Delhi District Court
Smt. Sushila Jindal vs Taruna Batra ; on 25 August, 2008
1
IN THE COURT OF Sh. SANJEEV AGGARWAL
ADLL. SR. CIVIL JUDGE : DELHI.
MCA 115/2007
1. Smt. Sushila Jindal
W/o Sh. Rampat Jindal
2. Sh. Rampat Jindal
S/o Late Sh. H.M. Jindal
3. Sh. Vineet Jindal
S/o Sh. Rampat Jindal
All R/o 49 A, Banarsi Das Estate,
Timarpur,
Delhi110054.
presently residing at
SD126, Tower Apartments
Pitampura, Delhi.
4. Sh. Vivek Jindal
S/o Sh. Rampat Jindal
R/o B67, Vinoba Kunj
Plot No. 9, Sector9,
Rohini, Delhi110085. ...APPELLANT
V e r s u s
1. Smt. Hema Jindal
W/o Sh. Vivek Jindal
E/o Sh. B.R. Goyal
2. Ms. Khushi
D/o Sh. Vivek Jindal
Both R/o E1/19, Sector 7,
Rohini,
Delhi110085 ...RESPONDENTS
2
Date of institution:04.01.2007
Date of decision:25.08.2008
J U D G M E N T
1 By this judgment, I will dispose off an appeal preferred by the appellants against the impugned order dated 11.12.2006 passed by the ld. trial court, whereby the application of the plaintiffs/respondents U/O 39 Rules 1 and 2 CPC was allowed by the ld. trial court and the present appellants were restrained from dispossessing the plaintiffs from the suit property as shown in red colour in the site plan without due process of law and further the present appellants were also restrained from interfering, hindering and obstructing in the peaceful use and enjoyment of the suit property by the plaintiffs till the disposal of the suit( hereinafter the parties are referred to by their respective status before the trial court for the sake of convenience). 2 Brief facts, as can be culled out from trial court record are; The present suit is a suit for permanent injunction filed by the plaintiff on the ground that she was married to the defendant no. 1 on 17.6.2003 according to Hindu Rites and Ceremonies and ever since her marriage the plaintiff no. 1 has been staying in matrimonial home with her inlaws situated at property bearing no. 49A, B.D. Estate, Timarpur, Delhi and 3 from this marriage plaintiff no. 2 was born who is minor who is being represented through her mother i.e. the plaintiff no. 1. It has been submitted that the plaintiff no. 1 has been maltreated with cruelty and other bad treatments since the marriage itself. Various allegations of cruelties and bad treatments have been alleged against the defendants. It has been alleged that in the first week of January 2006 defendants no. 2 to 4 have left the suit property and locked the portion in their possession,, thereafter, in the second week of January, 2006 the defendant no. 1 also stopped living in the suit property and has not given his particular of his present whereabouts. It has been submitted that the defendants no. 2 to 4 at the instance of the defendant no. 1 have booked the suit property to the local property dealers. In the application for interim relief, it has been prayed that the defendants be restrained from dispossessing from the suit property more specifically shown in the red colour in the site plan unlawfully, illegally and without following due procedure of law ans the defendant be further restrained from interfering, hindering and/or obstructing in the peaceful use and enjoyment of the suit property by the plaintiff.
43 Separate written statement was filed by defendants No. 1, 2, 3 and 4, in which defence of defendant no. 1 was that the suit of the plaintiff was misconceived and it had been filed with ulterior motives to challenge the partition which had already been effected between the defendants by virtue of an oral settlement which was reduced into writing by way of a memorandum of family settlement executed on 01.08.2005 , within the knowledge of the plaintiff no. 1, whereby defendant No. 1 due to the attitude and conduct of plaintiff no. 1 had sought the partition of the HUF properties from other defendants and he was given his due share by way of purchase of a flat bearing No. 65, Block F, PocketIV, Sector 16, Rohini, Delhi, which was though taken in the name of the HUF on 06.06.2005 and was to be used for residence and occupation of plaintiffs and defendant No. 1 and defendant No. 1 was thereafter, in the family settlement was given the said flat alongwith a sum of Rs. 50,000/ in cash from the bank account of the HUF.
