# I.R. Construction Pvt. Ltd. & Anr v. Yashpal Khullar & Ors

- **Citation:** (2024) 7 ILRA 1315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-29
- **Case number:** Second Appeal No. 267 of 2017
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/i-r-construction-pvt-ltd-anr-v-yashpal-khullar-ors-52248
- **Pages:** 11

## Headnote

Civil Law- (The Transfer of Property Act,
1882-Sections
3
&
5)
(The
Indian
Succession Act, 1925-Section 2(h)) - Once
admitted that ownership in the disputed
property never vested in SLM during his lifetime,
mere execution of the Will mentioning that
ownership would devolve upon the plaintiff after
death of the testator would not make the
plaintiff as owner of the disputed plot after
death of SLM. Even if the rights conferred by
SLM are treated to be lawfully bequeathed upon
the plaintiff under the Will of 1995, the plaintiff
would, at the most, succeed rights of SLM as an
allottee and not more than that- Even if the
Court ignores the Will of 1996, as rightly
observed by the lower appellate court, for the
reason that its photostat copy was inadmissible
in evidence and, even otherwise, its proof did
not satisfy the statutory requirements needed
for that, the same, in itself, could not be a
circumstance to grant various decrees by the
lower appellate court, including a decree against
the co-operative society, non- party, and which
relief appears to be clearly barred under Section
111 (d) of the U.P. Co-operative Societies Act,

## Text

7 All. I.R. Construction Pvt. Ltd. & Anr. Vs. Yashpal Khullar & Ors.
1315
into consideration the provisions of Section
14 of the Family Courts Act, 1984 we do
not approve of the manner in which the
trial Court has considered the facts and
issues, evidence, its admissibility and
relevance, nor do we approve the findings
recorded by it on its basis, in the facts of
the present case. The ingredients of a valid
Hindu marriage in terms of Section 7 of the
Act, 1955 had to be proved by the
respondent herein but the trial Court
omitted to consider these material aspects
and has thereby misdirected itself. It did
not consider the issue as to whether the
marriage itself had taken place in the first
place as per law, as discussed hereinabove.
Its judgment is erroneous.

40. In view of the above
discussion, we are of the considered
opinion that marriage between the appellant
and the respondent as per Hindu rites and
customs in terms of Section 7 of the Act,
1955 itself is not proved and the trial Court
has gravely erred in not considering this
aspect of the matter which was implicit in
the issues framed by it. In the absence of a
valid Hindu marriage there was no way that
the suit of the respondent/defendant under
Section 9 of the Act, 1955 could have been
decreed, especially, in the manner in which
it has been done, without discussing any of
the prerequisites which are required to be
satisfied under the said provision. For the
same reason, the trial Court has erred in
dismissing the suit of the appellant/plaintiff
under Section 12 of the Act, 1955.

41. We, accordingly, hold that no
marriage has taken place between the
appellant and respondent as per law and the
marriage
as
alleged
by
the
respondent/defendant
based
on
the
certificate issued by the Arya Samaj
Mandir, Ganeshganj, Lucknow and the
Certificate of registration issued by the
Registrar of marriages, Lucknow etc., is a
nullity, as, prerequisites of a valid marriage
in the form of customary rites and
ceremonies required for a Hindu marriage
were never performed and the said
certificates have no significance in the eyes
of law and do not by themselves prove such
marriage. The alleged marriage, based on
the aforesaid documents has rightly been
claimed by the appellant to be a fraudulent
exercise. Point no. 1 is determined
accordingly in the negative. Points no. 2
and 3 are also determined in terms of the
above in favour of the appellant and against
the respondent.

42. In view of the above
discussions, we set aside the judgment and
decree passed on 29.08.2023 in Original
Suit No. 1990 of 2009; Shruti Agnihotri Vs.
Anand Srivastava. The Original Suit No.
1990 of 2009 is allowed. The Suit bearing
No. 2168 of 2009 under Section 9 of the
Act, 1955 is dismissed.

