Delhi District Court
Nishi Sareen vs Asha Rani Sareen on 31 October, 2023
IN THE COURT OF SH. GAURAV RAO: ADJ - 03 : NEW
DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI
CNR No. DLND01-016023-2019
RCA No: 73/19
&
CNR No. DLND01-015929-2019
RCA No: 72/19
1. Smt. Nishi Sareen
W/o Late Sh. Ashok Sareen,
R/o G-175, Second Floor,
Naraina Vihar, New Delhi
2. Sh. Himanshu Sareen
S/o Late Sh. Ashok Sareen,
R/o G-175, Second Floor,
Naraina Vihar, New Delhi
.......Appellants
VERSUS
Smt. Asha Rani Sareen
w/o Late Sh. Madan Lal Sareen
R/o G-175, First Floor,
Naraina Vihar, New Delhi.
.......Respondent
Date of Institution : 05.09.2019
Date reserved for judgment : 20.10.2023
Date of announcement of judgment : 31.10.2023
Decision : Both Appeals
dismissed
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 1/38
JUDGMENT
1. Vide this common judgment I shall be disposing of RCA No. 73/19 & 72/19, both preferred by the appellants against judgment & decree dated 13.04.2018 (hereinafter referred to as the impugned judgment) passed by the then Ld. Senior Civil Judge-Cum-Rent Controller, New Delhi District, Patiala House Courts, Delhi in Civil Suit No. 56613/16 (Old no. 167/15) vide which the suit filed by the respondent/plaintiff was decreed and the counter claim filed by the appellants/defendants was dismissed.
Brief background Respondent/plaintiff's version
2. The respondent/plaintiff had filed the above civil suit claiming herself to be the owner of the property bearing No. G-175, Naraina Vihar, New Delhi vide Conveyance Deed registered vide Serial No.2479, Book No.1, Volume No.775 at pages 21 to 23 dated 27.06.2002 with the Sub-Registrar-VII, New Delhi (hereinafter referred to as the subject property) 2.1 It was her case that the appellants/defendants being family members, being her daughter in law and grandson (though the suit was filed also against grand daughter Ms. Nikita Sareen, RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 2/38 however, she did not file any appeal against the impugned judgment) were allowed to reside at the second floor of the subject property comprising of two rooms, kitchen, latrine and bathroom (hereinafter referred to as the suit property) as licensee.
2.2 It was her case that she being an old aged, helpless lady residing at the first floor of the subject property with her aged & ailing husband, who is confined to bed was not provided any support by the defendants who were not even on any speaking terms with her, therefore, vide notice dated 04.06.2015 she terminated their license and asked them to vacate the suit property, however, the defendants neither replied nor complied with the same.
2.3 It was her case that she has no source of income, is/was under debt and to clear the debts she was forced to sell the first floor of the subject property, where she is residing and as such she needs the suit property urgently for her use as well as for keeping someone, who could be of help to her in case of emergency.
2.4 The suit was filed seeking a decree of mandatory injunction against the appellants/defendants thereby directing them to handover the possession of the suit property to her as well as for recovery of Rs. 30,000/- for the period 05.06.2015 to 04.08.2015 towards mesne profits @ Rs 15,000/- per month till the vacation of the suit property by the appellants/defendants.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 3/38 Appellants/defendant's stand in written statement
3. Certain preliminary objections were taken by the appellants/defendants viz. that the suit in the present form is not maintainable as in the couch of relief of mandatory injunction, the plaintiff/respondent is seeking declaration of title as well as possession of the suit property, when admittedly she is not in possession of the same. It was pleaded that being out of possession of the same, the plaintiff is liable to pay court fees to the extent of her share in the suit property.
3.1 It was their case that the suit property was constructed by defendant no. 1 from her own funds in the year 2008-09, who had borne the entire expenditure of around 10-15 lacs in that regard and therefore the plaintiff/respondent is estopped from claiming possession of the same as defendant no. 1 has created charge/vested right over the suit property.
3.2 It was pleaded that defendant no. 1 has been residing in the suit property since 1986 i.e. immediately after her marriage to the plaintiff's son, children were born out of the said wedlock and therefore the suit property being a Hindu joint family property, the defendants/appellants being the wife & son of the plaintiff's deceased son are the co-owners of the same.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 4/38 3.3 It was further pleaded that the subject property was bought & constructed from the joint funds i.e. funds of the ancestral family business which business was being run since a long time from shops at Loha Mandi in which all the children of the plaintiff & her husband had equal share. It was pleaded that the subject property including the suit property was not purchased by the plaintiff/respondent as she had no source of income, no funds to purchase the same.
3.4 It was further pleaded that they have vested rights & interest in the subject property to the extent of 1/4th share in the same and that they are not licensees in the suit property.
3.5 It was pleaded that they have been in continuous, peaceful possession of the suit property without any hindrance from the plaintiff, who had also not raised any objection when construction was raised by them in the suit property and that defendant no. 1 is paying all the statutory dues/bills like electricity, water, MTNL etc. which are in her name.
3.6 While vehemently denying the contents of the plaint, it was pleaded that the suit has been filed at the instance of Sh. Sanjay Sareen who is the brother in law of defendant no. 1 and who wants to grab the entire property.
Counter claim RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 5/38
4. Defendants/appellants had also filed counter claim accompanying the written statement seeking declaration that the subject property is a Hindu joint family property and being co- owners they have 1/4th share in the same.
4.1 The averments of the counter claim are/were verbatim as that of the written statement.
Issues
5. After the pleadings of the parties were complete, the Ld. Trial Court framed the following issues:-
1. Whether the suit property is the self-acquired property of the plaintiff? OPP
2. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
3. Whether the plaintiff is entitled to recover a sum of Rs.
30,000/- as mesne profit from the defendant as prayed for? OPP
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the plaintiff suit is under valued? OPD
6. Whether the plaintiff suit is barred by limitation?OPD
7. Whether the plaintiff has no cause of action in his favour?
OPD.
