Delhi District Court
Rama Sharda vs Pamella Sharda on 1 November, 2011
1
C.S No. 743/11/09
RAMA SHARDA VS PAMELLA SHARDA
IN THE COURT OF SH. N.K.GOEL, ADDL. DISTRICT
JUDGE-05: WEST DELHI
C.S No. 743/11/09
Rama Sharda,
W/o Late Shri. C.L Sharda,
R/o 887, Vikas Kunj, Vikas Puri
New Delhi-110018
.....Plaintiff.
versus
Pamella Sharda,
W/o Sh. Rajeev Sharda,
R/o 887, Vikas Kunj, Vikas Puri,
New Delhi-110018 .....Defendant
Date of filing of suit : 20.01.2009
Reserved for judgment : 24.10.2011
Decided on : 01.11.2011
SUIT FOR PERMANENT, MANDATORY INJUNCTION AND
DAMAGES FOR USE AND OCCUPATION
JUDGMENT:-
1. In the present suit for permanent, mandatory injunctions, damages for use and occupation the case of the plaintiff is that she is the owner of property bearing no. 887, Vikas Kunj, Vikas Puri, New Delhi (in short, 2 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA the suit property) and the plaintiff acquired the title to the suit property on the basis of the Will left by Late Sh. V.K Sharma, the erstwhile owner in favour of the plaintiff which was duly registered with the Sub- Registrar of Assurances on 11.01.1988; that apart from the Will various other documents such as agreement to sell, duly registered power of attorney and other documents were also executed in favour of the plaintiff bequeathing, interalia, all rights, title and interest in the suit property in favour of the plaintiff; that Sh. Rajeev Sharda, the son and daughter-in-law (Defendant) of the plaintiff were allowed to stay in the suit property as mere licensees and also to look after the plaintiff who is more than 78 yrs of age; that the keys of the house have always remained with the plaintiff and as such the son of the plaintiff and the defendant were in permissive possession of the suit property and as mere licensees and have no right, title and interest in the suit property. After narrating as to how the defendant had been using filthy language against the plaintiff, hurling abuses to the plaintiff, ill-treating her and on account of which the plaintiff had to make a police report vide 3 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Roznamcha Diary no. 114/16.09.2008 with the SHO PS Vikas Puri on account of a scene created by the defendant on 15.09.2008, the plaint goes on to say that due to the attitude of the defendant it has become very unbearable for the plaintiff to live in the suit property; that the son of the plaintiff has not been able to control his wife (the defendant) and as such the plaintiff being the owner of the suit property does not wish to either retain him or the defendant in the suit property as their presence is detrimental to the health of the plaintiff as the occupation of both the persons qua the suit property was a permissive occupation or at the maximum that of gratuitous licensees; that the plaintiff terminated the license of the defendant as well as of her son through a legal notice dated 03.12.2008 thereby asking them to remove themselves, their goods and articles from the suit property within fifteen days from the receipt of the notice, which legal notice was duly served upon them; that the plaintiff again got served a legal notice dated 23.12.2008 upon her son and the defendant calling upon them to remove themselves from the suit property immediately within seven days from 4 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA the receipt of the notice failing which the plaintiff would initiate appropriate legal proceedings against them for their eviction which legal notice was also served upon them. It is stated that pursuant to the legal notices issued on behalf of the plaintiff, the son of the plaintiff has removed himself as well his belongings from the suit property and has shifted to another house bearing M-9, Vikas Puri, New Delhi which has been taken by him on rent @ 7000/- P.M., but the defendant has failed to remove her belongings as well as herself from the suit property. It is stated that licensed premises (suit property) can easily be let out at Rs. 30,000/- to 40,000/- per month and, hence, the plaintiff claims damages for use and occupation @ 30,000/- P.M from the date of filing of the suit till the defendant removes herself from the suit/ licensed property. Hence, it is prayed as follows:-
" a) pass a decree of mandatory injunction in favour of the plaintiff and against the defendant directing the defendant, her agents, assigns, etc., to remove herself and her belongings from the suit property bearing no. 887, Vikas Kunj, Vikas Puri, New Delhi- 5
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA 110018.
b) pass a decree of permanent injunction restraining the defendant, her agents, representatives, assigns, etc., from in any manner creating interference or obstruction to the rights of the plaintiff, her successors, assigns, etc., in the suit property and also to restrain the defendant from creating any hindrance from free ingress and egress of the plaintiff in the suit property bearing no. 887, Vikas Kunj, Vikas Puri, New Delhi- 110018.
