Delhi High Court
Prabhu Dayal vs Roop Kumar And Ors. on 30 October, 2004
Author: Gita Mittal
Bench: Mukundakam Sharma, Gita Mittal
JUDGMENT Gita Mittal, J.
1. This appeal is directed against the judgment and decree dated 6th February, 1991 passed by the learned Additional District Judge, Delhi in Suit No.60/2001 (Old Suit No.19/1991) decreeing the suit filed by the respondent No. 1.
2. One Roop Kumar(respondent no.1 herein) brought a suit for permanent and mandatory injunction against Prabhu Dayal(appellant herein). The appellant and respondent nos.2 to 7 (arrayed as defendant nos. 2 to 7 in the suit) were sons and daughters of late Shri Kapoor Chand. Plaintiff averred that his father Kapoor Chand was a tenant in shop no.7707-07, Dharam Pura Lodge, Clock Tower, Subji Mandi, Delhi(hereinafter referred to as the 'suit property') for the last 40 to 55 years. They carried on business originally of cycle tyres and repairs and laterly sold juice. They were lastly doing the business of cotton in the name of Sharma Cotton Cording and Flour Mills. Shri Kapoor Chand died inter state on 12th November, 1990 and his brother Vasudev died a achelor on 25th November, 1990. According to the plaintiff Shri Vasudev some time lived in the shop and sometimes with the plaintiff. The plaintiff claimed that he had executed a Will dated 22nd November, 1990 bequeathing his entire movable and immovab e properties in favor of the plaintiff.
3. According to the plaintiff, defendant no.1-Prabhu Dayal was an employee of Shri Vasudev in the business carried on in the shops in dispute. Since the business of making quilts etc. was carried out late into the night the defendant no.1(appellant here in) sometimes was permitted to reside in the shops. On demise of both Shri Kapoor Chand and Shri Vasudev the plaintiff had requested to Shri Prabhu Dayal, defendant no.1 that his services were no longer required and asked him to leave the shop in disput . Defendant no.1 requested for permission to stay till he made alternative arrangements but later turned dishonest.
4. As the license of the defendant no.1 had been terminated, the plaintiff brought the suit seeking the following prayers:-
''The plaintiff prays that this Hon'ble Court be pleased to pass a decree in favor of the plaintiff and against the defendant no. 1.
(i) for permanent injunction restraining the defendant no. 1 from entering the shops no. 7706-07, Dharam Pura Lodge Clock Tower, Subjzi Mandi, Delhi; or in the alternative for mandatory injunction commanding and directing the defendant no. 1 to vacate the said shops no. 7706-07 Dharam Pura Lodge Clock Tower, Subzi Mandi Delhi, and/or .
(ii) for permanent injunction restraining the defendant no. 1 from dealing in any manner whatsoever or disposing off or appropriating to himself any of the assets or properties of Shri Vasu Dev alias Vasu Dev detailed in para 5 of the plaint; and/or .
(iii) grant permission to the plaintiff under order 2 Rule 2 C.P.C. As per para 14 hereinabove.
(iv) award costs of the suit to the plaintiff against the defendant no. 1; and/or
(v) grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.''
5. Defendants 2 to 7, brothers and sisters of the plaintiff admitted the claim of the plaintiff. They sought permission to visit the shops in dispute and to safeguard their interest in the business and make inspections. Defendant no.8 i.e. the WAKF Boa rd also filed a written statement setting up a case that only Shri Vasudev Sharma was a tenant in the shops in dispute and that the tenancy rights could not have been willed away by any person.
6. In the instant matter we are concerned only with the rights of the defendant no.1 to occupy the shop in question. The defendant no.1 in its written statement set up following claim:-
''Preliminary Objections That the defendant no.1 has been serving late Shri Vasudev Sharma and used to take care of him during his lifetime. In addition to this, the defendant no.1 has been doing business in partnership with late Shri Vasudev Sharma under the name and style of Sharma Prabhu Dayal and Co. vide deed of partnership dated 12.11.1990 commenced orally in the year 1980 by investing capital of about Rupees one lakh in equal shares which was subsequently reduced in writing. The answering defendant was authorised to o erate the bank account of of the partnership business.
