JUDGMENT
S.N. Kapoor, J.
(1) The petitioner seeks a writ of mandamus directing the Respondent No.1, The Registrar, Delhi Coop.Group Housing Societies to clear his name for allotment of flat and for directing the Rishi Coop.Group Housing Society Ltd., Respondent No.2 to allot the flat to the petitioner.
(2) An interesting question arising in this writ petition is: “Whether a Karta of Huf, who has purchased a house is disqualified for the purpose of the membership of a housing society and allotment of plot of land in the Society under Rule 25(i)(c) of Delhi Cooperative Societies Rules 1973”?
(3) Before proceeding further, let us see the background in which this question arose. The petitioner became member of the respondent No.2 Society in 1979. On 28.11.1988 a complaint was received by the respondent society that the petitioner had become disqualified for he had purchased a House No.W 76, Greater Kailash, Part-1, New Delhi. On 4.3.1989, the respondent society required the petitioner to submit a fresh affidavit in the prescribed form. On 10.5.1989, the petitioner requested the society to return back the money along with the interest/equalization Charges. In the meeting of 26.7.1989 and 12.11.1989. the petitioner was expelled from the membership. On 27.4.1990 the society again demanded Rs.70,406.00 to clear his name. On demand of Rs.79,971.10 towards the cost of the flat, the petitioner made the payment of Rs.80,000.00 on 6.8.1990. On 25.1.92 and 2.3.92, the petitioner was again required to approach the Registrar, Delhi Coop.Group Housing Societies, for including his name in the draw of lots. Despite the request made, his name was not cleared. The society demanded Rs.81,756 further. That amount was also paid on 4.3.1994. Despite the letter dated 30.3.94, the respondent No.1 failed to clear his name for allotment of flat and respondent No.2 failed to give any flat to the petitioner.
(4) According to affidavit filed on behalf of Respondent No.1, his case is that on the basis of the complaint received, clarifications were sought from the petitioner about the allegation that he was having residential property in Delhi. In his reply, the petitioner had admitted that he had purchased a residential property bearing No.W-76. Greater Kailash, New Delhi in the name of Huf and the petitioner is the Karta thereof. It was also revealed from the sale deed that the property was purchased prior to the admission of the petitioner as member of the society. In view of Rule 25 of the Delhi Cooperative Society Rules,1973, the petitioner incurred disqualification to become a member of the society. Accordingly, the petitioner had not been found eligible for membership of the society. Obviously, he was not entitled to the flat, was the plea of the Respondent No.1,the Registrar,Delhi Coop.Group Housing Society Ltd.
(5) The Respondent No.2 had belatedly taken a plea that the petitioner is a valid member of the society and his name was sent to the Registrar, Coop.Group Housing Societies as his name has not been cleared (though earlier on 26.7.1989 and 12.11.1989, he was admittedly expelled by the Society). The dispute whether the petitioner had become disqualified under Rule 25, was the matter to be decided by the Registrar under Rule 25 (iv) of Delhi Co operative Societies Rules, 1973. ”
(6) In his rejoinder affidavit dated 20.7.1995, the petitioner denied that he owned any house/property in his individual capacity. The property bearing No. W-76 Greater Kailash, Part-1, New Delhi was an Huf property of which the petitioner is a KARTA.
(7) We have heard the learned counsel for the – petitioner , Shri Ravi Gupta, Shri Sanjay Poddar, Advocate for Respondent No.1 and Sh. Anil Kumar, Advocate, counsel for Rishi Coop.Group Housing Society Ltd. (Respondent No.2) and gone through the records.
(8) It was pleaded by learned Counsel for the petitioner that the Delhi Co operative Societies Act and the rules framed thereunder did not debar any member or a co-parcener of an Huf to be a member of a society for allotment of a flat. Rule 25 framed under the Act which provided for various disqualifications of becoming member of the society, even did not provide for disqualification due to acquisition of property by HUF.
(9) Thus, as the purchase of the aforesaid house is not in dispute, it is now purely a legal question formulated above in para 2 .which is required to be decided.
(10) Before proceeding further, let us consider Rule 25(i)(c) of Delhi Cooperative Societies Rules,1973. It reads as under: “SECTION25. Disqualification for Membership: (1) No person shall be eligible for admission as a member of a cooperative society, if he… (c) in the case of membership of a housing society:- (i) he owns a residential house of a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the Union Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free hold basis provided that disqualification as laid down in sub- rule (1)(c)(1)shall not be applicable in case of persons who are only co- sharers of joint ancestral properties in congested localities (slum areas)whose share is less than 65.72 Sq.meters(80 Sq.yards)of land; (ii) he deals in purchase or sale of immovable properties either as principal or as agent in the Union Territory of Delhi;or (iii) he or his spouse or any of his dependant children is a member of any other housing society except otherwise permitted by the Registrar.”
(11) It would not be out of place to reproduce the observations of a Full Bench of our own High Court about the performance of Rule 25(i)(c) and sub-rules 2 and 3 of Rule 25 in the case of Sh. Daulat Ram Mendiratta vs. the Lt. Governor & ors, Ilr 1983(II) Delhi 487 at P.502 Pr. which are as under:- “THAT Rule 25(2) (i) and (2) has the effect of providing that a person will be disqualified for being a member if he owns a residential house or a plot of land in his or in his wife’s or in the name of his dependent children. The purpose of this rule is obvious. As there is large scale housing shortage and as land is limited the Government must so frame and modulate its policies that it should be able to satisfy as large a number of people in their need of providing houses to them. This can only be done if the distribution in the shape of land at concessional prices and with Governmental aid is done to meet the genuine need of each family. This purpose would certainly be defeated if there was no limitation on a person or on a family acquiring more than one residential plot. It is true that there may not be any legal bar to a family or a person owning more than one house. If the person does want to own it and if there is no prohibition in law he may do so but then he cannot be permitted to avail of the instrumentality of a co-operative society Rule 25(l)(c)(2) and 25 (2) have been framed and is applicable to only members of the Coop.societies…”
(12) Thus, the cooperative societies like the present one which has the effect to attain land from the Government at the concessional rate and to build houses , may not have unnecessary limitation that only members who are in real needs of houses would become members and to seek the benefit of land allotment in the of cooperative societies, a person cannot be permitted to avoid market price and take a concessional advantage in obtaining a plot.
