Delhi District Court
Shri Rajinder Kumar vs Smt. Vinita Verma on 1 December, 2011
: 1:
IN THE COURT OF JITENDRA KUMAR MISHRA
ADDITIONAL DISTRICT JUDGE -III, ROHINI COURTS, DELHI.
Civil Suit no. 140/11.
Unique ID No. C0955612009.
Shri Rajinder Kumar
S/o. Late Sh. Shiv Ram
R/o. LD-73, Pitampura
Delhi-110088
.............Plaintiff
Versus
Smt. Vinita Verma
W/o. Sh. Mukesh Verma
R/o. LD-73, Pitampura
Delhi-110088
.........Defendant
Date of institution of the suit : 10.12.2008
Reserved for judgment on : 24.11.2011
Date of pronouncement of judgment : 01.12.2011
JUDGMENT :
1. This is a suit for possession cum permanent injunction and mesne profit.
2. Briefly stated facts of the case are :
a) Plaintiff is a senior citizen and is owner and in possession of property/flat bearing no. LD-73, Pitampura, Delhi-88, measuring about 114 sq. mtrs., since 05/07/89 vide allotment letter No. F. 13(1)88/SFS/PI/III issued by DDA. Defendant was married to the son of the plaintiff, Sh. Mukesh Verma on 30/09/1998 in accordance to Hindu Rites and Ceremonies.
b) Time and again there was disharmony and quarrels between the defendant and her husband i.e. the son of the plaintiff and the defendant used to harass the plaintiff and his wife, abusing and Civil Suit no. 140/11 : 2: physically manhandling them.
c) Left with no other option, the plaintiff severed every type of relation with the defendant and her husband vide public notice dated 27/12/2002 published in the National Daily disinherited the defendant and her husband Sh. Mukesh Verma and children from his movable and immovable properties.
d) Defendant with malafide intention filed a false complaint at Crime Against Women Cell, Nanak Pura, New Delhi in March, 2003 against the plaintiff. During the proceedings, the defendant requested the plaintiff that she has nowhere to go as her husband Sh. Mukesh Verma is absconding since November, 2002 as she was living in rented premises at Rohini, Delhi and she has no other sufficient income to pay the rent. She further pleaded that as soon as her husband approached she would leave the premises/house of the plaintiff.
e) Pitty upon the defendant, the plaintiff allowed the defendant to stay at one room of the rear portion of the premises along with one attach bathroom and covered room which is being used by the defendant as kitchen in property bearing no. LD-73, Pitam Pura, Delhi along with son of the defendant Master Mohit since 03/04/2003.
f) Thereafter, the defendant has not vacated the suit property of the plaintiff despite several requests of the plaintiff. Plaintiff has lodged several police complaints before the police station Pitam Pura, against his son Sh. Mukesh Verma and the defendant for unruly behaviour of the defendant time and again.
g) The plaintiff and his wife are the senior citizens and are suffering from various ailments. The wife of the plaintiff is suffering from blood pressure, sugar, thyroid and severe eye blindness and the plaintiff is suffering from blood pressure, survical pain and stomachache caused Civil Suit no. 140/11 : 3: due to stress and tension.
h) The property is the self acquired property of the plaintiff. The plaintiff had sent a notice dated 31/10/2008 asking the defendant to vacate the suit property within stipulated period of time vide registered A.D. and UPC but the defendant intentionally refused to accept the notice.
i) On 01/12/2008 at about 7:00 pm in the evening the defendant came along with two strangers at the suit property and started showing them the suit property. When the plaintiff enquired from those strangers, they told that they have come to see the property for the purpose of taking on rent on which the plaintiff was shocked.
j) The plaintiff has no other efficacious and proper remedy but to file the present suit before this court.
3. Written statement filed by the defendant. In the written statement relationship between the parties have not been denied by the defendant. It is stated that the property in question was purchased out of the joint funds in the name of the plaintiff since the plaintiff being the father and Karta of the family was supervising all the joint funds of the entire family at the relevant time. It is further stated that the plaintiff himself arranged a tenanted accommodation to enable the new couple to enjoy prime period of their life without any hindrance from any corner. Even the kitchen articles were got arranged/purchased by the plaintiff. It is further stated that publication was made by the plaintiff with ulterior motive to protect from any action being initiated at the end of the defendant. It is further stated that the defendant never made any complaint against the plaintiff and the mother in law. It is further stated that the compromise took place between the plaintiff and the defendant in the presence of the several persons so that defendant could lead peaceful life with her child. It is further stated that the defendant is not aware about the whereabouts of Civil Suit no. 140/11 : 4: her husband Sh. Mukesh Sharma and has no knowledge about the visits of her husband. It is further stated that Sh. Mukesh Kumar, plaintiff and other family members are in collusion with each other and the plaintiff has filed the present suit just to throw the defendant and her child out of the portion in her possession. It is further stated that the plaintiff was hospitalised in Ganga Ram Hospital for operation of stone in the year 2005 and during the said period the defendant being the daughter in law and occupation of the same flat, took all care of the plaintiff like his daughter. It is also stated that in the year 2006, the defendant was hospitalised in Ambedkar Hospital for about 15 days and the plaintiff and his wife took all care of the defendant like their own daughter. It is further stated that to the knowledge of the defendant gathered from her husband during the prime period of their cohabitation and Sh. Mukesh Verma was the absolute owner of the DDA flat and the said flat was sold by the plaintiff and the consideration amount was retained by him. It is further stated that all the festivals are celebrated by the parties together. It is further stated that the defendant and her son have right to shelter and reside in the suit property. It is further stated that the defendant with her son after expiry of the period of seven years from the date of marriage started creating grounds to dispossess the defendant and her son from the suit property at the instance of Sh. Kiran Nandwani (family friend of plaintiff's daughter) having influence and interference in the family affairs of the plaintiff and their daughter (who is having eyes upon the suit property). Rest of the contents of the plaint are also denied in the written statement.
