* + IN THE HIGH COURT OF DELHI AT NEW DELHI RSA APPL.24781/2019 & CM APPL.25194/2019 APPL.4317/2019, No.17/2019, CM CM Judgment reserved on :
29. 01.2019 Date of decision :24.05.2019 Dr. RACHNA KHANNA SINGH ........ Petitioner
Through: Mr. P. Norula & Ms. Bhawna Khanna, Advocates versus SANTOSH S.P. SINGH AND ORS. Through: Mr. ........ RESPONDENTS
Sethi, Sandeep Sr. Advocate with Ms. Ruchi Singh & Mr. Prashant Kumar, Advocates. CORAM: HON'BLE MS. JUSTICE ANU MALHOTRA JUDGMENT ANU MALHOTRA, J.
1. The appellant vide the present regular second appeal assails the impugned judgment dated 22.10.2018 of the First Appellate Court of the ADJ-02 (South-East) in RCA No.20423/2016 which upheld the judgment dated 16.11.2016 of the JSCC-ASCJ-GJ, South-East District, Saket, New Delhi in CS No.51412/2016 whereby the suit of the plaintiff therein arrayed as the respondent no.1 herein was decreed as under:-
"“The suit is decreed in favour of the plaintiff Ms. Santosh SP Singh with the direction to the defendant no.1 Dr. Rachna Khanna Singh to vacate and handover vacant peaceful possession of the suit portion as shown in blue RSA172019 Page 1 of 17 2. colour in the Site Plan of document in support of plaint, i.e. the flat at A-7, 2nd Floor, Front Portion, Kailash Colony, Lala Lajpat Rai Marg, New Delhi-110048. A Decree of Permanent Injunction is also passed in favour of the plaintiff and against defendant thereby restraining the defendant from selling, transferring, alienating and granting any third party interest in the suit portion or in the property bearing no.A-7, 2nd Floor, Front Portion, Kailash Colony, Lala Lajpat Rai Marg, New Delhi- 110048. The defendant no.2 has admittedly already vacated the suit property. Defendant no.1 is directed to handover peaceful vacant possession of the suit property within three months from the date of this order.” The appellant is the grand son-in-law of the respondent no.1. The respondent no.2 who was arrayed as the defendant no.2 to the suit filed by the plaintiff is the grand-son of the respondent no.1 being the son of one of the daughters of the respondent no.1. The plaintiff/ respondent no.1, a senior citizen aged 88 years at the time of institution of the suit on 02.12.2014 as per pleadings of the appellant and the respondent no.1 on the record before the learned trial Court, is the sole and exclusive owner of herself acquired property bearing No.A-7, Kailash Colony, Lala Lajpat Rai Marg, New Delhi purchased by her vide a sale deed dated 26.03.2004. The said property as per averments made in the plaint consisted of 1000 square yard plot and built up house consisting of ground floor, first floor and barsati and in the year 2008 the house was reconstructed and now comprises of basement, ground floor, first floor, second floor and third floor. It has been averred in the plaint that in terms of the collaboration agreement with the builder, the builder was given the first floor in lieu of RSA172019 Page 2 of 17 providing a completed constructed building and that the plaintiff/respondent no.1 sold a portion of the ground floor to the builder and four apartments were built on the 2nd floor and 3rd floor i.e. two on each floor with the stairwell and lift in the center, out of which, the plaintiff/ respondent no.1 is in occupation of one apartment and that the plaintiff/ respondent no.1 has given one apartment each to her two daughters who admittedly reside in the same.
3. The defendant no.1/ appellant and the defendant no.2/ respondent no.2 herein through the pleadings to the suit on the record of the appellant and the respondent no.1 bring forth that the defendants/ i.e. the appellant and her spouse, i.e. the respondent no.2 herein on re-construction of the said premises started living at A-7, 2nd Floor, Front Portion, Kailash Colony, Lala Lajpat Rai Marg, New Delhi/ the suit portion.
