Madras High Court
V.Shivakumar vs G.Lakshmi @ Seetha on 28 July, 2015
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.07.2015 CORAM THE HONOURABLE Mrs. JUSTICE. S.VIMALA Civil Suit No.231 of 2009 V.Shivakumar ... Plaintiff Vs. G.Lakshmi @ Seetha ... Defendant Civil Suit filed under Order IV Rule 1 of the Original Side Rules read with Order VII Rule 1 of the Code of Civil Procedure, 1908, praying to pass an order of judgment and decree: (a) directing the defendant to quit and deliver vacant possession of suit schedule property, which has been under use and occupation in the suit schedule property; (b) to pay damages at Rs.40,000/- p.m. from 01.01.2008 till filing of the plaint which works to Rs.5,20,000/-; the defendant is also liable to pay future damages of Rs.40,000/- p.m., or enhanced over and above depending on the future market rental value from the date of plaint till the date of possession; (c) the defendant to pay costs of the above proceedings. For Plaintiff : Mr. S.Rajasekar For Defendant : Mr. J.R.K.Bhavanathan - - - J U D G M E N T
Whether the wife, who was enjoying the right of residence in the shared household, while living with her husband, should be allowed to continue to enjoy the same, even after divorce and whether the rightful owner can be directed to remove himself from that place or he can be directed to make alternative accommodation to the divorced wife, is the issue raised in this suit.
2. This Civil Suit has been filed by the adopted son, as against his step-mother, seeking: (a) direction to the defendant to quit and deliver vacant possession of the suit property; (b) direction to the defendant to pay damages at Rs.40,000/- per month, from 01.01.2008 till the filing of the plaint, which works out to Rs.5,20,000/-; (c) directing the defendant to pay future damages at Rs.40,000/- per month or enhanced rent over and above depending on the future market rental value from the date of plaint till the date of delivery of possession.
3. The suit property is located at Shastri Nagar, bearing Plot No.B-144, 10th cross Street, Adyar, Chennai, comprised in T.S.No.21, Block No.37, Urur Village, Mylapore-Triplicane Taluk, Chennai District, measuring an extent of 1 ground and 2393 sq.ft., together with building thereon measuring around 1855 square feet.
Brief facts:-
4. The suit property originally belonged to the plaintiff's biological mother, Shantha. She purchased the property from the Tamil Nadu Housing Board under the sale deed, dated 30.07.1990. The mother-Shantha expired during May 1991. Upon which, the suit property devolved upon the plaintiff and his father. Thereafter, the plaintiff's father married the defendant and the marriage turned out to be a frightening one. Because of the cruel conduct of the defendant, the plaintiff had to move from the suit property to another place for accommodation on 01.02.1997.
4.1. The plaintiff's father filed a petition for dissolution of marriage before the I Additional Family Court, Chennai, in O.P.No.250 of 1997, which got dismissed on 23.04.1999. The father preferred CMA No.1558 of 2000 before this Court and this Court granted the decree of divorce, by the order, dated 20.11.2006. The defendant challenged the same before the Apex Court in SLP (C) No.11781 of 2007, which came to be dismissed in limini on 10.12.2007. Thus the status of the defendant, as the wife of the plaintiff's father, got annulled by the decree of divorce, having been confirmed by the Apex Court. Therefore, the defendant has no semblance of right to stay in the suit property.
4.2. The plaintiff's father executed a registered settlement deed, dated 10.06.1999, under which, he settled his half share of the property in favour of the plaintiff. Thus, the plaintiff became the absolute owner of the entire suit property.
4.3. Challenging the settlement deed, the defendant filed a suit in O.S.No.5746 of 1999 for a bare injunction restraining the plaintiff and his father from disturbing her peaceful possession and enjoyment of the suit property. The suit got dismissed and later, the appeal filed by the defendant in A.S.No.114 of 2003 also got dismissed. The dismissal got the approval of this Court in S.A.No.2218 of 2004, by the judgment, dated 20.12.2006.