(c) pass a decree of recovery of damages in favour of the plaintiff and against the defendant for use and occupation @ Rs. 30,000/- per month from the date of the filing of the suit till the defendant is removed from the suit/licensed premises.
(d) interest @ 18 % per annum may be awarded on the amount found due to the plaintiff.
(e) pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." 6
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA
2. In her WS the defendant has interalia pleaded that the plaintiff has no locus standi to file the suit and she is not the owner of the property as there is no conveyance deed in her favour which can prove that she holds the title in her favour. It is denied that late Sh. V.K Sharma had executed any documents in favour of the plaintiff bequeathing all rights, title and interest in the suit property. It is pleaded that the suit is bad for non-joinder of necessary parties ; that the suit has been filed by the plaintiff in connivance with her son i.e husband of the defendant who is compelling the defendant to sign the divorce papers and who also handed over copy of demand draft of Rs. 25 Lacs in favour of the defendant and live a lonely life and when they both were not successful in pursuing the defendant for divorce, the present suit has been filed at the instigation of the defendant's husband with malafide intention in collusion with the husband of the defendant; that the defendant has a right to live in the suit property being the daughter-in-law of the plaintiff and she has a right to live under the Hindu Adoption and Maintenance Act; 7
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA that the suit is liable to be dismissed as the plaintiff has not paid appropriate court fees. It is stated that the defendant has been living together with the plaintiff for 27 years alongwith their late son Sh. Deepak Sharma and "the defendant left her parents home and her husband brought her to matrimonial home. Prior to 2007 i.e before the death of their son, the defendant husband had made a mind to purchase other new house, the plaintiff has always stopped her from buying a new house by saying this house belongs to you only. But soon after the death what had happened to plaintiff and the husband, has totally failed to understand". The averments made in the plaint with regard to hurling abuses have been denied. It is stated that on 03.12.2007 the plaintiff harassed the defendant and a police complaint was lodged against her with the local police station. The incident dated 16.09.2008 has been denied but, however, filing of the police complaint by the plaintiff is stated to be a matter of record. It is stated that the defendant has not changed her attitude but it is the attitude of the plaintiff and the plaintiff has 8 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA totally changed after the death of the defendant's son and the plaintiff was instigating defendant's husband to throw her out. It is submitted that "the defendant has a right of possession by virtue of the factum of possession being implicit in the right to maintenance". It is submitted that no notice was served upon the defendant and notice was either received by the plaintiff herself or by defendant's husband, but the defendant is not aware of any such notice whereby the plaintiff had terminated her license to live in the said house and, hence, termination is not valid in the eyes of law. The fact regarding shifting of defendant's husband to house no. M-9, Vikas Puri, New Delhi is denied and it is stated that the husband of the defendant has neither informed the defendant about shifting nor he intimated his address. It is denied that the suit property can easily be let out @ Rs. 30,000-40,000/- p.m. It is prayed that the suit be dismissed.
3. In the replication, the plaintiff has stated that the defendant cannot assail the title of the plaintiff who has become the owner of the suit 9 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA property by virtue of a Will which is duly registered in the office of Sub-Registrar and moreover the defendant being her daughter in- law has no right, title or interest in respect of the property owned by the mother-in-law. The other averments made in the WS have been denied. It is submitted that the mandatory suit is maintainable.