4. Through the non-denial by the defendant no.1 i.e. the appellant herein of assertions in para 6 of the plaint, it is brought forth that the defendant no.1/ appellant herein along with her spouse/ the defendant no.2/ respondent no.2 herein started residing in the premises in suit in 2010. Whereas it is the contention of the plaintiff/ respondent no.1 herein that she had permitted her grand-son, defendant no.2/ respondent no.2 and his wife, defendant no.1/ appellant herein to live in the said premises as licencees, it is contended by the appellant/ respondent no.1 that it was always understood and explained that the defendants/ the respondent no.1 and the respondent no.2 would occupy the said suit premises and it was averred through the written statement of the respondent no.1 to the effect:-
"RSA172019 Page 3 of 17 “it was always understood and explained the defendants shall occupy the portion of the house on its re- construction.” that 5. The plaintiff/ respondent no.1 averred through her plaint that due to the nuisance created by the defendants i.e. the appellant and the respondent no.2 herein who were in the habit of shouting and fighting in a loud voice at all hours of the day and night, causing the sound to rise in the stairwell and other places and there were frequent quarrels and ugly scenes between the defendants i.e. the appellant and the respondent no.2, she, the plaintiff terminated the licence of the defendant no.2 who was living in this premises in suit with his wife i.e. the appellant herein orally in January, 2014, then by an email dated 07.11.2014 and vide the legal notice dated 17.11.2014.
6. As per averments made in the plaint itself, the defendant no.2/ respondent no.2 herein who is the husband of the appellant left the premises in suit around April, 2014 and that the defendant no.2 has already vacated the suit property as indicated vide a decree dated 16.11.2016 of the learned trial Court.
7. As per averments made in the written statement in the suit, the contention raised by the defendant no.1/ appellant was that the defendant no.2/ respondent no.2, her husband had walked out of the marriage with the defendant no.1/appellant and left the premises in suit leaving the appellant/ defendant no.1 along with her daughter in the premises in suit.
8. Though the appellant denies the termination of any license to reside in the suit premises by the respondent no.1, even the institution RSA172019 Page 4 of 17 of the suit per se by the plaintiff/ appellant seeking the vacation of the suit premises has to be deemed to fall within the ambit of a deemed termination of the licence which amounts to termination of the license given by the respondent no.1 to the appellant and to her grand-son i.e. defendant no.2/ respondent no.2 herein to reside in the suit premises.
9. The contention of the appellant that is sought to be urged is to the effect that the premises in suit fall within the category of a shared household in terms of Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005 and seeks to submit that the suit premises being her matrimonial home in which she lives and has lived in a matrimonial relationship with her husband, the respondent no.1, falls within the category of her shared household from which she cannot be dispossessed.
10. Inter alia the appellant submitted that there were proceedings under the Protection of Women from Domestic Violence Act, 2005 bearing no.289/3/2014 that were pending and that the proceedings in the Civil Suit and the appeal in relation thereto could thus not be entertained.
11. Vide the judgment dated 16.11.2016, the learned trial Court held that the occupation of the appellant/ defendant no.1 of the suit portion was only that as a gratuitous licensee which she was under obligation to vacate in view of termination of her license vide a legal notice dated 17.11.2014 and that the contention of the defendant no.1 i.e. the appellant herein of the suit premises being a matrimonial home could not be accepted in as much as the appellant/ defendant no.1 cannot be said to have any right to reside in the property belonging to RSA172019 Page 5 of 17 the grand-mother of her husband and that the appellant herein had not elucidated as to how she termed the suit property or the property bearing No.A-7, 2nd Floor, Front Portion, Kailash Colony, Lala Lajpat Rai Marg, New Delhi as her matrimonial house and observed further that just because the appellant herein had occupied the suit portion for a certain number of years where her fights with her husband intensified does not entitle her to call the suit portion as a shared household.
12. The learned trial Court took into account the observations in Shumita Didi Sandhu vs. Sanjay Singh Sandhu & Ors. 174 (2010) DLT79(DB), a verdict of the Hon’ble Division Bench of this Court herein it was observed to the effect: “In the context of Section 17 of the Act, has held that 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 “share household”.
13. Reference was also made by the learned trial Court to the verdict of this Court in Neetu Mittal vs. Kanta Mittal 2009 AIR (Del) 72 wherein it was held as under: RSA172019 Page 6 of 17 “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 consent and wishes.” 14. Reliance was also placed by the learned trial Court on the proceedings in Barun Kumar Nahar vs. Parul Nahar 2013 (2) AD (Delhi) 517 wherein it was observed by this Court to the effect: “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."
15. Reference was also made by the learned trial Court to the verdict of this Court in Sardar Malkiyat Singh vs. Kanwaljit Kaur & Ors. 168 (2010) DLT521wherein it was observed to the effect: “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 Hindi 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 RSA172019 Page 7 of 17 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.” 16. Reliance was also placed by the learned trial Court on the verdict of this Court in Harish Chand Tandon vs. Darpan Tandon & Anr. CS (OS) NO.1738/2013 to contend to similar effect.
