Delhi District Court
Kailash Pal vs Deepak Kumar on 29 November, 2023
THE COURT OF SH. PRITU RAJ : CIVIL JUDGE : NORTH
DISTRICT, ROHINI COURTS : DELHI
Suit No. CS SCJ 259-18
CNR No. -DLNT03-002460-2017
In reference:
KAILASH PAL
s/o Sh. Bhagwat Singh
r/o B-28, near Durga Mandir,
Bhagat Singh Park, Siraspur
Delhi-42. ...... Plaintiff
VERSUS
1. Sh. DEEPAK KUMAR
s/o Sh. Kailash Pal
r/o LIG Flat no. 104,
Pocket C-A, Village Siraspur,
Delhi-42.
2. Smt. Reena @ Raj Bala
w/o Sh. Deepak Kumar
d/o Sh. Atar Singh
r/o 231/2, Gali no. 3, Pal Mohalla,
Mandawali, Fazalpur,
Delhi-92. .........Defendants
For the plaintiff : Shri Rajnish Kapoor
For the defendant : Ms. Shiv Jyoti Sharma
Date of Institution : 14.12.2017
Date of reservation of Judgment : 21.11.2023
Date of Judgment : 29.11.2023
CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 1 of 23
JUDGMENT
1. The present suit has been filed by the plaintiff against the de-
fendants seeking the reliefs as contained in the prayer clause of the plaint.
FACTS AS PER THE PLAINT :-
2. The case of the plaintiff as per plaint in brief is that he is the absolute owner of property bearing no. B-28, near Durga Mandir, Bhagat Singh Park, Siraspur, Delhi-42 [hereinafter called as 'suit property'] which was purchased by him. Plain- tiff claims that after their marriage, the Defendants were al- lowed to live in the suit property as permissive users but grad- ually, their conduct deteriorated and they started quarrelling and abusing the Plaintiff and never left any chance to men- tally or physically harass him or his other family members. Aggrieved by the same, the Plaintiff broke his relations with the Defendants by debarring him from his movable and im- movable property by way of publication in Rashtriya Sahara while also intimating the local PS. It is case of the plaintiff that being annoyed by the same, the Defendants started quar- relling and abusing and on 23.07.2017, he was implicated in a false criminal case. Upon his release on bail, the Plaintiff ter- minated the license and called upon the Defendants to remove their goods and to vacate the suit property. Plaintiff claims that D-1 left the suit property, and on 09.10.2017, D-2 also CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 2 of 23 left the suit property, but the goods and articles are still lying in the same. It is further case of the plaintiff that on 13.11.2017, D-2 along with her brothers namely Satveer and Naresh came to the suit property and threatened him to trans- fer the same in the name of D-2. The present suit has been filed claiming that the Plaintiff has been left with no other ef- ficacious remedy.
PRAYER:-
3. Plaintiff has made the following prayer:-
(a) That a decree of perpetual injunction be passed in the favour of the plaintiff and against the defendants re-
straining them or anyone claiming through them from en- tering interferring, creating obstruction, nuisance, hin- derance or hardship in the peaceful enjoyment and occu- pation of the Plaintiff over the suit property.
(b) That, a decree of mandatory injunction may be passed in the favour of the plaintiff and against the defendants thereby directing the Defendants to remove their house- hold articles / goods lying in the suit property.
(c) That a decree of declaration be passed in the favour of the plaintiff and against the defendants declaring that the Plaintiff has severed all his relation and concern with the Defendants vide barred publication dated 15.07.2017.
(d) Costs be awarded in the favour of the plaintiff and against the defendants.
(d) Any other relief which this Court may deem it fit and just in the facts and circumstances of the suit in the favour of the plaintiff and against the defendants.
DEFENCE :-
4. In the present case, the defendant-1 was duly served on 13.04.2019. Despite such service, no one appeared on behalf CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 3 of 23 of the defendant-1 and the suit was subsequently proceeded ex parte qua him on 16.02.2022. D-2 entered appearance through her counsel on 17.09.2018 and filed WS on the same date wherein she took the plea that the present case is a counter blast to the complaint by D-2 against the Plaintiff and his family members and has been filed solely to save his skin.
Defendant-2 also claimed that D-1 was found with one Nee- lam which led to a scuffle with the PCR being subsequently called. On merits, the contents of the plaint were denied.
ISSUES:-
5. Vide order dated 25.09.2019, the following issues were framed:
1) Whether the plaintiff is entitled to the relief of perma- nent injunction as prayed for? OPP.
2) Whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP.
3) Whether the Plaintiff is entitled to decree of decla- ration as prayed for? OPP.
4) Relief. DOCUMENTS & EVIDENCE:-
6. In support of their case, the plaintiff examined himself as PW-
1. He tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the documents:
CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 4 of 23
(a) Ex.PW1/1 (OSR) is the copy of Aadhar card.
(b) Ex.PW1/2 (OSR) is the copy of electricity bill dated 26.10.2017.
(c) Ex.PW1/3(OSR) is the copy of GPA dated 26.08.2011.
(d) Ex.PW1/4(OSR) is the copy of agreement to sell and purchase dated 26.08.2011.
(e) Ex.PW1/5(OSR) is the copy of receipt dated 26.08.2011.
(f) Ex.PW1/6(OSR) is the copy of affidavit dated 26.08.2011.
(g) Ex.PW1/7(OSR) is the copy of possession letter dated 26.08.2011.
(h) Ex.PW1/8(OSR) is the copy of Will dated 26.08.2011.
(I) Ex.PW1/9(OSR) is the copy of the debarred publication in daily news paper Rastriya Sahara published on 15.07.2017.
(j) Ex.PW1/10(OSR) is the copy of Itla Peshbandi dated 24.10.2017.