The actual business was being run by the answering defendant while late Shri Vasudev Sharma was a sleeping partner and used to supervise the work asper convenience of his health. He had no issue. fter the death of late Shri Vasudev Sharma, the answering defendant is the sole proprietor of the business known as Sharma Prabhu Dayal and Co. Earlier it was under the name of Sharma Flour Mills and Cotton cording Machine in the premises in dispute compris ng of shop no.7706-07 Dharampur Lodge, Ghanta Ghar, Subzi Mandi, Delhi. The defendants no.2 to 7 late Kapoor Chand, father of the plaintiff or the plaintiff never remained in possession nor has any right, title or interest or concern either in the premi es in dispute or in the business or in the assets. The plaintiff has obtained ex-parte injunction order by making willful false statements in the plaint and suppressing the truth from this Hon'ble Court. On merits Para 4 is wrong and denied. The defendant no.4 has been doing business in partnership since 1980 which terms were reduced in writing vide partnership deed dated 26.10.90 by investing a capital of about Rs. one lakh in equal shares on the machinery, tool and other assets. After the death of late Vasudev Sharma the entire assets and liabilities have devolved upon the answering defendant who has become defendant no.1 had, therefore, set up a plea of being an heir by testamentary disposition as well as the surviving partner of late Shri Vasudev and claimed exclusive possession of the suit property. He pleaded that the suit for mandatory injunctio the sole proprietor of the concern M/s Sharma Prabhudayal and Co.''
7. The no of the plaintiff were incompetent. The partnership dated 26th October, 1990 was set up by the defendant no.1 besides the Will dated 31st August, 1989 in his favor.
8. The matter proceeded to trial on the following issues framed on 24th March, 2003:-
''1. Whether the deceased Vasu Dev had executed any will dated 22.11.1990, as propounded by the plaintiff? If So, whether the said Will was validly executed in sound disposing state of mind?
2. Whether the plaintiff has no locus standi to file the present suit?
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?
4. Whether the defendant no. 1 has inherited the tenancy right as alleged in para 8 of the written statement?
5. Whether the plaintiff is entitled to the relief as claimed?''
9. The plaintiff appeared in the witness box himself and examined two witnesses in support of the Will dated 22nd November, 1990. The defendant had filed his affidavit which was tendered in evidence by him. The defendant was subjected to an extensive cr oss-examination on his deposition on affidavit.
10. After examination of the entire evidence on record, the learned trial judge returned findings on all issues in favor of the respondent no.1 and decreed the suit of the plaintiff vide judgment and decree dated 27th July, 2004 This judgment has been i mpugned before us principally on two contentions which are as follows:-
(i) The plaintiff's plea of the defendant no.1 being an employee of late Shri Vasudev was based on no evidence. .
(ii) irrespective of the plea set up by the defendant no.1 as to the nature of his possession i.e. either as the surviving partner of the partnership firm or as heir of late Shri Vasudev under the Will in his favor which was Exhibit DW-1/DA dated 26th O tober, 1990,the defendant no.1 was in settled possession of the suit property and could be evicted only by a decree of the court only in a suit for possession. No suit for mandatory injunction directing the defendant no.1 to vacate the suit property cou d lie. The judgment and decree was liable to be set aside for this ground alone.
11. We have heard learned counsel for the parties and have been taken through the entire record. We may right at the inception deal with the two Wills set up respectively by the plaintiff and defendant no.1. During the course of arguments we were inform ed that both the parties had filed petitions seeking probates of the respective Wills (plaintiff's will dated 20th February, 1990 and defendant's Will dated 31st August, 1989) in their favor. Both the Wills were disbelieved by the Probate Court and the Probate Petitions dismissed. These adjudications were not further impugned and have attained finality. As such we are not required to return a finding on the testamentary dispositions allegedly made by late Shri Vasudev.
12. We may now deal with the two contentions aforestated, the first relating to the nature of relationship of defendant no.1 to late Shri Vasudev.
13. We find that the learned trial judge has found that the defendant no.1 was an employee of late Shri Vasudev Sharma at the shop. It has been brought on record that defendant no.1. was running the shop during the life time of Shri Vasudev Sharma with h is permission. On the death of Shri Vasudev Sharma the permission to run the shop came to an end.
