Mahima and Ors v. DDA & Anr

RAJIV SAHAI ENDLAW, J. JULY 18, 2014 pp/gsr

*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 CPC), 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. with 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 1. The three plaintiffs have instituted this suit for the reliefs of, (i) declaration that they are the absolute owners of MIG Flat No. AD-21-C Pitam Pura, New Delhi under the Family Settlement dated 29th November, 2006 executed by the plaintiff no.1 and the defendant no.2 Shri Anil Arora; (ii) mandatory injunction directing the defendant no.1 DDA to mutate the said flat from the name of the defendant no.2 Sh. Anil Arora to the name of the plaintiffs; (iii) mandatory injunction directing the defendant no.2 to handover to the plaintiffs all the requisite documents pertaining to the said flat; and, (iv) permanent injunction restraining the defendant no.2 from creating any third party interest in the said flat, pleading:- (a) that the plaintiff no.1 was married to the defendant no.2 on 22nd January, 1987 and out of the said wedlock the plaintiffs no.2&3 Udita Arora and Pulkita Arora were born; (b) that the plaintiff no.1 and the defendant no.2 were involved in numerous litigations and after a long standing litigation in various courts of law, the plaintiff no.1 and the defendant no.2 agreed to settle all their disputes amicably out of Court and accordingly the Family Settlement dated 29th November, 2006 supra was executed 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 up- bringing, residence, marriage expenses of the plaintiffs who were in possession of the said flat since much prior to the execution of the Family Settlement; (d) that after the execution of the said Family Settlement, the plaintiff no.1 as per the terms thereof consented for a decree of divorce by mutual consent and the marriage of the plaintiff no.1 and the defendant no.2 was dissolved by a decree of dissolution of 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 the defendant no.2 was the owner thereof on the basis of registered GPA and Will dated 26th September, 1995; (f) that under the aforesaid Family Settlement, the defendant no.2 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 their residence, maintenance and marriage expenses; (g) that as per the mandate and force of Section 14(1) of the Hindu Succession Act, 1956, the plaintiffs have become the sole and absolute owners of the said flat; (h) that the defendant no.2 had in the year remarried and his second wife was claiming that the defendant no.2 had executed a Will of the said flat in her favour; (i) that the plaintiffs on 26th April, 2011 approached the defendant no.1 DDA for converting the leasehold rights in the said flat into freehold in favour of the plaintiffs and also deposited a bank draft for Rs.59,200/- towards conversion charges; and, (j) however the defendant no.1 DDA had refused such conversion owing to non-submission by the plaintiffs of complete chain of GPAs and Agreement to Sell. 2. Summons of the suit and notice of the application for interim relief were issued to the defendants and vide ex parte ad interim order dated 1st June, 2012 the defe