The judgement is from High court of Delhi not Supreme court
IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA 299/2014 SUDHA MISHRA ..... Appellant Through:
Ms. Rajesh Banati, Ms. Shagun Sharma and Ms. Babli Kala, Advs. along with appellant in person. versus SURYA CHANDRA MISHRA ..... Respondent Through: Mr. Prabhjit Jauhar and Ms. Anupama Kaul, Advs. along with respondent in person.
CORAM: HON'BLE MR. JUSTICE A.K. PATHAK O R D E R 25.07.2014
Caveat 609/2014 Since caveator has appeared, caveat is discharged.
CM No. 11736/2014 Allowed, subject to all just exceptions. Application is disposed of. RFA 299/2014
1. Appellant-defendant has filed this appeal against the judgment and decree dated 28th April, 2013 passed by the Additional District Judge, Karkardooma Courts, Delhi whereby suit for mandatory injunction, filed by the respondent-plaintiff against the appellant, has been decreed and appellant has been directed to deliver the vacant and physical possession of the portion in her possession in the property bearing no. C-1/9-A, Yamuna Vihar, Delhi(for short hereinafter referred to as ?suit property?), within three months and further not to interfere in the peaceful possession and enjoyment of suit property by the respondent.
2. Briefly stated, facts of the case are that respondent is father-inlaw of appellant. Respondent filed a suit for mandatory injunction against the appellant to quit and deliver the vacant possession of the suit property to respondents. It was further prayed that appellant be restrained from creating obstruction in any manner to the rights of the respondent in the suit property as also to pay mesne profits @ `1 lac per month along with interest. Respondent alleged in the plaint that he was absolute owner of the suit property which he had acquired vide lease deed dated 27th May, 1982 executed by the Delhi Development Authority (DDA). Later on, a conveyance deed dated 7th April, 1995 was executed by the said authority in favour of the respondent. His son was married to appellant at Kanpur, U.P. on 11th December, 1996. After the marriage appellant was living in Kanpur, Lucknow, Allahabad, inasmuch as, her children were also born in Lucknow and Kanpur. Since beginning, appellant and her husband were having strained relationship. Appellant filed a complaint under Section 498-A of the Indian Penal Code read with Section 3 and 4 of the Dowry Prohibition Act against her husband wherein she also named respondent. Relationship between the respondent and his son also became strained. Respondent disowned his son in the year 2011 by issuing a public notice in the newspaper ?Rashtriya Sahara?. The suit property was self acquired property of respondent. Appellant asked the respondent to relinquish the suit property in her favour. Threats were also extended to the respondent, consequently, respondent filed a complaint on 28th June, 2011 with the Police Station Bhajanpura and Deputy Commissioner of Police (North East Delhi). On 11th July, 2011, appellant came to the suit property and tried to occupy the same forcibly. Police was called. However, appellant succeeded in occupying one room, kitchen and bathroom at the ground floor of the suit property. Respondent alleged that appellant had illegally trespassed abovementioned portion. Accordingly, it was prayed that appellant be directed to vacate the suit property and pay mesne profits.
3. In the written statement, appellant took certain preliminary objections. She alleged that suit was not maintainable in view of the alternate remedies available under the law to the respondent. She also alleged that suit was without any cause of action. She was legally wedded wife of son of the respondent and has a right to live therein. Appellant further alleged that suit property was purchased out of the joint family funds. Respondent and his son used to harass the appellant. They demanded dowry. Appellant is living separately from her husband due to matrimonial discord between them. She is living in the suit property right from the beginning. Divorce proceedings are pending between the appellant and her husband. Appellant denied that she had forcibly occupied the suit property. She also denied that she had been living at Kanpur, Lucknow and Allahabad after her marriage. It was prayed that suit be dismissed.
4. In the replication, respondent denied that the suit property was purchased from the joint family funds. He reiterated that suit property was his self acquired property. Other averments made in the plaint were also reiterated. 5. On the pleadings of the parties following issues were framed by the trial court on 8th February, 2012: 1. Whether the plaintiff is entitled to decree for mandatory and permanent injunction as prayed for in respect of property bearing no. C- 1/9A, Yamuna Vihar, Delhi ? 93? OPP 2. Whether the plaintiff is entitled to damages/mesne profits at the rate of rupees one lakh per month with effect from the date of filing of the suit till date the defendant removes her articles from the suit premises, alongwith interest at the rate of 18% per annum on the said amount? OPP 3. Whether the plaint is undervalued for the purpose of court fee and pecuniary jurisdiction? OPP 4. Whether the suit in its present form without praying for possession of the suit premises is maintainable? OPD
6. Respondent examined himself as PW1. Appellant examined herself as DW1. On the basis of evidence adduced by the parties trial court has held that respondent had succeeded in proving that suit property was his self acquired property. Reliance was placed on the perpetual lease deed (Ex.PW1) executed by the DDA in favour of the respondent, conveyance deed dated 6th April, 1995 (Ex. PW1/2) executed by the DDA, site plan (Ex. PW1/3) prepared by the DDA, occupancy certificate (Ex.PW1/4) issued by the DDA and MCD tax receipt dated 16th June, 2011 (Ex. PW1/5). Trial court has further held that there was matrimonial acrimony between the appellant and her husband. In his cross-examination, PW1 specifically deposed that his son was residing at B-3/48A, Yamuna Vihar, Delhi which was not the suit property. He further deposed that appellant used to visit suit property intermittently till the year 2010. He categorically denied the suggestion that suit property was the matrimonial home of appellant. It also came on record in his cross-examination that his son had purchased a property bearing no. GD-28, Kalkaji along with his brother, namely, Satish Kumar. He also stated that appellant and her husband had removed their goods on 4th May, 2011 and left the house of respondent. Appellant had failed to lead any evidence to show that suit property was purchased from joint family funds as no document in this regard was produced and proved. Trial court has concluded that documentary evidence produced by the parties clearly indicated that suit property was self acquired property of respondent and was not the matrimonial home since appellant had herself admitted that she was living alone and away from her husband.