4. On the pleadings of the parties one of my Ld. Predecessors framed the following issues vide his order dated 21.07.2009:-
1. Whether the plaintiff has locus standi to file the present suit being owner of the suit property?OPP
2. Whether the suit is bad for non joinder of necessary parties?
OPD
3. Whether the valuation of the suit for the purposes of court fees and jurisdiction is proper? OPP
4. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP
5. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP 10 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA
6. Whether the plaintiff is entitled for any damages, if so, at what rate and for which period? OPP
7. Whether the plaintiff is entitled for any interest on the damages, if yes, at what rate? OPP
8. Relief.
5. The plaintiff has examined herself as PW-1. She has also examined her son Sh. Rajiv Sharda as PW-2, Sh. Om Prakash, UDC from the office of Sub-Registrar no. 2, Kashmiri Gate, Delhi as PW- 3 and Sh. R.S.Rana, Sub Registrar, Central Zone, MCD, Delhi as PW-4. On the other hand, the defendant has examined herself as DW-1.
6. I have heard the Ld. Counsel for the parties.
7. Written arguments are filed on behalf of both the parties. After hearing the oral arguments the case was adjourned for final orders. While going through the file, I found that in her affidavit Ex. P-1 the plaintiff has exhibited the copy of death certificate of her husband as Ex. PW-1/3 and the copy of the death certificate of Sh. V.K Sharma, erstwhile owner as Ex. PW-1/4 , but, however, Ex. 11
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA PW-1/3 is infact the copy of the death certificate of Lt. Col. Vijay Kumar Sharma and the copy of the death certificate of the late husband of the plaintiff has not been filed.
8. The counsel for the plaintiff filed an application u/s 151 CPC, inter alia, stating therein that the death certificate of the late husband of the plaintiff has infact been not exhibited and the mentioning of Ex. PW-1/3 which is an inadvertent error in the affidavit of plaintiff be ignored. The counsel for the defendant gave his no objection on the application itself. On 14.10.2011 Sh. Prabhjit Johar, advocate for the plaintiff made the following statement:
"I am the advocate for the plaintiff in the present suit. Therefore, I have the authority to make this statement on behalf of the plaintiff. I say that the suit of the plaintiff be decided on the basis of Will Ex. PW-1/1 only and not on the basis of receipt Ex. PW-1/2".
9. I have carefully gone through the judicial file, written arguments and the judgments cited by the Ld. Counsel for the parties. My 12 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA finding on the issues are as follows:-
Issue No. 1
1. The Ld. Counsel for the plaintiff has contended that the plaintiff became the owner of the suit property by virtue of the Will dated 11.01.1988 copy of which is Ex. PW-1/1 executed by the erstwhile owner Sh. Vijay Kumar Sharma in her favour who died on 04.02.1988 and whose death certificate is Ex. PW-1/4. He has further contented that since no probate of a Will is required in Delhi and no one has challenged the legality of the Will till date, the plaintiff has become the absolute owner of the suit property and, that being so, she has the locus standi to file the present suit. On the other hand, the Ld. Counsel for the defendant has contended that the Will has not been proved according to law and, hence, the reliance of the plaintiff on the Will for the purposes of claiming the ownership of the suit property is without any substance and, that being so, since the plaintiff has failed to prove herself to be the owner of the suit property she has no locus standi to file the present 13 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA suit.
PW-1 has proved her affidavit filed in evidence as Ex. P-1 wherein she has reiterated the averments made in the plaint and has interalia stated that she acquired the title of the suit property on the basis of the Will dated 11.01.1988 left behind by Sh. V.K Sharma, erstwhile owner in her favour which is duly registered with the Sub-Registrar of Assurances vide registration no. 918 dated 11.01.1988. She has further stated that apart from the Will, the erstwhile owner had also executed a duly registered receipt in her favour therein acknowledging the factum of having received the amount of Rs. 1,80,000/- and by the said documents he had sold all his right, title and interest in the suit property in her favour. She has proved the copy of the receipt as Ex. PW-1/2. According to her, the erstwhile owner had also executed a GPA in favour of her husband for the purposes of executing a sale deed which power of attorney came to an end on the death of her husband which took place on 08.12.2001. She has proved a copy of the death certificate 14 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA of Sh. V.K Sharma as PW-1/3. In view of the statement made by the counsel for the plaintiff on 14.10.2011 I shall confine my findings as to the execution and legality of the Will dated 11.01.1988.