8. Whether the suit property is family property?OPD
9. Whether the suit property is a joint family property? OPD RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 6/38
10. Whether the defendants are entitled to declaration of 1/4th share in the suit property? OPD
11. Relief.
5.1 Thereafter the partied led their respective evidence. Plaintiff examined herself as PW1 and also examined Sh. Anil Kumar Singh, LDC from the Sub Registrar VII as PW2. On the other hand, defendant/appellant no. 1 examined herself as DW1, appellant no. 2 examined himself as DW2 as well as Sh. Pradeep Sareen as DW3 and Sh. Bharat Rajak, Contractor as DW4 in support of the defendant's case.
6. Vide the impugned judgment, issue no. 1, 2 & 3 were decided in favour of the plaintiff/respondent and issue no. 4, 5, 6, 7, 8, 9 & 10 were decided against the defendants/appellants.
Appeals RCA 72/19 & 73/19
7. It is the appellant's case that the suit property is a Hindu joint family property, which was bought & built from the joint corpus/funds of the joint family business carried out by Shri. Madan Lal Sareen (husband of the respondent) and his three sons, who all were doing joint family business of steel since a long time. It is their case that earlier Shri Madan Lal Sareen was doing the joint business of Steel with his real brother Ram Lal RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 7/38 Sareen who was also residing along with his family in the subject property at the ground floor from 1985 till July 2010.
7.1 It is their case that later on all the three sons of Shri Madan Lal started the steel business in partnership in the name of M/s A.P.S. Steel Syndicate, from shop no. Y-110, Loha Mandi, Naraina, New Delhi and till today the joint business is continuing from Shop No. Y-98, Loha Mandi, Naraina.
7.2 It is their case that the subject property was purchased & constructed out of the funds of the income which was generated from the joint family business in which all the three brothers were earning handsome returns, which is evident from the individual incomes of the brothers and the returns of the partnership firm. It is their case that the husband of appellant no.1/defendant no.1 was the eldest son and therefore, the responsibility of the construction of the subject property was on his shoulders apart from other responsibilities.
7.3 It is further their case that husband of appellant no. 1 also had 1/4th share in the subject property and after his death the appellants/defendants being his legal heirs stepped into his shoes and became the co-owners in the subject property to the extent of 1/4th share. It is their case that the defendant no.1/appellant no.1, being the co-owner in the subject property, therefore constructed the suit property out of her own funds & income as the same falls in the share of appellant/defendants.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 8/38 7.4 It is their case that they along with the respondent/plaintiff are in the joint possession of the subject property and are peacefully living & residing in the suit property as co-owners since a long time and during all this period the appellants/defendants have been in sole & exclusive possession, occupation & enjoyment of the suit property and the respondent/plaintiff who was also well aware of the same had never asserted ownership right therein. It is their case that their possession of the suit property is open, hostile and continuous.
7.5 It is their case that appellant no.1/defendant no.1 has been residing in the suit property, which consists of barsati rooms which were constructed from the joint corpus of the joint family business, since 14.02.1986 i.e. immediately after her marriage and appellant no. 2/defendant no. 2 and defendant no. 3 since their birth until its construction in the year 2008-09, which construction was raised by the appellant/defendant no.1 and as such, appellants/defendants being the legal heirs of plaintiff's deceased son are the lawful owners being the co-owners.
7.6 It is their case that since the subject property is/ was a joint family property being bought & constructed from the joint funds of the ancestral family business therefore, the ground floor was occupied by the real brother in law of the respondent/plaintiff namely Late Sh. Ram Lal Sareen, with his family who was in the continuous possession from 1985 till July RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 9/38 2010 and thereafter on account of amicable family settlement, litigation inter-se between the respondent/plaintiff and them, they later on shifted to some other accommodation.
7.7 It is their case that the other family members i.e. youngest son of respondent/plaintiff i.e. Sanjay Sareen, along with his family, the plaintiff and her husband are residing in the first floor since then without any interference or obstructions from any of the family members being co-owners.
7.8 It is their case that the impugned judgment has been passed in ignorance of the law laid down by the Hon'ble Apex Court and that the Ld. Trial Court also ignored the fact that the suit itself was not maintainable and is/was barred under Section 41 (h) of the Specific Relief Act 1963.
7.9 It is their case that Ld. Trial Court ignored the settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship & estate and in the absence of any proof of division, such legal presumption continues to operate in the family. It is their case that the burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property and therefore, it was obligatory upon the plaintiff/respondent to prove that despite existence of jointness in the family, the suit property was not part of ancestral RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 10/38 properties but was her self acquired property but she failed to prove this material fact.
7.10 It is their case that the Ld Trial Court did not even direct the registration of the counter claim separately and also ignored the counter claim, which went unrebutted and was liable to be decreed since the respondent/plaintiff herself was not able to prove her source of income. It is their case that though plaintiff/respondent vaguely claimed that she got funds from her parents who had sold some property in Khyala, however, she admitted in cross examination that the Khyala property was sold when she was a small child and that she had no source of income. It is their case that the property being Hindu undivided property, having been purchased from joint funds, appellant no. 1's husband being coparcener is also the co-owner in the suit property and hence was not liable to be evicted being the mere licensee. It is their case that the Ld. Trial Court wrongly concluded that the subject property is a self acquired property and therefore the appellants are liable to be evicted being licensee.