4 It is further stated that thereafter, a suit was filed by defendant No. 2 against defendant No. 1, in which defendant No. 1 in due consultation with plaintiff No. 1 had given a statement in the court of Sh. Balwant Rai, the then ld. Civil Judge, Delhi that he would vacate the suit property by 10.12.2005 but 5 thereafter, due to the adamant attitude, conduct of plaintiff No. 1, the said portion could not be vacated and even the bailiff had come to execute the warrants of possession issued from the court of Sh. Manish Gupta, ld. CJ, Delhi, which was resisted by the plaintiff no. 1 and the said execution proceedings are pending in the said court. Hence, it is stated that the plaintiff had filed the suit in order to harass the defendant.
5 It is admitted that defendant No. 1 was married to the plaintiff No. 1 on 17.06.2003 and plaintiff No. 2 is the minor daughter of plaintiff no. 1 and defendant no. 1 and it is stated that the plaintiff No. 1 had been creating mischief during her pregnancy and had given birth to plaintiff No. 2 when she was residing with her parents.
6 All the allegations regarding dowry demands and threats given by the defendants, as alleged by the plaintiff have been vehemently denied and it is stated that defendant No. 1 is always willing and ready to stay with the plaintiffs at Rohini flat, but plaintiff No. 1 is mischievous and she has refused to stay with him. Hence, it is stated that the suit of the plaintiff was liable to be dismissed.
7 Defendants No. 2,3 and 4 have also filed separate written statement in which they have also taken the same stand as taken by defendant No. 1 6 reiterating this fact that defendant No. 1 had already taken his share by way of family settlement and in view of said settlement, he was given a flat at Sector 16,F4/65,first floor, Rohini Residential Scheme, New Delhi and he had also performed grah pravesh pooja on 25.07.2005 there, and defendant No. 1 had also given statement in a case filed by defendant No. 2 in the court of Sh. Balwant Rai, the then ld. CJ, Delhi, wherein he undertook to vacate the premises by 10.12.2005 and decree was also passed against him but the plaintiff No. 1 has been illegally not vacating the premises and harassing the defendants.
8 Vide separate detailed order dated 11.12.2006, the application of the plaintiffs U/O 39 Rules 1 and 2 CPC was allowed. It is against the said order, the appellants/defendants have approached this court on various grounds including that the ld. trial court had grossly erred in allowing the application of the plaintiffs and had failed to appreciate this fact that, when defendant No. 1 had already got his due share from the HUF properties with the consent and approval of plaintiff no. 1, therefore, there was no right, title or interest of defendant No. 1 and plaintiffs in the suit property, which exclusively belongs to the appellants No. 1 to 3 and that the ld. trial court had also not appreciated the fact that in the garb of the present suit and the impugned 7 order, plaintiff No.1 has been able to make the life of appellants no. 1 to 3 miserable and due to which they are unable to live their life peacefully and they cannot enjoy the suit property despite being the owners of the same and that it is settled law that no injunction can be granted against the real owner and that no balance of convenience lies in favour of the plaintiffs rather it lies against them and therefore, it is stated that the order dated 11.12.2006 deserves to be set aside.
9 I have heard the ld. counsel for appellant, ld. counsel for respondent and perused the record. Ld. counsel for appellant has relied upon the judgments 136 (2007) DLT 1 titled as S.R. Batra Vs. Taruna Batra ; Manu/DE2007801 titled as Abha Arora Vs. Angela Sharma & Anr. ; Manu/DE20071011 titled as Shumita Didi Sandhu Vs. Sanjay Singh Sandhu; VII (2005) SLT 620; and 1997 10 SCC 684. The proposition of law laid down in the said judgments is not disputed however, each case has to be decided according to its own peculiar facts.