4. Plaintiff filed replication to the written statement wherein he denied the averments made in the written statement and reiterated and affirmed the contents of the plaint.
5. On the pleadings of the parties, my Ld. Predecessor vide order dated 23.04.09 framed following issues :
i) Whether plaintiff is entitled for possession of the suit property Civil Suit no. 140/11 : 5: along with mesne profit? OPP
ii) Whether any cause of action has arisen in favour of the plaintiff? OPD
iii) Whether the suit is maintainable in the present form? OPP
iv) Whether the suit is not valued property for the purpose of court fee and jurisdiction? OPP
v) Relief, if any?
6. To prove the case of the plaintiff, plaintiff has examined himself as PW-1. He tendered his evidence by way of affidavit as Ex. PW-1/A. The contents of the said affidavit are similar to the avernments made in the plaint. He further relied up on the original conveyance deed as Ex.PW-1/1, site plan of the suit property as Ex.PW1/2; original publication to disown to his son as Ex.PW1/3; copy of proceedings before CAW Cell, Nanak Pura, New Delhi as Ex.PW1/4; original notice dated 24.3.03 from CAW Cell as Ex.PW1/4A; carbon copy of compliant dated 31.07.2008 as Ex.PW1/5; carbon copy of complaint dated 28.07.07 as Ex.PW1/7; reply dated 09.03.07 as ExPW1/9; carbon copy of complaint dated 02.06.03 as Ex.PW1/10; carbon copy of complaint dated 21.05.2003 as Ex.PW1/11; notice dated 31.10.08 as Ex.PW1/12; Ex PW1/13 and Ex. PW1/14 are original postal UPC receipts and Ex.PW1/15 is original returned envelop of the legal notice. This witness was cross examined at length by counsel for the defendant. Plaintiff also examined ASI Sumedha from PS Nanakpura, Delhi as PW-2. This witness has also been cross examined at length by the Ld. Counsel for the defendants. He further cross examined Ms. Poonam, LDC, Sub Registrar-VII, Vikas Sadan, INA, New Delhi, has been examined as PW-3. This witness was also examined by Ld. Counsel for defendants. Thereafter, the Ld. Counsel for plaintiff by separate statement closed PE.
7. Defendant examined herself as DW1 and tendered her evidence by way of affidavit as Ex.DW1/X. She further relied upon the copy of the complaint dated 04.03.03 filed before the CAW Cell as Mark-A, statement of Civil Suit no. 140/11 : 6: Rajender Kumar dated 03.04.03 as Mark-B and policy bearing no. 111661180 as Ex.DW-1/3. This witness was cross examined at length by Ld. Counsel for the plaintiff. She further examined Smt. Promila Oberoi as DW2, who tendered her affidavit by way of affidavit as Ex.DW-2/A. Defendant also examined Sh. Lalit Kumar as DW3, who tendered his affidavit by way of affidavit as Ex.DW1/A. He also relied upon documents as DW1/1; DW1/2 and DW1/3. Thereafter, vide separate statement Counsel for defendant closed DE.
8. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents relied upon and proved by the parties during trial. My issuewise findings are :
Issue No. 1 to 3i) Whether plaintiff is entitled for possession of the suit property along with mesne profit? OPP.
ii) Whether any cause of action has arisen in favour of the plaintiff? OPD.
iii) Whether the suit is maintainable in the present form? OPP.
Since issues no. 1, 2 and 3 are inter related to each other, therefore, I am of the opinion that these issues have to be disposed of with common findings. Ex. PW1/1 is perused. In this document there is name of the plaintiff and this document was executed by DDA in favour of the plaintiff. Thus, the plaintiff successfully proved that the ownership of the property is in his name. During cross-examination plaintiff has stated that he was retired from a private company namely Smit Kline Beecham situated presently at Gurgaon, Haryana. He has further stated that he retired from the services in the year 1998 as a Manager. He has three children namely Sangeeta (daughter), Pushpender and Mukesh (sons). His daughter Ms. Sangeeta was born in the year 1963, Pushpender in the year 1967 and Sh. Mukesh in the year 1969. He purchased the suit property in the year 1989 for a sum of Rs. 3 Lacs (approximately). Before the purchase of the suit property, he used to stay at Rajouri Garden, New Delhi along with his Civil Suit no. 140/11 : 7: family members and his daughter was married in the year 1988. At that time, his daughter was in private service and his both sons were studying. Here this court observes that when the plaintiff had purchased the suit property then the son of the plaintiff i.e. Sh. Mukesh who is husband of the defendant must be of the age 19/20 years. It is further case of the plaintiff that he was getting salary of Rs. 15,000/- per month approximately. There was no other source of income except his salary at that time. It is already stated that his daughter was in private service. He has further stated that the marriage of his daughter was very simple and total expenses of the marriage were Rs. 1 lac or so. There is no challenge to this statement of the plaintiff as well as to the statement of the plaintiff that his daughter was in private service. A suggestion was given that at the time of marriage of his daughter, both of his sons were working and the said suggestion was denied. It is further suggested that his son was earning from the tuitions and his earnings from the tuitions form part of joint family income. However, this suggestion was denied by the plaintiff. During arguments, this court raised query from both the parties what is the educational qualification of Sh. Mukesh and both parties have stated that he is only 10th class passed. Here this court has to observe that a person who was merely 10th class passed at the relevant time was of 19/20 years old, even if it is assumed that he was earning some amount from tuitions then definitely he could not earn so much amount that he could contribute to his father to purchase a house. Moreover, the court has to take the judicial notice of the fact that if any student have to pass 10th class then his age must be of 16/17 years at the relevant time and if the case of the defendant be taken as correct for the sake of arguments that he might be earning from tuitions immediately after passing 10th class then it cannot be presumed that he might be earning so much amount being a new entrant in the profession of tuition that he could earn so much of amount that he could contribute to his father to purchase of the house. If arguments of the defendant are believed to be correct that he started earning from tuition then definitely that amount could only be spent for his expenses only by Sh. Mukesh but so much amount could not be earned that he Civil Suit no. 140/11 : 8: could contribute towards the purchase of the house by the father. No evidence of any kind has been brought on the record that Sh. Mukesh was taking tuition at the time of purchase of the house. The court observes that the marriage of Sh. Mukesh with the defendant took place in the year 1998 and the defendant was not present in the family