intimated in due course. This amount was intimated vide letter dated 7.11.2000 stating that the sum of Rs. 30,29,688 (provisional) as 50% unearned increase was liable to be paid by the petitioners for mutation of the property in their name. In terms of letter dated 1.3.12001 a further payment of interest @ 18% per annum was demanded on account of non-payment of unearned increase. The petitioners made a representation dated 12.3.2001 stating that no such unearned increase was payable in view of there being a testamentary bequeath in favor of the petitioners in pursuance to the Will executed. This representation was rejected on 3.4.2001. On 14.6.2001 demands were issued on the petitioners. In view of the failure of the respondents to agree to the request of the petitioners, the petitioners filed the present writ petition seeking quashing of the demand made against the petitioners on account of 50% unearned increase and interest accrued thereon as also for a writ of mandmus directing the respondents to mutate the property in the name of the petitioners.

5. In the counter affidavit filed by the respondents, it is stated that the property was not earlier mutated in favor of Shri Kundan Lal Bhasin. In fact it is stated that during the pendency of the consideration of the request of Shri Kundan Lal Bhasin, he passed away. The mutation was not made in favor of his wife on account there being no blood relation. It is further stated that the present case is one of transfer and since there is no family relationship, 50% unearned increase is payable. It is further stated in the counter affidavit that the Will dated 22.7.1982 of Smt. Maya Wanti states that certain amounts were taken as loan from Shri K.L. Bhasin, Smt. Kamla Rani Bhasin and the petitioner and stating that the property was bequeath in favor of Shri Kundan Lal Bhasin but that Shri Bhasin would clear all her liabilities and obligations and her daughter would not be liable for any debts.

6. The submission advanced by learned Counsel for the parties are the same as in the pleadings referred to above. Learned Counsel for the petitioners has further stated that the DDA was even handed over documents to show that the amounts stated to be outstanding and payable to the petitioners and their parents as loan were in fact cleared by Smt. Maya Wanti prior to her demise. It is submitted that in view there being the probate and letters of administration, it is not open to the respondent DDA to ask for unearned increase.

7. Learned Counsel for the petitioners has referred to the judgment of Division Bench of this Court in Mrs. Vijaya Gursahaney v. DDA and Ors., 1994 RLR 367, wherein it was held that it was immaterial as far as respondents were considered as to what consideration prevailed upon the testator to bequeath the plot to the petitioner therein once the letters of administration have been obtained as per the procedure prescribed under the Indian Succession act, 1925.

8. Learned Counsel also referred to the judgment of the learned Single Judge of this Court in Smt. Neelam Saluja v. Delhi Development Authority, 67 (1997) DLT 553, which relied upon the judgment in Mrs. Vijaya Gursahaney's case (supra). The question requiring determination was whether bequeathing of rights in respect of lease hold property under a Will tantamount to sale of the property. The plea of DDA was rejected. Learned Counsel also referred to the judgment of the learned Single Judge of this Court in Jagdish Khandelwal and Ors. v. Union of India and Anr., 91 (2001) DLT 546, to the same effect where reliance was placed once again on the judgment in Mrs. Vijaya Gursahaney's case (supra).

9. In Shri Amit Kumar Singhal v. DDA, 2003 II AD (Delhi) 32, this Court considered the similar situation where probate had been granted of the Will. The petitioners were the children of the younger brother of the husband of the testator. The probate was applied after impleading the daughters of the deceased and the same was granted. In fact to that extent the matter is similar in the present case and even the relationship is identical. The plea was taken of the bequeath not being made in favor of the family members. It was held that this controversy was no more res integra in view of the judgment of this Court in Mrs. Vijaya Gursahaney's case (supra). It was further held that onces a probate is granted the same would amount to judgment in rem. It was not open to the respondent to dispute the bequeath made in favor of the petitioners or to claim unearned increase merely because the petitioners do not fall within the definition of blood relation as set out by the respondents. This was specially so when the petitioners were close relations of their deceased sub-lessee though they may not fall in the category of blood relation as defined by the respondents.

10. It may also be relevant to note that the policy of conversion from lease hold into free hold in such situation was considered in H.R. Vaish v. Union of India, 100 (2002) DLT 37. The circular of DDA dated 23.6.1995 in this behalf was considered. In terms of the policy decision even where a lessee or sub-lessee has applied for sale permission, the DDA had not conveyed the unearned increase or had conveyed the unearned increase but had not been paid, the earlier application for sale was to be treated as infructuous and conversion was to be allowed. If sale permission had been applied for and conveyed, unearned increase paid, the sale deed not registered and the applicant was in possession of the property, the unearned increase was liable to be refunded. Thus in terms of the policy of the respondent, even power of attorney transactions were recognised without payment of unearned increase and even mutation was not insisted upon except as a mere formality to convert the property into free hold once the requisite charges were paid.

11. In view of the aforesaid, it is both travesty of the law and justice that the petitioners are being held liable to pay unearned increase. The petitioners, though do not fall within the category of blood relations as defined by the respondents, are no strangers to the sub-lessee of the property in question being the nephew of her husband. The petitioners are identically situated as in the case of Amit Kumar Singhal's case (supra) and the judgment in the said case would apply on all fours in the present case. It is not really open to the respondents to go into the issues once the Will exists and is even probated. This is apparent from the observations of the of the judgment of the Division Bench of this Court in Mrs. Vijaya Gursahaney's case (supra). Thus there was no impediment in mutation of the property in favor of the petitioners merely because they were not in the direct line of succession.

12. It is also relevant to note that even if the contents of Will are perused they only say that sub-lessee had availed of certain loans from the petitioners and their parents but that does not mean that the property has been transferred. Not only this Smt. Maya Wanti, the sub-lessee repaid part of the loans. The remaining loans referred in the Will were also repaid subsequently prior to her demise. There can be no question of transfer in such a case. This aspect has been dealt with even though it was not really required to be looked into for the purpose of carrying out of mutation in favor of the petitioners.

13. A writ of mandamus is issued quashing the demands made against the petitioners on account of unearned increase or interest thereon and it is directed that the property in question be mutated in favor of the petitioners and mutation letter be issued within a maximum period of one month from today. The petitioner shall also be entitled to cost of Rs. 5000/-.