43. The first appeal is allowed in
the aforesaid terms.
----------
(2024) 7 ILRA 1315
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 267 of 2017

I.R. Construction Pvt. Ltd. & Anr.
 ...Appellants
Versus
Yashpal Khullar & Ors. ...Respondents

Counsel for the Appellants:
Tarun Agrawal
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Siddharth Srivastava, Swapnil Kumar

Civil Law- (The Transfer of Property Act,
1882-Sections
3
&
5)
(The
Indian
Succession Act, 1925-Section 2(h)) - Once
admitted that ownership in the disputed
property never vested in SLM during his lifetime,
mere execution of the Will mentioning that
ownership would devolve upon the plaintiff after
death of the testator would not make the
plaintiff as owner of the disputed plot after
death of SLM. Even if the rights conferred by
SLM are treated to be lawfully bequeathed upon
the plaintiff under the Will of 1995, the plaintiff
would, at the most, succeed rights of SLM as an
allottee and not more than that- Even if the
Court ignores the Will of 1996, as rightly
observed by the lower appellate court, for the
reason that its photostat copy was inadmissible
in evidence and, even otherwise, its proof did
not satisfy the statutory requirements needed
for that, the same, in itself, could not be a
circumstance to grant various decrees by the
lower appellate court, including a decree against
the co-operative society, non- party, and which
relief appears to be clearly barred under Section
111 (d) of the U.P. Co-operative Societies Act,
1965. (Para 19, 25 & 27)

Second appeal allowed. (E-15)

(Delivered by Hon'ble Kshitij Shailendra,
J.)

1. The instant second appeal has been
filed by two defendants of the Original Suit
No.482 of 2002 assailing the judgment and
decree dated 17.01.2017 whereby learned
Additional District Judge, First, Gautam
Budh Nagar, has allowed Civil Appeal
No.19 of 2013 filed by the plaintiffrespondent no.1, set aside the judgment of
the trial court dated 23.03.2013 and
decreed the suit granting various reliefs to
the plaintiff-respondent no.1.

PLAINT CASE
2. As per plaint case, a residential
plot No.122, Block-E, Measuring 180 sq.
mtrs situated at Sector 41, Noida had been
allotted by defendant no.4, i.e. New Okhla
Industrial Development Authority (for short
'NOIDA') in favour of one Shadi Lal
Mehra (for short 'SLM') who executed a
registered
agreement
for
sale
dated
24.11.1995 in favour of the plaintiff.
According to the plaintiff, SLM had
delivered possession of plot to him. The
plaintiff also pleaded about a registered
Will dated 24.11.1995 and certain other
documents, like power of attorney etc,
executed by SLM in his favour. SLM died
on 11.02.1996, consequent upon which, the
plaintiff became owner of the plot to the
divestment of defendants no.2 and 3, who
are respectively widow and son of SLM.
The plaintiff could not inform NOIDA
about the rights acquired by him at the
strength of the Will and other documents
but, on 12.12.2002, when he found the
defendant no.1 (I.R. Constructions Pvt Ltd)
(appellant
no.1
herein)
raising
constructions over the plot, on being asked
from the appellant no.1, he was informed
about execution of certain documents by
the defendants no.2 and 3 in favour of
defendant no.5-Devendra Kumar (appellant
no.2 herein) and also a registered lease
deed dated 28.05.2001 for 90 years by
NOIDA. The plaintiff stated all the
documents executed inter se defendants as
null and void by relying upon the
agreement
for
sale
and
Will
dated
24.11.1995 in his favour by SLM and,
consequently, prayed for a decree for
specific performance of the agreement
directing the defendants no.2, 3 and 5 to
execute sale deed in his favour, grant of
which if not possible, a decree restraining
the
defendant
no.1
from
raising
constructions
and
demolition
of
constructions raised so far; declaring all
7 All. I.R. Construction Pvt. Ltd. & Anr. Vs. Yashpal Khullar & Ors.
1317
documents
executed
amongst
the
defendants as null and void; declaring the
plaintiff as owner of the disputed plot at the
strength of the Will dated 24.11.1995 with a
further decree that possession of the plot be
directed to be delivered to the plaintiff.

CONTEST BY DEFENDANTS

3. The defendants no.1 and 5
(appellants herein) pleaded in written
statement that a Will dated 10.01.1996 was
executed by SLM in favour of defendant
no.5; the said defendant applied before
NOIDA for entering his name in the
records and for getting a lease deed
executed; NOIDA executed a registered
lease deed on 28.05.2001 in favour of
defendant no.5 and also delivered its
possession to him, whereafter the defendant
no.5 executed documents in favour of
defendant no.1 and also handed over its
possession to the said defendant. It was
further pleaded that the defendant no.1
raised constructions over the plot and had
also obtained a completion certificate from
NOIDA prior to institution of the suit.
They disputed the sustainability of the
Will dated 24.11.1995 by referring to
proceedings of a probate case filed by the
plaintiff which was dismissed for want of
prosecution on 30.08.2003 by the District
Judge,
Ghaziabad.
Certain
other
documents
executed
amongst
the
defendants were also pleaded with a
further stand that the suit was filed at a
very belated stage after the title stood
vested in the defendants. Wife of late
SLM and his son were defendants no.2
and 3 against whom suit had proceeded
ex-parte, as would be apparent from the
appellate court's judgment and the main
contest
was
made
by
the
present
appellants,
who
were
respectively,
defendants no.1 and 5 in the suit.
TRIAL COURT'S JUDGMENT