of the plaintiff then it can definitely be said that the defendant has put a hollow defence without any basis. No evidence has been brought by the defendant to prove such contention. It has also come on the record and not challenged that daughter of the plaintiff was in private service and plaintiff was getting a salary of Rs. 15,000/- per month presently. Thus, the plaintiff was having sufficient income at that time to purchase a house as well as to get married his daughter out of his own income as well as income of his daughter, though it is not the case of either parties that the plaintiff has taken any sort of help. It is further admitted that Ms. Sangeeta used to give her salary to him prior to her marriage and he had stated that she was earning Rs. 2,000/- per month. A suggestion was given that Sh. Mukesh was earning Rs. 5,000/- per month from tuition and the said income was handed over by him to the plaintiff and the said suggestion was denied. Again this court has to observe that merely a 10 th class passed who had few years back might have passed 10th class cannot earn so much huge income and in the year 1989 as no evidence has been brought on record to prove the income of Sh. Mukesh. It is further stated by PW.1 that expenditure at the time of marriage of his daughter was incurred out of his savings and as well as from the help of his friends and well wishers. He has further stated that he did not remember the amount which he took from each of them, how much amount and how many of them have given this amount. He has further stated that he did not remember as to after how much period he had returned back the amount borrowed from his friends and his savings at that time. Here this court further observes that the statement of the PW.1 cannot be disbelieved as in this country marriage of the daughter is believed to be a pious sacrament/obligation of a father and definitely in the society relatives and family are helpful to a person who is going to get married of his daughter.
Civil Suit no. 140/11: 9: Thus, the testimony of PW.1 to this effect cannot be disbelieved upon. It is further stated that the amount for purchase of the property in the year 1989 was taken from his services as well as from loan from his employer. He has further stated that he had taken loan amount of Rs. 40,000/- from the company. Thus this statement of the plaintiff is not challenged by the defendant. He has further stated that he has no knowledge whether Sh. Mukesh had taken a LIC policy of Rs. 25,000/- and made him his nominee before his marriage. He has further stated that he has no knowledge whether it was a money back policy. He has further denied that Mukesh gave periodical income to him derived from his policy. This court has to further take judicial notice of the fact that a father is legally bound to maintain his son till the age to attain the majority i.e. 18 years. If after the age of 18 years the father is maintaining his son then it is only of affection towards his son but cannot be compelled either by his son or any other person to maintain his grown up and after marriage, a married son. If argument of the defendant is believed upon that Sh. Mukesh might have gave some money at few occasions to the plaintiff then also the said amount might have been incurred to provide food and shelter by the plaintiff to his son. It is settled law that civil cases have to be decided upon probabilities and probabilities are indicate as such.
9. He has further stated that the suit property is a DDA flat allotted to him. A suggestion was given by the defendant to the PW.1 that due to strict provisions of dowry prohibition, his wife and family members with a fear and request, approached the defendant that application filed in CAW Cell must be withdrawn by her but that suggestion was denied. However, this court observes that plaintiff is a senior citizen and it can be presumed that due to application filed in CAW Cell, he must be under the fear of his arrest but this conduct is a natural conduct and it cannot be presumed that mere filing of an application before CAW Cell, any case is proved against him. A suggestion further given that at his request the matter was resolved and he along with Vinita started residing in the suit property. If under the fear any matter is compromised or resolved, it cannot be said Civil Suit no. 140/11 : 10: that the matter is amicably settled. A compromise between the parties should be without any inducement, fear or coercion. In such circumstances, if arguments of the defendant is to be believed upon that the matter was resolved before the CAW Cell then it is only the case of the defendant that plaintiff was under the fear and, therefore, that settlement cannot be looked into. He has further stated that Ex. PW1/6, Ex. PW1/D1 and Ex. PW1/7 were lodged against the behaviour and conduct of Vinita as well as her husband Sh. Mukesh. He has further stated in cross-examination that prior to issuance of public notice to Sh. Mukesh Verma and his wife and their child, they were living in Rohini, Delhi in a rented premises. The plaintiff along with his wife was residing at the suit property at the time of giving of notice. He has further stated that the defendant had threatened him either to transfer the property in her favour and if he did not agree they would leave the suit property and leaving the old aged parents on their own mercy. He did not make any report to the police authority. This court observes at this stage that in our country every senior citizen is trying to protect the honour of his family. If his daughter in law is making any threat then every elder of the family put an attempt to passify the situation unless and untill the situation crosses its own limit. Even if he goes to police station to complain against his daughter in law then also as the same is not a cognizable office till date, thus no one is going to register a case against his daughter in law. Thus, the case of the plaintiff is very well presumed to be correct by not making any complaint against the defendant by the plaintiff. He has further stated that he did the business of 'kiryana shop' after his retirement though he did not remember when he closed the said shop. A suggestion was given that his son gave the expenses of the construction of said shop but the said suggestion was denied. Here this court further observes that it is not the case of the defendant at any stage that the expenses of the house were being run by the common joint funds at the relevant time. Defendant has not set up such case. It is also not the case of the defendant at any stage that the son of the plaintiff Sh. Mukesh at any stage had contributed towards the marriage of his sister. Nowhere it has been brought on the Civil Suit no. 140/11 : 11: record what was the exact bank balance and the earnings of Sh. Mukesh when the defendant was living with him. Thus the defence set up by the defendant is unconvincing, without any basis and is unreliable.