7.11 It is their case that Ld. Trial Court failed to appreciate that the suit property is the matrimonial home of appellant no. 1 and after marriage she was brought in the same, furthermore her husband was already in occupation of the same therefore appellant no. 1 was occupying the premises under her own rights and was not inducted as a licensee separately.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 11/38 7.12 It is their case that the Ld. Trial Court failed to appreciate that the subject property was purchased from the joint funds/corpus and all the sons of respondent/plaintiff have equal rights/share in the same. It is their case that Ld. Trial Court also ignored the fact that appellant no.1 has also been paying all the statutory dues such as electricity dues, water dues and MTNL bills etc. which are in her name till date. It is their case that the fact of joint family business is clear from the records of the assessment of income tax of the partnership firms both in firms name as well as in the individual names whereas respondent/plaintiff had no source of income admittedly and she was not even an income tax assessee at the relevant time, therefore there is no question of her buying the property solely from her own funds.
7.13 It is their case that the suit property was constructed by appellant/ defendant no. 1 in the year 2008-09, from her own funds and she incurred an expenditure towards the material costs, labor and other related work of electricity, tiles etc to the tune of Rs. 10-15 lakhs approx., as such the right and interest have been created in the same and the plaintiff is thus estopped from claiming possession of the suit property when the same was not constructed by plaintiff and when no objection was raised during its construction as the same was a Hindu joint family property.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 12/38 7.14 It is their case that Ld. Trial Court also failed to appreciate the admitted fact that the appellants have been in continuous possession of the suit property and have been residing therein peacefully, without any hindrance from plaintiff/ respondent or anyone else until the filing of the present false & fictitious suit which was filed at the instance of the brother-in- law of appellant/defendant no.1 because of his greed.
7.15 It is their case that the Ld. Trial Court overlooked the provisions of the Indian Easement Act 1888 and that the respondent/plaintiff had no right to issue any termination notice as the appellants were never inducted as licensees by her and rather the appellants are the co-owners of the suit property and even otherwise the suit property having been built by appellant no. 1 from her own funds, the license, if any became irrevocable. It is their case that Ld. Trial Court failed to appreciate that not only appellant no. 1 had proved on record that she raised construction of the suit property but also that the said fact was admitted by the respondent/plaintiff. It is their case that the Ld. Trial Court wrongly concluded that appellant no. 1 failed to prove that the suit property was constructed by her and while doing so ignored the original bills proved by her which were otherwise never disputed by the respondent/plaintiff.
7.16 It is their case that Ld. Trial Court failed to appreciate the fact that the respondent/plaintiff failed to prove the RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 13/38 service of notice of termination of the licensee and that the signatures on the AD card are of none of the appellants.
7.17 It is their case that Ld. Trial Court erred in awarding mesne profit @ Rs. 15,000/- when no evidence in this regard was led by the respondent/plaintiff and Ld. Trial Court also failed to appreciate that appellant no. 1 had invested huge amount in constructions of the suit property.
Findings
8. I have considered the rival contentions raised at bar, perused the entire material available on record including the trial court record and the written arguments of the parties. Ld. Counsel for the appellants relied upon Anathula Sudhkar Vs. P.Buchi Reddy (Dead) by LRs and ors Civil Appeal no. 6191/2001 dated 25.03.2008, Virender Gopal Vs. Municipal Corporation of Delhi AIR 2007 Delhi 183, Adiveppa and ors Vs. Bhimappa and anr Civil Appeal No.11220/2007 dated 06.09.2017, Shankar Gopinath Apte Vs. Gangabai Hariharrao Patwardhan 1976 AIR 2506 and Sisir Kumar Dutta and ors Vs. Susil Kumar Dutta 1961 Cal 229 in support of his arguments.
8.1 On the other hand, Ld. Counsel for the respondent relied upon Sadasivam Vs. Sankar AIR 2017 Madras 175, Smt. Radhamma and ors Vs. H.N. Muddukrishna and ors AIR 2006 Karnatka 68, Sachin and anr Vs. Jhabbu Lal and anr RSA No. RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 14/38 136/2016 and CM No. 19123/2016 dated 24.11.2016, Surjit Kaur Vs. Balwindr Kaur AIR 2006 Punjab and Haryana 23 and Sant Lal Jain Vs. Avtar Singh 1985 AIR (SC) 857 to buttress the case of the respondent.
8.2 On a careful consideration of the entire record, I find no merits in the appeals.
8.3 Plaintiff/respondent had filed the suit seeking relief of mandatory injunction thereby directing the appellants to handover the possession of the suit property to her. Simultaneously she had also claimed mesne profit from them for use & occupation of the suit property till the possession of the same is/was handed over to her. It was the plaintiff's case that she was the owner of the suit property and the appellants were merely licensees in the same which license she had revoked as she required the suit property for her own use as the property wherein she was residing was sold by her for her financial needs/support. It was also her case that the appellants were not taking care of her and were not even on talking terms with her.
8.4 To establish her ownership qua the suit property plaintiff proved on record conveyance deed of the subject property of which the suit property is a part as Ex. PW1/1. The perpetual lease is on record as Mark A. The said document i.e. Ex. PW1/1 was also proved by PW2 who proved the registration of Ex. PW1/1 in the office of Sub Registrar on 27.06.2002.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 15/38 According to Ex. PW1/1 the subject property was allotted to the plaintiff/respondent on 03.05.1968 by way of a perpetual lease and the same was subsequently converted into freehold on 27.06.2002 through duly registered conveyance deed. These documents duly establish the ownership of the plaintiff/respondent qua the subject/suit property.
8.5 Though the appellants claimed that the subject property was purchased from the funds of joint family business and thus the subject property of which suit property is a part, is a joint family property, however, the said argument does not hold good in light of Ex. PW1/1 and Mark A. It is absolutely of no significance that the plaintiff/respondent was illiterate, had never worked in life or was not having the funds to purchase the subject property. No such argument is tenable in light of Ex. PW1/1 and the reasoning of Ld. Trial Court based upon Sadasivam (supra). Same applies for plaintiff/respondent's failure to prove that the subject property was purchased from the funds she got from her father who had sold a property at Khyala.