4. The trial court framed nine
issues and the main issues were to the
effect as to whether the plaintiff was
entitled to get the relief of the declaration
of his rights at the strength of Will dated
24.11.1995 and further a decree of
cancellation of all documents including
lease deed executed in favour of the
defendant no.5. The trial court, after
discussing oral and documentary evidence,
dismissed the suit by judgment and order
dated 23.03.2013 by raising serious doubts
on the execution of Will dated 24.11.1995
by SLM on the ground that neither
disclosure of natural successors of SLM
was given in the Will nor was any
circumstance disclosed as to why bequeath
in favour of a stranger (plaintiff) by
divesting the natural heirs was justified.
The plaintiff's plea of possession was also
discarded by the trial court and it gave
weightage to the Will dated 10.01.1996
relied upon by the defendant no.5 in his
favour claiming it to have been executed by
SLM. The trial court observed that in view
of the subsequent Will of 1996, the
previous Will of 1995 automatically stood
nullified and, consequently, the plaintiff's
claim for any relief was turned down.

FIRST APPELLATE COURT'S
JUDGMENT

5. The plaintiff filed Civil Appeal
No.19 of 2013, which has been allowed by
the learned Additional District Judge,
Gautam Budh Nagar by the impugned
judgment and decree dated 17.01.2017. In
order to adjudge the entire controversy
involved, it would be quite apt to quote the
operative portion of the decree drawn by
the lower appellate court, which reads as
under:-
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
"अपीि थी की अपीि सव्यय स्िीक र की
ज ती िै। मूिि द सांख्य 482/2002 में प ररत हनणुय
हदन ांहकत 23.03.2013 ि हडिी हनरस्त की ज ती
िै। ि दी क ि द सव्यय हडिी हकय ज त िै।
िूखण्ड सांख्य 122, ब्ि क-ई, सैक्टर41, नोएड , हजि गौतमबुद्धनगर के सम्बधध में मूि
आबांटी स्ि० श्री श दीि ि मेिर द्व र हनष्प हदत
िसीयत हदन ांहकत 24.11.1995 के आध र पर ि दी
को उनके स्थ न पर आबांटी घोहषत हकय ज त िै और
स थ िी स थ श दीि ि मेिर के स्थ न पर सांबांहधत
सोस यटी क सदस्य िी हदन ांक 11.02.1996 से
घोहषत हकय ज त िै। ि दी समस्त औपच ररकत एां
प्र थुन पत्, शुल्क आहद इस सम्बधध में पूणु करेग । यि
िी घोहषत हकय ज त िै इस प्ि ट के सांबांध में ि दी
को श दीि ि मेिर के स्थ न पर समस्त अहधक र प्र प्त
िैं। यि िी घोहषत हकय ज त िै हक उपरोक्त प्ि ट के
सांबांध में अपीि थी/ि दी यशप ि खुल्िर को त्ैपक्षीय
िीजडीड िी हनष्प हदत कर ने क अहधक र िै।
हदन ांक 28.05.2001 को प्रहति दी
सांख्य -5 देिेधि कुम र के पक्ष में कहथत िसीयत
हदन ांहकत 10.01.1996 के आध र पर हनष्प हदत
हकय गय त्ैपक्षीय िीजडीड शूधय ि हनष्प्रि िी घोहषत
हकय ज त िै और इसके आध र पर देिेधि कुम र के
पक्ष में ज री हकये गये सिी आदेश च िे िि प्र हधकरण
के िो य सांबांहधत सोस यटी के िों, शूधय ि हनष्प्रि िी
घोहषत
हकये
ज ते
िैं।
िीजडीड
हदन ांहकत
28.05.2001 के शूधय ि हनष्प्रि िी हकये ज ने की
सूचन उपहनांबधक नोएड -प्रथम, हजि गौतमबुद्धनगर
को प्रेहषत की ज ये।
हदन ांक 28.05.2001 की िीजडीड के
आध र पर जो िी अहििेख हनष्प हदत हकये गये िैं य
क युि हिय ां प्रहति दी सांख्य -5 देिेधि कुम र द्व र की
गयी िैं, िि सब शूधय ि हनष्प्रि िी घोहषत की ज ती िैं।
प्रहति दी सांख्य -4 नोएड तथ सांबांहधत
सोस यटी को हनदेहशत हकय ज त िै हक िि
ि दी/अपीि थी के पक्ष में दो म ि के अांदर त्ैपक्षीय
िीजडीड हनष्प हदत कर दें तथ कब्ज िी प्रद न करें।
इस सांबांध में जो िी आिश्यक औपच ररकत एां िोंगी,
िि ि दी सम्प हदत करेग ।
प्रहति दीगण को आदेहशत हकय ज त िै
हक िि दो म ि के अांदर उपरोक्त प्ि ट सांख्य 122,
ब्ि क-ई, रकब 180 िगुमीटर हस्थत सैक्टर-41,
नोएड , गौतमबुद्धनगर से अपन समस्त हनम ुण िट कर
अपीि थी/ि दी को खुि कब्ज प्रद न कर दें।"

