Delhi District Court
Smt. Sulexna Verma vs Shri Vishal Verma on 25 October, 2016
IN THE COURT OF CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI.
Presiding Officer: Ms. AANCHAL, DJS
CS No. : 27/13
Case ID No. : 1318/16
Smt. Sulexna Verma
W/o Sh. Vishal Verma
D/o Shri M.K. Verma
R/o 6/21, Giri Market,
Loni, Ghaziabad, U.P. .......Plaintiff
Vs.
1. Shri Vishal Verma,
S/o Sh. Prem Narain Verma
2. Shri Prem Narain Verma,
S/o Sh. Daulat Ram
Both of 5886, Gali Mandir Wali,
Jogiwara, Nai Sarak,
Delhi110006.
Second Address:
Shop No.1255, Gali Katcha Bagh,
Chandni Chowk, Delhi110006.
Third Address:
D329, Gali No.6,
Hardev Puri, Shahdara,
Delhi. .......Defendants
Date of Institution of suit : 27.09.2002
Date on which reserved for judgment : 13.10.2016
Date of Judgment : 25.10.2016
Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13
JUDGMENT
1. The plaintiff has preferred the present suit seeking permanent injunction against the defendants whereby restraining them from selling and creating third party interest in the following properties till the future and the maintenance of the plaintiff is secured:
1.Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi
2.Shop no. 1255, Gali Katcha Bagh, Chandni Chowk, Delhi.
3.Shop No.5890/3, Jogiwara, Nai Sarak, Delhi
4.House No.D329, Gali No.6, Hardev Puri, Shahdara, Delhi.
2. It is pleaded in the plaint that defendants nos.1 and 2 are the husband and father in law respectively of the plaintiff and defendant no.1 has vested ownership in all the aforesaid suit properties and these are the ancestral properties of the defendants. Defendants in collusion with each other and with ulterior motive to defeat the claim of maintenance of the plaintiff, are contemplating to dispose off these properties and in case defendants succeeded in their plan, the claim of the plaintiff for maintenance shall be frustrated and defendant no.1 will positively plead that he is not an earning hand and not possessing any property, meaning thereby she would not be able to recover any amount of maintenance. It is alleged that when the plaintiff moved an application under Order 1 Rule 10 CPC in the suit filed by Sh. Ram Narain Verma against defendant no.2 and his brother, the defendants threatened the plaintiff on telephone on 24.09.2002 to dispose off the properties held by them, if she does not withdraw the said application. The plaintiff requested the defendants to withdraw their threats but they flouted at plaintiff and refused. Hence, the plaintiff has no alternative but to file the present suit.
3. Defendants filed the Written Statement preliminarily objecting the suit on the ground that suit of the plaintiff is without cause of action.
Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 On merits, relationship between the parties and marriage between plaintiff and defendant no.1 is not denied. It is denied that defendant no.1 has vested ownership rights in the suit properties or defendants in collusion are contemplating to dispose off the suit property with the ulterior motive to defeat the claim of maintenance of the plaintiff. It is submitted that since the plaintiff has already filed the application under Order 1 Rule 10 CPC in CS No.547/02 titled as Ram Narain Verma Vs. Ram Bharose & Ors. wherein the same relief has been pleaded by the present plaintiff in respect of the suit property, the present suit is not maintainable and the plaintiff has herself filed false and frivolous complaints against the defendants and their relatives in order to harass, tease and mentally torture the defendants.
Further, the suit property no. 1 was owned by the father of defendant no.2 who had executed a Will according to which, mother of defendant no.2 was the beneficiary during her lifetime and after her death, the demarcated portions were to vest in defendant no.2 and his other brothers.