10. PW.1 has admitted that he had purchased Maruti car just after his retirement but the same was purchased on subsidized rate as given by the company where he was working at the time of his retirement. All such questions put by the defendant to PW.1 for the matter not in controversy and related to the subject matter of the dispute. PW.1 has further admitted that after marriage the defendant came to the suit property and resided their along with her husband till June, 1999. He has further stated that his grand son Mohit was not born in the suit property. A suggestion was given that at the time of birth of Mohit, the defendant was staying in the suit property and the said suggestion was denied. Few photographs were confronted to PW.1 and he admits the photographs but denied that these photographs were of marriage of Sh. Mukesh and Vinita. He has stated that these photographs were taken at the time when he went to see the defendant for his son Mukesh prior to marriage for the purpose of arranging marriage. These photographs are Ex. PW1/D2 (colly.). All photographs are perused and in these photographs this court observes that the gestures of the persons in the photographs, the attires wearing by the persons in the photographs as well as the mood of the people in the photographs cannot be said that these photographs are of marriage and the statement of PW.1 appears to be correct; inasmuch as these photographs are must be prior to the marriage. He has further stated that Ex. PW1/D3 (colly.) running into three pages, were taken at the time of first 'Lohri' of Master Mohit and he went to Chinar Apartments, Rohini at the request of Sh. Mukesh and the Defendant. These photographs are also perused. There is a baby in the lap of the plaintiff and a lady. Thus, the statement of the plaintiff is believed upon.
11. In defence, DW.1 has stated that she was working before marriage at Maurice & Javier. It was a finance company situated at Kamla Nagar.
Civil Suit no. 140/11: 12: She has admitted in cross-examination that Ex. PW1/D1 and Ex. PW1/D2 are not the photographs of marriage but photographs relates to engagement prior to the marriage. Thus, the statement of PW.1 is herself proved by the defendant during her cross-examination. She has further admitted that she along with Sh. Mukesh was residing at the rented premises and at that time her husband was working as Manager, but she did not remember the company. She has further stated that she did not know the salary of her husband since the salary was paid by him to his father in law. She has further stated that her father in law was paying the rent of the tenanted premises where she along with her husband was living. Now if the case of the defendant is to be believed upon then how it is possible that her husband was paying salary to her father in law and her father in law was paying the rent. Further, the question arises who was affording or bearing the house hold expenses, expenses of the child, expenses of the running house and other relevant expenses. It is the case of the defendant herself that her husband used to hand over the entire salary to his father. It is not the case of the defendant that ration, cloths, garments for defendant, her husband and her son was arranged by her father in law while she was living in rented accommodation. It is not the case of the defendant that she had ever demanded money from her father in law to run house hold chores. Thus, this court observes that the defendant is not telling true and correct facts. She has further stated that her husband Sh. Mukesh Verma left in 2002 but she did not remember month and date. From the file, the date of institution of the present suit is of 10/12/2008 i.e. after more than six years. She has further stated that she did not lodge any missing complaint regarding her husband before any police station. She did not published the matter in the newspaper regarding examination of her husband. She denied the suggestion that it is conspiracy of her along with her husband to enter the suit premises of her father in law and the said suggestion was denied. She has further admitted that Sh. Mukesh Verma was not residing at the suit property for the last 12 years. She has further stated that the 'Mundan Ceremony' of her son was held at Naina Devi in the year 2003 when she along with her Civil Suit no. 140/11 : 13: parents in law visited Naina Devi for the 'Mundan Ceremony'. No friend or relative was present at Naina Devi for 'Mundan Ceremony.' She further stated that she did not have any photographs for the 'Mundan Ceremony.' A suggestion was given that the 'Mundan Ceremony' of Mohit did not take place and the said suggestion was denied. Here also, the court observes that it is the admitted case of the defendant that her husband Sh. Mukesh has left in the year 2002 and the 'Mundan Ceremony' took place in the year 2003. It is also the case of the defendant that thereafter she started proceeding before CAW Cell. Now here again the question arises how a lady could make a joy from celebration for any purpose when immediately before the said alleged celebration her husband had left her as well as his parents. This conduct of the defendant is again castes a suspicion in the mind of this court. Ex. PW1/11 is copy of complaint by the defendant which bears date of 21/05/2003. Ex. PW1/4A is notice issued by the Joint Commissioner of Police. This notice also bears the date of 24/03/2003. Thus how it was possible for a person to celebrate the 'Mundan Ceremony" of his grandson when there was so much tension regarding a complaint before CAW Cell as well as few months back his son or husband of the defendant left the house. She has further stated that she did not have any photographs of 'Mundan Ceremony'. Ex. PW1/D2 are the photographs of 'Lohri' wherein Master Mohit is there. But no photograph is there for 'Mundan Ceremony.' If photographs could be taken for the occasion of 'Lohri Ceremony', then this court is not able to believe upon if a 'Mundan Ceremony' took place of a child then definitely mother of the child will take photographs of that 'Mundan Ceremony' because it is an important event of a son for his mother. Thus, here the case of the plaintiff can be believed upon that no 'Mundan Ceremony' of Master Mohit took place. She has further stated that she kept Karwa Chouth for her husband Sh. Mukesh but she has further stated that she had no photographs regarding the celebrations of Karwa Chouth ceremony. She has further stated that her husband Sh. Mukesh had a DDA flat but she did not know the location, particulars or whereabouts of the said flat. She has further stated that she did not know whether her Civil Suit no. 140/11 : 14: husband is the owner of the said flat or not or the said flat is sold by her husband or not. This statement of the defendant again does not inspire confidence in the mind of the court. It is not the case of the defendant that she had ever asked from her husband about the location, whereabouts or particulars of the said flat from her husband and he refused to disclose. In such circumstances, this statement of the defendant that her husband was owning a DDA flat does not appear to be correct. She has further stated that she did not know the whereabouts of her husband or she never met her husband after he left her.