17. The First Appellate Court vide its impugned judgment dated 22.10.2018 has observed vide para 10 to the effect: “10. Appellant in written statement filed before Ld. Trial Court has not stated that she is staying in suit property since date of her marriage. Respondent No.1 in her plaint has stated that appellant and respondent No.2 at the time of reconstruction of property (within which suit property is also located) were living on their own. This fact has not been specifically denied by appellant in written statement filed by her before Ld. Trial Court. Further, appellant in para No.6 of written statement filed by her has stated that her marriage with respondent No.2 was back stabbed by respondent No.2 after 15 years of marriage. Admittedly the property wherein suit property is located was purchased by respondent No.1 on 26.03.2004 and suit was filed by respondent No.1 before Trial Court in the year 2014 meaning thereby that suit property was not abode of appellant and respondent No.2 since beginning of their marriage and the property wherein suit property is located was purchased by appellant much after marriage of appellant and respondent No.2.” and further observed vide paras 18, 19 and 20 to the effect: “18.I am of the view that no doubt appellant is entitled to reside in a house equivalent to the house where she RSA172019 Page 8 of 17 was residing with respondent No.2 when they were living together but that does not entitle appellant to continue to reside in suit property in the circumstances when suit property belongs to maternal grand- mother of respondent No.2 and when property wherein suit property is located has been purchased by respondent No.1 admittedly from her own resources and when appellant and respondent No.2 have not been residing in suit property since beginning of their marriage and appellant has gifted property in her name to her sister after institution of suit before Ld. Trial Court. So, contention of appellant that impugned order is liable to set aside on the ground that the same may render infructuous proceedings with regard to residence of appellant in case filed under provisions of Domestic Violence Act is liable to be rejected. Appellant in proceedings filed under provisions of Domestic Violence Act may pray for grant of equivalent accommodation vis a vis suit property and thus legal right of appellant is not being effected by impugned order. to right 19. It is contended by appellant that Ld. Trial Court completely ignored collusion between respondents, specially the affidavit which does not support suit but is an affidavit copied from divorce petition. Perusal of Trail Court record shows that no doubt affidavit of respondent No.1 had some lines as mentioned in appeal which are not concerning suit filed by respondent No.1 before Trial Court but vide order dated 22.01.2016, Trial Court allowed application of respondent No.1for amendment of plaint which order has not been challenged by appellant till date meaning thereby that the same ground goes for appellant. Further, it is admitted that respondent No.2 left suit property in April, 2014 and till arguments, he has not returned to suit property and not residing in suit property for over period of 4 years does not indicate that there is RSA172019 Page 9 of 17 collusion between respondents no.1 and 2 but rather indicates that respondent no.2 has left suit property in real sense of the term. Hence, this contention of appellant is rejected.
20. Appellant has mentioned certain dates in order to show collusion between respondents No.1 and 2. It is stated that respondent No.2 deserted appellant and minor daughter on 06.04.2014, present suit was filed on 02.12.2014, written statement was filed on 05.05.2015, divorce petition was filed by respondent No.2 on 18.10.2014, application U/o 12 Rule 6 CPC was filed by respondent No.1 on 20.07.2015 and legal notice dated 17.11.2014 was given after respondent No.2 left suit property. It is contended that the way in which possession of suit property could have been sought by respondent no.1 was by way of filing suit for possession against appellant and not by way of filing suit for mandatory injunction as respondent No.2 has already left suit property in April, 2014.” and also observed vide paras 23 to 28 to the effect: “23. It is contended by appellant that since there is no order of vacation against her minor daughter namely Aveka aged 13 years who is under custody of appellant, the minor daughter could not be evicted and thus implying that appellant can also not be evicted. I am of the view that daughter of appellant does not have any independent right to stay in suit property and that she is deriving right to reside in suit property from appellant and respondent No.2 who have already been held not entitled to occupy suit property being licensee. No order of eviction of minor daughter of appellant and respondent No.2 does not imply allowing stay of appellant in suit property. This contention of appellant is therefore rejected. RSA172019 Page 10 of 17 24. It is contended that though respondent No.2 shifted prior to filing of suit before Trial Court, it cannot be said that respondent No.2 had surrendered possession of suit property and that suit property is matrimonial home of appellant. Suit property is not matrimonial home of appellant as discussed in earlier part of this judgment and this contention of appellant is therefore rejected.