10 It is the admitted case of parties that the marriage between plaintiff No. 1 and defendant No. 1 took place on 17.06.2003 and during the course of arguments, it is also not disputed that a daughter i.e. plaintiff No. 2 was born out of the said wedlock on 23.03.2004. It is also not disputed that presently 8 the plaintiffs are residing in the suit property as shown in red colour in the site plan filed in the ld. trial court record i.e. property bearing No. 49 A, B.D Estate, Timarpur, Delhi. Counsel for appellants has argued that vide memorandum of settlement executed between defendant No. 1 and defendants No. 2 to 4, HUF has been dissolved and defendant No. 1 has been given his due share out of HUF properties, namely a flat situated at Rohini and it is also argued that the said memorandum of settlement was the recital of an earlier oral settlement, which had taken place between the parties and the said memorandum of settlement does not create or extinguish any right in any immovable property mentioned in the family settlement in favour of the executants of the said family settlement and it was only a recital of an earlier oral partition, which had taken place between the parties and it does not require any registration nor any advalorem stamp duty was to be paid thereon.
11 It has also been argued by the counsel for appellants, that the suit property was not the matrimonial home of the plaintiff No. 1 as the suit property does not belong either to the joint family or to the husband of the plaintiff No. 1 i.e. defendant No. 1, since the husband of plaintiff no. 1 i.e. defendant No. 1 has already taken his due share out of the suit property vide 9 memorandum of family settlement dated 01.08.2005 therefore, the said property is an exclusive property of defendants No. 2 to 4 and the status of the plaintiff in the suit property was merely a permissive one and since defendant No. 1 has already been given a separate flat and despite that plaintiff no. 1 was not moving out of the suit property, therefore, the status of plaintiff No. 1 was at the most, that of a trespasser in the suit property, therefore, no injunction can be granted to a person who is a trespasser or who is in unauthorised occupation of the suit property as the suit property is now being owned by the inlaws of the plaintiff No. 1 and not by her husband as he has been left with no right, title or interest in the suit property after the family settlement.
12 On the other hand, counsel for plaintiffs/respondents has argued that the suit property belongs to HUF and plaintiff No. 2, minor daughter of plaintiff No. 1 and defendant No. 1, who was admittedly born on 23.03.2004 after the latest amendment to Hindu Succession Act, 1956 which came into force on 20.12.2004, the plaintiff No. 2 was a coparcener by birth in all the properties of the HUF and any partition in which no share has been kept relating to the plaintiff No. 2 (i.e. minor daughter), said partition is a void partition and cannot be put into effect, and he has also argued that by virtue of latest explanation 10 to Section 6 of the Hindu Succession Act, partition means any partition made by execution of a deed of partition duly registered under the Registration Act or partition effected by the decree of a court. Hence, counsel for plaintiffs has argued that in the present case, both the conditions have not been met as the memorandum of family settlement dated 01.08.2005 has admittedly been executed after 20.12.2004 and therefore, it requires to be compulsorily registered as per Section 6 of the Hindu Succession Act and he has further argued that the said memorandum of family settlement was not a recital of an earlier oral settlement but it created a partition in future between the parties as is evident from the terms and conditions mentioned in the said memorandum of family settlement dated 01.08.2005. Therefore, he has argued that since the said family settlement had taken place after coming into effect of the latest amendment to the Hindu Succession Act, therefore, it requires compulsory registration.
13 He has further argued that in any case, the said memorandum of family settlement dated 01.08.2005 creates or extinguishes right in favour of the respective executants in respect of immovable properties mentioned therein and it was not a recital of any past oral settlement which had taken place between the parties, but a partition deed, inter vivos which has to be 11 duly registered and it has also not been sufficiently stamped nor it has been acted upon by the appellants themselves as they had later on sold the property situated at Rohini vide sale deed dated 03.10.2006 14 In arguments in rebuttal, counsel for appellants has argued that the said memorandum of settlement has already been acted upon as the property at Rohini has been sold by the defendant No. 1 as an attorney of HUF and that was the only way one could have sold the said property, as it was in the name of HUF and he has also argued that there is no averment in the plaint regarding Section 6 of the Hindu Succession Act and therefore, this argument regarding right of the minor daughter in the HUF properties cannot be addressed by the counsel for the plaintiff now.