10.Copy of the Will is Ex. PW-1/1. Authenticity of the Will has not been disputed in the cross-examination of PW-1.
11.PW-2 Sh. Rajiv Sharda has proved his affidavit as Ex. P-2 wherein he has, inter alia, stated that he is an attesting witness to the Will dated 11.01.1988 and the property in question has devolved upon her mother Smt. Rama Sharda by virtue of the said Will and that the suit property is exclusively owned by his mother and his father did not have any right, title and interest herein. In his cross- examination, PW-2, has admitted that the suit property is still standing in the name of Sh. V.K Sharma in the record of the society. According to him, they had not applied for the mutation of the suit property in the office of DDA. He has admitted that in the Will Ex. PW-1/1 the name and particulars of the plaintiff as well as 15 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA the date are filled in by different typewriters though he has volunteered to say that "the Will is attested by Lt. Col. V.K Sharma. He has denied that the Will was signed by Lt. Col. V.K Sharma and the particulars were filled up later on".
12.The original Will has also been placed on the judicial file (page 189) on 06.03.2010. It is, no doubt, true that the particulars of the plaintiff such as her name, address and the name of PW-2 as attesting witness and also the date of execution of the Will have been typed with a different typewriter. However, the version of PW-2 is that the will is attested by Lt. Col. V.K Sharma. The fact that the said Will bears the signature of Lt. Col. V.K Sharma is not in dispute. From a perusal of the original Will the copy of which is Ex. PW-1/1, it becomes more than crystal clear that Lt. Col. V.K Sharma had also put his signature on a place where the particulars of the plaintiff were got typed with a different typewriter. Therefore, the mere fact that the name of the plaintiff as an executor, date of the execution of the Will and the name of the 16 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA attesting witness have been written with a different typewriter in the facts and circumstances of the case discussed above makes no difference.
13.PW-3 who is an official from the office of Sub-Registrar No. II, Kashmeri Gate, Delhi has stated that as per their record Will dated 11.01.1988 executed by Lt. Col. V.K Sharma in favour of Smt. Rama Sharda was registered in their office on the same date vide Registration no. 918, Book no. III, Volume no. 650 at page 45. He has proved the copy of the Will as Ex. PW-1/1 and has stated that the Will is attested by Sh. Rajiv Sharda as one of the attesting witness. Execution of the Will by Sh. V.K Sharma in favour of the plaintiff has not been challenged in the cross-examination of PW-3.
14.On the basis of the above evidence, the submission of the Ld. Counsel for the plaintiff is that the execution of the Will by Lt. Col. V.K Sharma in favour of the plaintiff has been proved in accordance with law. He has relied upon a Division Bench judgment of the Delhi High Court in O.P Sharma & Others Vs 17 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Kamla Sharma & Others 2009(158) DLT 631. According to him, as held in the said judgment as regards probate of the Will, it is settled law that in Delhi to enforce a Will probate is not required. I agree with the submission made by the Ld. counsel for the plaintiff. In her affidavit Ex. DW-1/1 the defendant has not stated even a single word regarding the Will. On the other hand, her case is that the plaintiff had applied for transfer of the flat bearing no. 887 in her favour after the death of Lt. Col. V.K Sharma, the allotee and the DDA had asked for various documents from the plaintiff vide letter Ex. DW-1/A. According to her, the flat stands in the name of Lt. Col. V.K Sharma as per the record of Central Government Services Co-operative Land & Group Housing Society Ltd and that the society has raised a demand of outstanding dues vide letter Ex. DW-1/B. Thus, the defendant has herself admitted that prior to his death, Lt. Col. V.K Sharma was the allotee of the suit property and after his death the plaintiff had applied for transfer of the suit property in her name. The mere fact that the suit property still 18 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA continues to be in the name of Lt. Col. V.K Sharma in the record of the said society by itself does not show that the plaintiff did not become the owner of the suit property on the basis of the above stated Will after the death of Lt. Col. V.K Sharma. Even a single circumstance has not been brought on the record which may even remotedly show that the said Will was executed under any suspicious circumstance. Therefore, in my judgment, the plaintiff has proved the execution of the Will, the copy of which is Ex. PW-1/1, according to law.