25. It is contended that respondent No.1 permitted respondent No.2 to stay in suit property with appellant and their minor daughter and in fact it is respondent No.2 who is licensee who has shifted out of suit property but the same does not defeat right of appellant to reside in suit property specially when there is no order of eviction again respondent no.2. As noted earlier, respondent No.1in plaint filed mentioned status of both appellant and respondent no.2 as licencee which has not been denied specifically by appellant in statement filed before Trial Court. Trial Court in impugned order has specifically observed that respondent No.2 has admittedly already vacated suit property. When relief sought qua possession of suit property against respondent No.2 already stands satisfied on account of respondent No.2 vacating suit property, there is no requirement of passing any specific order qua respondent No.2 asking him to vacate suit property as he has already admittedly vacated suit property. So, this contention of appellant is therefore rejected.
26. It is contended that right of appellant to reside in suit property flows from right of Hindu wife and she is entitled to reside under his roof. Right of appellant as Hindu wife cannot be denied but she cannot choose suit property (property belonging to respondent no.1) to live there forcefully and respondent No.2 is duty bound to provide commensurate accommodation to appellant for which appellant can avail appropriate legal remedy. RSA172019 Page 11 of 17 27. It is contended that there is no clear-cut admission by appellant in written statement about termination of license and that rather it has been mentioned in written statement that construction of suit property was done by respondent no.1 also and it was on account of joint alliance that completion took place. It is stated that question as to how much money was put in by respondent No.2 for construction matter of trial and it as clearly agreed that respondent No.2 and appellant would continue to reside in suit property. Perusal of written statement filed by appellant before Trial Court shows that respondent No.2 was actively involved in reconstruction of suit property as respondent No.1always wanted that family should stay together. It is further mentioned that father of appellant was also involved in getting property constructed with respondent No.2 and due to joint alliance, completion took place as there were issues with builder which was managed and sorted out by father of appellant. I am of the view that sorting out issues with builder by father of appellant if any does not entitle appellant to stay in suit property. It has not been mentioned by appellant that respondent No.2 spent any money in reconstruction of property which includes suit property. To be actively involved in reconstruction does not mean that money has been spent by respondent No.2 in reconstruction of property including suit property. The contention of appellant not taken before Trial Court dehors appellant to take such contention in appeal which cannot be appreciated and is therefore disallowed.
28. Appellant filed judgment in case titled as “Baluram vs. P. Chellathangam & Others Civil Appeals No.10940-10941 of 2014” wherein Hon'ble Apex Court discussed circumstances wherein a person may be considered to be necessary or proper party but the same has no application in facts and circumstances of present case as discussed above as minor daughter of appellant RSA172019 Page 12 of 17 and respondent No.2 does not have any independent right to reside in suit property and she is deriving her right to reside in suit property from her parents who have already been held not to have any right to reside in suit property being licensees. Appellant filed judgment in case titled as “Gulam Rasool and Another Vs. Quasim Bee Died (per LRs ) 2000 (4) ALD445 which is again not applicable in facts and circumstances of present case as just discussed in this para.” 18. The appellant vide the present appeal seeks to urge the following proposed substantial questions of law which are to the effect: “1. Can a premises be deemed to have been surrendered, even though the husband has left the premises voluntarily abandoning his wife and minor child whom he had brought to the house.
2. Whether a decree can be passed only against the appellant wife and not against the respondent No.2 where both the appellant and respondent No.2 are parties to the suit. (Appellant being defendant no 1and the respondent no 2 being defendant no2).
3. Whether in the absence of a decree against the respondent no 2 the respondent no 2 could deem to have vacated and handed over the peaceful possession.
4. Whether the collusion can be ignored between the respondent no 1 and respondent no 2 against the appellant where in the respondent no 1institutes a suit for permanent and mandatory injunction against the appellant and respondent no 2 only after a proceeding for divorce was instituted by the respondent no 2 against the appellant. RSA172019 Page 13 of 17 5. Whether the collusion between the respondents in instituting the present suit could be ignored even though the affidavit filed along with original suit was amended.
6. Whether the collusion in filing the suit is distinct from the amendment.
7. Whether an order could be passed under order 12 rule 6 CPC on the basis of inconsistent pleadings with regard to who is the licensee of the actual premises, which itself is a question of trial.