8.6 Before discussing the findings of the Ld. Trial Court it will be pertinent to highlight that in para 2 of her affidavit in evidence i.e. Ex. PW1/A, the respondent/plaintiff had averred as under:-
"2.That I am the owner of Property bearing No. G-175, Naraina Vihar, New Delhi-110028 which was earlier purchased by my mother in my name vide Perpetual Lease Deed dated 03.05.1968 vide Sr. No. 6369, Book No. 1, volume No. 993, pages 187-192 Sub-Registrar, Delhi and was got freehold vide RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 16/38 Conveyance Deed registered vide Sr. No. 2479, Addl. Book No. 1, Volume No. 775 at pages 21 to 23 dated 27.06.2002 with the Registrar-VII, New Delhi and the same are Ex. PW1/1 & PW- 1/2 respectively.
8.7 The said averment of the respondent/plaintiff remained unchallenged, unrebutted during her cross examination. Not even a single suggestion was given to her that she was deposing falsely or that the said averment is false or incorrect. The case of the respondent/plaintiff having remained unrebutted I find no reasons to disbelieve her. This is more so when admittedly, as was admitted by appellant no. 1/defendant no. 1 during her cross-examination that plaintiff/respondent was the only daughter of her parents when she stated "It is correct that plaintiff is the only daughter of her parents". Being the only daughter, the mother of the plaintiff/respondent buying the above property in her name is completely natural. In fact DW1 had further stated as regards Ex. PW1/1 as "I cannot say whether there was a perpetual lease deed 1968 in favour of the plaintiff before the conveyance deed was executed".
8.8 According to the plaintiff/respondent she got married in 1956, the subject property was purchased in the year 1968 and she had been residing in the same since 1984. Merely because her brother in law was residing on the ground floor of the subject property is by itself no proof of the fact that the subject property was purchased out of the funds of joint family business. Plaintiff/respondent's husband being alive, if she RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 17/38 permitted her brother in law to reside in the subject property, the only shows her greatness but is by no stretch of imagination a proof that the subject property was purchased from the funds of joint family business.
8.9 In light of Ex. PW1/1 the onus was upon the appellants to prove that the subject property was indeed purchased from the funds of joint family business but they miserably failed to prove the same. Appellant no. 1 got married to the plaintiff/respondent's son in 1986 i.e. after 18 years of purchase of the subject property and according to her, her husband was around 28 years old at that time though she failed to furnish the exact proof of his age. Even if it is assumed that her husband was 28 years old then at the time of purchase of the subject property, appellant no. 1's husband was around 10 years old only. He being just 10 years old, a minor, the argument that he was part of joint family business or having contributed to the funds of the joint family business is absolutely untenable. Any argument regarding partnership or subsequent partnership also loose their significance altogether once the subject property stood purchased in 1968 itself. In fact the appellant's arguments in this regard are absolutely misconceived and frivolous. This is more so when appellant no. 1/defendant no. 1 during her cross examination stated "my husband was never employed during his lifetime after our marriage. (Vol. That he was in joint family business.) I cannot say since when my husband was in joint family business.". In fact her claim that the subject property was RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 18/38 purchased from the funds of joint family business is mere hearsay as emerges from the following statement made by her during cross-examination:-
"It is correct that I have been told that the house was built with joint family funds by my husband, his grandmother. (Vol. That even the plaintiff had told this fact). It is incorrect to suggest that the plaintiff never told any such fact."
8.10 The appellants heavily relied upon partnership deed Mark A (colly) to prove that the subject property of which the suit property is a part was purchased from the funds of joint family business. The partnership deed was executed in October 1984 between the sons of plaintiff/respondent. The partnership deed having been executed after 16 years of purchase of subject property no question arises of the subject property being purchased from the funds of joint family business when the deed makes it crystal clear that business was carried out by the partnership only since 01.10.1984. Same applies for partnership deed dated 13.08.1991. As far as Mark B is concerned, which is an order passed by the Income Tax Department for the year 1976- 77, the same merely reflects that Sh. Ashok Kumar i.e. the appellant no. 1' husband was carrying on the business of sale & purchase of kabari goods and nothing more. The document has nothing to do with the subject property. He having been born in 1957-1958, the subject property having been purchased in 1968 no question of his being part of any joint family business or the funds from the said business being utilized for the purchase of subject property arises at all.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 19/38 8.11 As far as documents Mark X, Mark Y and Mark Z which are partnership deed dated 08.07.1978, one letter dated 13.08.1975 and fixation order for the year 1997-98 respectively are concerned, these documents even do not remotely prove that the subject property was purchased from the fund of joint family business. In fact the partnership deed Mark X was between the plaintiff/respondent's husband and his brother. The appellant's husband or the other sons of the plaintiff/respondent, who as discussed above were minors, had nothing to do with the said partnership deed or the business carried on by the plaintiff/respondent's husband. None of these documents have any link with the subject property. These documents at best prove that a joint family business was carried out by appellant no. 1's husband along with his brothers and father i.e. husband of the respondent/plaintiff but they do not even remotely prove that the subject property was purchased from the funds of joint family business. Furthermore these documents pertain to year 1975, 1978 and 1997 i.e. are of 7 to 29 years since the purchase of the subject property vide Ex. PW1/1. The partnership business was carried out much subsequently viz-a-viz the purchase of the subject property.
8.12 As regards appellant no. 2 is concerned, he examined himself as DW2 before the Ld. Trial Court. Having been born after almost 19 years of purchase of the subject property he was absolutely in no position to lead any evidence in support of the appellant's case that the subject property was RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 20/38 purchased by the plaintiff with the contribution of any other family member. The relevant portion of his cross-examination in this regard read as under:-
"My date of birth is 07.04.1987. I have no proof to show that at the time of purchase of the suit property by the plaintiff in 1968, any contribution was made by any other person/family member. (Vol. I was not born at that time). My father was born on 22.06.1957."