15.PW-4 has proved the death certificate of Lt. Col. V.K Sharma as Ex. PW-1/3. The said version of PW-4 has not been challenged in his cross-examination. From a perusal of the copy of the death certificate Ex. PW-1/3 it becomes crystal clear that Lt. Col. V.K Sharma had died on 04.02.1988. Therefore, after his death the Will came into operation and by virtue of the operation of the Will the plaintiff became the owner of the suit property. That being so, I hold that the plaintiff has the locus standi to file the present suit. 19
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Accordingly, I decide this issue in favour of the plaintiff and against the defendant.
Issue no. 2
16.The onus to prove this issue was on the defendant. It is submitted on behalf of the defendant that the LRs of Lt. Col. V.K Sharma were the necessary parties to the suit and, hence, the suit is bad for non-joinder of necessary parties. I must say that the contention is without any force. As to how the LRs of Lt. Col. V.K Sharma were or are necessary parties to the suit has not been made clear. The execution of the Will is not in dispute. Had the suit been filed for challenging the legality of the Will, in that eventuality the LRs of Lt. Col. V.K Sharma could have perhaps become the necessary parties to be impleaded in the suit. Therefore, I hold that the suit is not bad for non-joinder of necessary parties. Accordingly, I decide this issue in favour of the plaintiff and against the defendant. 20
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Issue no. 3 & 4
17.Both these issues can be decided together. The Ld. Counsel for the plaintiff has contended that the defendant is the daughter-in-law of the plaintiff and, that being so, the defendant has no legal right to live in the suit property and once her licence to live in the suit property has been terminated by the plaintiff, the plaintiff is entitled to recover the possession of the suit property from the defendant by filing a suit for mandatory injunction and, that being so, the suit has been properly valued for the purposes of court fees and jurisdiction. According to him, the possession of the defendant is permissive and gratuitous and, hence, she cannot claim any legal right to reside in the suit property. Reliance has been made on the decisions reported as Sardar Malkiat Singh Vs Kanwaljit Kuar[2010(168)DLT 521, Neeta Mittal Vs. Kanta Mittal 208(106) DRJ 623,Abha Arora Vs. Angela Sharma & Anr. 148 (2008)DLT 506 and also in the case of Padmawati Mahajan Vs Yogender 21 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Mahajan & Anr. 152 (2008) DLT 363. On the other hand, the Ld. Counsel for the defendant has referred to section 2(f) and Section 2(s) of the Protection of Women from Domestic Violence Act(in short the Act) defining the terms "domestic relationship" and "shared household" respectively and has contented that the defendant is totally covered under these definitions and, hence, prayer of the plaintiff for mandatory injunction cannot be allowed in favour of the plaintiff for following reasons:-
"(a) It is the joint family property of which the husband is a member and the plaintiff is not the exclusive owner of the property as after the death of the father of the defendant's husband, he has invested and used to care for the house being one of the co-owners of the property.
(b) The husband of the plaintiff has not left any Will exclusively in favour of the plaintiff from which she can claim the ownership of the property. Moreover, both plaintiff and her son are residing together and her is son caring for her all daily 22 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA needs. The plaintiff's son has also stated about the caring can be judged from the order passed in the petition under section 125 Cr.P.C where the Hon'ble Mahila Court has mentioned in the order that Judge it has been reflected under order that the husband is taking care of her mother.
(c) This clearly establishes that the husband is behind the litigation to throw the defendant out from the matrimonial home because she cannot at this stage bear a child.