ADMISSION ORDER
PASSED IN INSTANT SECOND
APPEAL

6. The instant second
appeal
was
admitted
by
a
Coordinate Bench by order dated
05.02.2020
on
the
following
substantial questions of law:-

"(i) Whether the
Will dated 10.01.1996 has a
specific
stipulation
superseding
earlier
Will
dated 24.11.1995 ?
(ii) Whether
the
defendant could prove his
Will before the court of law
so to sustain his claims as
have been bestowed on him
subsequently on the basis
of such Will ?
(iii) Whether Will
dated
10.01.1996
could
have
superseded
earlier
Will
dated
24.11.1995
despite
the
fact
that
plaintiff did not challenge
the cancellation of the Will
dated 10.01.1996 before
the Court of competent
jurisdiction ?
(iv) Whether the
letter of allotment creates
any transferable right in
favour of the allottee which
can be transferred through
a Will or not ?

7. I have heard Sri Tarun Agrawal,
learned
counsel
for
the
defendant-
7 All. I.R. Construction Pvt. Ltd. & Anr. Vs. Yashpal Khullar & Ors.
1319
appellants and Sri Swapnil Kumar, assisted
by Sri Prem Chandra and Sri Virendra
Singh Tomar, learned counsel for the
plaintiff-respondent and have carefully
perused the original records of both the
courts below.

8. In order to answer the questions
so framed, this Court needs to examine the
rival claims set up by both sides at the
strength of various documents, such as
registered Will dated 24.11.1995, power of
attorney of the same date, an unregistered
Will
dated
10.01.1996,
certain
No
Objection Letters issued in favour of
defendant no.5 by the heirs of late SLM,
registered lease deed dated 28.05.2001,
letter of allotment issued by NOIDA in
favour of SLM on 22.06.1991 and
membership of SLM with a Co-operative
Housing Society, namely, Paradise Cooperative Housing Building Society Ltd,
reference whereof has come on record in
various documents and proceedings.

SUBMISSION OF APPELLANTS

9. Sri Tarun Agrawal, learned
counsel for the defendant-appellants argued
that no title ever vested in SLM as there
was merely an allotment letter dated
22.06.1991 executed by NOIDA in his
favour which did not confer ownership on
SLM; power of attorney executed by SLM
in favour of plaintiff on 24.11.1995 lost its
efficacy and significance after death of
SLM which occurred on 11.02.1996; even
otherwise, no action was taken by the
plaintiff at the strength of the Will or power
of attorney, either during lifetime or after
demise of SLM and, therefore, the
documents remained of no significance; on
14.03.2000,
NOIDA
cancelled
the
allotment made in favour of SLM and,
thereafter, executed registered lease deed in
favour of appellant no.2 on 28.05.2001
after the said appellant had been inducted
as a member in the Co-operative Society;
cancellation order dated 14.03.2000 was
never assailed by the plaintiff; the suit as
framed was not maintainable as the plaintiff
was out of possession on the date of
institution of suit but no relief of
dispossession
of
the
defendants
was
claimed; for the same reason suit for
injunction was also not maintainable; the
plea of plaintiff that SLM had delivered
him actual and physical possession over the
plot was not tenable as per the defence
taken by the NOIDA in its written
statement that possession could not be
delivered to him for want of execution of
lease deed and since SLM never came in
possession over the plot, there was no
question of handing over possession by
SLM to the plaintiff.