8.13 Similarly DW3 Sh. Pradeep Sareen, son of the plaintiff/respondent also failed to prove that the subject property was purchased from the funds of the joint family business. He himself was born in 1960 i.e. just 8 years prior to purchase of the subject property vide Ex. PW1/1. Being a minor, only 8 years old no question of his being a part of the joint family business or making or having witnessed contribution being made for purchase of the subject property arises. Nonetheless during his cross-examination he admitted "It is correct that the conveyance deed of suit property is in the name of my mother. It is correct that the said property was purchased by my mother on lease hold basis from DDA.......I do not have any proof to show that the suit property was purchased out of joint funds. Vol. I have a partnership deed." Hence DW3 also miserably failed to corroborate the appellant's case and rather admitted that his mother is the owner of the subject property. The burden to prove that the subject property was a joint family property was upon the appellants but the appellants miserably failed to prove the same. Once the subject property stands in the name of the RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 21/38 plaintiff/respondent, there is and cannot be any presumption that the same was a joint family property.
8.14 While deciding issue no. 1 in favour of the plaintiff/respondent and issue no. 8 and 9 against the defendants/appellants Ld. Trial Court rightly held as under:-
"15. Per contra, as per the plaintiff, she has owned the property in question by virtue of the Perpetual Lease deed mark A as well as the Conveyance Deed Ex. PW 1/1. It is averred by the plaintiff that being the only daughter of her parents, she inherited the property of her parents and also the suit property was purchased by the plaintiff from the money given to her by her parents. Perusal of document Ex. PW 1/1 clearly reveals that the property in dispute was allotted to the plaintiff in the year 1968 by way of perpetual lease deed which was subsequently converted into free hold property on 27.06.2007 through duly registered Conveyance Deed. Even PW 2 Sh. Anil Kumar Singh from the office of Sub Registrar was summoned to prove these documents on record and thus the ownership of the plaintiff over the property in question, by virtue of duly registered documents stands proved.
16 DW 2 in his cross examination stated that his father was born on 22.06.1957 and that he has no proof to show that at the time of purchase of the property in the year 1968, any contribution was made by his father or any other family members for the purchase of the property. Further DW 3, another son of the plaintiff also deposed that he was born in the year 1960 whereas the Conveyance Deed of the property in the name of the plaintiff pertains to the year 1968. None of these witnesses could produce any document to prove that the suit property was purchased out of the funds of the joint family business. The husband of defendant no. 1 who was born in the year 1958 was undoubtedly minor when the suit property was purchased in the year 1968. This averment of the defendants that there was a partnership business in the later year is of no help to them since at the time of purchase of the property there was no partnership deed and the children of the plaintiff being minor at that time, could not have made any contribution in the joint family business. Further, no poof has been produced on record by the defendants to show that the property in question was purchased out of the funds of the joint family business at any point of time.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 22/38 17 In case of Sadashivam vs. Sankar AIR 2017, Madras 175 it has been clearly held that"
"Plaintiffs/ sons claiming purchase of property out of income earned by them alongwith their father from various business and property is joint family property- plaintiffs however minor at time of purchase of property, making plea of doing business with father unbelievable- No other tangible evidence on record establishing purchase of property from joint family nucleus-Failure of sons/ plaintiffs to discharge initial burden".
Further, "property standing in the name of female member of joint family-She need not to prove as to how she acquired it."
18 In the present case as well, the plaintiff has proved that the suit property is her self acquired property by way of registered documents. Moreover, the defendants have failed to prove that they have contributed any amount for purchase of the said property. Further, the plaintiff is not required to prove that how she acquired the property in question by virtue of the judgment citied above. Further Section 3(2) of Benami Transactions (prohibition ) Act, 1998 clearly provides 'if a person purchased a property in the name of her wife or daughter, prior to the coming of 1998 Act, the presumption arises that the property has purchased for the benefit of the wife or daughter". Further in Meenakshi Ammal Vs S Vijayalekshmi (Kerala)(DB) it has been held that the source of income to meet the sale consideration is irrelevant in the context of the presumption flowing under Section 3(2) of Benami Transactions (prohibition ) Act, 1998.
19 Thus, it is clear that the plaintiff has owned the property in question and that the said property is the exclusive property of the plaintiff. Further, the defendants have failed to prove that the said property is a joint family property purchased out of the funds of the joint family business. These issues are thus decided in favour of the plaintiff and against the defendants."
8.15 Having decided issue no. 1 favour of the plaintiff/ respondent and issue no. 8 & 9 against the defendants/appellants, the Ld. Trial Court rightly decided issue nos. 4 & 7 against the defendants/appellants. Plaintiff/respondent being the exclusive owner of the subject property including the suit property, the RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 23/38 failure on the part of the defendants/appellant to prove that the subject property was purchased from the funds of joint family business, no question arises of the property being the joint hindu family property or the appellants/defendants being the co- owners, being the wife and children of the plaintiff/respondent's deceased son. Had it been an ancestral property, not exclusively owned by the plaintiff/respondent, the appellants/defendants would have been co-sharer/co-owners/co-parceners but that not being the case, they have no right whatsoever in the subject property.
8.16 The plaintiff/respondent had categorically claimed that the appellants were merely licensees in the suit property, which license was terminated by her and once they failed to establish that they are the co-owners in the subject property, their license being revoked plaintiff/respondent has a right to seek possession of the suit property from them. Suffice would be to say that they were residing in the suit property as per the wish, at the mercy of the plaintiff/respondent and the moment she did not want them to reside any longer they had no option but to vacate the same.
