Delhi District Court
Sh. Khushal Chand vs Smt. Santosh on 22 April, 2008
IN THE COURT OF SH. M. P. SINGH, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
Suit No. : 613/06
Sh. Khushal Chand
s/o Sh. Wazir Chand
r/o D-6/17, Krishna Nagar
Delhi-51 ........PLAINTIFF
Versus
1. Smt. Santosh
W/o Sh. Khushal Chand
r/o D-6/17, Krishna Nagar
Delhi-51
2. Sh. Ravinder Kumar
S/o Sh. Khushal Chand
r/o D-6/17, Krishna Nagar
Delhi-51
3. Sh. Rajinder Kumar
S/o Sh. Khushal Chand
r/o D-6/17, Krishna Nagar
Delhi-51
4. Sh. Surinder Kumar
s/o Sh. Khushal Chand
r/o D-6/17 Krishna Nagar,
Delhi-51 .......DEFENDANTS
SUIT FOR POSSESSION
DATE OF INSTITUTION OF THE SUIT: 30/05/1991
DATE WHEN JUDGMENT WAS RESERVED: 02/04/2008
DATE OF DECISION: 22/04/2008
JUDGMENT
1. This is a suit for possession filed by the plaintiff against his wife and three sons on the assertion that they are his licencees. The plaintiff claims himself to be the owner of the suit property bearing No D-6/17, Krishna Nagar, Delhi. This property is double storey. Plaintiff is in possession of first floor of the property. Portion comprising of two rooms on the rear side shown yellow is in actual possession of the plaintiff where the plaintiff and his mother are living. Portion comprising of two rooms on the front side shown red are in occupation of defendant No 1, where she was living with defendants Nos 3 and 4 as licensees of the plaintiff.
2. It is stated that the defendants in the absence of the plaintiff broke open the locks of the ground floor of the suit property and took forcible possession of the ground floor. Complaint in this regard was lodged with the police but of no avail. It is stated that the license of the defendant No. 1 with respect to the first floor portion shown in the red colour of the site plan has been terminated. Hence this suit for possession.
3. The defendants have filed their joint amended written statement dated 12/02/1997. It is their stand that the defendant No 1 being the legally wedded wife of the plaintiff is entitled to maintenance and shelter. It is their assertion that the suit property is an HUF property, although the sale deed is in the name of the plaintiff. The same is stated to have been purchased with the assets of the defendant No 1 as well as from the assets of the partnership business being run under the name and style of M/s Subash Leather Store, Ballimaran, Delhi-110006 in which the defendant No. 2 was also a partner. It is stated that the same is a benami transaction as the plaintiff being the karta of the family was in an advantageous position and thus got the ownership documents executed in his favour.
4. It is the averment of the defendants that the plaintiff had his ancestral property in Lahore, Pakistan and resided therein with his two brothers. After the partition in 1947 the plaintiff along with his father and brothers migrated to India and filed claims for compensation. In 1955 separate compensation claims were again filed by three brothers including the plaintiff and it was in the same year that the plaintiff got married with the defendant No 1. It is stated that all the three brothers got 1/3rd share each from the compensation awarded by the government in lieu of the ancestral property in Lahore, Pakistan. This compensation amount is stated to have been utilized in leather business started in 1963 under the name and style as mentioned aforesaid. In the leather business the defendant No 2 was inducted as a partner in 1976. One Subhash was made partner in 1981 and the defendant No 3 was inducted as a partner in 1982. It is stated that there was no partnership deed.
5. It is further averred that the defendant No 1 had jewellery which was given to her as 'stridhan' by her father. The plaintiff is alleged to have sold off this jewellery after obtaining the permission of the defendant No 1, Sale proceeds whereof was utilised for purchasing the plot in question. It is stated that the jewellery was sold off on 3-4.09.1969 for a consideration of Rs 11,000/-. It is stated that after purchasing the plot, two rooms were constructed. It is the stand of the defendants that the plaintiff being the senior most member of the family and the Karta was in an advantageous position so as to get the sale deed executed in his name. It is stated that for the purpose of construction of the house on the plot in question property bearing No X/1121, Shyam Gali, Shahdara, Delhi was sold off. Another property in Jwala Nagar, Delhi-32 was also sold off for the purpose. The defendants state that they are in possession of the house in dispute since its construction in 1977-78.