10. As
regards Will
dated
10.01.1996 executed by SLM in favour of
defendant no.5, Sri Agrawal admitted that it
was an unregistered document and only its
photostat copy was brought on record from
the defendants' side. He, however, submits
that even if the Will of 1996 is ignored for
all purposes, the alleged weakness of the
defence case on that basis would not
strengthen the plaintiff's case and he would
have to stand on his own legs to get a
decree in his favour.

SUBMISSION OF RESPONDENT

11. Sri Swapnil Kumar, learned
counsel the plaintiff-respondent no.1, on
the other hand, has vehemently opposed the
submissions and argued that the entire case
of the defendant was based upon an alleged
Will
dated
10.01.1996
which
was
manufactured for the purposes of the case
after the death of SLM and, even otherwise,
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
its photostat copy was brought on record
which would not fall in the category of
either primary or secondary evidence and,
consequently, the defence case falls on this
ground alone. He further submits that even
if ownership did not vest in SLM,
admittedly, there being an allotment order
of 22.06.1991 in his favour, whatever rights
SLM possessed at the strength of such
allotment order, the same stood devolved
by testamentary succession upon the
plaintiff at the strength of registered Will
dated 24.11.1995. He further submits that
all
the
defendants
colluded
amongst
themselves to deprive the plaintiff of his
right to get the lease deed executed and
even the officer of NOIDA, who had
appeared as a witness, concealed material
information by stating that the record was
not available in office. He submits that
natural heirs of SLM did not contest the
proceedings and the entire circumstances
and chain of dates and events apparently
suggest only one thing that rights acquired
by plaintiff were sought to be nullified by
the defendants by manufacturing fabricated
documents which included obtaining 'No
Objection' from the Co-operative Society
as regards transfer of membership in favour
of the defendant no.5 and all the defendants
succeeded in their evil design. It was
further argued that the trial court discarded
the registered Will and accepted the
photostat copy of an unregistered Will as
having more evidentiary value over a
registered document and, consequently, the
lower appellate court has rightly set aside
the trial court's judgment and granted a
lawful decree.

ANALYSIS OF RIVAL
CONTENTIONS

12. In order to arrive at a
conclusion as to whether the suit has been
rightly decreed by the lower appellate
court, it would be necessary to carefully
examine the documents relied upon by both
the parties. From the original record, it is
apparent that the land earlier belonged to
Paradise Co-operative Housing Building
Society Ltd, and was acquired by NOIDA,
as is apparent from the statement of DW-2
Mr. R.P. Dilwali, President of the said
Society in which he stated that NOIDA
made allotments to the members of the said
Society. There is no dispute that SLM was
a member of the said Co-operative Housing
Society and original Share Certificate dated
02.11.1974 is on record of the trial court as
Paper No.151/1. It is also not in dispute
that at the strength of membership of the
Society, allotment of disputed plot was
made by NOIDA in favour of SLM on
22.06.1991. The allotment letter, being
Paper No.152, contained a clear stipulation
amongst others that after completion of
various formalities, lease deed would be
executed
and
possession
would
be
delivered thereafter. Admittedly, during
lifetime of SLM, the lease deed was not
executed by NOIDA and, therefore, the
question of delivery of actual and physical
possession by NOIDA to SLM could never
arise.

13. The plaintiff's claim was based
upon a registered Will and registered
agreement for sale, both dated 24.11.1995
and executed by SLM in his favour. The
original Will being Paper No.9-Ka on
record, is a one page document executed in
a printed proforma. It was termed by SLM
as his last irrevocable Will/ Testament. He
claimed to be owner of the disputed plot
and stated that he wanted to immediately
relinquish all the rights and ownership in
the said property in favour of the plaintiff
and that after his death, the plaintiff would
become the sole and absolute owner
7 All. I.R. Construction Pvt. Ltd. & Anr. Vs. Yashpal Khullar & Ors.
1321
thereof. Admittedly, on the date of
execution of Will, no document of title was
executed by NOIDA in favour of SLM.
There was a mere allotment letter dated
22.06.1991 existing in favour of SLM
which, in no way, can be treated as a
document of ownership and, hence, the
statement made in the Will, though in a
printed proforma, as regards ownership of
SLM would, in itself, be not sufficient to
reach to a conclusion that in case the Will
stands proved, ownership would vest in the
beneficiary, i.e. the plaintiff. Apart from
this, there was no mention of natural
successors of SLM in the Will except a
printed
paragraph
stating
that
"any
objection to be raised by my wife/ husband/
children (major or minor, married or
unmarried), brothers, sisters or any legal
heirs/ representatives regarding this "Will"
shall be deemed as null and void and
ineffective and that his heirs and legal
representatives shall have no rights or any
interest in the property which he had
purchased independently out of his selfearned income." No reason was assigned as
to why there being natural successors i.e.
wife and sons what was the justification for
depriving them of the rights in property and
executing a Will in favour of a stranger, i.e.
the plaintiff.