(d) All the acts and the judgments even filed by plaintiff supports defendant in that respect that the husband has the legal and moral obligation to provide residence to his wife and in the present suit plaintiff and her son are fighting case against the defendant. Thus the defendant has full right to live in the house which belongs to her husband who is also legal heir of Late Sh.
C.L Sharda who owns the property and had not left any will in favour of plaintiff. House where the wife lived on being wedded belongs to her husband, it would certainly be treated as shared 23 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA household or a matrimonial home."
18. Reliance has been placed on the decision in Rajinder Singh Saluja Vs Sarbjyot Kaur Saluja & others 159(2009)DLT 629 and Davender Lal Mehta Vs Dharmender Mehta AIR 2009 DEL 189 (copy not supplied).
19. Admittedly, the plaintiff is the mother-in-law of the defendant. The case of the plaintiff is that by virtue of the Will executed by late Lt. Col. V.K Sharma in respect of the suit property in her favour, she became the owner of the suit property after the later's death. It has been held hereinabove that the plaintiff has proved herself to be the owner of the suit property.
20.No where in the WS the defendant has pleaded that it was the husband of the plaintiff and the father of the defendant's husband who was the owner of the suit property. Similarly, she has neither pleaded in the WS nor has put a suggestion to PW-1 and PW-2 in their cross-examination that the suit property is the joint family property of which the defendant's husband is a member. Further, 24 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA neither in her affidavit Ex. DW-1/1 nor in her statement as DW-1 the defendant has taken these pleas. As I have discussed hereinabove, her deposition in affidavit Ex. DW-1/1 is that the suit property still stands in the name of Lt. Col V.K Sharma in the record of the Central Government Service Co-Operative Land and Group Housing Society Ltd. and that the plaintiff applied for transfer of the suit property in her favour after the death of Lt. Col. V.K Sharma, the allotee. Therefore, the submission made on behalf of the defendant that the suit property is a joint family property of which the husband of the defendant is a member cannot be allowed to be taken for the first time during the course of arguments. Therefore, the said contention raised on behalf of the defendant is against the record and, hence, is devoid of merits.
21.Admittedly, the husband of the defendant has not been residing in any portion of the suit property. In Shumita Didi Sandhu vs Sanjay Singh Sandhu & Ors 2007(96) DRJ 697 copy of which has been supplied by the counsel for the plaintiff after the conclusion of 25 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA arguments it has been held that the wife can claim right of residence only against her husband and not her in-laws and that in the house belonging to the parents of the husband neither the wife nor son can claim any right to stay. In Abha Arora Vs Angela Sharma & Anr 148 (2008) DLT 506 the plaintiff was the absolute owner of the property and she filed a suit seeking permanent and mandatory injunction against D-1, daughter-in-law and D-2, son for restraining them from entering the property and to direct D-1 to permanently quit the suit property. The provisions of section 18 of the Hindu Adoption and Maintenance Act, 1956 entitling a wife to live separately from her husband without forfeiting her claim to maintenance and also the definitions of "domestic relationship"
contained in Sec. 2 (f) and "shared household" defined in Sec. 2(s) of the Act were considered. It was held that Hindu Adoption and Maintenance Act, 1956 does not entitle a wife to claim maintenance from her in-laws and other relatives of the husband during life time of her husband and, hence, daughter-in-law cannot claim a right of 26 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA residence in the property as the same is not a shared household as defined by the Act and is owned by the plaintiff who is her mother- in-law. In Neetu Mittal Vs Kanta Mital & Ors 2008 (106) DRJ 623 it has been inter alia held that a woman 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 consent and wishes. The same view has been taken in Sardar Malkiyat Singh Vs Kanwaljit Kaur(Supra). It has been further held that "the shared household"
only means a house belonging and taken on rent by husband or a house which belongs to a joint family of which the husband is a member. Thus it is clear that the house belonging to in-laws cannot be "shared house hold".