8.17 The fact that appellant no. 1 was merely a licensee in the suit property, residing therein at the desire of the plaintiff/respondent stands proved from the following statement made by DW1/appellant no. 1 during her cross-examination:-
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 24/38 "It is correct that I had started residing on the first floor of the suit property with my mother-in-law (plaintiff) after my marriage. (vol. That IInd floor was also in my possession). I shifted to IInd floor after marriage of my brother in law........... (Vol. That I had left the suit premises after the death of my husband but was called back to stay at the IInd floor stating that the family of my deceased husband should continue and not be disturbed)"
8.18 If not as licensees then in what capacity, they were residing in the suit property could not be proved/established by the appellants/defendants. Even if it is held that the plaintiff/respondent could not prove that the notice of termination of license was served upon the appellants/defendants as undoubtedly neither the legal notice nor any proof of its service was placed on record before the Ld. Trial Court, however, suffice would be to say that the filing of the suit is itself a sufficient notice. It was held by the Hon'ble High Court of Delhi in Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) reported as 183 (2011) DLT 712 that :
"..................7 (ii). The Supreme Court in the case of Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), 146 (2008) DLT 217 (SC)=1 (2008) SLT 195=2008 (2) SCC 728 has held that the tenancy would stand terminated under the general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (Supra) I hold that even assuming the notice termination tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.
........8. Therefore, looking at it from any point i.e. the fact that legal notice termination tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the appellant/tenant way back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 25/38 appellant/tenant is liable to hand over the possession of the tenanted premises...................."
8.19 When filing of a suit can be considered a sufficient notice for termination of lease, then the same can always be considered as sufficient notice for termination of license as a license gives much lesser right/protection to a licensee as against the right of a lessor under a lease agreement/rent deed. Reliance may be placed upon the law laid down in Sh Shivraj Yadav & Ors. vs Dr Arun Nirula RFA no. 71/2022 dated 02.08.2022 decided by the Hon'ble High Court of Delhi.
8.20 Upon the termination of the license, use, occupation and possession of the suit property by the appellants/defendants becomes unlawful & unauthorized. They are/were liable to hand over the vacant and peaceful possession of the suit property to the plaintiff/respondent. Reliance may be placed upon the law laid down in Shyam Sharan Vs. Sheoji bhai & Anr (1977) 4 SCC 393, M/s. Raptakos Brett & Co. Ltd. v. Ganesh Property AIR 1998 SC 3085 and C. Albert Morris v. K. Chandrasekaran (2006) 1 SCC 228.
8.21 Therefore not only the suit was very much maintainable but the plaintiff/respondent had cause of action in her favour and therefore issue no. 4 and 7 were rightly decided against the defendants/appellants by the Ld. Trial Court.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 26/38 8.22 As far as issue no. 6 is concerned, the Ld. Trial Court rightly held that the appellants/defendants failed to lead any evidence in respect of the said issue. Not only the pleadings are silent but even in the appeal the appellants/defendants failed to explain as to how the suit is/was barred by limitation. Most importantly, as long as the appellants/defendants continue to occupy the suit property there is a subsisting cause of action in favour of the plaintiff/respondent and no question of the suit being barred by limitation arises.
8.23 As far as issue no. 5 is concerned, this being a suit for possession/ejectment against a licensee by the rightful owner, the suit has been properly valued by the plaintiff. There is no question of any under valuation or non payment of appropriate court fees. Reliance may be placed upon the law laid down in Bharat Bhushan Gupta Vs. Pratap Narain Verma and Ors. MANU/SC/0783/2022. Therefore issue no. 5 was rightly decided against the defendants/appellants. Moreover this issue was already dealt by the Ld. Trial Court at the time of disposal of application under Order 7 Rule 11 CPC vide orders dated 21.03.2016 which order was never assailed by the appellants/defendants and it attained finality.
8.24 As far as issue no. 2 is concerned, the plaintiff/respondent's ownership being proved on record, the plea of the same having been purchased from the funds of joint family business having been negated/not proved and most importantly RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 27/38 the defendants/appellants being merely licensees, they had no option but to vacate the suit property and the plaintiff was definitely entitled to relief of mandatory injunction as was prayed by her. In fact it was not even necessary for the plaintiff/respondent to assign any reason as to why she wanted the defendants/appellants to vacate the suit property. Being the owner and the defendants/appellants residing in the suit property as per will/desire, they were bound to vacate the same as and when desired/demanded by the plaintiff/respondent. Arguments regarding non service of notice has already been dealt with above.
8.25 The Ld. Trial Court also rightly held that grant of license may be expressed or implied and that it is not necessary to record the same in writing. Considering the relations between the parties there is absolutely no hesitation in concluding that there was implied license in favour of the appellants/defendants to reside in the suit property till the plaintiff/respondent so desired/permitted. It was a permissive user, subject to the plaintiff/respondent wish/desire.
8.26 As regards the arguments based upon Section 60 of the Indian Easement Act 1882 are concerned, the Ld. Trial Court while rejecting the appellant/defendant's contention rightly held as under:-
"27 Further, it is averred by the defendants that defendant No. 1 got permanent construction on the second floor of the suit property with her own funds and therefore, she is protected by RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 28/38 virtue of Section 60 of the Indian Easement Act, 1882. Section 62 of Indian Easement Act, 1882 provides as under: " License when deemed revoked. -A license is deemed to be revoked- (a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license; (b) when the licensee releases it, expressly or impliedly, to the grantor or his representative; (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled; (d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right; (e) where the licensee becomes entitled to the absolute ownership of the property affected by the license; (f) where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable;
(g) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist; (h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee; (I) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist. 28 In order to prove that defendant no. 1 got the permanent construction in the suit property out of her own funds, she placed on record the copies of bills related to the construction of the second floor of the suit property ie.