14. Even if this Court finds that the
trial court, while holding the registered Will
dated
24.11.1995
as
surrounded
by
suspicious circumstances, gave weightage
to the unregistered Will dated 10.01.1996
relied upon by the defendant side and
giving priority and supremacy to the
unregistered Will of 1996 over the
registered Will of 1995 was not a correct
and lawful approach of the trial court for
the additional reason that only photostat
copy of the said unregistered Will was
produced which could not be treated as
either primary or secondary evidence,
nevertheless the Will of 1995 relied upon
by the plaintiff being surrounded by
suspicious circumstances, the view taken
by the trial court to that extent appears to
be strictly in consonance with law and the
Will of 1995 was, hence, rightly discarded.
Even if for the sake of accepting the Will of
1995 and reading it in favour of the
plaintiff, it is quite necessary to explain the
legal position as regards a Will and the
rights bequeathed upon the beneficiary
under it.

15. A Will is not an instrument of
transfer of property and that is why it does
not find place in the Transfer of Property
Act, 1882, Section 3 whereof defines an
"instrument" as follows:-

"Instrument" means a nontestamentary instrument.

16. 'Transfer of Property' has been
defined under Section 5 as an act by which
a living person conveys property, in present
or future, to one or more other living
persons, or to himself. The said provision
reads as under:-

"5.
"Transfer
of
property"
defined.-
In
the
following sections "transfer of
property" means an act by which a
living person conveys property, in
present or in future, to one or more
other living persons, or to himself,
and one or more other living
persons; and "to transfer property"
is to perform such act................"

17. Admittedly, the property in
dispute is an immovable property and its
definition contained in Section 3 of the Act,
1882 only provides that "immovable
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
property" does not include standing timber,
growing crops or grass. Clear definition of
an "immovable property" is not found in
the Transfer of Property Act, however, it
has been defined under Section 4(23) of the
U.P. General Clauses Act, 1904 in the
following words:-

"4(23)
"immovable
property"
shall
include
land,
benefits to arise out of land, and
things attached to the earth, or
permanently fastened to anything
attached to the earth, but shall not
include standing timber, growing
crops or grass."

18. The Will being a testamentary
instrument excluded by the provisions of
Transfer of Property Act and which comes
into effect after the death of the testator is
certainly not an instrument of transfer of
property by one living person to other as
per Section 5 of the Transfer of Property
Act. Rather, as per Section 2 (h) of the
Indian Succession Act, 1925, the Will has
been defined as under:-

"2(h) "will" means the
legal declaration of the intention of
a testator with respect to his
property which he desires to be
carried into effect after his death."