12. The statement of DW.2 is similar to the statement of DW.1. She has stated that Sh. Mukesh left Ms. Vinita in the year 2002 but she does not remember the exact date but stated that it was September, 2002. She has further stated that she did not have any medical record of admission of the defendant in Ambedkar Hospital in the year 2006 for treatment of high fever. DW.3 Sh. Lalit Kumar has stated that he is in relation of the defendant being close relative of the defendant. During cross-examination he has stated that he used to visit Sh. Anandpur Darbar with the mother of defendant for the last 30 years and mother of the defendant is his religious sister. He was not in relation with the mother of the defendant at the time of the marriage of the mother of the defendant. Thus, testimony of this witness is itself falsify during examination as these facts were not disclosed by this witness in his affidavit Ex. DW1/A. He has further stated that he did not call the defendant and his husband even in the engagement of his real son. He did not know the address of plaintiff. He did not know where the house of the plaintiff is located. He has further stated that the defendant and her husband stayed in Shalimar Bagh but stayed in Pitam Pura after marriage. He did not aware about the correct location of the Rohini house where defendant had shifted. Thus, this witness appears from the testimony that he is only called as a tutored witness to help the defendant. He is not aware about the material facts of the parties. In Ex. DW3/A, he has stated about the particulars of the suit property but during cross-examination he must admitted that he did not Civil Suit no. 140/11 : 15: know where the house of the plaintiff is located. He has further stated that the LIC policy mentioned in the affidavit was told to him by the plaintiff and he did not know anything about the same. He has further stated that he cannot say whether the defendant is co-owner of the suit property or not. Thus, testimony of DW.3 itself contradicts and thus this witness cannot be believed upon. In view of the observations made herein above, it is an admitted fact that the owner of the property is the plaintiff himself. The case of the defendant is that Sh. Mukesh, husband of the defendant contributed towards the purchase of the suit property. However, during entire case neither the amount nor the occasion when the said amount was contributed by the son of the plaintiff to him, have been disclosed. The court has already made observation in this regard during the relevant paras. Even for the sake of arguments, if it is presumed that the son of the plaintiff contributed towards the purchase of the suit property then also after coming into force this defence of the defendant has no relevancy. As per Section 4 (1) of The Benami Transaction (Prohibition) Act, 1988 :
"4. Prohibition of the right to recover property held benami:-
(1). No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."
13. In their pleadings another defence took by defendant is that suit property has been purchased with the contribution of Sh. Mukesh who is her husband and therefore, she as a matter of right is entitled to live in the suit property. In Lt. Col. R. R. Chandra Vs. Sandeep Chandra 166 (2010) Delhi Law Times 50, where in para 17, Hon'ble High Court held :
"As it noticed earlier, the onus of proving the preliminary issue was on the defendant. The defendant has not placed any document, whatsoever, on the file of this suit that remotely suggests that the suit property was held by the plaintiff for or on behalf of the members of the HUF. In his cross -examination, on being suggested that he has not produced any Civil Suit no. 140/11 : 16: documents in support of the allegations the suit property is a joint family property..........."
It was further held by the Hon'ble High Court in the same judgment :
"19. The evidence placed on the record about the plaintiff's ownership of the suit property, by way of the sale deed, as well as the certificate showing that he discharged the loan secured by him previously for acquiring the asset, clearly establishes his ownership. The Defendant's evidence is entirely oral, and at best speculative and conjectural. At each step, he suggests that the plaintiff is in possession of the documents, and that even his wealth tax returns were with plaintiff. Other than his oral testimony, he did not lead any documentary evidence to establish the claim that the suit property was acquired out of joint family funds. He is the counter-claimant, asserting such state of affairs.
20. In Srinivas V. Narayan, AIR 1954 SC 379, the Supreme Court held that:
i. Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the neucleus from which the property in question have been acquired, the burden shifts to the party alleging self acquisition to establish that property was acquired without hte aid of joint family funds.
ii. The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. T he important thing to consider is whether the income which the nucleus yields is sufficient to lead to an interference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value.
