* HIGH COURT OF DELHI : NEW DELHI + I.A. No.500/2011 in CS(OS) No.85/2010 % Judgment pronounced on: 13.01.2012 RAJ KUMARI .......Plaintiff Through: Mr Nishant Datta, Adv. Versus PREETI SATIJA and ANR. .....Defendants Through: Mr Sudhir Mendiratta, Adv. for D-1. Mr Ankit Jain, Adv. for D-2. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J..
1. By this order I shall dispose of the present application filed by the plaintiff under Order XII Rule 6 read with Section 151 of CPC stating that the defendant No.1 has made admission of facts in her written statement..
2. The plaintiff has filed the present suit for eviction/ possession, permanent injunction and mesne profits against the defendants in respect of portion of property bearing No.2245, Hudson Lane, GTB Nagar, Kingsway Camp, Delhi - 110 009 (hereinafter referred to as the suit property)..
3. The defendant No.1 is the daughter-in-law of the plaintiff and wife of her disowned son, who is defendant No.2 herein. The suit property originally belonged the husband of the plaintiff namely Shri CS (OS) No.85 of 2010 Page 1 of 9 Tek Chand, who passed away on 30.06.2008 leaving behind a registered Will dated 20.11.2006 whereby, he bequeathed the entire suit property to the plaintiff who alleged that after her husbands' death, she became the sole and absolute owner of the suit property. It is stated by the plaintiff that the back portion of the suit property comprising one bedroom, one bathroom and a small kitchen is in occupation of the defendants but as the relations between the plaintiff and the defendants have become estranged, therefore the plaintiff has filed the present suit for eviction..
4. By way of this application the plaintiff is seeking a decree of possession against the defendant No.1 herein, in respect of the back portion of the suit property..
5. In the reply on behalf of defendant No.1 to the present application, it is stated that the plaintiff is not the absolute owner of the suit property and the Will is yet to be probated and to be tested before the court of law and that without probation, the Will cannot come into force..
6. I have heard the learned counsel for both the parties in the above mentioned application. It is not in dispute that originally, the suit property belonged to the husband of the plaintiff Sh. Tek Chand, who passed away on 30.06.2008 leaving behind a registered Will dated 20.11.206 whereby he bequeathed the entire property in favour of the plaintiff. The plaintiff, in support of her contention, has filed conveyance deed dated 21.11.2002 pertaining to the registration of property bearing No.2245, Hudson Lane, GTB Nagar, Kingsway Camp, Delhi - 110 009 and also filed copy of the registered Will dated CS (OS) No.85 of 2010 Page 2 of 9 20.11.2006..
7. In her written statement, the defendant No.1 has not disputed the existence of the registered Will dated 20.11.2006 executed by the plaintiffs' late husband and her only objection in the written statement is that the said Will dated 20.11.2006 is not probated. It is settled law that the probate of the Will is not mandatory in Delhi. Incase, titles of the suit property are clear about the ownership of the immovable property, then the party concerned is entitled to claim ownership of the suit property. The defendant No.1s' only defence to the present suit remains that the suit property is her matrimonial home. The said defense has also been dealt with in various decisions of the Apex Court wherein it has been held that a woman has no right of residence in the property of her in-laws under the provisions of Protection of Women against Domestic Violence Act, 2005..
8. The plaintiff has also filed the copy of the notice dated 24.09.2009 issued to her son Sh. Sanjay Satija wherein it was specifically mentioned that the defendants were not having healthy relations with the plaintiff and both did not care about the plaintiff and due to the same, the plaintiff had disowned her son as well as his wife and also issued a public notice dated 19.09.2009 in this regard which was published in Rastriya Sahara. Request was also made to vacate her house and hand over the vacant possession. However, the possession was not handed over. Therefore, the plaintiff issued another notice dated 19.12.2009 in this regard to her son as well as daughter-in- law for vacation of the suit property. After the said notice, the plaintiff also received summons along with plaint and documents of the CS (OS) No.85 of 2010 Page 3 of 9 proceedings initiated by the defendant against her husband by filing of civil suit in the court of Civil Judge, North West, Rohini Courts, Delhi, being Suit No.16/2010, which is still pending..
9. The submission of the plaintiff is simple and straight that it is her property and the defendants have no right to reside there as both of them are harassing her. It is also contended by the plaintiff that the defendant No.1 in conspiracy with the defendant No.2 attempted to lodge a false criminal complaint against the plaintiff and the plaintiff's other sons. Therefore, the plaintiff had to take the decision of disowning her son and the daughter-in-law. The plaintiff has also terminated the deemed/implied license of the defendants in this regard and asked the defendants to vacate the suit premises along with their children. The learned counsel for the plaintiff has also made a statement that the husband of the defendant No.1 is residing separately as the defendant No.1 has initiated the proceedings against him and both have strained relations..