The 2nd and 3rd properties are rented accommodation in name of defendant no.2 and the defendant no.2 had purchased and acquired the fourth property from his own earnings. Therefore, the suit properties are not ancestral properties and defendant no.1 does not have any vested ownership right in them and plaintiff is presuming the pleas to be taken by defendant no.1 before filing any suit for maintenance and the pleadings are hypothetical in nature and that no threats were extended to the plaintiff on 24.09.2002 and there was no occasion for the defendants to desist from any alleged act. Finally, the suit of the plaintiff is prayed to be dismissed with exemplary costs.
4. Plaintiff filed the replication to the Written Statement filed by the defendant wherein all the averments made by the defendant in her written statement are denied and averments made by her into the plaint are reiterated.
5. From the pleadings of the parties and hearing, following issues Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 were framed vide order dated 03.11.2003 passed by Ld. Predecessor of this Court: ISSUES
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? (OPP)
2. Whether the suit of the plaintiff is without any cause of action and therefore, suit is liable to be dismissed u/o 7 Rule 11 CPC? (OPD)
3. Relief.
The issue no. 2 was treated as preliminarily issue and the same was decided in favour of the plaintiff vide order dated 18.07.12 passed by ld. Predecessor of this court. Finally, parties proceeded to lead their evidence in respect to the triable issues.
6. Plaintiff examined herself as PW1 and Sh. Shivajeet Yadav, Record Custodian from the Department of Archives is produced as PW2 who relied upon the following document:
1. Document registered on 21.11.1932 as Ex.PW 2/1 (OSR).
7. On the contrary, both the defendants appeared as DW1 and DW2 and further Sh. Heera Vallabh Pujari, Junior Judicial Assistant (Mauja Clerk) from Record Room (Civil), Tis Hazari Courts and Sh. Surya Prakash, Record Keeper from the Office of SubRegistrar1, Kashmere Gate, Delhi06 are examined as further two DWs and they relied upon following documents:
1. Will dated 30.08.1997 executed by Sh. Daulat Ram, S/o Sh. Ganga Ram, registered on 01.09.1997 with SubRegistrar as Ex.DW1/1 (OSR).
2. Site Plan as Ex.DW1/2.
3. Application under Order 1 Rule 10 CPC filed by Smt. Sulexna Verma in another case titled as Ram Narain Verma Vs. Ram Bharose & Ors., bearing Suit Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 No.26/02, decided on 29.01.2003 as Ex.DW 3/1 (OSR).
4. Reply to the abovesaid application as Ex.DW3/2 (OSR).
5. Order sheet as Ex.DW3/3 (OSR).
6. Order as Ex.DW3/4 (OSR).
7. Order/ Judgment passed in the abovesaid case as Ex.DW3/5 (OSR).
8. Will alongwith Site Plan, registered in the Office of SubRegistrar1 vide registration no.21004 in book no.3, Vol. No.2921 on pages 113 to 117 registered on 01.09.1997 as Ex.DW3/1 (OSR) (running into 5 pages).
9. Authority letter as Ex.DW3/P1.
8. Final arguments are heard and record is perused carefully. Now, this Court shall proceed to give issuewise findings which are as follows: ISSUE NO.1 "Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for?"
At the onset, while opening up the arguments, ld. Counsel for the plaintiff categorically restricted the relief only qua Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi (which is hereinafter called as the suit property for the sake of convenience only). Hence, discussion qua the other three properties is not being made since the issue qua this extent is deemed abandoned.
Now, the onus to prove the issue qua suit property lies upon the plaintiff.
The plaintiff has preferred the present suit for seeking permanent injunction against the defendants. A permanent injunction may be granted to the plaintiff to prevent the breach of an obligation existing in her favour. This obligation includes every duty enforceable by law. In the case in hand, it is the case of the plaintiff that defendant no. 1and 2 are her husband and father in law Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 respectively and in the suit property is the ancestral property where the defendant no. 1 has vested ownership rights but the defendants are keen to create third party interest in the same to make her future and maintenance unsecure. So, in order to seek the permanent injunction, the plaintiff must prove the following facts :
1. The defendant no. 1 and 2 have the obligation to maintain her.
2. The suit property is one in which the respective defendant having the obligation to maintain her, has the ownership rights.