4.4. The defendant also filed a suit in O.S.No.5715 of 2000 seeking for a declaration that the plaintiff's adoption is null and void. She also filed an Application for amendment praying to set-aside the settlement deed executed by the plaintiff's father in favour of the plaintiff. The trial court negatived the plea. The Civil Revision Petition filed was also dismissed. The matter was taken to the Supreme Court in SLP (C) No.6793 of 2006, which came to be dismissed in limini on 10.12.2007.
4.5. The plaintiff and his father instituted a suit in O.S.No.2942 of 2006 for mandatory injunction directing the defendant herein to permit ingress, egress, stay and occupation of the suit property. The defendant conceded the right of the plaintiff for the occupation and use of the suit property and therefore, the suit was decreed by the order, dated 27.04.2007.
4.6. The super-structure in the suit property became dilapidated and therefore, the plaintiff applied for permission to demolish which was granted on 30.01.2008. The demolition order issued by the Corporation of Chennai could not be implemented, as the defendant was residing in the suit property.
4.7. The defendant was permitted to stay in the suit property only on the ground that she was the wife of the plaintiff's father. However, on and from 10.12.2007, the date, on which the Apex Court disposed of the SLP, her stay in the suit property is illegal and the plaintiff is entitled to claim damages as against her for use and occupation. The suit property is an independent bungalow situated in a very posh area in the city and will fetch minimum rent of Rs.40,000/-.
4.8. The continuous occupation of the defendant in the suit property has caused great inconvenience to the plaintiff. A legal notice was issued on 02.02.2009, calling upon the defendant to hand over the vacant possession of the suit property and also to pay damages. The defendant, by the reply dated 05.02.2009 refused to quit and deliver vacant possession. Hence, the plaintiff was compelled to file the suit for recovery of possession and for damages.
5. The claim of the plaintiff is opposed by the defendant on the following plea:-
The defendant is an aged women (62 years) and a senior citizen with no other place to stay. The defendant is living in her matrimonial home with effect from 23.08.1992, i.e., from the date of her marriage. The defendant is drawing a pension of Rs.9,783/- per month. The defendant worked as a Selection Grade Assistant in Medical Department of the Tamil Nadu State Government. The defendant's husband compelled her to give Voluntary Retirement, leaving behind the 14 years of her service. If the defendant would have continued in Government Service she would be earning five digits of salary with other corresponding increase in perks.
5.1. The defendant's husband deserted her and left the matrimonial home on 01.02.1997.
5.2. The plaintiff is not the absolute owner of the property and he has no right to file the suit for eviction. Immediately, after the dismissal of the Divorce Petition, on 23.04.1999, the settlement deed was created on 10.06.1999, in order to deprive the defendant of her legal right to reside in the matrimonial house.
5.3. The defendant's husband has retained his lifetime interest and he has settled his share of the suit property in favour of his son. Therefore, the plaintiff is not the absolute owner of the suit property.
5.4. The defendant is paying water tax, sewerage tax and electricity charges, apart from paying property tax.
5.5. Under the provisions of the Domestic Violence Act, the defendant has right to reside in a shared household.
5.6. The defendant was using and maintaining both downstairs and upstairs of the suit property. During the plaintiff's visit to the suit property to upstairs, he took away the key of the upstairs without the knowledge of the defendant.
5.7. The plaintiff is not entitled to any relief.
6. This Court has framed the following issues for trial:-
(i) Whether the plaintiff is entitled for recovery of possession of the suit schedule property?
(ii) Whether the plaintiff is entitled for past and future damages?
(iii) Whether the findings in S.A.No.2218 of 2004 would act as res-judicata in respect of the averments made in the written statement?
(iv) Whether the suit is maintainable?
(v) Whether the defendant divorcee from Viswanathan is entitled to right of possession and residence over the 'B' schedule property?
(vi) To what other reliefs, the parties are entitled to?
7. The relationship between the parties inter se and the relationship of the defendant with the plaintiff's father as wife is an admitted fact. It is equally admitted that the defendant is in possession of the suit property, but the defendant has qualified the statement, stating that, she is not in possession of the entire suit property, but residing only in the ground floor. Her further case is that, she never prevented the plaintiff from entering into the suit property, but only opposed the interference in her peaceful possession and enjoyment of ground floor of the suit property.