15 I have gone through the rival contentions of the parties. It is the admitted case of the parties that the plaintiffs No. 1 and 2 were residing in the suit property. The question which has to be decided is whether the suit property was a joint family property or whether it was a property belonging to the inlaws of the plaintiff No. 1, in which her husband i.e. defendant No. 1 had no right, title or interest.
16 In view of the judgment of the Hon'ble Supreme Court 136 2007 DLT 1 SC titled as S.R. Batra & Anr. Vs. Taruna Batra wherein it has been held 12 that a shared household means the house belonging to a joint family of which the husband is a member or a house belonging to husband or taken on rent by the husband.
17 In this regard, the terms of memorandum of settlement executed on 01.08.2005 has to be seen, copy of which has been filed on the record and the relevant terms of said settlement, are reproduced as under: "AND WHEREAS as the Third Party does not want to continue with the family and has severed his relationship alongwith his parents and other family members and wants to take his share out of the properties of Sh. Rampat Jindal (HUF) in which he is also one of the Members.
WHEREAS the aforesaid HUF is having two properties in its name i.e. the property at B.D. Estate, Property bearing No. 49A (Ground Floor), B.D. Estate, Delhi110054, which consists of two rooms, dining room, kitchen, bathroom, W.C. and open space in front as well as on one side and the entire First Floor without roof rights of Property bearing No. 65 admeasuring 25.90 sq. meters in BlockF, PocketIV, Sector 16, Rohini, Delhi110085 and also a bank account in the name of HUF. Apart from these properties mentioned above of HUF, the family does not own any other property in the name of joint Hindu Family.
WHEREAS the family members sat together and decided to give the share of the Third Party out of the HUF as he does not want to continue with the HUF and to remain in the family.
13
WHEREAS it has been mutually agreed and as per the demand and desire of the Third Party, the Third Party has been given the above said property bearing No. 65 (First Floor) admeasuring 25.90 sq. meter situated at BlockF, PocketIV, Sector16, Rohini, Delhi110085, out of the said HUF alongwith a sum of Rs. 50,000/ in cash from the bank account of the HUF and he has become the sole, exclusive owner of the above said property and the cash and other members of the HUF i.e. the First Party, Second Party and the Fourth Party has been left with no right, title or interest in the aforesaid property.
WHEREAS after execution of this family settlement, the Third Party and his wife is left with no right, title or interest in the other properties of HUF i.e. the Property bearing No. 49A, B.D. Estate, Timarpur, New Delhi, and the bank account of the HUF and the said property has become the exclusive ownership of the other members of HUF i.e. the First Party, Second Party and the Fourth Party who have decided to remain united and to reside in the said property." 18 From the aforesaid terms and conditions, it appears that said settlement was not a recital of any past oral settlement which took place between the members of joint family and which was reduced into writing later on. All the relevant terms and conditions mentioned herein above show, that the said settlement creates or extinguishes right in future in favour of the executants, as the relevant clause(s) mentioned above, clearly indicate that after the execution of the said family settlement the third Party and his wife 14 were left with no right, title or interest in the other properties of HUF i.e. the Property bearing No. 49A, B.D. Estate, Timarpur, New Delhi, and the bank account of the HUF and the said property had come into the exclusive ownership of the other members of HUF. And these clauses clearly militate against it being the recital of any past oral understanding between the joint Hindu family members. It is also stated that the members of the family sat together and decided to give the share of the Third Party out of the HUF as he did not want to continue with the HUF and to remain in the family. Thus, this clause also militates it being a recital of the past understanding which earlier took place between the family members. Further, third party is free to get property mutated in his name in the records of competent authority, which also shows it was not a recital of past settlement.
