PRADEEP NANDRAJOG, J.

1. M/s. Ram Rakha Mal and Sh.Dewan Chand were the co-lessees each having 50% share in property bearing shop No.91, Azad Market, Delhi. Inter-alia clauses B and C of the perpetual lease-deed stipulated as under:-

(b) The Lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefore.

(c) The Lessee can transfer the land after obtaining the permission of the Lessor aforesaid and the Lessor will not share any unearned increment in the value of the land (being the difference in the premium paid by him to the Lessor and the market value of the land then prevailing) for permitting such transfer. The Lessor will, however, be entitled to claim and recover the unearned increment in the value of land in the event of any subsequent transfer of the land by a transferee the amount so to be recovered being 50% of the unearned increment in the value of the land.

2. On the basis of a general power of attorney executed in his favour by the lessee(s), Shri Ram Nath Chopra applied to the respondent seeking permission to sell the perpetual lease hold rights in favour of one Shri Munshi Ram. Sanction was granted on 18.1.1973. Sale deed was executed in favour of Munshi Ram and on 8.3.1973 mutation was effected in his favour. Thus, Munshi Ram was accepted as the perpetual lessee of the premises.

3. One Man Mohan Anand S/o Munshi Ram obtained a decree for possession concerning the shop. On the basis of the decree for possession, Man Mohan Anand obtained possession of the shop.

4. Munshi Ram executed a gift deed in favour of his son Anand. Application was moved before the respondent seeking mutation in favour of Man Mohan Anand. Mutation was sanctioned on 18.7.1981. Accordingly, in the record of the respondent Shri Man Mohan Anand was recorded as the perpetual lessee.

5. On 30.10.1998 Shri Man Mohan Anand executed a gift deed in favour of the petitioner. It may be noted that the petitioner is the real brother of Man Mohan Anand. Petitioner applied for mutation of the lease hold rights in his favour vide application dated 7.7.2003. According to the respondent, petitioner being not a class-I heir of his brother could not be treated as his blood relation and accordingly, respondent, vide letter dated 10.6.2004, wrote to the petitioner claiming 50% of the unearned increase in the value of the land. This claim was predicated under Clause-c of the lease deed.

6. According to the respondent, whenever there was a transfer of the perpetual lease hold rights, respondent was entitled to claim and recover up to 50% of the unearned increase in the value of the land. This according to the respondent is the power flowing to it under Clause-c of the perpetual lease deed.

7. It was not in dispute that the respondent has framed guidelines as per which, in certain cases of gift, unearned increase is not to be charged. The respondent is not treating said gifts as transfers. Relevant para of the policy reads as under :-

"4.GIFT WHEN NOT TREATED AS TRANSFER FOR RECOVERING UNEARNED INCREASE :

The following two instances of gift of property shall not be treated as transfer and neither unearned increase shall be recoverable nor shall the ground rent revised :-

(i) Gift of properties to the members of one's own family out of natural love and affection; Family for this purpose shall mean husband/wife, mother, father, son, daughter, grandson/grand daughter as the case may be.

(ii) Gift to a charitable institution subject to its furnishing of a certificate that it has no objection to the accepting of the property in gift."

8. A perusal of the policy guidelines shows that the word 'family' is limited to the husband/wife, mother, father, son, da