7.1. It is further submitted by the defendant that the plaintiff's friend, Pratheep, was residing in the first floor of the suit property from 01.06.2010 to 16.10.2011; When Pratheep vacated the property, he handed over the key only to the plaintiff; Thus, the first floor of the suit property is under lock and key and is in possession of the plaintiff alone.
7.2. It is further case of the defendant that the plaintiff's friend, Akalya, occupied the first floor of the suit property on 01.03.2012; the plaintiff is receiving the rent; ass the tenant, Akalya, did not pay the electricity charges, the defendant gave a police complaint on 05.11.2012; thereafter, Akalya, also vacated the first floor on 23.07.2013.
7.3. It is not in dispute that the suit property originally belonged to the plaintiff's biological mother, Shantha. The sale deed, standing in the name of Shantha, has been marked as Ex.P-1. On the death of Shantha, the plaintiff and his father became equally entitled to the property. Thereafter, plaintiff's father has executed a settlement deed, under Ex.P-2, in favour of the plaintiff retaining only the life interest. The relevant recitals in the settlement deed reads as under:-
.... the SETTLOR herein during his life time, is desirous of absolutely setting his half share in the said Schedule A Property, retaining a LIFE INTEREST over the same morefully and particularly described in the schedule B annexed hereunder, in favour of the SETTLEE herein, so that, the SETTLEE shall after the life time of the SETTLOR become the absolute owner of the entire schedule A Property with full powers of ownership and alienation. 7.4. It is also not in dispute that the relationship between the plaintiff's adoptive father and the defendant / step-mother, (as husband and wife), has been annulled by the decree of divorce granted by this Court. Therefore, the plaintiff's step-mother do not retain any status as the wife of the plaintiff's father.
8. The first contention of the learned counsel for the defendant is that the plaintiff himself is not the owner of the property and therefore, he has no right to ask for eviction of the defendant, pointing out that the plaintiff's father has retained life interest in the suit property.
8.1. No doubt, under the settlement deed the plaintiff's father has retained the life interest. But during the course of evidence, he has stated that he never intended to retain life interest and for all practical purposes, his son will be the true owner of the entire suit property. He has further stated that he has relinquished the life interest in the half share of the suit property and as such, he has no interest in the suit property. But, this part of the evidence cannot be given much importance as this evidence is against the recital in the settlement deed. However, it is to be pointed out that in the settlement deed itself he has given, the right to put up construction, in the suit property to the plaintiff.
9. It is the contention of the learned counsel for the plaintiff that the plaintiff and his father are co-owners and as such, one co-owner can maintain the suit on behalf of the other co-owner and that the defendant has no authority to question the maintainability of the suit, especially when she has neither right over the property nor right to be in possession of the property. Therefore, the main question to be decided is, whether, after the termination of the relationship as wife of the plaintiff's father, the defendant has the right to reside in the suit property in the absence of any claim for title over the property.
9.1. The fact remains that a) the suit for declaration and injunction, restraining the plaintiff herein and his father from interfering with the defendant's possession, as filed in O.S.No.5746 of 1999 and b) declaration that the plaintiff herein is not the legally adopted son of his father, Viswanathan, as filed in O.S.No.5715 of 2000 has been dismissed by the Court on two grounds: (i) the earlier suit for injunction filed in O.S.No.5746 of 1999 which went up to this Court in S.A.No.2218 of 2004 ended in dismissal of the claim for injunction and therefore, the relief of injunction sought in this suit is barred by resjudicata; and (ii) there is no plea for maintenance and hence there is no charge over the property.
9.2. The learned counsel for the plaintiff invited the attention of this Court to the judgment passed by the City Civil Court in O.S.No.2942 of 2006, which is the suit filed by the plaintiff and his father as against the defendant herein, seeking the relief of injunction with regard to the suit property, wherein in paragraph 20 of the judgment, the City Civil Court has discussed the legal implication of the judgment of the Apex Court passed in the case of S.R.Batra and another v. Smt.Tarun Batra, reported in (2007) 2 MLJ 69 wherein the Supreme Court discussed the term 'shared house-hold' which is the right available, only when there is a jural relationship as husband and wife and has held that so far as this case is concerned, as there is no jural relationship of wife and husband between the defendant and the plaintiff's father, the defendant cannot invoke the right to 'shared household' in the suit property.