The defendant no.1 in para 3 of his written statement reproduced hereinabove has admitted that he was serving late Shri Vasudev Sharma and used to take ca e of him during his life time. In his cross-examination,the defendant no.1 had stated that when he came to the shop initially he was only 12 years of age. It is the admitted case of the defendant no.1 that he obtained access to the suit property only b virtue of his service with late Shri Vasudev Shrma. It is in answer to the case of the plaintiff that defendant no.1 tried to set up a case of title under the Will dated 31st August, 1989. The defendant took up a further plea that he was occupying the premises as a partner of late Shri Vasudev Sharma under an oral partnership in the year 1980 which was adduced into writing on 26th October, 1980. The defendant no.1 claimed that this partnership deed was attested by the Notary Public on 12th November, 1990.
14. This partnership deed in original was produced on record before the learned trial judge as Exhibit DW-1/A. We have scrutinised this document as the same is contended to be a forged and fabricated document on the part of the defendant no.1 Examinatio n of this document would show that it does not bear the signatures of late Shri Vasudev Sharma on all the pages. The stamp paper does not appear to have been purchased in the name of either of the partners. The defendant no.1 appears to have signed onl the last page of the deed. Pages 1 and 2 are not signed by him. Page no.2 of the deed is not signed by either Vasudev Sharma or by the defendant no.1. Furthermore there is no explanation forthcoming from the side of the defendant no.1 as to the delay n attestation and notarisation of the partnership deed. It has come in the cross-examination of the defendant no.1 that Kapoor Chand who was real brother of Vasudev Sharma had expired on 12th November, 1990 and further that Shri Vasudev Sharma himself h d been in and out of hospitals on account of ill health since 14thNovember, 1990. The typing appearing at pages 1 and 2 of the partnership deed was different from each other. The partnership deed appears to have bear the signatures of two attesting wit esses. Neither of these witnesses nor the Notary Public was produced in evidence. From the cross-examination of the defendant no.1, it appears that Shri Mahavir Prasad was a witness to both the alleged partnership deed as well as to the Will dated 31st August, 1989 propounded by the defendant no.1. This witness was disbelieved by the probate court and perhaps for this reason he was not produced in the witness box.
15. The partnership set up by the defendant no.1 is to be disbelieved also for the reason that he set up a false plea of having invested capital of Rs. one lac in equal shares Along with Shri Vasudev Sharma in the partnership business in the year 1980. Up on cross examination the defendant no.1 retracted and admitted that he had not invested any amount whatsoever. The defendant no.1 attempted to set up a case that he had been told by Shri Vasudev that the defendant no.1 had capital in the business on acc unt of his working at the shops. The defendant no.1 could not produce an iota of evidence in support of having any aspect of the partnership having been given effect to. We have, therefore, no hesitation in agreeing with the trial court that the allege partnership deserved to be disbelieved.
16.In any case, the material fact in the instant case is the fact that the defendant no.1 did not set up any plea that he came into the possession of the suit property by virtue of the partnership deed. We may appropriately set out the defendant no.1, which are as under:-
few material terms of even the artnership deed as set up by the ''1. That the party of the first part Sh. Vasdev Sharma is the tenant in the premises shop no.7706 and 7707, Dharampura Lodge, Ghanta Ghar Chowk, Subzi Mandi, Delhi and the rent of Rs.26.24 p. only that is at the rate of Rs.13.12p. Only per shop respecti ely for the last more than 40 years and the tenancy will continue will the party of first part and the party of the second part be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the Principles of English law, but whe her the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live the respondent.'' The Supreme Court in the case of Shobha Rani V. Madhukar Reddi observed as under :-
''Section 13(1)(i-a) uses the words ''treated the petitioner with cruelty''. The word ''cruelty'' has not been defined. Indeed it could not have been denied. It has been used in relation to human conduct or human behavior. It is the conduct in relation o or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to de ermine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be ases whether the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the condu t itself is proved or admitted. . It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged m y largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not impo t our own notions of life. We may not go in parallel with us and the parties. It would be better if we keep aside our customs and manners. It would also better if we less depend upon precedents. The Supreme Court in the case of V. Bhagat V. Mrs. D. Bhagat, has defined mental cruelty in the following manner :-
''Mental cruelty in Sec. 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of has nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arrivin at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts nd circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of tha case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.'' Lord Denning in Sheldon V. Sheldon, (1966) 2 All ER 257, 259 observed as under :-
''The categories of cruelty are not closed. ''Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type o cruelty may crop up in any case depending upon the human behavior, capacity or incapacity to tolerate the conduct complained of. Such is the wonderful realm of cruelty.'' "The conduct of the habitual drunkard, the gambler, the criminal or the profligate may cause his wife to break down in health but it is not cruelty unless combined with some conduct which is aimed at her, as, for example, when her justifiable remonstran es provoke unjust resentment on his part directed at her.'':
In light of the principles laid down by the various courts including the Supreme Court, let me examine the case of the appellant. The appellant sought divorce on the ground of respondent's mental disorder and cruelty that she was given beatings; on 4.7.1 993 she was blamed for the respondent's illness and was beaten mercilessly by respondent on the instigation of her mother-in-law and she was not having . any physical relationship with the respondent because of his incompetency as he was suffering from paranoid schizophrenia. These allegations were denied by the respondent. On the basis of pleadings of the parties, following issues were framed:
(1) Whether the respondent has treated the petitioner with cruelty?