22.In Gurcharan Singh Sohal Vs Jasbir Kaur Sohal & Ors 181(2011)DLT 344 (Copy supplied by the counsel for the plaintiff) it has been held that the suit for injunction is maintainable in the absence of relief of possession in case the plaintiff approaches the court within a reasonable time. In Padmavati Mahajan Vs. 27 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Yogender Mahajan & Ars. 152(2008) DLT 363 it has been observed and held as follows:
29......... The first contention in the written statement is with regard to maintainability of the suit for mandatory injunction and the second contention is with regard to the Court fees. I have quoted in detail the cross examination of the defendant no. 1. In his cross examination he has admitted that he had shifted to the Property in question in his capacity as a son of his parents and then had voluntarily stated that he was also a partner in the Partnership Firm.
His claim as a benami owner has been rejected. Occupation of the defendant No.1 therefore was a permissive occupation or maximum as that of a gratuitous licensee. The defendant No. 1 does not have any right in law to reside in the Property contrary to the wishes and desire of the plaintiff. The suit for mandatory injunction is therefore maintainable in view of the decision of the Supreme Court in Joseph Severence v. 28
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Benny Mathew,reported in VII(2005)SLT394=IV(2005)CLT 1(SC)=(2005)7SCC 667 and decision in Delhi Gate Services Pvt. Ltd v. Caltex (India) Ltd. reported in AIR 1962 PandH
370. 30 The Second contention of the defendant No. 1 on valuation and payment of the Court fee is also liable to be rejected. A suit for permanent and mandatory injunction can be valued by the plaintiff in his/her discretion subject to the discretion not being whimsical. Suit is not required to be valued at the market value of the Property. Reference in this regard can be made to the decision of this court in the case of Oriental Trading Corporation v. Punjab Spin Trading Company reported in 1976 RLR 650."
In that case the plaintiff was admittedly in possession of the property and the plaintiff and D-1 were jointly using the property. Hence, it was held that it cannot be said that the plaintiff must pay court fees on the market value of the entire property or was required to pray for 29 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA consequent relief for possession.
23.In the present case it is an admitted fact that the husband of the defendant is no more residing in the suit property and that the defendant is the daughter-in-law of the plaintiff. That being so, the occupation of the defendant qua the suit property is a permissive occupation or maximum as that of a gratuitous licencee. The plaintiff has valued the suit for the purposes of court fee and jurisdiction at Rs. 3,05,000/- and, therefore, in the facts and circumstances of the case discussed above, I am of the view that the plaintiff has properly valued the suit for the purposes of court fees and jurisdiction and that the plaintiff is entitled to a decree of mandatory injunction as prayed for in the suit. Suffice it to say that the decision relied upon by the counsel for the defendant is not applicable to the fact of the case. Accordingly I decide these issues in favour of the plaintiff and against the defendant. 30
C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA Issue No. 5
24.The Ld. Counsel for the plaintiff has contended that in view of the fact that the defendant has no legal right to reside in the suit property and it is the plaintiff who is the owner of the suit property the plaintiff is entitled to a decree for permanent injunction. No arguments on the said issue have been advanced on behalf of the defendant. Without making the judgment more voluminous suffice it to say that in view of my findings recorded on issue nos. 1,2,3 and 4 the plaintiff is entitled to a decree of permanent injunction as prayed for in the suit. Accordingly I decide this issue in favour of the plaintiff and against the defendant.
Issue nos. 6 & 7
25. Both these issues are interconnected and can be decided together. The Ld. Counsel for the plaintiff has contended that the suit property can easily fetch around Rs. 30,000/- p.m and, hence, the defendant is liable to pay mesne profit to the plaintiff at the said rate from the date of filing of the suit till possession of the suit 31 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA property is restored to the plaintiff alongwith interest @ 18 % p.a. The Ld. Counsel for the defendant has submitted that the plaintiff is not entitled to any damages.