19. In view of the above
discussion, once it is admitted that
ownership in the disputed immovable
property never vested in SLM during his
lifetime, mere execution of the Will
mentioning that ownership would devolve
upon the plaintiff after death of the testator
would not make the plaintiff as owner of
the disputed plot after death of SLM. Even
if the rights conferred by SLM are treated
to be lawfully bequeathed upon the plaintiff
under the Will of 1995, the plaintiff would,
at the most, succeed rights of SLM as an
allottee and not more than that. Admittedly,
NOIDA cancelled allotment of SLM on
14.03.2000
and
there
is
sufficient
documentary evidence on record that
NOIDA issued notices, one after another, to
SLM to take steps for getting the lease deed
executed making it clear that in the event of
non-compliance, the allotment would be
cancelled but when no response was
received, NOIDA cancelled the allotment
by letter dated 14.03.2000. The said order
having
not
been
assailed
in
any
independent proceedings or even in the suit
in question, the necessary consequence
would be that the allotment stood washed
away for all theoretical and practical
purposes. There being no fresh allotment in
favour of the plaintiff even otherwise, no
rights whatsoever stood devolved on him
even if the Will of 1995 is treated to have
been validly executed. Going to the
extreme
extent
that
the
order
of
cancellation of allotment was passed by
NOIDA on 14.03.2000, i.e. after four years
from the death of SLM and, hence, would
be of no significance as far as rights alleged
by plaintiff are concerned, the Court
records that the subsequent lease deed was
executed in favour of the defendant no.5
(appellant no.2 herein) on 28.05.2001,
which act was fully supported by natural
heirs of SLM in terms of letters submitted
by SLM's wife, namely, Vijay Mehra
(defendant no.2), his mother Satyawati
Mehra and son Vishal Mehra and also for
grant/transfer/conferment of membership
by the Paradise Co-operative Housing
Building Society Ltd in favour of defendant
no.5-Devendra Kumar vide MR No.7406
dated 10.05.2001 with a clear No Objection
by the Society as regards transfer of
allotment by NOIDA in favour of Devendra
Kumar. The voluminous evidence on record
7 All. I.R. Construction Pvt. Ltd. & Anr. Vs. Yashpal Khullar & Ors.
1323
infers only one thing that all the defendants
including
the
non-party
Cooperative
Housing Society recognized the rights of
membership acquired by appellant no.2 and
transfer of allotment and execution of lease
deed in his favour by NOIDA in the year
2001. By that time, the allotment made in
favour of SLM was not in existence as the
same had been cancelled on 14.03.2000
and even if rights of plaintiff at the strength
of Will are stretched in his favour, he could
only get issued a fresh allotment by
NOIDA in his favour but no such fresh
allotment letter was ever issued by NOIDA
in his favour. The allotment made in favour
of SLM would not automatically devolve
upon the plaintiff without intervention by
NOIDA and as far as execution of lease
deed is concerned, the same could be done
only in favour of a member of the Cooperative Housing Society. There is nothing
on record that the plaintiff ever acquired
membership in the society, as is apparent
from the operative portion of the decree
drawn by the lower appellate court
declaring the plaintiff as member of the
society with effect from 11.02.1996 on
which date SLM had expired.

20. Now coming to that part of the
decree whereby the plaintiff has been
declared as a member of the Society in
place of SLM with effect from 11.02.1996,
it is to be noted that, admittedly, the
Paradise Co-operative Housing Building
Society Ltd was not a party to the
proceedings
nor
was
the
issue
of
membership
involved
in
the
suit
proceedings.
Before
arriving
at
a
conclusion as regards membership, the
lower
appellate
court
should
have
considered that the cooperative society
being a Housing Cooperative Society, the
provisions of U.P. Cooperative Societies
Act, 1965 would come into application.
Here, it would be necessary to deal with the
said aspect as finds place in the Statute.

21. As per Section 2(n) of the Act,
1965, "member" means a person who
joined in the application for registration of
a society or person admitted to membership
after such registration in accordance with
the provisions of the Act, Rules and the
Bye-laws. As to who can become a member
of a Cooperative Society, Section 17 of the
Act deals with the same. Section 18 defines
classes of members. Section 25 contains a
provision to the effect that liability of a past
member or of the estate of a deceased
member would continue. For a ready
reference, Section 25(1) of the Act is
reproduced as under:-

"25(1)
Subject
to
the
provisions of sub-section (2) the
liability of a past member or of the
estate of a deceased member of a
co-operative society for the debts
of the society as they existed-
(a) in the case of a past
member, on the date on which he
ceased to be a member ; and
(b) in the case of a
deceased member, on the date of
his death shall continue for a period
of two years from such date."

22. Section 26 is a provision
dealing with refusal to admit a person as a
member. Sub-sections (1) and (2) of the
said section read as under:-

"26 (1) A person may be
admitted as a member of cooperative society subject to the
provisions of this Act, the rules and
the bye-laws.
(2) Where a person may be
admitted
as
a
member
of
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
cooperative society, the decision
refusing
admission
shall
be
communicated by the society to
that person within seven days of the
date of the decision."

23. Aforesaid provisions, when
read with controversy involved in the
present case, would make it clear that
liability of estate of deceased member
(SLM) would continue to exist for a period
of two years from the date of his death. It,
therefore,
automatically
ceased
after
11.02.1998 when two years period from his
death expired. During these two years
period of time, no body came forward to
assert rights, if any, left behind by SLM.
Hence, any right held by SLM in terms
of allotment made in his favour ceased
to survive for all purposes. Once fresh
membership came into existence in
favour of defendant-appellant no.2 on
10.05.2001, as reflected from the letter
of the office bearer of the Society
addressed
to
AGM,
NOIDA,
the
controversy ended then and there and,
therefore, on the date of institution of
suit in the year 2002, the plaintiff could
not assert any right allegedly flowing
from membership of SLM or even
allotment made in his favour. The
documents executed by SLM in favour
of the plaintiff would also become of
insignificant value in the facts of the
case
read with
statutory provisions
referred to hereinabove.