21. The above decision was applied in M. Girimallappa V. R. Yellappagouda, AIR 1959 SC
906. In Rukhmabai V.Laxminarayan, AIR 1960 SC 335, the Supreme Court held that:-
"...there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu Family, is joint Civil Suit no. 140/11 : 17: family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."
22. The ratio of the above pronouncements is that there exists a presumption in Hindu Law that a family is joint. However, there is no presumption that property owned by any member or members of the joint family is Hindu Undivided family property. The member asserting so (that the property is joint family property) has to prove by cogent and convincing evidence that he, or other member acquired the asset by investing joint family funds or nucleus. In such event, the onus shifts on those who say that the property is not joint family property, to say so. These issues are not questions of law, but questions of fact to be decided on appreciation of evidence led by the disputing parties."
In D. N. Kalia Vs. R. N. Kalia 178 (2011) Delhi Law Times 294, it was held by Hon'ble High Court :
"12. In any event, even if it is accepted that the mother had purchased the house in dispute in the name of her son as Benamidar the defendant cannot derive any benefit since the plea of Benami transaction is now hit by the provisions of Section 4(1) of The Benami Transactions (Prohibition) Act, 1988, which reads as under:
" 4 (1) No suit, claim or action to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."
Learned Counsel for the appellant in order to bring out the case from purview of this provision of law took shelter under Sub Section (3)(b) of Section 4 which reads under :
"4(3) Nothing in this section shall apply-
(a) ...............................................
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."Civil Suit no. 140/11
: 18:
13. The submission of Mr. Goburdhan was that it is a case of mother and son the son was standing in a fiduciary capacity and also as a trustee qua the mother while holding the property in his own name and, therefore, the plea of Benami was not hit by Section 4(1) of the Act of 1988 in view of the exception provided under Sub-section (3)(b) of Section 4. This argument also cannot be accepted since it was not even the case of the mother that she had purchased the house in dispute in the name of the plaintiff as a Benamidar and that he was holding that property as a trustee for her or in a fiduciary capacity towards her. Even the defendant had not taken such a plea. In any event, the plaintiff, in whose name his mother had purchased the house in dispute, cannot be said to be the trustee of his mother and it also cannot be said that he was holding that property in fiduciary capacity towards his mother. A similar question had cropped up for consideration before a Learned Single Bench of this Court in which case also the property in question had been purchased by the mother in the name of her son and when that son had sought to take shelter under the provisions of Section 4(3)(b) of the Act of 1988 this Court had taken the view that the son could not be said to be holding the property as a trustee of her mother or in a fiduciary capacity. That decision is reported as 2003(67) DRJ 174, Anil Bhasin V. Vijay Kumar Bhasin & Ors. And the relevant paras of that decision are reproduced below:
15. It is obvious that in veiw of Section 7 of the Benami Tansaction Act, which repealed Sections 81 and 82 of the Indian Trusts Act, 1882, there cannot be the same concept of trusteeship or fiduciary capacity, or that of the transferee being deemed to be holding for the benefit of the person buying or providing the consideration as was the position prior tot he amendment of 1988.
16. At the same time, there exists, the provisions of Section 4(3)(b) of the Benami Transactions Act, 1988, being in the nature of a privisio excluding from the prohibition, the right to recover property held Benami, in such situations where the person in whose name the property is held, is a trustee or other persons standing in a fiduciary capacity.
17. To my mind, the only interpretation which can reconcile all the previsions, is to hold that after the repeal of Sections 81 and 82 of the Indian Trusts Act, 1882, it is only those instances of fiduciary capacity such as property of partnership firm held in the name of one of the partners, or property which Mr. X wanted Mr. Y to buy in the name of Mr. X, but in violation of that instruction, Mr Y has bought the property in his (Y's) own name. In such a case Mr. Y being in fiduciary capacity and a trustee of Mr. X, the previsions of Section 4 (3)(b) will ensure that Civil Suit no. 140/11 : 19: prohibition of Benami Transaction does not stand in the way of a legal proceeding by Mr. X to enforce any right in respect of the said property.
18. The distinction is subtle, but significant.
If Mr. X asks Mr. Y to purchase in his own name certain property, of which consideration has been paid by Mr. X, then that is a Benami, transaction. On the other if Mr. X were to ask Mr. Y to buy the property int he name of Mr. X, but for any reason Mr. Y purchase the property in his own name (vioz. Name of Mr. Y), then the relationship of trustee and or fiduciary capacity is available in the former case, but not in the latter case."
14. Similar view was taken by Kerala High Court also in a judgement reported as (1989) 180 ITR 503, titled C. Narayan V. Gangadharan'.
Therefore, the argument of Mr. Goburdhan in the present case that the plea of Benami is permissible in view of Sub-section 3(b) of Section 4 of the Act of 1988 stands rejected."