10. The next contention of the learned counsel for the defendant is that the suit is not maintainable on account of non-impleadment of the father of the plaintiff, who has got a life interest in the property.
10.1. No doubt, under the settlement deed executed by the father, he has retained the life interest in the property and absolute interest has been given to the plaintiff, only after his life time. As such, the plaintiff and his father are co-owners.
10.2. Even though, life interest has been created, as per the settlement deed, dated 10.06.1999, in the evidence, the father (P.W.2) has stated as follows:-
I submit that out of my own will and pleasure, I settled my half share in the suit property absolutely to and in favour of my son, the plaintiff herein, by way of a settlement Deed dated 10.06.1999. Unfortunately, in the deed of settlement, a life interest has been created in my name, even without my asking, as a routine by my lawyer's office.......... For all practical purposes, I consider my son, the plaintiff, as the true owner of the entire suit property and he is entitled to deal with the same in any manner as he wishes. Having relinquished my life interest in the half share of the suit property, I have no interest in the suit property and as such, considering my old age, there is no necessity for any further documentation in this regard.... 10.3. This issue has been already answered. There is no legal bar for one co-owner to maintain a suit for eviction on behalf of the other co-owner.
11. The next contention of the learned counsel for the defendant is that the defendant has been paying all money due to the Corporation Bank and all financial institutions by paying property tax, electricity charges, etc., and as the plaintiff has utilized the money of the defendant, the plaintiff cannot ask the defendant to hand over possession.
11.1. It is further contended that the entire life of the defendant had been sacrificed for the welfare of the plaintiff's father as well as the plaintiff's grandmother and therefore, it is unfair on the part of the plaintiff to seek eviction of the defendant.
11.2. These contentions are not legally valid and the contribution of the defendant towards up-liftment of the family, including the purchase of the property is the subject matter of the litigation in the suit in O.S.No.168 of 2010 on the file of the Sub Court, Tambaram.
11.3. Relying upon Section 39 of The Transfer of Property Act, the learned counsel for the defendant contended that it is open to the defendant, (when she has a right to maintenance) to enforce her right of maintenance against the plaintiff, who is a gratuitous transferee with knowledge of the defendant's right to receive maintenance. It is worthwhile to refer Section 39 of the said Act, which reads thus:-
39. Transfer where third person is entitled to maintenance.Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.
11.4. The legal position is not under dispute, but the factual aspect is under dispute. In the case on hand, till date, the defendant has not chosen to claim any maintenance and till date no proceedings for maintenance is pending. It is the case of the defendant that she is in receipt of pension and that she contributed money for the purchase of some other property. Perhaps, that could have been the reason for her, for not claiming any maintenance. Therefore, the defendant cannot take refuge under Section 39 of the said Act.
12. Yet another contention of the learned counsel for the defendant is that the defendant is entitled to protection under the provisions of The Domestic Violence Act and her right to reside in the suit property cannot be defeated on account of the claim made by the plaintiff. This contention has been already negatived even in the suit filed in O.S.No.2942 of 2006 dated 29.04.2007. As already pointed out, the claim is not maintainable on account of the decision rendered by the Hon'ble Supreme Court reported in (2007) 2 MLJ 69 (S.R.Batra and another v. Smt. Taruna Batra), referred supra.
12.1. It is the contention of the learned counsel for the plaintiff that, as per Section 17 (2) of the Domestic Violence Act, the defendant is not an aggrieved person and therefore, she cannot claim any protection under the said Act. Section 17 in The Protection of Women from Domestic Violence Act, 2005 reads thus:-
17. Right to reside in a shared household. (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. 12.2. Now, the question to be decided is, whether the defendant was having domestic relationship with her husband, while claiming the right to shared household and whether she could be construed as an aggrieved person.