G175, Naraina Vihar as Ex. DW 1/C (colly). However, none of these bills bear the name of defendant no. 1. Further, the copy of these bills alone do not go on to prove that it was defendant no. 1 who had incurred the expenditure for the construction of the second floor of the suit property or that the said construction was of permanent nature. In the column of name of the buyer only G-175 is mentioned. It is not clear as to who got the construction done on the second floor of the suit property. Further, the person who allegedly got the said construction done was examined by defendants as DW 4. However, this witness could not produce any document to prove that he is a registered contractor or that any agreement was executed between him and defendant no. 1 for carrying out any construction work. Further, this witness has failed to prove that he has received the payment from defendant no. 1 for any construction work done by him. This witness also did not file income tax return or any other document to prove that he had earned some amount from defendant no. 1 for carrying out construction activity on the second floor of the suit property. Thus, from the documents filed on record, it is not clear that any temporary or permanent RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 29/38 construction was done by defendant no. 1 from her own funds on the second floor of the suit property. Furnishing of water bill and telephone bills do not go on to prove that the second floor of the suit property was got constructed by defendant no. 1 by her own funds. These documents only prove the possession of the defendant no. 1 on the second floor of the suit property. Thus, in the absence of any direct or cogent evidence to prove that any work of permanent construction was got done by defendant no. 1 and defendant no. 1 has incurred expenses of said work done, defendant no. 1 is not entitled to claim any right over the second floor of the suit property. Further being the licensee, the defendants are under obligation to vacate the suit property on receiving the notice from thelicensor / granter ie plaintiff. Plaintiff is thus entitled to the relief of mandatory injunction thereby directing the defendants to vacate the second floor of the suit property."
8.27 Appellant no. 1/defendant no. 1 indeed miserably failed to prove that she had raised construction in the suit property. The only documents relied upon by defendant no. 1 to prove that she had raised construction in the suit property are bills i.e. Ex. DW1/C (colly), however, these bills are not in the name of appellant no. 1/defendant no. 1 and they do not prove that the construction material was purchased by appellant/defendant no. 1. Further she failed to file any account statement to corroborate her claim that she had made payment towards the said bills. The bills also do not prove that the construction as was raised in the suit property was a permanent one as during the cross-examination she admitted that certain renovation work was carried out at the suit property. Moreover the same was carried out from the compensation she received on account of her husband's death. The relevant portion of cross- examination of DW1 in this regard read as under:-
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 30/38 "Only one barsati room and one kacha washroom was built at the second floor. I never paid any rent/licence fee to the plaintiff. It is wrong to suggest that besides one barsati room and one kacha washroom, there was one Kitchen and one other pakka built room at the second floor. It is correct that the room on the stairs is also in my possession. It is correct that the room at the stairs is in existence since beginning. It is correct that I got the second floor renovated with the funds received as compensation for my husband's death. (vol. That I have raised certain permanent structures also)."
8.28 Similarly DW4 failed to prove that he had indeed carried out the construction work at the suit property or that the same was carried out at the instance of appellant no. 1 or that he had received payment in lieu thereof. He failed to prove his connection with Choudhary Traders and did not even once make an averment in the affidavit that bills Ex. DW1/C (colly) bear his signatures. The relevant portion of his cross-examination before the Ld. Trial Court read as under:-
"I am not a registered contractor nor I have any license for the construction work. I have no document/contract in writing with Ms. Nishi Sareen to carry the construction or the renovation work at the second floor of the house in question.........I have no proof of the payment made to me by Ms. Nishi in cash. Vol. However I have received payment in cash from time to time from Ms. Nishi Sareen for labour and construction work. I have no proof of the payment made to the labour regarding the work done. I am not an income tax payee."
8.29 Same applies for the bills on record as purportedly issued by S.K. Building Material Supplier or Paul Timber Supplier. Nothing stopped the appellants to examine the witnesses from S.K. Building Material Supplier and Paul Timber Supplier to prove that the material for raising permanent construction was supplied by them. Who had issued these bills, RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 31/38 who had signed them could not be proved by the appellants. Except for one or two bills most of the bills do not bear the appellant's name. These bills being generated/arranged subsequently by the appellants just to boost their case cannot be completely ruled out more so when appellants failed to prove the payment against those bills. Also why would anybody keep the bills with them for 10 long years after raising of the construction also does not appeal to a prudent mind. No photograph was proved on record to prove the alleged construction work carried on by them/appellant no. 1. No site plan or building plan was proved on record to prove the construction already existing and the additional construction carried out by appellant no. 1 allegedly in 2008-2009.
8.30 As far as electricity bills, water bills etc i.e. DW1/C and D are concerned, they are mere proof of the appellant's possession of the suit property, which is not disputed by the plaintiff/respondent and they are by no stretch of imagination of the proof of the fact that she had raised the construction in the suit property.
8.31 Hence the appellants miserably failed to prove that they had raised construction in the suit property.
8.32 Furthermore merely because the appellant/defendant no. 1 might have raised some construction in the suit property, which otherwise as discussed above could not be proved by the RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 32/38 appellant/defendant, that by itself does not amount to revocation of the license. For Section 60 (b) of Indian Easement Act to come into picture the construction should be raised by the licensee "acting upon the license". There is nothing on record to suggest that the plaintiff/respondent had given any such permission, any such right to the appellants/defendants to raise the construction, which construction, as discussed above, could not be proved. In the absence of any such express permission/right, proof that the construction was raised acting upon the license, construction if any raised by appellant no. 1 was at her own peril and the same will not tantamount to revocation of license. For invoking Section 60 (b), it was incumbent upon the appellants to prove 1. that they executed work of permanent character, which as discussed above, they miserably failed to prove, 2. they did so acting upon the license, no such proof was brought on record, 3. that they incurred expenses in doing so, which also, as discussed above, they miserably failed to prove. Unless these facts were duly established by the appellants/defendants, question of revocation of license does not arise. Reliance in this regard may be placed upon the law laid down in Ram Sarup Gupta (dead) by LRs Vs. Bishun Narain Inter College and ors MANU/SC/0043/1987 and Keventer Agro Ltd. Vs. Kalyan Vyapar Pvt. Ltd and ors MANU/DE/3843/2015.
