Delhi High Court
Promila Sharma vs State & Ors on 6 July, 2018
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:6th July, 2018
+ TEST.CAS. 61/2014
PROMILA SHARMA ..... Petitioner
Through: Mr. Mohit Jolly, Advocate.
versus
STATE & ORS ..... Respondents
Through: Mr. Rajender Kumar, Advocate for R-
5 to 6 & R-8 to 11 along with
Respondent No.11 in person.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present testamentary petition has been filed by Smt. Promila
Sharma. Letters of administration are sought in respect of the estate of late
Smt. Usha Rani Sharma. The Estate consists of immovable property bearing
No.A-09, Delhi School Teacher Cooperative House Building Society,
Surajmal Vihar, Delhi-110092 measuring 154.963 square yards. Initially
vide order dated 24th September, 2014, this Court had directed the parties to
maintain status quo with regard to title and possession of the property.
2. In the petition, the various LRs of late Smt. Usha Rani Sharma have
been impleaded as Respondent Nos. 2 to 6. Respondent No.7, Mr. R.K.
Bhardwaj is a person who claims to be a nominee of the deceased in the
Group Housing Society. The affidavits given by the deceased in his favour
have been relied upon by him and the said Respondent No.7 had preferred
Testamentary Case No. PC No. 25/13. He claimed that since he was the
nominee of the deceased in the Society, he was entitled to letters of
administration in respect of the said property. The said petition was
transferred and tagged along with the present TEST.CAS. 61/2014 vide
order dated 11th December, 2015.
3. The present petition is preferred by Smt. Promila Sharma who is the
sister of the deceased. During the pendency of the present petition, Smt.
Promila Sharma expired and her LRs were brought on record vide order
dated 28th January, 2015. Respondent Nos. 8 to 11 were impleaded in this
petition as they were the Respondents in the petition filed by Mr. R.K.
Bhardwaj, Respondent No.7. As per the Petitioner, the legal heirs who are
entitled to a share in the Estate of the deceased are as under: -
Sl Name Relationship Address Share
No. with the
Deceased
1 Mrs. Promila Sister C-4/214, Sector- 1/5th
Sharma 6, Rohini, Delhi-
110085
2 Mr. Krishna Brother 2173, Constance 1/5th
Sharma Drive, Oakville,
Ontario-L-6J5L2,
Canada
3 Mrs. Manju Sister E-15, Sector-52, 1/5th
Tripathi Noida - 201301,
Uttar Pradesh
4 Dr. P.S. Brother Plot No.12, Sector-9, 1/5th
Sharma B-2/409 Varun
Apartments, Rohini,
Delhi-110085
5 Ms. Shipra Daughter of Quarter No.7, I.D. 1/10th
Sharma a Hospital, Nursing
predeceased Hospital, Kingsway
son of a Camp,
daughter Delhi - 110009
6 Ms. Ritu Daughter of #672, 1st Floor, Niti 1/10th
Acharya a Khand-I, Indirapuram,
predeceased Ghaziabad
son of a 201012, Uttar
daughter Pradesh
4. The Respondent Nos. 3 and 4 have already given their no objection
and relinquished their rights in favour of the Petitioner. The affidavits given
by them are at pages 60 to 63 of the documents filed by the Petitioner.
Insofar as Respondent Nos.5, 6 and 8 to 11 are concerned, learned counsel
appearing for the said Respondents also submits that they have no objection
to the grant of letters of administration in terms of para 6 of the petition.
5. Insofar as Mr. R.K. Bhardwaj who is the main contesting Respondent
is concerned, as recorded in the order dated 11th December, 2015, his claim
initially to the suit property was on the basis of the nomination in the
Society wherein he was described as the uncle of the deceased. However,
the said Respondent who is represented through Mr. Arpit Jain now submits
that the stand of the said Respondent is that he was in a live-in relationship
with the deceased. The said averment was to be brought by means of an
amendment to the reply which is already filed. This stand was also recorded
in the order dated 9th January, 2018. The said Respondent No.7 claims that
he has filed an amended reply and has a filing number for the same which is
375422 dated 30th July, 2015. It has been three years since the said
Respondent has sought to amend his reply but for some reason or the other,
the Respondent No.7 has not brought it on record. Such delay in filing the
amended reply cannot be condoned. Repeated opportunities have been given
by this Court to the Defendant to bring the amended reply on record.
However, the same has not been brought on record.
6. The Court has perused the so called amended reply, a copy of which
has been handed over by the counsel. As per the amended reply, the
Respondent No.7 relies on the same affidavit of nomination which was filed
along with the PCA case initially where he was described as the uncle.