In 'Aarti Sabharwal Vs. Jitender Singh Chopra, 162 (2009) Delhi Law Times 38 where in para 35 Hon'ble High Court held:
'It is plain from Section 4(1) that no suit shall lie to enforce any right in respect of any property held Benami against the person in whose name the property is held. Even if one were to stretch the arguments, as is sought to be done by the Defendants, the plaintiff cannot claim ownership to the suit properties but only lay claim for recovering maintenance from Defendant no. 1, who according to her is the real owner of such property. Such a prayer in any event cannot be made on account of Section 4 (1), Benami Act......' Regarding matrimonial home, in S. R. Batra Vs. Taruna Batra AIR 2007 SUPREME COURT 1118 it was held in para 16:
'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.' Civil Suit no. 140/11 : 20: In para 8 of judgment in 'Neetu Mittal vs Kanta Mittal & Ors.' 152 (2008) DLT 691 it was held:
As observed by the Supreme Court, 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in- law with the parents of husband turn sour and are not cordial the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.' It is further observed in para 9 of this judgment '...........The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She 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 consult and wishes.' In 'Shumita Didi Sandhu Vs. Sanjay Singh Sandhu other" Delhi High Court 2207 (2) F.J. C. C. 236, in para 17 it is stated:Civil Suit no. 140/11
: 21: 'Learned counsel for the plaintiff, however, submitted that the Supreme Court did not go to the extent of holding that daughter-in-law had no right to stay in the house belonging to parents in-law even if it was matrimonial home. His submission was that in the aforesaid judgment it was not decided as to whether the house in question was a matrimonial home and if it was so, whether daughter-in-law had right to stay in the said house or not. He pleaded that in the absence of autho-ritative pronouncement on this aspect by the Supreme Court, decision in the case of Taruna Batra, (supra) should prevail. I am afraid and it is difficult to read the judgment of the Supreme Court in the manner learned counsel for the plaintiff wants me to read.
Ratio of this case is clear, namely, the daughter-in-law has no legal right to stay in the house which belongs to her parents-in-law.' Para 18 of this judgment further states that:
'Legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is not dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reason. Obviously, their son, who is only a permissive licencee and staying in the house with his wife cannot claim legal right therein.
Our Hon'ble High Court in 'Ajay Kumar Jain Vs. Baljit Kumar Jain' II (2009) DMC 64 (DB) held that:
'Matrimonial home is a place where both the parties i.e. husband and wife seek to reside-object of same is that wife should not be left homeless by any action of husband.' In the same judgment, Hon'ble Divisional Bench of our High Court held in para 9 and 10 that:Civil Suit no. 140/11
: 22: '9. The real bone of contention is the suit property. The respondent is adamant that the same is her matrimonial home and she is not willing to shift to another place. On the other hand, it has been pointed out by learned Counsel for the appellant that a suit for partition in respect of the said complete property had been filed by the brother of the appellant as both the appellant and his brother own 50% share each and preliminary decree had been passed. The question of the mode of division or sale of property was pending consideration before the competent Court and it was in view thereof that the appellant had offered to shift the respondent to another house.
10. Learned Single Judge in the impugned order has laid great emphasis on the fact that both the appellant and the respondent had been originally residing in the suit property being the first floor....' In Sardar Malkiat Singh Vs. Kanwaljit Kaur 168 (2010) DLT 521 in para 15 and 16 it was held:
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 to 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 indefinetly in the said house by claiming right of residence.
16. In Vimalben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and Ors., III (2008) SLT 630-III (2008) CLT 147 (SC)-2008 (40) 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 Civil Suit no. 140/11 : 23: 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 during the lifetime of the husband his personal liability to maintain his wife can be directed to be enforced against such property."
In view of the law discussed herein above, I am of the considered opinion that a woman can claim maintenance regarding her residence from her husband only when she is dependent upon her husband for residence. She could not claim for residence in a particular property but it is duty of the husband to provide residence to a wife who is dependent upon him or to make provisions thereof.
14. Ld. counsel for defendant vehemently relies upon Kavita Gambhir Vs. Hari Chand Gambhir 162 (2009) Delhi Law Times 459. The facts of this judgment are not applicable to this case; inasmuch as the case cited by the defendant shows that there was a Joint Hindu Family and the suit property was registered in the joint name in the name of two plaintiffs but this is not the case here. In the present case, when the suit property was purchased by the plaintiff then his son Sh. Mukesh was merely of 19/20 years of age. During arguments, both parties have already admitted that Sh. Mukesh is only 10th class passed. How a person of 10th class passed who was just taking tuitions at that time could contribute so much amount that a property could be purchased. No income at the relevant time has been disclosed by the defendant. No such evidence or direct witness has been brought by the defendant to prove that the son of the plaintiff was earning from tuitions. It is already observed and for the sake of repetition, this court again observes that if a boy has passed 10 th class then his age must be 16/17 years at the time of passing 10th class and within two or two and a half years, he could not establish his name in tuitions so that he could earn such a huge amount to contribute to his father to purchase the Civil Suit no. 140/11 : 24: property. Even, if the case of the plaintiff is to be believed upon that Sh. Mukesh was taking tuitions then within such a short spell, he could earn the amount at the most for his expenditure only but no such amount could be earned by Sh. Mukesh to contribute to purchase a house. Moreover, the facts of this case are also differs to the cited case that it is the unchallenged case of the plaintiff that at the time of purchase of the suit property, he was earning Rs. 15,000/- per month and he purchased the suit property being allottee for a sum of Rs. 3 lacs. This court can very well make observation that if a person earned so much huge amount for the entire life then definitely by his own savings he could purchase the suit property keeping in view the fact of quantum of income and the amount spent to purchase the suit property. Rs. 3 lacs if divided by 20 comes out to be Rs. 15,000/- and thus 20 months salary was equal to the purchase money of the suit property. If a person did services for the entire life then it cannot be said that he could not save 20 months salary for the 20/30 years of his carrier. If this is not possible for the plaintiff then how it was possible for the husband of the defendant that within 2/3 years, he could contribute such a huge amount by doing the tuition work for purchase of the suit property. Thus this judgment as relied upon by the defendant is not applicable to the facts of the present case; inasmuch as the defendant is not able to prove that the suit property was purchased through the joint family funds. Here this court also observes that the plaintiff has successfully discharged the burden that the suit property was not purchased out of joint family funds. Moreover, this judgment also differs to the facts of the present case; inasmuch as it is the admitted case of the defendant that she shifted from the suit property to Chinar Apartments in Rohini and she was living there with her husband and son. It is also admitted case of the defendant that her husband left her in the year 2002. It is not the case of the defendant that she put in efforts to trace out her husband. In such circumstances the facts of the case are entirely different from the case cited by the defendant.