7. By placing reliance on catena of judgments rendered by the Supreme Court and this Court, trial court has concluded that suit property was not a ?shared household?, thus, appellant was not having any legal right to continue to occupy the same against the wishes of respondent. She had no legal right to occupy the property of her father-in-law without his consent and against his wishes.
8. In S.R. Batra and Anr. vs. Taruna Batra (2007) SCC 169, Supreme Court has held thus :- ?As regards Section?17(1)?of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'. No doubt, the definition of 'shared household' in Section?2(s)?of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.?
9. In Shumita Didi Sandhu vs. Sanjay Singh Sandhu and Ors. 174 (2010) DLT 79 (DB), a Division Bench of this Court has held thus :- ?Insofar as Section?17?of the said Act is concerned, a wife would only be entitled to claim a right of residence in a ‘‘shared household’‘ and such a household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a ‘‘shared household’‘. Clearly, the property which exclusively belongs to the father-in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called a ‘‘shared household’‘. The concept of matrimonial home, as would be applicable in England under the Matrimonial Homes Act, 1967, has no relevance in India.?
10. In Sardar Malkiat Singh vs. Kanwaljit Kaur and Ors. 168(2010) DLT 521, a Single Judge of this Court has held thus :- ?While the legal position is clear that the husband has a legal and moral obligation to provide residence to his wife, and if the house where the wife lived on being wedded, belongs to her husband, it would certainly be treated as a ‘‘shared household’‘ or a matrimonial home., there is no such obligation on the father-in-law or the mother-in-law to provide residence to the daughter-in-law. It is also clear that if the house in question belongs to the joint Hindu family, of which the husband is a member, even that would be termed as a ‘‘matrimonial house’‘. In the instant case, no such assertion has been made by the respondent No. 1 and as a matter of fact, it is fairly conceded that the house stands in the name of the appellant, her father-in-law. This would not, in my view, vest any right in the respondent No. 1 to stay indefinitely in the said house by claiming right of residence.?
11. In Neetu Mittal vs. Kanta Mittal 2009 AIR (Del) 72, a Single Judge of this Court has held thus :- ?A woman can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.?
12. In Barun Kumar Nahar vs. Parul Nahar 2013 (2) AD (Delhi) 517, a Single Judge of this Court has held thus: ?Testing the present case in the light of aforesaid discussion, the court is of the view that the plaintiff has been able to establish a very strong prima-facie case in his favour. The defendant No. 1 being a daughter-in-law has no right to reside in the subject property which belongs to her father-in-law as the said property is not covered by the definition of 'shared household', the same being neither a joint family property in which her husband is a member, nor it belongs to the defendant No.?2?and is not even a rented accommodation owned by the defendant No.?2.?
13. The legal position which can be culled out from the above reports is that daughter-in-law has no right to continue to occupy the self acquired property of her parents-in-law against their wishes more so when her husband has no independent right therein nor is living there, as it is not a ?shared household? within the meaning of Section 17(1) of The Protection of Women from Domestic Violence Act, 2005. Wife is entitled to claim a right in a shared household which means a house belonging to or taken on rent by the husband or the house which belongs to joint family of which husband is a member. Daughter-in-law cannot assert her rights, if any, in the property of her parents-in-law wherein her husband has no right, title or interest. She cannot continue to live in such a house of her parents-in-law against their consent and wishes. In my view, even an adult son or daughter has no legal right to occupy the self acquired property of the parents; against their consent and wishes. A son or daughter if permitted to live in the house occupies the same as a gratuitous licensee and if such license is revoked, he has to vacate the said property.
14. In this case, overwhelming evidence was produced before the trial court by the respondent that he was the owner of the suit property which was his self acquired property. No evidence has come on record to suggest that the said property was purchased from the joint family funds and the husband of appellant had any share therein, during the life of his father. It has also come on record that husband of appellant is not residing in the suit property along with the appellant. In her affidavit by way of evidence, appellant has deposed that she is residing separately from her husband in one room at the ground floor. No cogent evidence was produced before the trial court nor any such finding has been returned by the trial court that husband of appellant is living in the suit property. Since suit property is self acquired property of the respondent, appellant has no right to continue to occupy the same against the wishes of respondent.
15. Learned counsel for the appellant has placed reliance on the judgment dated 15th January, 2014 passed in RFA (OS) 24/2012 titled Smt. Preeti Satija vs. Smt. Raj Kumari and Anr. but I find the same to be in the context of different facts. In the said case, disputed questions of facts were raised. However, judgment was passed on admissions, under Order 12 Rule 6 CPC. A Division Bench of this court held that no clear admission was there, thus, the judgment could not have been passed. Interim order was granted and the suit was directed to be proceeded further. This judgment was also relied before the trial court and was considered and trial court has concluded in view of the conflicting judgments, ruling of S.R. Batra (Supra) cannot be ignored. Furthermore, in Preeti Satija (Supra) matter was remitted back to the learned Single Judge for trial. The view taken by the trial court in this regard cannot be found faulted in view of Supreme Court judgment in S.R.Batra (supra) followed by a Division Bench of this Court in Shumita Didi Sandhu (supra).
16. For the foregoing reasons, I do not find any illegality or perversity in the impugned judgment and decree. Accordingly, appeal is dismissed. Miscellaneous application is disposed of as infructuous. A.K. PATHAK, J.