6. In the reply on merits it has been stated that the property was and is possession of the whole family, which property is a HUF property. It is averred that the defendants being the wife and children of the plaintiff cannot be licensee and they can enjoy the property in their own right. It is alleged that the defendant No. 1 being a karta was in the habit of obtaining signatures of the defendants on blank papers at different times. It is apprehended that following this modus operandi the plaintiff might have manufactured certain documents in his favour. It has been stated that the plaintiff had earlier filed a civil suit against the defendants bearing No 332/88 in the court of Sh. Y. S. Jonewal, Sub Judge, Ist Class, Delhi, praying therein that the defendants be restrained from taking forcible possession of ground and first floor of the house in dispute. It has been stated that the plaintiff at no point of time had any interaction towards his wife and children and had always been in conflict with them. It is stated that the plaintiff is a person of abnormal habits and derives vicarious pleasure in teasing and troubling his wife and children. The defendants have blamed the plaintiff for spoiling their life. Denying the rest of the averments, the defendants have prayed for dismissal of the suit.
7. The plaintiff has filed his replication dated 17/11/1997 to the amended written statement of the defendants wherein he has refuted the counter- allegations as contained in the amended written statement and has reaffirmed and reiterated his averments as contained in the plaint.
8. On the basis of the pleadings of the parties, issues were framed on 29/04/1994. Thereafter an additional issue was framed on 14/10/1999. These issues are as follows:
1. Whether the suit is not maintainable? (OPD)
2. Whether the suit is properly is H.U.F. Property?(OPD)
3. Whether the suit has been properly valued for the purposes of court fees and jurisdiction? (OPP)
4. (Additional Issue) Whether the suit for ejectment against the legally wedded wife is not maintainable as alleged?
5. Relief.
9. There were five witnesses in all. On behalf of the plaintiff, two witnesses were examined. Sh. D. C. Bhagat, valuer was examined as PW1, and the plaintiff himself testified as PW2. On behalf of the defendants, there were three witnesses. Defendants No. 2 and 3 deposed as DW1 and DW2 respectively. Sh. R. R. Nagpal, valuer was examined as DW3.
10.My findings on the issues are as follows:
11. Issue No 2 This issue is being taken up first. The onus to prove this issue was upon the defendants. The plaintiff had filed this suit on the basis that the suit property was his separate property; plot of which was purchased out of his own funds and the constructions were raised by him out of his own private funds. In this regard, an extract out of the plaintiff's cross-examination dated 08.10.2003 is very material and crucial; which is as follows:
"It is correct that I was having the possession of a plot in Jawala Nagar, Delhi-32 after coming from Rohtak to Delhi. It is correct that all the persons who migrated from Rohtak to Delhi and also the migrants from other parts, took over the possession of vacant plots of land in Jawala Nagar, Delhi and later on the said plots were allotted to the persons who occupied them by the Government. I remained in Jawala Nagar, Delhi for about 5 or 6 years. I sold out the plot in Jawala Nagar after 1979 or 1980. It is correct that the sale proceeds of the plot in Jawala Nagar were utilised for the construction of the property in question."
12.Thus, even presuming that there was no ancestral property in Pakistan before the partition; yet the fact that the suit property was got constructed out of the funds which the plaintiff got after selling the plot in Jawala Nagar plot which admittedly was allotted to the families of the migrants; rebuts the averment of the plaintiff that the suit property in question was got constructed by the plaintiff out of his own funds. The plot at Jawala Nagar, can in no case be held to be the self acquired property of the plaintiff. This plot was given by the Government to the families of the migrants and not given exclusively to the plaintiff alone. It certainly could never have been the intention of the Government that the allotted plots were to be the sole preserve of the head of the families in whose name they were allotted. It could also not have been the intention of the Government that while the head of the family was to be the sole and exclusive owner of the allotted plots; their families were to live as mere licencees at his mercy. The intention was that the families of the migrants should get a place to live in and settle down with peace putting behind the turbulence and the tumultuous events of the tragic partition; and not only one particular person out of that family. The Government by allotting the plots, of course, could not have intended to add salt to the injuries to the families of the migrants by keeping a Damocles' sword hanging over their head indefinitely for a period to be determined at the whims and fancies of the head of the family. In any event, the reasonable inference that can be drawn from the evidence of the plaintiff himself is that same cannot be the separate property of the plaintiff inasmuch as the plot at Jawala Nagar from its very nature and relative value formed the nucleus from which the suit property was constructed.
