CHITRA HALDIPUR Vs. SHAHID BHAGAT SINGH CHS LTD

JUDGEMENT

(1.) The dispute in the present case relates to the rights in respect of a plot of land bearing Plot No.119, Shahid Bhagat Singh Co-operative Housing Society Ltd., Guru Nanak Nagar, Andheri-Kurla Road, Mumbai-400 059. The First Respondent is a Housing Society registered under the Bombay Co-operative Societies' Act, 1925 and is a plot owners' Society. The original member to whom Plot No.119 was allotted was one Shri Anup Singh Grover. The Society was formed and registered initially in the year 1958 and issued share certificates to its members in 1959. The Society purchased land at J.B. Nagar, Andheri (East) and constructed 96 blocks, of which Block bearing No.119 was alloted to the aforesaid member in 1961. The Society constructed the Ground Floor upon which members were permitted to construct an additional floor. In the year 1965, Shri Grover added the first floor to the existing ground floor structure. The ground floor structure has been designated by the Society as Block No.119, whereas the first floor is described as Block No.119A. Shri Grover had submitted three nomination forms to the Society; the first in the year 1968, the second in the year 1985 and the third a little prior to his death in 1997. The first two nomination forms were in favour of the Second Respondent who is alleged to be the lawfully wedded wife of the original member. The third nomination form was alleged to have been filed by the member on 26th March 1996 by which the Petitioner herein, was nominated in respect of Flat No.119 and 119A. It is, however, common ground that the nomination form was submitted to the Society on 13th January 1997 a little prior to the death of the member. The original member expired on 26th January 1997.

(2.) Disputes then arose between the Petitioner and the Second Respondent. The Petitioner claims to be the adopted daughter of the deceased member, while the original Second Respondent stakes her claim as a lawfully wedded wife. From the material on record, it has emerged that the Petitioner herein submitted under cover of a letter dated 5th August 1997 several documents to the Co-operative Society agreeing that the membership should be transferred in favour of the Second Respondent. Among the documents which were executed by the Petitioner were (i) An affidavit dated 9th May 1997 wherein the Petitioner admitted that the Second Respondent was the lawfully wedded wife of Shri Grover whereas the Petitioner herself was a daughter of one Mrs. Madhuri Gharat and that she was not either the adopted daughter of the member or his legal heir; (ii) A declarationcum- Deed of Indemnity dated 5th August 1997 submitted by the Petitioner to the Co-operative Society in which she referred to an agreement executed between herself and the Second Respondent on 9th May 1997; (iii) An agreement dated 9th May 1997 by which the Petitioner admitted that the Second Respondent was the lawfully wedded wife of the original member; that a lady by the name of Hemal was staying with the original member and that the Petitioner was born and brought up as a non-Sikh. In the agreement, the Petitioner agreed that it is only the Second Respondent who was the legal heir entitled to succeed to the estate of the deceased member and that there was no adoption of the Petitioner by the deceased member and his wife.

(3.) Acting on the basis of the documents executed by the Petitioner, the society transferred the membership of the erstwhile member in the name of the Second Respondent. The Second Respondent expired during the pendency of the proceedings. The legal heirs of the Second Respondent have not been brought on the record. The Sixth Respondent claims an interest in the estate of the Second Respondent under a Deed of Gift. It would appear from the affidavit that was executed by the Petitioner on 9th May 1997, the declaration-cum-deed of indemnity dated 5th August 1997 and the agreement dated 9th May 1997 that it was agreed between the Petitioner and Second Respondent that the rights in respect of the first floor comprising of Block No.119A would be transferred in the name of the Petitioner, whereas the rights in respect of the ground floor comprising of Block No.119 would be transferred to the Second Respondent. However, on behalf of the Petitioner, it has been submitted that the documents though executed by the Petitioner, were executed at a time when the Petitioner was single and that though she was aged 30, she had lost both her parents within a short span of time. It may be noted that at the present stage, the Sixth Respondent has stated before the Court that he is willing to abide by the original understanding with the Petitioner which was to the effect that the Petitioner would be entitled to the first floor (Block 119A). Counsel appearing on behalf of the Petitioner has, however, stated before the Court that the Petitioner disputes the understanding.