26.In her affidavit Ex. P-1 the plaintiff has proved the copy of the legal notices dated 03.12.2008 and dated 23.12.2008 as Ex. PW-1/6 and Ex.PW-1/9 respectively and the postal receipt and AD as cards Ex. PW-1/7, Ex. PW-1/8 and Ex. PW-1/10 to Ex. PW-1/13 and has submitted that the notice dated 23.12.2008 had been got served upon the defendant and her husband calling upon them to remove themselves from the suit property within seven days from the receipt of the notice. The said version of PW-1 has not been challenged in her cross-examination though in her affidavit Ex. DW-1/1 defendant has deposed that no notice was served upon her and that the notice might have been received by the plaintiff herself or by defendant's husband. In her cross-examination, DW-1 has admitted that the signatures on Ex. PW-1/12 are her signatures. Ex. PW-1/12 is the AD card from a perusal of which it transpires that 32 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA the same had been received by the defendant on 26.12.2008. In her cross-examination, DW-1 has admitted that she was served with the legal notice on behalf of her mother-in-law and that she did not give reply to that notice. Vide the said notice the plaintiff had asked the defendant and her husband to remove themselves from the suit property since their occupation qua the suit property was a permissive occupation or at the maximum that of a gratuitous licencee. Therefore, after the service of the said notice upon the defendant, she became an unauthorized occupant and, thus, no more entitled to reside in the suit property.
27. In her affidavit Ex. PW-1 the plaintiff has inter alia stated that the suit property can easily be let out for Rs. 30,000/- to Rs. 40,000/- p.m which is the rental of the similarly situated flat. In her cross- examination, PW-1 has stated that the flat in question can fetch about Rs. 10,000/- p.m rent "as I have heard".Thus, it becomes crystal clear that as per hearsay knowledge acquired by the plaintiff the rent of the suit property is Rs. 10,000/-. Thus, the version of the 33 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA plaintiff that the suit property can easily fetch Rs. 30,000/- to Rs. 40,000/- p.m stands demolished and hence, liable to be discarded. The plaintiff has not led any other evidence to prove the prevailing rate of rent in the concerned locality at the time of filing of the suit or thereafter. Similarly, in her affidavit Ex. DW-1/1 the defendant had also not uttered even a single word regarding the rate of rent prevailing in the area in question. Keeping in view all the facts and circumstances of the case and the relations between the parties and that the plaintiff has claimed mesne profit at a highly exhorbitant rate and there is a huge difference between Rs. 30,000/-, Rs. 40,000/- and Rs. 10,000/-, I assess the damages qua the suit property at Rs. 7000/- p.m. Therefore, I hold that the plaintiff is entitled to recover damages @ Rs. 5000/- p.m from the defendant towards use and occupation of the suit property from the date of filing of the suit till the possession of the suit property is restored to her by the defendant. However, since this is not a commercial transaction and quantum of damages has been assessed today, the 34 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA plaintiff is not entitled to any interest. The plaintiff, however, shall be liable to pay the ad-valorem court fees on the total amount of damages awarded to her. The issues are decided accordingly. Issue no. 8 Relief
28.In view of my findings on issue nos. 1 to 6, I decree the suit and pass a decree for mandatory injunction in favour of the plaintiff and against the defendant thereby directing the defendant to remove herself and her belongings from the suit property bearing no. 887, Vikas Kunj, Vikas Puri, New Delhi within three months from today. I also pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant from creating any third party interest in the suit property and also from creating any hindrance for free ingress and egress of the plaintiff in the suit property. I also pass a decree for recovery of damages @ Rs. 5000/- p.m in favour of the plaintiff and against the defendant from the date of filing of the suit till the date of possession of the suit property is restored by the defendant to the 35 C.S No. 743/11/09 RAMA SHARDA VS PAMELLA SHARDA plaintiff. However, the plaintiff shall be liable to pay ad-valorem court fees on the amount of damages. In the facts and circumstance of the case the parties shall bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
(N.K Goel) (Announced in open Addl. District Judge-05(West) Court on 01.11.2011) Tis Hazari Courts, Delhi