Date of filing :20.12.2018

Judgment : Dt.16.12.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Smt. Sanju Jain and (2) Sri Ramnarayan Ghosh alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Tilak Majumdar, (2) Sri Ratan Dey, (3) Sri Kajal Dey, (4) Sri Chandan Dey, (5) Sri Tilak Dey, (6) Smt. Iti Dey Barman and (7) Smt. Chhaya Dey.

            Case of the Complainant, in short, is that one Pravabati Dey since deceased was the owner in respect of KMC Premises No.84/119, Mina Para Road, Kolkata – 700 032. Said owner died leaving behind three sons namely Jyotish Chandra Dey, Dulal Dey and Bijoy Dey and one daughter namely Manju Rani Chowdhury as legal heirs. So, the said sons and daughter inherited the property. Subsequently, Jyotish Chandra Dey died leaving behind his widow Binapani Dey and five sons and one daughter. Subsequently, the said widow of Jyotish Chandra Dey namely Binapani Dey also died leaving behind OP No.2 to 6. OP No.7 is the widow of one of the sons of Jyotish Chandra Dey namely Badal Dey who also subsequently died. For better use and enjoyment of the property two sons of Provabati Dey, namely Dulal Dey and Bijoy Dey and the daughter Manju Rani Chowdhury entered into a development agreement on 21.7.1998 with the OP No.1 to raise and construction of four storied residential building and also executed general power of attorney in his favour. Complainants therefore entered into an agreement for sale dt.25.10.1998 with the OP No.1, Developer, to purchase a flat on payment of consideration of Rs.80,000/-. Complainants have paid the entire consideration of Rs.80,000/- and the possession of the flat has also been delivered to the Complainants on 29.4.1999 and since then they are in possession. Repeated requests were made by the Complainants to the OP No.1 and the said Dulal Dey, Bijoy Dey and Manju Rani Chowdhury to execute the deed of conveyance to which they assured that they will do so after expiry of the period of embargo of the title deed in the name of Pravabati Dey as she had acquired the property by way of indenture duly executed and registered by the Government of West Bengal on 6.4.1990 under the disposal of Refugee Relief and rehabilitation. Subsequently, Dulal Dey died intestate leaving behind his wife as only legal heir who also died subsequently intestate without any child. Thereafter, Bijoy Dey also died intestate as bachelor and Manju Rani Chowdhury also died intestate issue-less.

OP No.2 to 7 are the present owners in respect of the entire premises No.84/119. But on repeated requests they did not execute and register the deed of conveyance in favour of the Complainants and thus the present complaint has been filed praying for directing the OPs to execute and register the deed of conveyance, to pay compensation of Rs.20,000/- and litigation cost of Rs.10,000/-.

Complainant has annexed with the complaint, copy of the development agreement dt.21.7.1990, copy of General Power of Attorney, copy of agreement for sale dt.25.10.1998, copy of the money receipts, possession letter dt.29.4.1999 and copy of the notice sent by the Complainants.

On perusal of the record, it appears that notice was sent, but, in spite of service of notice, no step was taken by any of the OPs and thus vide order dt.30.5.2019 the case was directed to proceed ex-parte.

            So, the only point require determination is- Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

In support of their claim that the development agreement was executed by and between the Developer/OP No.1 and the owners Dulal Dey, Bijoy Dey and Manju Rani Chowdhury, the development agreement has been filed. On perusal of the said agreement, as well as the copy of the power of attorney, it appears that the owners granted exclusive right to the developer for promotion and construction of the four storied building and to enter into agreement for sale of the flats and other spaces in the said premises being the Developer’s allocation to different intending purchasers. Consequent to the same, the developer entered into an agreement to sell the flat as described in the schedule of the complaint in favour of the Complainants. Same is also evident from the copy of the agreement dt.25.10.1998.

            The main question which is required to be considered is whether the OPs No.2 to 7 who admittedly are the legal heirs of one of the owners namely Jyotish Chandra Dey, can at all be made liable to execute the deed of conveyance in favour of the Complainants. It is an admitted fact that their predecessor-in-interest namely Jyotish Chyandr Dey was not a party to the development agreement or the power of attorney. The development agreement as well as power of attorney were executed only by the three legal heirs of Provabati and consequent to the said development agreement and power of attorney the building was raised by the Developer OP No.1. It is true that if Jyotish Chandra Dey was not a party to the development agreement and power of attorney, the developer could not have any right to sell his share in the property. But, it is the specific claim of the Complainants that the three legal heirs of Provabati, who had executed the development agreement, died intestate leaving no other heirs. It is claimed that  Dulal Dey and his wife died intestate having no child. Bijoy Dey another co-owner died intestate as bachelor and similarly, Manju Rani Chowdhury another co-owner in the development agreement also died intestate issue-less and so present OPs have become the owners of the said premises raised by OP developer. Since, before this Forum, there is no material that there are any other legal heirs of those three owners who had executed the development agreement, claim of the Complainants that after the death of three owners, the OP No.2 to 7 have become the owners of the premises No.84/119 indicating that OP No.2 to 7 have also inherited the shares of those three owners and thus liable to execute the deed of conveyance cannot be refused. So, OP No.2 to 7 cannot shed their responsibilities from executing the deed in favour of the Complainants, who especially are in possession of the flat in question since 1999.

            Thus in view of the above discussions, Complainants are entitled to the relief of execution and registration of the deed in respect of the flat in their favour and for the litigation cost.

      Hence

                      ordered

            CC/683/2018 is allowed ex-parte. OPs are directed to execute and register the deed of conveyance in respect of the flat as per agreement dt.25.10.1998 in favour of the Complainants within three months from the date of this order. They are further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of three months.