12.3. The learned counsel for the plaintiff would submit that the domestic relationship between the plaintiff and the defendant has been snatched by the judgment of this Court passed in CMA No.1558 of 2000, which was confirmed by the Hon'ble Apex Court in SLP (CC) No.11781 of 2007 and therefore, neither the defendant has any domestic relationship nor she can be construed to be an aggrieved person.
12.4. It will be relevant to refer to the definitions of aggrieved person and domestic relationship, which read thus:-
(a) aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
.....
(f) domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; 12.5. In the context of divorce having been granted, the defendant cannot be construed to be an aggrieved person, especially in the light of the judgment of the Hon'ble Apex Court reported in (2007) 2 MLJ 69 (referred to supra).
13. The learned counsel for the defendant relied upon the decision reported in (2007) 2 MLJ 69 (referred to supra), in order to support the proposition that wife is entitled to claim a right to reside in the shared household or to claim alternative accommodation in the house belonging to the husband or house taken on rent or house belonging to the joint family where husband is the member of the Joint Family.
13.1. There cannot be any dispute over the legal proposition, but, the issue was, pending proceedings for divorce filed by the husband, whether the wife has got the right to reside in the matrimonial home, belonging to the mother of the husband. It was held that when the property in question absolutely belong to the mother of the husband, the house in which the spouses lived cannot be called as shared household. Pointing out that in England, the right of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, and that there was no law in India the claim of the wife was negatived on the ground that the shared household did not belong to the husband. The issue as to whether after divorce, whether the divorcee wife can claim right in the shared household was not the subject matter of the decision.
14. The learned counsel for the defendant also relied upon the decision reported in 1995 6 SCC 88 (Mangat Mal (dead) and another vs. Punni Devi (dead) and others) and contended that, as contemplated under Section 14 (i) of the Hindu Succession Act, when the property is acquired by Hindu Women in lieu of her pre-existing right to maintenance, the award of life interest in the property would blossom into full ownership of the property.
14.1. This provision cannot be taken advantage of by the defendant, as neither she was conferred with any life interest nor she was in possession of the property in lieu of her right to maintenance. No doubt, the word maintenance encumbrance a provision for residence, but, unfortunately, neither the wife has alleged that she got a right to maintenance nor that she wanted maintenance. It is not even her case that in lieu of her pre-existing right to maintenance, the property was given to her. Therefore, the dictum laid down is not applicable to the defendant.
15. Relying upon the decision reported in 2005 (3) SCC 313 (B.P.Achala Anand vs. S.Appi Reddy and another), it is contended that the deserted wife can continue to stay in the tenancy premises, exercising her right to residence as part of her right to maintenance. This proposition would hold good only so far as the wife retains her status as wife and not after loosing her status as wife. In the very same decision, in para 32, it is very clearly pointed out that this right comes to an end with the wife loosing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance come to an end.
16. The learned counsel for the plaintiff has pointed out the offer of Rs.20 lakhs made by the plaintiff to the defendant and that it would enable the defendant to seek alternative accommodation and under such circumstances, the plaintiff's right to enjoy the property in his own way cannot be curtailed. The learned counsel for the plaintiff would submit that still we offer to pay Rs.20 lakhs holds good and that the plaintiff is prepared to pay the same on moral grounds and though not on legal grounds.
17. So far as the issue regarding future damages are concerned, the issue depends upon the right of the wife to remain in occupation of the premises. As a matter of fact, it has been found that the wife is liable to vacate and hand over the possession. Therefore, admittedly, the wife is liable to pay the past and future damages. But, the plaintiff is not insisting upon the claim.
18. For the foregoing reasons, the Civil Suit is decreed. The plaintiff shall pay the agreed sum of Rs.20 lakhs, by way of a Demand Draft in the name of the defendant-G.Lakshmi @ Seetha, and proof of payment shall be filed before this Court, within a period of one month from the date of receipt of a copy of the judgment. On such proof of payment being made, (with notice to the defendant), the defendant is liable to surrender possession of the suit property to the plaintiff, within a period of two months thereafter. No costs.
28.07.2015 Index : Yes / No Web : Yes / No srk / ogy Note to office.: Issue order copy on / before 25.08.2015 S.VIMALA, J., srk/ogy C.S.No.231 of 2009 28.07.2015