However, none of the documents sought to be relied upon in the amended
reply have been brought on record. The contrast in the nomination affidavit
relied upon in the PCA case and the current reply is stark inasmuch as in the
affidavit, the deceased described Respondent No.7 as the `uncle' and now
the Respondent No.7 seeks to describe himself as a `partner who had a live-
in relationship' with the deceased. These two statements are completely
contradictory to each other and cannot co-exist. A person who was
described by the deceased as her `Uncle' cannot now turn around and argue
that he was in a `live-in' relationship with the deceased.
7. It is the settled position in law that a person in whose favour
nomination may be made in a cooperative society does not automatically
become a legal heir. In Ashok Chand Aggarwala v. Delhi Administration
& Ors. 1998 VII AD (Delhi) 639 a Ld. Division Bench of this Court held as
under:
"4. It has been vehemently contended, relying upon the
aforesaid provisions, that it was not a case of simple
nomination but was a case of providing inheritance.
The contention was that this nomination was in the
nature of a 'will'. It was pointed out that the
nomination was required to be attested by a witness.
The contention of learned counsel is that the language
of the aforesaid provisions makes it clear that the
nominee is to inherit the interest of the deceased, on
the basis of the nomination. We are unable to accept
the contention. To our mind Section 26 and Rule 35
only provides a protection to the society from undue
litigation in case it substitutes in its record the name of
nominee in place of deceased on the basis of the
nomination. Such an intention is clear from a bare
reading of the Section in particular sub-section (3)
of Section 26. These two provisions cannot be read to
mean that the nomination provides for inheritance in
favour of nominee to the exclusion of other heirs. The
dispute between the parties in the present case is
whether the appellant alone is entitled to inherit the
plot to the exclusion of all other heirs or all heirs are
entitled to inherit it in accordance with law. The basis
of the claim of appellant is the nomination and on that
account alone, the appellant says that other heirs are
not entitled to inherit the plot in question. We do not
agree.
5. The point in issue, in fact, is no longer res integra as
far as this Court is concerned. Apart from the view
taken by learned Single Judge in judgment under
appeal, atleast in two other decisions similar views
have been expressed. In Sushila Devi Bhaskar Vs.
Ishwar Nagar Cooperative House Building Society Ltd.
& Ors. 45(1991) DLT5 18, relying upon the decision of
Supreme Court in the case of Smt. Sarbati Devi &
another Vs. Smt. Usha Devi, [1984] 1SCR992 , it was
held by a learned Single Judge of this Court that:
"Thus, it now well settled that a mere
nomination, made in favour of a particular
person, does not have the effect of conferring
on the nominee any beneficial interest in
property, after the death of the person
concerned. The nomination only indicates
the hand which is authorised to receive the
amount or manage the property. The
property or the amount, as the case may be,
can be claimed by the heirs of the deceased,
in accordance with law of succession,
governing them."
6. Similar view was expressed by another learned
Single Judge in the case of Priya Nath Mehta Vs.
Manju Aggarwal 54(1994) DLT34."
8. Further, in Manmohan Kishan Malik Vs Avtar Kishan Malik
[CS(OS) 426/2008 decision dated 13th October, 2009], a Ld. Single Judge
of this Court considered the question as to whether the view held by the
Supreme Court in Sarbati Devi v. Usha Devi AIR 1984 SC 346 continued to
be good law in the light of the dicta in Zorastrian Cooperative Housing
Society Ltd. v. District Registrar Co-operative Societies (Urban) AIR 2005
SC 2306 The Ld. Single Judge then went on to hold as under:
"6. The senior counsel for the defendant No.1 has
contended that since it is borne out / admitted that
defendant No.1 had been nominated by Shri Malik
Arjun Dass as his nominee, the defendant no.1 alone is
entitled to and the owner of the aforesaid plot and the
plaintiff or any of the other defendants, who are the
other natural heirs of Malik Arjun Dass will have no
share in the said plot.
7. The counsel for the plaintiff has contended that the
aforesaid plea is no longer res integra. Reliance is
placed on -
i. Smt Sarbati Devi Vs Smt Usha Devi AIR 1984 SC
346 where in relation to a nomination qua the
benefits of the LIC policy, the Supreme Court held
that Insurance Act whereunder the nomination was
made was not intended to alter the law of succession
and nomination does not make the nominee the sole
heir qua the insurance proceeds. It was held that a
nominee is not equivalent to a heir or a legatee.
ii. Ashok Chand Aggarwala Vs Delhi Administration
1998 VII AD (Delhi) 639 DB
iii. Gopal Vishnu Ghatnekar Vs Madhukar Vishnu
Ghatnekar AIR 1982 Bombay 482
iv. Priya Nath Mehta Vs Manju Aggarwal 54(1994)
DLT 34
v. Sushila Devi Bhaskar Vs Ishwar Nagar
Cooperative House Building Society Ltd 45(1991)
DLT 528.