15. One submission during arguments made by the counsel for the defendant Civil Suit no. 140/11 : 25: that the suit is bad for non joinder of the parties as husband of the defendant has not been impleaded in the suit. It is further submitted that it was the duty of the plaintiff to implead the husband of the defendant. In this case, it is the case of the plaintiff that he is not aware about the address of the husband of defendant whereas husband of the defendant in connivance with her is not vacating the suit property. It is the case of the defendant herself that she is not aware of the whereabouts of her husband and for this reason she is not aware about the address of her husband. During evidence, it has come on the record that the defendant had shifted from the house of the plaintiff and started living in a separate house in Chinar Apartments along with her husband and son. In cross-examination, she has stated that she could not say whether she shifted in the house in Rohini in June, 1999. It is admitted case of the defendant that Sh. Mukesh Verma, her husband left her in 2002. It is not the case of the defendant that her husband left her when she was living at the suit property. It is nowhere stated that when she was living along with the plaintiff, then her husband left her. In such circumstances when her husband had left her thereafter only, she had re-entered the suit property. During cross-examination of PW.1, it has come on the record that defendant lived with her husband at the suit property till June, 1999. It is also not challenged by the defendant that Mohit i.e. grand son was not born in the suit property. Thus after June, 1999, the defendant had not lived at the suit property with her husband. In such circumstances, it can be safely observed that a matrimonial home is the place where wife lived with her husband, but it is the admitted case of the defendant that after June, 1999 she did not live at the suit property with her husband and she re-entered the suit property along with her son afterwards. Moreover, both parties are not aware about the whereabouts of Sh. Mukesh i.e. the husband of the defendant. In such circumstances, it is the defendant who occupied the suit property without the consent and any right over the suit property. Even if it is believed upon the arguments of the defendant that the suit property is a matrimonial home then she can claim that right only from her husband but not from his father who has no legal duty to maintain Civil Suit no. 140/11 : 26: his daughter in law during the life time of her husband. Moreover, the defendant has not taken any step till date to implead her husband in the suit by moving any application. In such circumstances, this objection taken by the defendant is an after thought, especially in view of the fact that no such objection has been taken by the defendant in the written statement. This court further observed that it is defendant who is a working, a graduate and who is gainfully employed, though she has not stated anywhere the amount she is being earned through her salary but it is further admitted case of the parties that the plaintiff is not working who is maintaining his old aged wife. It is also the admitted case of the parties that the plaintiff is a senior citizen. Thus, it is the plaintiff who requires extra care by his son as well as by his daughter in law and when his son is not available then it is the duty of his daughter in law who is gainfully employed to take care of his old and ailing parents in law by all means. Thus, the plaintiff is successfully able to prove that the suit property was purchased by him through his hard earned and self earning and he is the absolute owner of the suit property. In such circumstances and in view of these observations, the plaintiff has successfully discharged the onus to prove issue no. 1 regarding the relief of possession and defendant is not able to discharge the onus to prove any of the issues. The other relief claimed by the plaintiff is regarding mesne profits. Perusal of Ex. PW1/A shows that the plaintiff has no led any evidence to prove this issue. Thus, the plaintiff is not entitled for any relief for mesne profits and is only entitled for the relief of possession of the suit property bearing no. LD-73, Pitampura, Delhi-88 as more specifically described in Ex. PW1/2.
16. Issue No. 4Whether the suit is not valued property for the purpose of court fee and jurisdiction? OPP.
Either party has not led any evidence to prove this issue and, therefore, this issue is decided in favour of the plaintiff and against the defendant.
Civil Suit no. 140/11: 27: 17. Issue No. 5 Relief.
In view of the observations made herein above, the suit of the plaintiff is partly decreed in favour of the plaintiff only for the relief of possession of suit property bearing no. LD-73, Pitampura, Delhi-88 with direction to the defendant to hand over the possession of the suit property as described more specifically in site plan Ex. PW1/2 to the plaintiff immediately and the suit is dismissed for the relief of mesne profits. Plaintiff is also entitled to proportionate costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 01.12.2011 (Jitendra Kumar Mishra) Additional District Judge-III Rohini Courts, Delhi Civil Suit no. 140/11 : 28: CS No. 140/11 01.12.2011 (At 4:26 pm) Present: Plaintiff in person.
Defendant in person.
Vide separate judgment announced in the open court today, the suit of the plaintiff is partly decreed in favour of the plaintiff only for the relief of possession of suit property bearing no. LD-73, Pitampura, Delhi-88 with direction to the defendant to hand over the possession of the suit property as described more specifically in site plan Ex. PW1/2 to the plaintiff immediately and the suit is dismissed for the relief of mesne profits. Plaintiff is also entitled to proportionate costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra) ADJ-III, Rohini Courts,Delhi 01.12.2011 Civil Suit no. 140/11