19 Therefore, I am of the considered opinion that the said document extinguish/create interest, in the immovable properties mentioned in the said settlement and therefore, it requires compulsory registration as per Section 17 (1) of Registration Act and advalorem stamp duty has also to be paid thereon.
20 In any case, as per Section 6 of the Hindu Succession Act, effective from 20.12.2004 vide Hindu Succession Amendment Act, 2005, it has been 15 specifically provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. Though the said Act has come into force on 09.09.2005 and by virtue of Section 6 of the said Act, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth becomes a coparcener in her own right in the same manner as the son and by clause 6 (5) it has been specifically held that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which was effective from 20.12.2004, so the said Act has come into force vide amendment w.e.f 09.09.2005. However, the amendment in Section 6 of the Hindu Succession Act regarding the partition relates back to date of 20.12.2004 and in explanation to Section 6 of the Hindu Succession Act, it has been clearly laid down that the partition means any partition made by execution of a deed of partition duly registered under the Registration Act or partition effected by the decree of a Court. Therefore, since in the present case, the memorandum of family settlement had taken place on 01.08.2005 and by virtue of explanation to Section 6 of the Hindu Succession Act, 1956, said partition deed was required to be registered as per Registration Act. 16 21 In the present case, as discussed above, the memorandum of family settlement dated 01.08.2005 filed on record creates a right in future between the executants of the said settlement, therefore, it was required to be compulsarily registered as per Indian Registration Act, since it has been executed after 20.12.2004 i.e. on 01.08.2005, therefore, the said family settlement is void as per the provisions of Section 6 of the Hindu Succession Act and by virtue of said Hindu Succession Amendment Act, 2005 daughter of a coparcener has also become a coparcener by birth in her own right in the same manner as the son in a joint Hindu family property.
22 Therefore, from the aforesaid discussion, it appears, that in the suit property as shown in red in the site plan, the plaintiff No. 2 was also having a vested right in the same being a coparcener by virtue of latest amendment to the Hindu Succession Act, by birth having same rights as son has in the property of Joint Hindu Family being a coparcener in her own right and in the same manner as son and as discussed above, since the partition deed dated 01.08.2005 has not been registered as per the explanation of Section 6 of the Hindu Succession Act, therefore, the said partition deed is void being contrary to the provisions of Hindu Succession Act.
1723 In any case, after coming into force of the afore Act, a share of minor had to be kept out of the HUF properties i.e. of plaintiff No. 2, which has not been done and as discussed above, the memorandum of family settlement dated 01.08.2005 is void. Therefore, in view of the judgment referred to above S.R. Batra V.Taruna Batra (supra), the suit property falls within the definition of the joint family property, of which plaintiff No. 2 is also a coparcener by birth, of which defendant No. 1, husband of plaintiff No. 1 was also a member. Consequently, plaintiff No. 1 being the mother of plaintiff No. 2 has also a right to stay in the same being a natural guardian of plaintiff No. 2, who is one of the coparcener in the same. Therefore, the same falls within the definition of shared household as per the judgment of S.R. Batra V. Taruna Batra (supra).
24 In view of the aforesaid discussion, in my respectful view, the judgments relied upon by the counsel for appellant (supra) are not applicable to the peculiar facts and circumstances of the present case and further, it is settled law that the appellate court cannot substitute its own discretion to the discretion exercised by the ld. trial court except where the discretion has been exercised in a arbitrary or perverse manner, which is not the case in hand and in the present case, the rule of estoppel does not apply as it is not 18 the case of the appellants that the plaintiff No. 1 had acted upon the said family settlement dated 01.08.2005 and had started staying/living at the Rohini flat with defendant No. 1.
25 In view of the aforesaid discussion, I am of the considered opinion that there is no infirmity, illegality in the order of the ld. trial court, which is well supported by reasons. Consequently, the appeal has no merits, same is dismissed. Trial court record be sent back alongwith a copy of judgment and appeal file be consigned to Record Room.
Announced in the open court on 25.08.2008.
(Sanjeev Aggarwal) Addl. Sr. Civil Judge : Delhi.
one spare copy attached.