(13) Before proceeding further, let us appreciate the nature of the title of the petitioner in respect of property purchased in the name of Huf of the petitioner. From a photocopy of the sale deed on file at page 53, it appears that the property was purchased on 15.2.79 for a sum of Rs.4,80,000.00 (Rupees Four lakhs eighty thousand only) “in favour of Shri Radhey Mohan & Sons through its managing Karta Radhey Mohan…”. It is not the case of the petitioner that the property has been purchased for a trust and he was only a trustee of that property without having any personal interest therein,
(14) In regard to acquisition of property by persons constituting Jhf, Mulla in his Hindu Law (16th edition) at pages 253-254 states the law as under:- “228.Property jointly acquired (1) Where property has been acquired in business by persons constituting a joint Hindu family by their joint labour, the question arises whether the property so acquired is joint family property, or whether it is merely the joint property of the joint acquirers, or whether it is ordinary partnership propetry. If it is joint family property, the male issue of the acquirers take an interest in it by birth {(S.221,sub-s.(1)}. If it is the joint property of the acquirers, it will pass by survivorship, but the male issue of the acquirers do not take interest in it by birth { (S.221,sub- s.(2)}. If it is partnership property, it is governed by the-provisions of the Indian Partnership Act,1932, so that the share of each of the joint acquirers will pass on his death to his heirs, and not by survivorship. (2) If the property so acquired is acquired with the aid of joint family property, it becomes joint family property. (3) If the property so acquired is acquired without the aid of joint family property, the presumption is that it is the joint property of the joint acquirers but this presumption may be rebutted by proof that the persons constituting the joint family acquired the property not as members of a joint family, but as members of an ordinary trade partnership resting on contract, in which case the property will be deemed to be partnership property.”
(15) In view of the averments made in the sale deed dated 15.2.79, it is apparent that even if it is a self-acquired property, it was thrown in the common lot of the Joint Hindu Family property. Mulla further states in para 228-A in respect of such a property as under:- “JOINT acquisitions by some members So long as a family remains as undivided family,two or more members of it, whether they are members of different branches or of one and the same branch of the family can have no legal existence as a separate independent unit; but all the members of a branch or of a sub-branch,can form a distinct and separate corporate unit within the larger corporate family and hold property as such. But the law does not recognize some of the members of a joint family belonging to different branches or even to a single branch,as a corporate unit. Any acquisition of property by some such persons could be held by them only as co-sharers or co-tenants and the property would pass by inheritance and not by survivorship.”
(16) In regard to management and enjoyment of coparcenary property, it has been further stated in MULLA’s Hindu Law at page 267 in para 235 as under: “RIGHTS of coparceners (1) Community of interest and unity of possession No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property (t). As observed by their Lordships of the Privy Council, “there is community of interest and unity of possession between all the members of the family”(u). This has been reiterated by the Supreme Court in numerous decisions. (2) Share of income-A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place(v).As no member while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property(w). The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family(x). It is competent to the manager to allot to any individual member a portion of the family property to enable him to maintain himself out of its income. Any savings out of the income and investments of such savings will be the separate property of the member (yz). 608 (2a) Joint possession and enjoyment- Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. Hew is not bound to sue for partition. (3) Exclusion from joint family property Where a coparcener is excluded by other coparceners from the use or enjoyment of the joint property or any portion thereof, and the act of the defendants amounts to an ouster of the plaintiff from his enjoyment of the property, the Court may by an injunction restrain the defendants from obstructing the plaintiff in the enjoyment of the property(c) (5) Right to enforce partition Subject to the provisions of S.S. 307, every adult coparcener is entitled to enforces partition of the coparcenary property.”
(17) In view of the above statements of law regarding coparcenary and copartner ship property, by no stretch of imagination it can be said that the petitioner had not acquired any right,title or interest within the meaning of Rules 25(i)(c)(ii)and(iv).
(18) Further, in view of the averments made in para 3 of the affidavit dated 14.12.92 that, the property No.W-76 Greater Kailash, Part-11, New Delhi, did not belong to the father of Sh Radhey Mohan, it was obviously not inherited by him or dependent children. The said property was allegedly purchased by Huf and belonged to Huf and was being so assessed by Mcd, Income- Tax and Wealth Tax. This affidavit also does not disclose that the property was purchased With the nucleus of joint family property. As such,it has to be presumed that that it was self-acquired property which he had thrown in the common lot. It further indicates that till 14.12.92 his children were dependant on him, consequently they could not have contributed towards the sale price. If the property had been purchased by him in the aforesaid circumstances for a joint family comprising of himself and his dependent sons then, Rule 25(i)(c) would certainly be attracted for he owned a residential house or a plot of land for the residential house in his own name along with the name of his dependent children. In any case, he had a share in the property and it cannot be said that he did not own a plot of land for the construction of a residential house.
(19) Consequently, he has incurred disqualification specified in sub-rule 1(c)(i) and he has ceased to be a member from 15.2.79.
(20) In view of the foregoing, the petitioner is not entitled to the mandamus prayed for and the writ petition is dismissed, however, without any order as to costs.