8.33 Last but not the least the appellants/defendants cannot be permitted to probate and approbate at the same time i.e. blow hot & cold at the same time. Having denied the RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 33/38 plaintiff/respondent's claim that they were the licensees in the suit property and having raised the plea of co-ownership, which they otherwise miserably failed to prove, they cannot fall back upon Section 60 of the Indian Easement Act 1882 and agitate that having raised permanent construction in the suit property the license got revoked. These are two absolutely inconsistent and self contradictory claims/pleas which cannot be permitted to be taken in the suit of the present nature. Reliance may be placed upon the law laid down in Panchugopal Barua & Ors vs Umesh Chandra Goswami & Ors dated 12.02.1997.
8.34 As far as issue no. 10 is concerned, it has already been discussed above in detail that the subject property is the self acquired property of the plaintiff/respondent and not a joint Hindu family property in view of Ex. PW1/1 and Mark A. It was rightly held by the Ld. Trial Court that plaintiff/respondent is the sole & exclusive owner of the subject property which includes the suit property and accordingly the appellants/defendants were not entitled to 1/4th share in the same. The counter claim was thus rightly rejected by the Ld. Trial Court and it is of no significance that the counter claim was not separately registered. It is a mere technical/procedural lapse which has not prejudiced the appellants/defendants in any manner whatsoever and the outcome of the trial would not have been different even if the counter claim was separately registered.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 34/38 8.35 As far as issue no. 3 is concerned, no doubt the plaintiff/respondent failed to prove that the prevailing market rent of the suit property was Rs. 30,000/- per month i.e. if the suit property is let out the same would fetch a sum of Rs. 30,000/- per month. Nonetheless the Ld. Trial Court had merely awarded 50% of the amount claimed by the plaintiff/respondent which in my considered opinion was a notional rent the property could/would have fetched if the same being let out by the plaintiff/respondent. The sum of Rs. 15,000/- per month thus awarded by the Ld. Trial court was not exorbitant in my considered opinion. This is more so when the amount per month was fixed in 2018 and 5 years have lapse since then. This itself does not call for any interference as far as finding of issue no. 3 is concerned.
8.36 No question of the suit being barred under Section 41 (h) of the Specific Relief Act 1963 arises. This being a suit by a owner against a licensee, is the most appropriate/efficacious remedy available to the owner against the licensee.
8.37 As far as application moved by the appellants under Order 22 Rule 4 CPC is concerned, the appellants are seeking impleadment of Sh. Himanshu Sareen, Smt. Nikita Ohri, Sh. Pradeep Sareen and Sh. Sanjay Sareen as the LRs of Smt. Asha Rani on account of her demise on 05.08.2023. As far as Sh. Himanshu Sareen is concerned, he is already appellant no. 2 having assailed the impugned judgment/decree dated 13.04.2018 as he was defendant no. 2 before the Ld. Trial Court. His interest RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 35/38 being averse to the interest of the plaintiff/respondent no question arises of him being impleaded as LRs of the plaintiff/respondent more so when he is already impleaded as appellant no. 2 in the present matter.
8.38 As far as Smt. Nikita Ohri is concerned, she was defendant no. 3 before the Ld. Trial Court, however, she has not preferred any appeal against the impugned judgment/decree dated 13.04.2018. In my considered opinion the application at hand has been moved merely to delay the adjudication of the appeal, the trial. Ld. Counsel for the plaintiff/respondent rightly relied upon N.P. Thirugnanam (D) by LRs Vs. R. Jagan Mohan Rao and ors 1995 Legal Eagle (SC) 685 to argue that once the matter has been reserved for judgment, merely on account death of the respondent the proceedings will not abate, however, just to avoid any further litigation and to put the controversy at rest, Smt. Nikita Ohri stands impleaded as proforma appellant no. 3 in the present matter.
8.39 As far as Sh. Pradeep Sareen is concerned, he is the son of the plaintiff/respondent thus her legal heir but his interest throughout the trial has been averse to that of the plaintiff/respondent. In fact as discussed above he had deposed against the interest of plaintiff/respondent before the Ld. Trial Court. During his examination as DW3 it emerged on record that not only his mother but he was also not on cordial terms with his father. His cross examination in this regard read as " It is correct RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 36/38 that my father got vacated shop under my possession by filing a suit against me.........I never filed any suit against my mother regarding the suit property. (Vol. I want to file a suit for partition against my mother because it is a joint family property)". Therefore he is also impleaded as proforma appellant no. 4 in the present matter. Reliance in this regard may be placed upon the law laid down in G.N. Kishore Reddy Vs. R. Venugopal Rao and Ors. MANU/AP/0212/2004.
8.40 No question of he or proforma appellant no. 3 being prejudiced in any manner whatsoever arises as both of them have been aware about the pendency of the suit before the Ld. Trial Court as well as the present appeal. With these observation the separate application u/s 151 CPC moved by Sh. Pradeep Sareen seeking his impleadment as LR of Late Smt. Asha Rani Sareen stands disposed of.
8.41 As far as Sh. Sanjay Sareen is concerned, he being the son of the plaintiff/respondent and the only one whose interest did not clash with the plaintiff/respondent, is in real essence the one who represents the estate of the deceased.
Accordingly, he stands impleaded as LR of the respondent/plaintiff in both the appeals. The applications stand disposed of accordingly. Amended memo of parties, if filed, be taken on record.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 37/38 8.42 Needless to say that now that the plaintiff/respondent has expired her property shall devolve as per the Hindu Succession Act 1956 but the same is as on now not the concern of this court, nor the subject matter of the present appeals.
Relief
9. In view of the above discussion, the appeals being meritless stand dismissed.
10. Decree sheet be prepared accordingly.
11. Files be consigned to record room after necessary compliance.
Announced in the open court on 31st October 2023 (Gaurav Rao) Additional District Judge-3 New Delhi District Patiala House Courts, New Delhi.
RCA No. 73/19 & 72/19 Nishi Sareen & anr. Vs. Asha Rani Sareen 38/38