8. Whether the appellant could be deprived to live in her shared household on the ploy adopted by her husband who had left the house voluntarily only to evict the Appellant
Whether the daughter in law is entitled to the protection of her right of residence against the respondent no 2 irrespective of the fact that the house stands in the name of the respondent No.1and that the wife is not a sub tenant or licensee of the husband.
10. Whether Aveka Singh was a necessary party to the proceedings and her non implication in the array of parties was fatal to the suit.
11. Whether Aveka Singh’s right continues to reside in the suit property on account of no order being passed against respondent no 2 for vacation of property.” 19. A catena of verdicts has been relied upon on behalf of the appellant in support of the contentions that there being collusion between her spouse and the plaintiff/ respondent no.1, she cannot be deprived of her rights to reside in the premises in suit which form her matrimonial home and fall within the category of “shared household” RSA172019 Page 14 of 17 in terms of Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005.
20. Reliance has been placed on behalf of the appellant on the verdict of this Court in Kavita Gambhir vs. Hari Chand Gambhir and Anr. 162 (2009) DLT459 on the verdict of the Hon’ble High Court of Bombay in Sarika Mahendra Sureka vs. Mahendra and Ors. 2016 (6) ABR161 Eveneet Singh & Ors. vs. Prashant Chaudhri & ors. 177 (2011) DLT124 on the verdict of the Hon’ble Supreme Court in B.P. Achala Anand vs. S. Appi Reddy & Anr. AIR2005SC986and on the verdict of the Hon’ble High Court of Allahabad in Neetu Rana vs. State of U.P. and Ors. 2016 (2) Appellate Court Record 1797.
21. Reliance was also placed on behalf of the appellant on the verdict of this Court in Shilpa Tandon vs. Harish Chand Tandon & Anr. in RFA (OS) 113/2015, Navneet Arora vs. Surender Kaur & Ors. in FAO (OS) 196/2014.
22. Reliance was also placed on behalf of the appellant on the verdict of this Court in Smt. Preeti Satija vs. Smt. Raj Kumari & Anr. in CM APP.4236/2012, 4237/2012, 5451/2013 decided on 15.01.2014, on the verdict of the Hon’ble High Court of Bombay in Beryl Murzello and Ors. vs. Ramchandra Bhairo Mane & Ors. 2007 (4) Bom CR397 on the verdict of the Hon’ble Supreme Court in S.M. Asif vs. Virender Kumar Bajaj in Civil Appeal No.6106-6108/2015 to contend that the decree under Order 12 Rule 6 of the CPC which is a discretionary relief ought not to have been granted by the learned trial Court in favour of the respondent no.1 and the same ought not to have been upheld by the First Appellate Court in as much as all the issues RSA172019 Page 15 of 17 which have been raised were required to be gone into at the time of trial and adjudication in relation thereto was essential. ANALYSIS23 On a consideration of the observations of the Hon’ble Supreme Court in S.R. Batra & Anr. vs. Taruna Batra (2007) 3 SCC169 on the verdict of this Court in Eveneet Singh & Ors. vs. Prashant Chaudhri & ors. 177 (2011) DLT124 on the verdict of the Hon’ble High Court of Bombay in Rama Rajesh Tiwari vs. Rajesh Dinanath Tiwari in Writ Petition No.10696/2017, it being apparent through the pleadings on the record that the premises in suit do not fall within the category of a shared household in terms of Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005, the substantial questions of law sought to be urged by the appellant as referred to in para 18 hereinabove do not arise for consideration in the instant case in as much as the rights of the appellant and her daughter to live in the premises belonging to the respondent no.1 i.e. the plaintiff did not exist beyond the mere licence given to the parents of Aveka to live in the same, which has already been terminated.
24. However, as rightly observed by the First Appellate Court, the appellant being the wife of the defendant no.2/ respondent no.2 herein is entitled to live in accommodation commensurate to that in which she lives presently with her child for which she may avail of appropriate civil legal remedy in relation thereto or under the Protection of Women from Domestic Violence Act, 2005 for which there is no embargo. RSA172019 Page 16 of 17 25. Thus, with the above observations, it is held that no substantial questions of law arise in the instant case and thus no notice under Section 100 (4) of the Code of Civil Procedure, 1908 can be issued.
26. The appeal and the interim application CM APPL.4317/2019 are thus dismissed and CM APPL.24781/2019 & CM APPL.25194/2019 call for no action. MAY24h, 2019/vm ANU MALHOTRA, J.
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