3. There is likelihood that the defendant having the obligation to maintain her, would create third party interest to defeat the right of plaintiff to have maintenance.
4. There exists none of the case where Section41 of the Specific Relief Act, the injunction to the plaintiff cannot be granted.
It is admitted on part of the parties that plaintiff and defendant no. 1 are not having smooth matrimonial relationship and plaintiff had filed a case under Section498A IPC, another case under Section125 Cr.PC and one case under Domestic Violence Act, recovery suit before the Hon'ble High Court of Delhi and two Civil Suits to restrain the defendant no.1 from marrying apart from the present suit and defendant no. 1 has filed a divorce petition which has been decreed by the court of Ms. Seema Maini, Ld. ADJ, Delhi against which an appeal before Hon'ble High Court of Delhi is still pending. Plaintiff is also admitted to be residing at Rohini which is a place different from the residential place of defendants at Hardev Puri. It is also not the case of the defendants that plaintiff is not entitled for maintenance for any reason or she has been held dis entitled for the same by any competent court of Law. So, naturally the right to claim maintenance accrues to the plaintiff. But the question arises, who has the obligation to maintain her. Section24 & 25 of Hindu Marriage Act, 1956 provide for the maintenance during the pendency of any proceedings under Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 Hindu Marriage Act and thereafter at/ subsequent to the passing of decree respectively and it can be claimed by one spouse from other. Hindu Adoption and Maintenance act, 1956 is the vast statue which provides for the right to claim maintenance by wife from her husband. Section125 Cr.PC also mentions the right of the wife to claim maintenance from her husband only. Domestic Violence Act also provides for the right to claim maintenance from spouse. None of the statue provides for an obligation of the fatherinlaw to provide maintenance to her daughterinlaw more specifically during the lifetime of her husband. Therefore, it can be safely held that plaintiff has been miserably failed to prove that defendant no. 2 has any obligation to provide maintenance to her and at maximum the obligation to maintain the plaintiff can be held to be lying upon the defendant no. 1 only.
Now, the question arises whether defendant no. 1 has the ownership rights in the suit property.
At first, it is stressed on behalf of the plaintiff that during the arguments advanced on application under Order 39 Rule 1 & 2 CPC, defendants have admitted that suit property is the ancestral property and this admission is sufficient to infer the ownership of defendant no. 1 in the same. On the contrary, such admission is disputed on behalf of the defendants. This court had gone through the record carefully. The defendants have nowhere pleaded in the WS that suit property is the ancestral one. But it is the case of the defendants that the suit property was owned by the father of defendant no. 2 who had executed a Will according to which, mother of defendant no. 2 was the beneficiary during her lifetime and after her death the demarcated portion were to vest in to defendant no. 2 and his other brothers. From these pleadings, the specific denial is made out to have been made by the defendants to the fact that the suit property is the ancestral one. Ld. Predecessor of this court has also specified while passing the order dated 30.04.03 while disposing off the application under Order 39 Rule Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 1 & 2 CPC that findings on the application shall have no bearing on the merits of the case. So, this court is of the opinion that reliance of the plaintiff upon the finding of so called admission on the part of the defendants to the nature to the suit property as ancestral one is of no assistance to the plaintiff and the plaintiff is required to prove the nature of the suit property by leading cogent evidence.
The plaintiff has not filed any document from which ownership in whole or part of the suit property can be inferred to be vested in the defendant no. 1 but the plaintiff had denied in her replication the averment made by the defendants in their written statement that the suit property was owned by the father of defendant no. 2 or he had executed the Will but when plaintiff was cross examined, she replied as under : "Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi was owned by the mother of Sh. Daulat Ram. I do not have any document to show the ownership of said property. Vol. (there is a Will executed by late Sh. Daulat Ram.) Late Daulat Ram was the father of defendant no. 2. I do not remember if Late Daulat Ram had bequeathed Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi in favour of his three sons namely Ram Bharose Verma, Ram Narain Verma and Prem Narain Verma (defendant no. 2.) I do not remember late Daulat Ram have even demarcated the portions in Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi to be owned by his three sons. I do not know the details of the Will and as such I can not say if the three brother named above have not become owner of Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi. It is wrong to suggest that the defendant no. 1 have no right in Property no. 5886, Gali Mandir Wali, Jogiwara, Nai Sarak, Delhi."
