ORDER

(Passed this on 28^th October,  2016)

Shri Shekhar P. Muley, President.

01.    This is a complaint of unfair trade practice against a Co-Operative Housing Society in respect of a plot.

02.    Facts in short are that the Opposite Parties 1 and 2 are respectively Secretary and President of Welcome                       Co-Operative Housing Society. The complainant is legal heir of late Smt. Shalinitai Patil, who by her Will Deed dated 14.1.2004 has given all rights in respect of the plot in question. Shalinitai Patil (hereinafter the deceased) died            on 10.1.2007  and since then  the complainant  is  the  sole

claimant. The O.P’s are in real estate business and sell plots after making layout. They own a layout in land P.H. No.7,  Kh. No. 120/1 at Dabha, Tah & Dist. Nagpur. The complainant made an agreement with the O.P. to purchase plot No.90 ad measuring 1500 sq.ft. in the said layout. The deceased paid consideration amount from time to time to the OP. She paid in all Rs.28,000/- of which receipts were issued, and thereafter paid Rs.20,450/- but receipt was not given. No sale deed was executed in her favour. In the year 2004 the deceased had fallen ill and so she could not pursue the matter with the O.P. But after her death, the complainant being her legatee requested the O.P. to execute sale deed of the plot in his favour, but to no avail. This being unfair trade practice and deficiency in service, the complainant has prayed that the O.P. be directed to execute sale deed of plot No.90 and deliver its possession, and if this is not possible the present market value of the plot be given to him, or plot No.90 is not available another plot in the same layout be given to him. Besides he also claimed compensation and litigation cost.

03.    O.P. 1 has filed its written version with preliminary objection. It is stated that the complainant has no locus to file the complaint. The deceased was unknown to the O.P. and there is no agreement either with the deceased or with the complainant to sell the plot in question. The complainant is claiming right on the basis of an alleged Will Deed of the deceased, but it has not been proved nor is probate produced. Evidence is required to prove the Will which cannot be decided by the forum. The said Will is ineffective because no rights in respect of the plot in question was acquired by the deceased. The deceased, as per the complainant, was not keeping well and if that be her condition she cannot be said to be in right mental condition to make a Will. The complaint is also said to be barred by limitation.

04.    In para wise reply, it is not denied that the O.P’s deal in real estate business and sell plots. It is denied that the deceased had made an agreement with the O.P’s to purchase plot No.90 as described in the complaint. Payment by the deceased and receipts are also denied. It is denied that they avoided to execute sale deed and deliver possession. All the documents filed by the complainant are false and bogus. It is tried to show that payment was received by one V.L. Kolhe, but he is neither office bearer nor member of the O.P. society. There is no agreement to verify what was the consideration. The plot No.90 was already sold

to one Abdul Mohit and he has been in possession since 2000. Since disputed questions of facts and law are involved, the complainant should have approached civil court. On all these counts, it is prayed to dismiss the complaint. 

05.    O.P. 2 failed to contest the matter despite service of notice. Therefore, the matter is heard ex-parte against it.

06.    We have heard learned counsels for both the parties and perused documents. After due consideration of the same we record our findings and reasons as under.

FINDINGS  AND  REASONS

07.    As could be gathered from the reply of the O.P., it has totally denied having entered into an agreement with the deceased to sell the plot in question. Consequently, the alleged receipts given to the deceased are also denied as bogus. The complainant has come up with a case that the deceased had executed her Will by which she bequeathed her property to him and that includes the plot in question. The O.P. has strongly challenged the Will on various counts, besides its proof. It would, therefore, be proper to  consider the rival contentions first on the Will.

08.    The Will Deed is a registered document. The deceased died issue less and therefore she bequeathed her property to her two nephews, Rupesh (the complainant) and Himanshu. By this Will she bequeathed the plot No.90, which is involved in this complaint, to the complainant. We are not concerned with other disposition. The Will Deed is attested by two witnesses. So on the face of it, the Will Deed, procedure wise, appears to be legal document.

09.    Learned counsel for the O.P. contended that mere filing of Will Deed is not sufficient proof nor it conveys any right, title or interest in the bequeathed property unless and until it is probated by a competent court. He then referred to Section 68 of the Evidence Act and Section 63 of the Succession Act and contended that the onus probandi lies upon the party propounding a will, and he must satisfy the court that the instrument so propounded is the last will of a free and capable testator. In other words the onus to prove legality and genuineness of a will is on the person, who supports his case on the will. Reliance is placed on some judgments.

1. Seth Beni Chand v/s Smt. Kamla Kunwar (1976) 4 SCC 554

2. Bharpur Singh v/s Shamsher Singh (2009) 3 SCC 687

3. Kashibai v/s Parwatibai (1995) 6 SCC 213

          The law regarding proof of a Will is well settled and no detailed discussion is required on it in a consumer dispute. Learned counsel for the complainant contended that requirement of proving a will as per the procedure would arise only when the will is challenged by any legal heir or relative of the testator. A third person has no right to challenge a will. Since the O.P’s are third persons having no right in the will they cannot ask for proof of the will.  We agree with this contention of the learned counsel for the complainant, for the Evidence Act or the Succession Act are not made applicable to the proceedings conducted under the Consumer Protection Act. The C.P. Act has been enacted for speedy justice and therefore all proceedings before Consumer Forum or Commission are held in a summery manner. It is also contended that a Will deed will be ineffective till probate is obtained from a competent court. Since the complainant has not filed probate, it is contended, the Will Deed is of no consequence. Again we differ with this argument. Probate is required only in metro cities, like Mumbai. So considering the legal position on proof of Will, we hold that the challenge to the Will Deed for not being probated is not worthy of consideration. However, legality of the Will Deed appears to be under challenge. If the General Power of Attorney executed by the complainant in favour of his uncle is perused, it would be clear that a court litigation is pending wherein the said Will Deed is under challenge and the complainant is one of the parties to that litigation. It shows the right of the complainant as a beneficiary under the Will is yet to be established and unless that is established he

cannot make any claim to any property given to him under the said Will. We therefore agree with the contention of the counsel for the O.P. in this regard.

