Judgment:
ORDER
Vijender Jain, J.
1. Rule.
2. The present writ petition has been filed by the petitioner who claims to have got a Will in her favor executed by Smt.Rukmani Bai, widow of late Sh.K.B.Hardasani who was a member of respondent No.2/Society. The Will has been probated. Rehabilitation Ministry Employees Co-operative House Building Society Ltd. which is Respondent No.2 in the present case refused to executed a sub-lease in favor of the petitioner. Hence this writ petition.
3. Objections taken by respondent No.2 are two fold. Mr.Bhushan counsel for respondent No.2 has contended that any transfer of the right under membership by the widow of Late K.B.Hardasani is inconsistent and contrary to the terms of allotment of land in favor of respondent No.2. He has further contended that no member can enter into speculative transaction and, thereforee, the respondent No.2 is not under an obligation to execute a sub-lease in favor of the petitioner and has relied upon a Division Bench judgment of this Court in Shri Lajpat Rai Sharma vs. Union of India and other CW 2309/96 decided on 14th August, 1998.
4. On the other hand, counsel for the petitioner has contended that respondent No.2 allocated plot No.A-317, Shivalik, near Malviya Nagar, New Delhi Measuring 190 sq.yds. in favor of Smt.Rukmani Bai widow of late Sh.K.B.Hardasani. It has been contended that the Register of Cooperative Society verified the membership of Smt.Rukmani Bai as nominee/legal heir of late Sh.K.B.Hardasani. Late Rukmani Bai during her life time executed a registered Will on 24th March, 1990 in favor of the petitioner and bequeathed, gave, demised all the rights, interests, liens and titles in the plot of land bearing A-317, Shivalik together with all the benefits attached thereto, membership rights of her. Rukmani Bai died on 6th May, 1990. Petitioner filed a Probate Case No.369/94 for the grant and issuance of Probate in favor of the petitioner.
5. All the Legal heirs of Rukmani Bai filed no objection for the grant of Probate in favor of the petitioner. From 16th April, 1990 to 09th March, 1995 the petitioner on demand from respondent No.2 paid a total sum of Rs.28,753/= towards premium, service and development charges in respect of the plot though it is contended by Mr.Bhushan that the same was paid in the name of Rukmani Bai. Respondent No.1/Union of India has filed counter affidavit. Para 1 of the counter affidavit filed by Settlement-cum-Managing Officer Land & Development Office inter-alia reads as under:-
The work relating to Rehabilitation Ministry Employees Co-operative House Building Society Ltd.(Shivalik) has recently been transferred to the answering Respondent from Rehabilitation division of Ministry of Home Affairs. In this case sub-lease deed has not been executed so far. In those cases where sub-lease deed has been executed, the files are with the Ministry of Home Affairs. In cases, where sub-lease deed has not been executed, all relevant records are with the Society. However, in a file transferred to the office of the answering respondent there is a communication from the Office of the Registrar, Cooperative Societies intimating the Society to the effect that Smt.Rukmani Bai, W/o Late Sh.K.B.Hardasani has become member of the aforesaid society in place of her husband and her membership number is 76. The petitioner is now claiming all the rights of her membership through a 'WILL'. Most of the records mentioned in the Petition are with the Respondent No.2.
Para 12 of counter affidavit is as under:-
'In reply to this para, it is humbly submitted that the answering Respondent is duty bound to execute sub-lease only after getting a formal letter from Respondent No.2, who has to initiate steps for execution of sub-lease deed. No formal letter was received from the Respondent No.2 in this regard.
6. I have given my careful considerations to arguments advanced by learned counsel for all the parties.
7. After the demise of the original member Mr.K.B.Hardasani, the membership as well as all the rights were inherited by Smt.Rukmani Bai widow of K.B.Hardasani. From the counter affidavit filed by the L.& D.O. as reproduced above, a communication received from the office of Registrar of Cooperative Society intimating the Society to the effect that Rukmani Bai widow of K.B.Hardasani had become member of the Society in place of her husband and her membership was 76. It was the admitted case before me that membership of Smt.Rukmani Bai was never cancelled by respondent No.2 during her life time. When Rukmani Bai became member of respondent No.2 the right of a member included right to hold a plot by Rukmani Bai. Rukmani Bai never ceased to be be a member of the society thereforee the right which Rukmani Bai had by virtue of her membership never got extinguished.
8. During her life time Rukmani Bai executed a Will. That Will was probated by the petitioner. No objections have been filed by other legal heirs of Rukmani Bai. Having not challenged the membership of Rukmani Bai, which was confirmed by the Registrar, Cooperative Socieites, non-denial of the benefit to the petitioner, who stepped in the shoes of Rukmani Bai, is unwarranted, more so, in view of the stand taken by the counsel for UOI that as paramount Lesser has no objection once respondent no.2 executes a sub-lease in favor of the petitioner. Even otherwise, in Delhi by way of sale and purchase on the basis of power of attorney a person can get the property changed from lease hold to free hold. Once the paramount Lesser has no objection then argument of the counsel for the respondent that transfer in the name of petitioner in view of Will executed by Smt.Rukmani Bai is not sustainable. Reliance was placed on Shri Lajpat Rai Sharma's case (supra) by the learned counsel for respondent no.2. In that case petitioner took the plea that as a founder member of the society he has paid the full amount as certain allotment was made in his favor and same could not be cancelled. Division Bench in the said judgment held that mere allocation of a plot will not confer a right to a member. That issue is not involved in the present case, thereforee, the reliance in Shri Lajpat Rai Sharma's case (supra) is of no help to the petitioner. I, thereforee, issue a direction to respondent No.2 to execute a sub-lease in favor of the petitioner within a period of four weeks and hand over actual, physical, vacant and peaceful possession of plot no.A-317, Shivalik, near Malviya Nagar, New Delhi. Counsel for Respondent No.1/Union of India says that it respondent No.2 executes sub-lease in favor of the petitioner, they have no objection.
Petition is allowed.
Rule is made absolute.