The answers given in this crossexamination speak with clarity that her denial made by plaintiff in her replication as to the existence of a Will and the execution of the same by Sh. Daulat Ram was false to her knowledge and denial of bequeathing of property in favour of defendants nos. 2 and his two brothers after the death of their mother had no basis since having no knowledge Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 of contents of same, she was unable to say anything regarding this. The defendants have produced the copy of Will dated 30.08.1997 executed by Sh. Daulat Ram as Ex. DW1/1 with accompanying site plan Ex. DW1/2 during their evidence. The original of this Will and site plan are also produced by Sh. Surya Prakash, Record Keeper of the office of SubRegistrarI, Kashmere Gate, Delhi 06 as Ex. DW3/1 (OSR). None of the defendants have been countered on behalf of the plaintiff as to the execution of this Will by Sh. Daulat Ram in favour of the defendant no.2 or its contents. Thus, the crossexamination has been unable to cast the doubt as to the existence of the Will and its execution by Sh. Daulat Ram and its contents. The plaintiff has simplicitor asked the defendant no.2 as to the filing of the probate proceedings in respect of this Will which is irrelevant since the Will is in regard to the property situated at Delhi where probate is not necessary. Thus, from the admission of the plaintiff as to the existence of this Will and its execution by Sh. Daulat Ram and nothing produced on record by plaintiff which could cast the doubt as to the genuineness of Will Ex.DW1/1, it is held proved that Sh. Daulat Ram had executed this Will in respect of the suit property and the ownership in regard to the same is now being vested in favour of her three sons through this Will Ex.DW1/1.
The plaintiff has stated in her crossexamination that the suit property was owned by mother of Late Sh. Daulat Ram but has produced no document to substantiate this fact. She has summoned the document Ex.PW1/2 from the Department of Archives but neither she has uttered a single word in respect of the nature of this document in her evidence nor placed on record its true Hindi/English translation. So this document, though produced, could not be read in evidence and renders no assistance to plaintiff. In Will Ex.DW1/1, it has been clarified by Late Sh. Daulat Ram that his mother Ms. Phoolwati was the owner of the suit property and she had expired in the year 1956 but he has become the owner of the same by virtue of Takseemnaama 09.10.1932. This Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 Takseemnaama vide which Sh. Daulat Ram had referred to have gained the ownership, is dated much prior to the death of her mother in 1956. So, it can be inferred that Sh. Daulat Ram had not gained the ownership in the suit property through her mother but he had gained the ownership vide Takseemnaama dated 09.10.1932. So, since no evidence has come on record to establish that the suit property was received by Sh. Daulat Ram from any of his predecessor imparting it the nature of the ancestral one, the suit property is deemed as selfacquired property of Late Sh. Daulat Ram in which he had the full right to dispose off the same by any testamentary document or otherwise. Consequently, the nature of the property, now lying in hands of defendant no. 2 and his two brothers, by virtue of the Will executed by Sh. Daulat Ram, would remain as that of self acquired property rather than the ancestral one and defendant no. 1 would have no vested ownership in the same.