10.    Another question is whether the deceased had right to bequeathed the plot by Will Deed  to the complainant. This question arises in view of the fact that the deceased had not become owner of the said plot. No sale deed was executed in her favour, nor possession was delivered. There was no written agreement between the deceased and the O.P. regarding alleged transaction of the plot in question. A Will is a mode of transfer of property to another, which comes into effect after the death of the testator. So the testator                 must have transferable rights in the properties which are to

be given by way of Will. Since the deceased had not acquired full ownership on the plot she could not have given it to the complainant. But under the C.P. Act a complainant includes his legal heir or representative in case of death of a complainant. Therefore the complainant has right to lodge complaint. Whether he can ask for sale deed of the plot on the basis of a Will Deed depends on whether the testator had right to make a consumer complaint. For that purpose we have already stated that there was no agreement between the deceased and the O.P’s. It would also be important to consider the receipts and other documents.

11.    The receipts appear to have been issued on behalf of the O.P. 2. But there is nothing to show who was the person issuing receipts and what was his connection with the O.P’s. The O.P’s have vehemently denied the receipts and even denied having received any amount from the deceased. The complainant tried to show that one V.L. Kolhe used to collect money on behalf of the O.P.’s and this has been mentioned in A/c statement. V.L. Kolhe has filed his affidavit in suport of it. A counter affidavit has been filed on behalf of the O.P’s denying that V.L. Kolhe was their employee or agent or was

given authority to collect money from consumers on their behalf. Thus completely denying any connection with                V.L. Kolhe, the O.P’s have accused the complainant of fabricating false evidence. We have perused the A/c statement purported to be of the deceased pertaining to the disputed plot. It is a xerox copy. The A/c reveals V.L. Kolhe has received money as a agent of the OP and it is prepared by the complainant. So it cannot be taken as A/c maintained by the OP. Moreover, the signature purported to be of the deceased on this account statement differs from her signature appearing on her Will Deed. That raises serious doubt about genuineness of the account statement.

12.      It would be pertinent to note that neither in the complaint nor in the legal notice any reference is made of V.L. Kolhe. His reference for the first time came in the affidavit. An income certificate of V.L. Kolhe is filed. It does not reveal that he was authorised to collect money from prospective purchaser on behalf of the O.P’s. It is stated that he was a peon of the O.P. society. If that be the case, obviously he could not have authority to receive money on behalf of the O.P. society.   Admittedly  the  receipts  do  not bear signature of either the President, or Secretary, or of any office bearers of the society. A peon cannot be an office bearer of the society.  A copy of the ledger of the OP society is also filed to show the amount deposited by the deceased. But the copy is not authenticated; it does not have signature or seal or attestation and since it is denied by the O.P’s it cannot be accepted as a proof unless it is formerly proved by producing the original ledger, which has not been done. Hence no reliance could be placed on such suspicious document. Apart from that, from mere receipts the terms and conditions of agreement cannot be established. It is not explained whether entire amount was paid by the deceased.

13.    The complainant has also filed bank statement to show the deceased had made payment to the O.P. society. There is only one debit entry of Rs.15,00/- in favour of the O.P. society on 15.12.2001. Some debit entries are in favour of Kolhe, but that does not prove  the payment was made to the OP society for the plot in question.

14.    The complainant through her POA had approached the Deputy Registrar, Co-Op. Society for her grievance against the O.P. Genuineness or otherwise of the receipts was challenged before the Dy. Registrar. The Dy. Registrar by his order directed her to approach appropriate authority. Thus payment of money as alleged by the complainant could not be proved before the Dy. Registrar and it cannot be decided in a summery proceeding before the forum. It requires evidence which can only be properly adduced and considered before a civil court.

15.    The complainant never appeared before the forum. He filed the complaint through his appointed attorney Vasant patil, who is his father. Learned counsel for the O.P’s has raised question on the authority of the Attorney to adduce evidence for the complainant. It is contended that a Power of Attorney holder cannot depose for or on behalf of the complainant. It is a fact that the affidavit evidence is given not by the complainant but by his attorney. Obviously, the Attorney could not have knowledge of the alleged transaction as he is nowhere concerned with it. The competency of the Attorney to depose about alleged transaction, payment of money by the deceased, etc. is seriously challenged by the O.P. In fact, he has not been given power to depose on behalf of the complainant. There is absolutely no reason why the complainant did not give his own testimony on affidavit. The contents of the affidavit of the Attorney are therefore hearsay evidence and not worthy of consideration.

16.    As said before, the complainant has failed to disclose what was the consideration of the plot in question and on what terms the agreement was made, albeit no written agreement was executed. Even if bank statement and receipts are considered, these documents, at the most show some amount was paid by the deceased to the O.P. society. But that itself is not a proof of an agreement of sale of the plot in question. The complainant has failed to establish the alleged agreement of sale between the deceased and the O.P’s. When basic ingredient of the dispute is not established, mere receipts are of no consequence. The complainant must approach civil court for his grievances. The complaint is therefore liable to be dismissed. Hence, we pass the following order.

ORDER

1. The complaint is dismissed with no order as to cost.
2. Copy of the order be supplied to both the parties free of cost.