In all of which, qua nomination in a Cooperative
society also, it has been held that the nominee does not
take as a sole heir and the principles as laid down in
Smt Sarbati Devi (supra) apply. The counsel for the
plaintiff has thus contended that merely because there
is a nomination by the common predecessor of the
parties, Malik Arjun Dass in favour of the defendant
No.1, does not make the defendant No.1 the sole owner
of the property.
..............................
11. Though during the hearing I had entertained
certain doubts whether the judgments aforesaid of this
court continue to be good law in the light of the dicta
in Zorastrian Co-operative Housing Society Limited Vs
District Registrar Co-operative Societies (Urban) AIR
2005 SC 2306 and Greater Bombay Cooperative Bank
Ltd Vs United Yarn Tex Pvt. Ltd. AIR 2007 SC 1584,
though not cited by either of the counsels, but
nevertheless giving a special status to the cooperative
laws. However, on carefully perusing the said two
subsequent dicta of the Supreme Court, I am unable to,
on the basis thereof hold that the consistent dicta of
this court distinguishing a nominee from a successor
requires any reconsideration. I also find that Division
Bench of the Bombay High Court in Om Siddharaj
Cooperative Housing Society Ltd Vs State of
Maharasthra and a recent Division Bench judgment of
this court in Abhay Sapru Vs Chitralekha Bukshi have
also taken the same view and with which I am
respectively bound and concur.
12. There is yet another reason for not disturbing the
aforesaid consistent dicta. The Supreme court in Smt
Sarbati Devi (supra) has also held that when all along
the High Courts have taken the view that mere
nomination does not deprive the heirs of their rights
and when inspite thereof the Parliament has not chosen
to make any amendment to the act, in such situation
unless there are strong and compelling reasons to hold
all these decisions to be erroneous, the court should be
slow to take a different view.
13. Another contention of the senior counsel for the
defendant No.1 on the basis of para 11 of Smt Sarbati
Devi (supra) must also be noticed. He has contended
that while the Supreme Court, qua the proceeds of the
policy, has held the nomination to not interfere with the
general law of succession, qua the commission of
insurance agent under Section 44(1) of the Insurance
Act, the nomination prevails. The reason there for
given is that there is no right in common law to such
commission and since right has been created under
Section 44 itself, the same was also held entitled to
provide for the beneficiary of such right. Senior
counsel for the defendant No.1 has contended that the
right of transfer of membership is also not a right
under the common law but a right created in the
Cooperative Societies Act and thus the said Act is
entitled to provide for the beneficiary thereof also.
14. I am however unable to accept the said position.
Though the right of membership of a society may be a
right governed by the Cooperative Societies Act but
once such right has resulted in acquisition of an
immovable property by a member, the devolution of
such immovable property will be governed not by the
Societies Act but by the general law of succession as
aforesaid.
15. I thus hold the defendant No.1 to have not acquired
any exclusive rights in the property subject matter of
the suit by virtue of nomination in his favour and the
rights of the other heirs of the deceased Malik Arjun
Dass would not be defeated by such nomination."
Thus, it is the settled position that nomination does not decide the right to
claim inheritance based on the law of succession.
9. Going by the affidavit of nomination which is the best case the
Respondent No.7 has, no legal rights vest in the property of the deceased.
Moreover, under the law as it exists, a live-in partner cannot be considered
as a legal heir. There is no provision in the law which recognises live -in
partners as legal heirs of an individual.
10. Under these circumstances, the letters of administration prayed for are
liable to be granted. In terms of paragraph 6 of the petition, the shares of the
parties are determined as under: -
Sl. No. Name Share
1 Mrs. Promila Sharma 1/5th
2 Mr. Krishna Sharma 1/5th
3 Mrs. Manju Tripathi 1/5th
4 Dr. P.S. Sharma 1/5th
5 Ms. Shipra Sharma 1/10th
6 Ms. Ritu Acharya 1/10th
11. Respondent No.10, as per the counsel, is Mrs. Bina Sharma and not
Mrs. Vina Sharma. Registry is directed to make the appropriate correction in
the Memo of Parties. Letters of administration are accordingly granted as
prayed for in the petition.
12. Petition is disposed of.
13. Insofar as PCA case is concerned, for the reasons stated in the order
passed in TEST.CAS. 61/2014, the present petition is dismissed.
PRATHIBA M. SINGH
JUDGE
JULY 06, 2018/Rekha