Otherwise too, if it is deemed that the Will executed by Sh. Daulat Ram is not a valid document, the defendant no.1 being the grandson of Sh. Daulat Ram could not have any share / right / title or interest in the suit property when his father i.e. defendant no.2 was still alive at the time of the death of Sh. Daulat Ram as the property of Daulat Ram would be succeeded only by his ClassI legal heirs, as per Section8 of the Hindu Succession Act and the defendant no.1 being the grandson from the living son of Sh. Daulat Ram had no place amongst heirs in ClassI of Schedule of the Hindu Succession Act. In this reference, reliance may be placed upon Bhanwar Singh Vs. Pooran & Ors. (2008)3 SCC 87 where Hon'ble Apex Court has observed as under: "14. Interpretation of Section 8 of the Hindu Succession Act came up for consideration before this Court in Commissioner of Wealth Tax, Kanpur & Ors. v.
Chander Sen & Ors. [(1986) 3 SCR 254]. Mukherjee, J. (as the learned Chief Justice then was) upon considering the changes effected by the Hindu Succession Act as also the implication thereof and upon taking into Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 consideration the decisions of Calcutta High Court, Madhya Pradesh High Court, Andhra Pradesh High Court as also Madras High Court on the one hand and the Gujarat High Court on the other, opined : "In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8.
Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the preexisting Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand visavis his own son;
that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and visa vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the obervations of Mulla's Commentary on Hindu law 15th Edn. dealing with Section 6 of the Hindu Succession Act at page 92426 as well as Mayne's on Hindu Law, 12th Edition pages 918
919. The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."
Thus, the property would be inherited only by the ClassI legal heirs of Sh. Daulat Ram, if the Will is assumed to be not valid and defendant no.2 being not ClassI legal heir of Sh. Daulat Ram would have no right, title, interest or vested ownership in the same. Hence, it is held proved that irrespective of the existence or nonexistence of the valid Will executed by Sh. Daulat Ram, the suit property would be one in which defendant no.1 having the obligation to maintain her, has no ownership rights.
The plaintiff has admitted in her crossexamination that interim maintenance of Rs.4,000/ p.m. was awarded in her favour and the entire amount of interim maintenance has been received by her till date i.e. the date of her crossexamination i.e. 26.08.2014. This very fact is inconsistent with the averments of the plaintiff that there is any apprehension on the part of the defendant having the obligation to maintain her, to defeat her right to have maintenance. The plaintiff has also not produced on record any evidence to show that the defendant has been deliberately and malafidely avoiding or delaying maintenance to her. So, this Court is of the opinion that the very cause of apprehension resulting into the filing of the present suit by the plaintiff is missing and there exists no ground to grant the injunction to prevent the non existing likelihood of the breach of the obligation existing in favour of the plaintiff.
It has never been the case of the plaintiff that the suit property is the only property lying in the hands of defendant no.1, who only is having the obligation to maintain her, from which her right to maintenance may be secured or the other properties lying in the hands of defendant no.1 are insufficient to secure her maintenance or defendant no.1 is concealing the same. It has come on Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13 record that defendant no.1 was 39 years' old in the age on the date of his cross examination i.e. 17.11.2015. It is also not the case of any of the parties that he is disable in any manner to earn anything. In such circumstances, the existence of one or the other movable properties in the name of defendant no.1 cannot be overruled and for the want of evidence on record to establish that either these are not disclosed/ known to the plaintiff or the same are insufficient, it cannot be accepted that the plaintiff has no alternate efficacious remedy to secure her maintenance. Hence, this Court is also of the opinion that the present relief claimed in the suit by the plaintiff should not be granted, as per Section41(h) of the Specific Relief Act.
Hence, for the aforesaid discussion, it is held that the plaintiff has failed to prove the necessary facts entitling her permanent injunction and the issue under consideration is decided against the plaintiff and in favour of the defendants.
ISSUE NO.3 (RELIEF) In view of the decision of issue no. 1, the suit of the plaintiff is dismissed.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in Open Court on this 25th day of October, 2016 at 04:00 p.m. (AANCHAL) CIVIL JUDGE07 (CENTRAL) DELHI/25.10.2016 RB/NK Sulexna Verma Vs. Vishal Verma & Anr. CS No.27/13 (ID No.1318/16) Page: 14/13