13.Now, let us take a look at the legal position in this regard as enunciated by the Apex Court in its judicial pronouncements. In the case titled as Mst. Rukhmabai vs. Lala Laxminarayan & Ors. AIR 1960 SC 335 it was held by a 3 Judge Bench of the Apex Court:
there is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called "division of status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a- vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property whether moveable or immoveable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is a 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." (emphasis supplied)
14.Thus from the ratio decidendi as laid down in Mst. Rukhmabai's case (supra), what is clear is that once a person asserting that the particular property is a joint family property discharges the burden cast upon him 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. In the case at hand, the defendants have discharged the burden of proving that there was sufficient joint family nucleus from and out of which the said property could have been acquired; the burden then shifted to the plaintiff to establish that the same was his personal property acquired entirely without the assistance of the joint family property. And the plaintiff has not discharged this burden that had shifted and was cast upon him of proving that same was his personal property acquired entirely without the assistance of the joint family property. Rather, it has been admitted by the plaintiff that the constructions raised at the suit property were out of the sale proceeds from the sale of the plot at Jawala Nagar.
15.In this regard it would be beneficial to take a note of the latest judgment of our own High Court reported as Sarabjit Singh Anand & Ors. vs. Sh. Manjit Singh Anand & Ors. 2008 IV AD (DELHI)
89. This was a suit for partition and injunction in respect of a property, which stood in the name of the defendant no. 1, on the assertion that the same was a joint family property. The defendant no. 1 took the defence that he was the sole owner of the suit property and thus the property was not a joint family property inasmuch as the sale deed qua the property sought to be partitioned was in his name. This contention was negatived by the High Court. The relevant extract at para 31 of the judgment is as follows:
Now a joint family property may not stand in the name of all the coparceners as ownership in the said property is governed by the law and a coparcener acquires interest by birth and independent of any document of title. (emphasis supplied)
16.Therefore what is clear is that the mere fact that the sale deed qua the suit property existed in the name of the plaintiff, would not be sufficient to give the same a hue and colour of separate property.
Because, of course, when a property is purchased, all the coparceners of the joint family cannot become the vendee. To take an example, in a family where there are five coparceners, should the name of all the five coparceners must find mention in the ownership documents. If this were so, then no property would be a joint family property.
17.In the light of the above discussion, I therefore, hold that the defendants have discharged their onus of proving that the suit property is a HUF property. I therefore, decide this issue in favour in favour of the defendants and against the plaintiff.
18. Issue No. 4 - (Additional Issue) - The order sheet reflects that onus was not placed on any party of proving this issue. It is the basic rule of evidence that one who asserts a fact has to prove the same. Accordingly, it is being taken that the onus to prove this issue was upon the defendants. This issue is as to whether a suit for ejectment against the legally wedded wife is maintainable. It is not in dispute that the defendant no. 1 is the legally weeded wife of the plaintiff. It is also not in dispute that the plaintiff has not legally separated from his wife. The plaintiff in his cross-examination has deposed, "defendant no. 1 is still my legally wedded wife. My wife is around 70 years of age and is suffering from diabetes."
19.Section 18 (1) of The Hindu Adoptions and Maintenance Act, 1956 enjoins upon a husband to provide for the maintenance of his Hindu wife. It reads asunder:
18. Maintenance of wife. - (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitle to be maintained by her husband during her life time.
20.Section 3 (b) (i) of the Hindu Adoptions and Maintenance Act, 1956 defines "maintenance" as:
(b) "Maintenance" includes -
(i)in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii).............
21.Therefore, what is clear beyond any manner of doubt is that maintenance includes residence. Thus a husband is under a legal duty to provide for maintenance, inclusive of residence, to his Hindu wife and there can certainly be no escape from this duty which has been legally enjoined upon a husband. This provision makes no distinction between a HUF property and a separate property. The husband is duty bound to provide maintenance to his Hindu wife even out of his own separate property; and this "maintenance" certainly includes "residence". The fact that the husband has only separate property is wholly inconsequential so far as this legal duty enjoined towards a Hindu wife is concerned. A husband cannot escape from this duty and sustain his thoughtless action on the premise that he only has separate property and no joint family property. In other words, the husband is under an obligation to provide for maintenance to his Hindu wife even out of his separate property, leave alone, joint family property. The right that accrues to a Hindu wife under section 18 of The Hindu Adoptions and Maintenance Act, 1956 is a substantive right. To say that a Hindu wife is entitled to maintenance only out of the joint family property would against the very spirit and the intent of Section 18 of the Act.