(2) Whether the respondent is suffering from paranoid schizophrenia disorder or any other mental dis-order to such an extent that it is not reasonably expected to live with him. If so, its effect?
(3) Relief.
The appellant examined herself as PW-1, her father Mr. J.S. Arora, PW-2, Dr. D.S. Arora, PW-3 and Dr. Kuldip Kumar, PW-4. In order to prove issue No.2, the appellant in her deposition stated that respondent was suffering from paranoid schizophrenia and was incompetent to perform sex, therefore, the marriage was not consummated. She came to know about the mental disorder of the respondent after marriage. However, in her cross-examination she stated that she and respondent were class mates during the period from 1987 to 1990. During that period she did not find any abnormality in the behavior of the respondent. Further the appellant failed to examined the doctors, who treated the respondent. There was contradiction between the statement of appellant and Dr. D.S. Arora as to whether the respondent was admitted in Ashlok Hospital due to consumption of baygon spray or as a schizophrenic case. After carefully examination of the evidence of the aforesaid witnesses, the Additional District Judge rightly came to the conclusion that appellant had failed to prove this issue. Accordingly, he concluded that respondent was no suffering from paranoid schizophrenia disorder at all. The submissions of the appellant that the Additional District Judge failed to appreciate the the medical record, deposition and medical description of respondent's disease, which proves that respond nt was suffering from mental disorder are without substance. The Supreme Court in the matter of Ram Narain Gupta Vs. Rameshwari Gupta, held that mere branding of spouse as schizophrenic is not sufficient. Degree of mental disorder o the spouse must be proved to be such that petitioning spouse cannot reasonably be expected to live with other. The testimonies of the doctors examined by the appellant to prove the respondent was suffering from schizophrenia cannot be looked into as t e respondent was not under their treatment and they were unable to explain the degree of mental disorder of the respondent. In order to prove issue No.1, the appellant stated that she was beaten by the respondent on several occasions. However, details have not been given. Only one instance has been disclosed. On 4th July, 1993 appellant was blamed for the respondent's illne ss and was beaten mercilessly by the respondent on the direction of her mother in law. Another incident of cruelty as narrated by the appellant was that the appellant was not having any physical relationship with the respondent as the respondent was a atient of schizophrenia and was incompetent to have physical relationship. In her cross-examination, she stated that she did not lodge any complaint with the police authorities regarding the beatings as alleged. She failed to give exact date, month and ear when she was given beatings. She further stated that she was beaten off and on. She informed her father about mental disorder of the respondent after three months of her marriage. However, the father, PW-2, in his testimony stated that petitioner pprised him of mental disorder of respondent after 5-6 days of the marriage. The alleged beating of the appellant by the respondent on 4th July, 1993 was not corroborated by PW-2. He, however, stated that on 9th July, 1993, the appellant came to his ouse and disclosed that her husband and his mother had given her beatings and turned her out of the matrimonial home. However, this incident was not disclosed by the appellant in her testimony. The conduct charged as cruelty is to be of such a character as to cause in the mind of the appellant a reasonable apprehension that it will be harmful or injurious for the appellant to live with the respondent. Cruelty must be of such a character as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such a danger. The appellant was required to prove that respondent had treated the appellant with such cruelty as to cause a reasonable apprehension that it will be harmful or injurious for the appellant to live with the respondent, which she failed to do so. There is insufficient material on record including the evidence of the parties to establish the cause of cruelty. Thus, the Additional District Judge rightly observed that the incidents of cruelty narrated by the appellant were not so grave which come within the scope of concept of cruelty. The impugned judgment/order does not suffer from any legal infirmity.
I do not find any merit in the present