24. Another significant aspect
would be applicability of barring provision
of the Act of 1965, section 111 whereof
specifically bars jurisdiction of a civil
court. The said provision reads as under:-

"111. Save as expressly
provided in this Act, no civil or
revenue court shall have any
jurisdiction in respect of :-
(a) the registration of a cooperative society or its bye-laws or
of an amendment of a bye-laws ;
(b) the supersession or
suspension of a committee of
management ;
(c) any dispute required
under section 70 to be referred to
the Registrar ; and
(d) any other order or
award made under this Act."

25. Though in the present case,
neither registration of the co-operative
society nor its Bye-laws nor supersession
or
suspension
of
a
Committee
of
Management nor any dispute required
under Section 70 to be referred to the
Registrar is involved, certainly there is an
order of 10.05.2001 conferring membership
in the society in favour of the defendantappellant no.2-Devendra Kumar based
upon which the lease deed was executed by
NOIDA in his favour on 28.05.2001. The
lower appellate court, while observing that
since all the defendants had maliciously
acted to the detriment of the interest of the
plaintiff and the documents executed
amongst themselves were invalid for such
acts of them, has misdirected itself to
comment upon the membership of the
appellant no.2 in the co-operative society or
act of its office bearers and also declaring
the plaintiff as member without looking
into the fact that the co-operative society
was not a party to the proceedings nor was
its order dated 10.05.2001 conferring
membership upon the defendant-appellant
no.2 under challenge. Surprisingly, the
lower appellate court held the membership
of the appellant No.2 as invalid by simply
observing that the membership as well as
registered lease deed was obtained on the
7 All. Smt. Reeta Dei & Ors. Vs. Raj Kamal & Anr.
1325
basis of an invalid Will dated
10.01.1996. Even if the Court ignores the
Will of 1996, as rightly observed by the
lower appellate court, for the reason that its
photostat
copy
was
inadmissible
in
evidence and, even otherwise, its proof did
not satisfy the statutory requirements
needed for that, the same, in itself, could
not be a circumstance to grant various
decrees by the lower appellate court,
including a decree against the co-operative
society, non- party, and which relief
appears to be clearly barred under Section
111 (d) of the U.P. Co-operative Societies
Act, 1965.

CONCLUSION

26. For all the aforesaid reasons,
this Court is of the considered view that
though the lower appellate court was right
in holding that Will dated 10.01.1996
would not supersede the registered Will
dated 24.11.1995, merely on that basis the
suit could not be decreed as per the
discussion made herein above. In this view
of the matter, first three substantial
questions of law are answered in favour of
the plaintiff-respondent and against the
defendant-appellants, however, the last
question
no.4,
framed
as
regards
transferable right created under the letter of
allotment or a Will, is answered in favour
of the defendant-appellants and against the
plaintiff-respondent holding that mere
allotment made by NOIDA in favour of
SLM or execution of registered Will dated
24.11.1995 or agreement or power of
attorney by him in favour of the plaintiffrespondent was not sufficient to grant the
decree drawn by the lower appellate court.

27. In view of the above, the
instant second appeal succeeds and is
allowed.
28. The judgment and decree dated
17.01.2017 passed by learned Additional
District Judge, First, Gautam Budh Nagar
in Civil Appeal No.19 of 2013 is hereby set
aside. Consequently, Original Suit No.482
of
2002
(Yashpal
Khullar
Vs.
I.R.
Constructions Pvt Ltd and others) stands
dismissed for additional reasons given in
this judgment.

29. Office is directed to remit the
record of lower appellate court as well as
trial court to the District Judge, Gautam
Budh Nagar forthwith so as to facilitate
return of original documents to the
concerned parties by the District Court
office in accordance with the provisions of
General Rules (Civil).
----------
(2024) 7 ILRA 1325
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 454 of 2024

Smt. Reeta Devi & Ors. ...Appellants
Versus
Raj Kamal & Anr. ...Respondents

Counsel for the Appellants:
Sri Prashant Kumar Mishra, Sri Sharad Malviya

Counsel for the Respondents:
--

Civil Law - Code of Civil Procedure,1908 -
Order 22 Rule 10-A-Plaintiff-respondent is a
Co-operative Housing Society-instituted a suit
for declaration of a sale deed inter se
defendant-Appellants as null and void-valuation
and court fee not proper-consequently plaint
rejected-Secretary died-date of death endorsed
by the pleader of the Plaintiff-Trial Court not
justified in rejecting the plaint-should have