22.Even on facts, this action of the plaintiff would not be maintainable. It is the assertion of the plaintiff that the defendants are residing in the suit property in their capacity as 'licencees'. The entire plaint is founded on this premise. In this regard, it would be important to refer to the deposition of the plaintiff in his cross examination dated 08/10/2003, which is, "till the year 1981 we were living as joint family". Thus from the own testimony of the plaintiff, it is beyond any cavil that the parties were, in any event, living in a joint family till the year 1981. But the plaintiff in his plaint asserts that the defendants are his licencees. A licence is essentially a contract between the licencor and the licencee whereby the the licencee is given a right to come on the land or premises and use them in some way or the other while it remains in possession and control of the owner thereof. (Section 52 of the Indian Easements Act, 1882). When did this licence come into existence?; when did it come to be created?; how was it created?: have nowhere been explained. Only a bare and a bald averment has been made that the defendants are living as licencees. Till 1981 as per the own admission of the plaintiff in his deposition, there was joint family. And suddenly, thereafter, the status became that of the licencor and licencee! This certainly beyond the realm of reality and beyond the comprehension of a reasonable and prudent man. A joint family continues to be joint till the time there is no partition between the coparceners. There has neither been any separation nor any partition amongst the joint family. Under the Hindu Law, there is presumption that every Hindu family is joint. It is presumed to be joint in food, worship and estate. But this does not mean that they must necessarily have a common kitchen or a joint place of worship. This presumption of jointness subsists till the contrary is proved. In other words, till the time there is no proof of any partition or separation, the presumption that the Hindu family is joint shall continue to subsist. This presumption is even stronger in case of father and his sons. {Indranarayan vs. Roop Narayan and Others, AIR 1971 SC 1962}. And the person who pleads that a member has separated himself from the family has to prove the same satisfactorily. This presumption of jointness can be rebutted only by evidence of partition or acts of separation. The onus probandi lies on the person who disputes the joint family status. In the Indranarayan's case (supra) it was observed: "the fact that there was great deal of disagreement between the father and the son and that the father had threatened to disinherit the son do not prove the factum of separation. Similarly the fact that the son was now and then expressing that he was not interested in his father's estate does not amount to a declaration of his intention to separate from the family."
23.In the case at hand, there has been no evidence on behalf of the plaintiff to rebut the strong presumption that the jointness of the family was broken by any act of partition or separation inter se amongst the members of the family. I therefore, hold that in law and even on the peculiar facts of the present case, the action for ejectment against a legally wedded wife is not maintainable. I decide this issue in favour of the defendants and against the plaintiff.
24. Issue No. 1 : The onus to prove this issue was placed upon the defendants. I have already held in the preceding paragraph that suit against legally wedded wife is not maintainable. Insofar as the other defendants are concerned, the plaintiff having failed to prove that the suit property is his separate property, consequently the same being a HUF property, the suit for ejectment against them too is not maintainable. I therefore, decide this issue favour of the defendants and against the plaintiff.
25. Issue No. 3 : The onus to prove this issue was placed upon the defendants. The suit of the plaintiff is founded on the assertion that the defendants are the licencees of the plaintiff. It is a well settled law that the question of court fees and the jurisdiction is to be determined on the basis of the averments made in the plaint. In other words, the question of court fees and pecuniary jurisdiction is to be decided from the point of view of the averments of the plaintiff as founded in his plaint. The averments in the present plaint are that the defendants are the licencees of the plaintiff. It is a well settled law that the licencor can seek to obtain the possession from the licencee by instituting a suit for mandatory injunction. A suit for mandatory injunction is very well maintainable in the Court of Civil Judge because the court fees required to be annexed thereon is a fixed one and not ad valorem one. In that eventuality, the fact the suit property may be of value which is beyond the ambit of the pecuniary jurisdiction of the Court of Civil Judge would be of little significance.
26.The case reported as Rail Chand Vs Alal Chand ILR (1978) I Delhi 229 would be of relevance in this context. This was a case where after the trial of the suit for more than a decade, the Ld. Commercial Sub Judge holding that he had no jurisdiction to try the same ordered the placing of the suit before the Ld. District & Sessions Judge for transfer of the same to a court of competent jurisdiction. It was held by the High Court that the order passed by the Ld. Commercial Sub Judge directing the placing of the case before the Ld. District & Sessions Judge for transfer to another court was wrong as he has no jurisdiction to give such directions. It was further held that it was not in the interest of justice if the plaint were to be returned to the plaintiff and the case to be tried all over again when there had already been a long trial and the case was pending for more than a decade. In the case at hand the present suit has been pending for nearly 17 years and to my mind, it would not be in the interest of justice if the plaint were to be returned on the ground of lack of pecuniary jurisdiction and the matter was to be tried and decided by another court. The ratio decidendi of Rail Chand's Case are very much applicable to the facts of the case at hand. In the light of this discussion, I therefore decide this issue in favour of the plaintiff and against the defendants.
27.Relief. - In view of the findings given hereinabove, the suit of the plaintiff stands dismissed. Parties to the suit are left to bear their own costs. Decree sheet be prepared. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
ON 22nd DAY OF APRIL, 2008 CIVIL JUDGE
KKD COURTS, DELHI