10. This Court in the case of Sardar Malkiat Singh Vs. Kanwaljit Kaur And Ors., RFA No.183/2006 and CM No.4575/2006, dated 12.03.2010, on almost similar facts, referred to judgment of the Supreme Court in the case of S.R. Batra Vs. Smt. Taruna Batra: 2006 (4) Crimes 433, in which the Supreme Court, while setting aside the judgment of the High Court, held as under: "11. With respect, we are unable to agree with the view taken by the High Court. As held by this Court in B.R.Mehta v. Atma Devi and Ors. MANU/SC/0740/1987, whereas in England the rights of CS (OS) No.85 of 2010 Page 4 of 9 the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India. In the same decision it was observed "it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife.".
12. In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the Court. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint..
13. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in- law." It was further held: "22. 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, CS (OS) No.85 of 2010 Page 5 of 9 mother of Amit Batra. Hence it cannot be called a 'shared household'..
23. 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.".
11. The other relevant paras 14 to 16 of Sardar Malkiat Singh (supra) read as under: "14. Regarding the findings on issue Nos.1,3,4 and 5 , the law by now is well settled that the wife has no right of residence in a house held by the father-in-law and/or the mother-in-law. It was so held by the Hon'ble Supreme Court in Taruna Batra's case (supra), while delineating the definition of a "shared household", which, according to the Supreme Court, can only mean a house belonging or taken on rent by the husband or a house which belongs to a joint family of which the husband is a member. There is no dispute that the house in the present case neither belongs to nor is leased to the husband nor it belongs to the joint Hindu family of which the husband is a member. Admittedly also, ever since the year 1992, the respondent No.1 was not residing in the house in question and was settled in Chandigarh, where she was RFA 183/2006 Page No.
9. of 12 working as a Staff Nurse. Thus, certainly, the respondent No.1 was not residing in the suit property on a permanent/regular basis, and her contention that the house is "matrimonial property" cannot be accepted as such. Her possession in the house of her father-in-law can at the most be said to be permissive in nature and by no means entitles her to stay in the house for an indefinite period of time, more so when her husband has no share or interest in the same. CS (OS) No.85 of 2010 Page 6 of 9.
15. 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..
16. In Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and Ors. RFA 183/2006 Page No.
10. of 12 2008(4) SCC 649, the Supreme Court while observing that the Domestic Violence Act provides for a higher right in favour of a wife, in that, she not only acquires a right to be maintained, but also thereunder acquires a right of residence, clarified that the said right as per the legislation extends to joint properties, in which the husband has a share. In para-18 of the said judgment, it was stated thus:- "18. Maintenance to a married wife during subsistence of marriage is on the husband. It is his personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can only be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor CS (OS) No.85 of 2010 Page 7 of 9 during the lifetime of the husband his personal liability to maintain his wife can be directed to be enforced against such property.".
12. The Division Bench of this Court in the case of Shumita Didi Sandhu Vs. Sanjay Singh Sandhu and Ors.: 2007 (96) DRJ 697, this Court has held that once the husband is alive, neither the father-in- law nor the mother-in-law has any duty to maintain the daughter-in-law, and the daughter-in-law has no right to reside in the property of her in- laws which is not a matrimonial home, nor a "shared house" and once the plaintiff is owner of the property and the suit premises is not matrimonial home and the husband of the defendant is living separately, the daughter-in-law would not have right to stay in the suit property..
13. In the present case, admittedly, the husband of the defendant No.1 is not residing in the suit property which exclusively belongs to the plaintiff. Therefore, in view of the settled law, the defendant No.1 cannot have the right to reside in the suit property and she would be having no claim of residence..
14. As far as challenge of ownership is concerned, as already mentioned that the plaintiff has filed the copy of the registered Will dated 20.11.2006 of late Sh. Tek Chand, husband of the plaintiff, bequeathing the suit property in favour of the plaintiff. In my view, the plaintiff is very much the owner of the suit property. The Will was not challenged by the defendants or any third party. The period of about three years and four months has elapsed on the date of filing of written statement..
15. In view of the above facts and circumstances and well CS (OS) No.85 of 2010 Page 8 of 9 settled law on this aspect, I am of the considered view that the plaintiff is the owner of the suit property and the plaintiff has no legal duty/responsibility to maintain the daughter-in-law under the Protection of Women against Domestic Violence Act, 2005. Therefore, the present application of the plaintiff is liable to be allowed. The suit of the plaintiff is accordingly decreed in terms of reliefs (i) and (ii) of the prayer clause which read as under: "(i) Pass a decree of possession in favour of the plaintiff and against the defendants in respect of the portion shown in red color in the site plan being the portion of the suit property in occupation of the defendants. (ii) Pass a decree of permanent injunction restraining the defendants from creating any third party interest and from changing the status quo in respect of possession of the portion of the suit property in defendants' occupation..
16. In so far as relief (iii) of the prayer clause is concerned, I am not inclined to grant the same due to the facts and circumstances of the present case. The defendants are granted one month's time to hand over the peaceful possession of the occupied portion of the suit property which is shown in the site plan filed along with plaint. The parties are to bear their own costs. MANMOHAN SINGH, J. JANUARY 13, 2012 Jk CS (OS) No.85 of 2010 Page 9 of 9