(k) Ex.PW1/11(OSR) is the copy of postal receipts dated 24.10.2017.
(l) Ex.PW1/12(OSR) is the copy of letter dated 24.10.2017.
(m) Ex.PW1/13 is the site plan of the suit property.
(n) Ex.PW1/14(OSR) is the copy of undertaking dated 13.11.2017.
7. Despite multiple opportunities, he was not cross-examined and accordingly, right of D-2 to cross examine the said wit- ness was closed on 17.05.2023. Vide a separate statement, PE stood closed on the same date.
8. Despite opportunity, no evidence was lead on behalf of the defendant-2 and accordingly, right of D-2 to lead DE was CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 5 of 23 closed on 12.09.2023.
FINAL ARGUMENTS:-
9. Final arguments have been heard at length on behalf of the Plaintiff. However, despite grant of ample opportunities, no final arguments were led on behalf of the defendant and ac- cordingly, the right of D-2 to lead the same was closed on 21.11.2023.
FINDINGS OF THE COURT:-
10.Before embarking to decide the present case, it would be ap-
propriate to reiterate the burden of proof required to be dis- charged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings in not as strict as in criminal cases and in order for any party to succeed, he/it is required to prove his/its case on the preponderance of probabilities. The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity:
It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 6 of 23 persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
11.Further, Section 101 of the Evidence Act, 1872 defines "burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person.
Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
12.Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give it issues wise findings as per the issues framed on 25.09.2019, are as follows:-
CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 7 of 23 Issue no. 1 and 2
1) Whether the plaintiff is entitled to the relief of perma- nent injunction as prayed for? OPP.
2) Whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP.
13.Both these issue are being taken together as their adjudication would require appreciation of common facts and law. The onus of proving these issues lay upon the plaintiff.
14.In the present case, the plaintiff has claimed himself to be the owner as well as in possession of the suit property. While de- fendant no. 1 was proceeded ex-parte, effectively meaning that the aforesaid averments of the plaintiff have gone unre- butted qua him, defendant no. 2 in her written statement had denied the said averment on account of want of knowledge. It is settled law that the denying averments for want of knowl- edge is no denial at all. Order VIII Rule 5 CPC requires pleadings to be answered specifically in the WS and if the de- fendant has no knowledge of a fact pleaded by the plaintiff, the same is not even an implied denial (Jahuri Sah & Ors. Vs. Dwarika Parsad Jhunjhunwala, AIR 1967 SC 109, Muddasani Venkata Narsaiah (D) Th. LRs Vs. Muddasani Sarojana, AIR 2016 SC 2250). Hence, the factum of owner- ship as well as possession, claimed by the plaintiff in para 3 of the plaint stands proved.
CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 8 of 23
15.However, mere determination of the ownership and possession in itself is not sufficient for the proper determination of the issues at hand since upon a perusal of the pleadings of the parties, it becomes apparently clear that the Defendant-2 has claimed her right of residence in the suit property on account of it being a shared household. The determination of the said right is essential for the proper adjudication of the present suit.
16.The jurisdiction of a Civil Court to adjudicate upon matters pertaining to the right of a daughter-in-law to reside in a matrimonial house is derived from S. 26 (1) of The Protection of Women from Domestic Violence Act, 2005 (herein after called as 'DV Act') which enables the reliefs u/s 18, 19, 20, 21 and 22 of the DV Act to be claimed through proceedings before a Civil Court. In the present case, it is the claim of defendant no. 2 to reside in the shared household which has to be essentially decided. In order to adjudicate upon the said claim, it would be imperative to determine what constitutes a shared household.
17.The term 'shared household' has been defined in S. 2 (s) of the DV Act as follows:
(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the re-
spondent and includes such a household whether CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 9 of 23 owned or tenanted either jointly by the aggrieved per- son and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
18.The term 'aggrieved person' and 'domestic relationship' have been defined in S. 2 (a) and S. 2 (f), respectively, of the DV Act as follows:
(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respon-
dent and who alleges to have been subjected to any act of domestic violence by the respondent;
(f) "domestic relationship" means a relationship be- tween 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;
19.The Hon'ble Apex Court in Satish Chander Ahuja Vs. Sneha Ahuja (2021) 1 SCC 414 while discussing the aforesaid concept of shared household went on to hold as follows:
"We are of the view that the definition of shared house- hold in Section 2(s) is an exhaustive definition. The first part of definition begins with expression "means"
which is undoubtedly an exhaustive definition and sec- ond part of definition, which begins with word "in- cludes" is explanatory of what was meant by the defini- CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 10 of 23 tion. " (Para 53) "The definition can be divided in two parts, first, which follows the word "means" and second which follows the word "includes". The second part which follows "includes" can be further sub-divided in two parts. The first part reads "shared household means a household where the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the respondent. Thus, first condition to be fulfilled for a shared household is that person ag- grieved lives or at any stage has lived in a domestic re- lationship. The second part sub- divided in two parts is- (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the re- spondent or both jointly or singly have any right, title, interest or equity and(b)includes such a household which may belong to the joint family of which the re- spondent is a member, irrespective of whether the re- spondent or the aggrieved person has any right, title or interest in the shared household. In the above defini- tion, two expressions, namely, "aggrieved person" and "respondent" have occurred.
From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may ei- ther own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a joint family of which the respondent is a member irre- spective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly." (Para 55)
20.A conjoint reading of the aforesaid definitions shows that the definition of a shared household comprises of two parts; with CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 11 of 23 the first part being where the aggrieved person has lived in a domestic relationship with the Respondent, and part two of the aforesaid definition states that such shared household can be either owned or tenanted jointly by the aggrieved person and the Respondent, or owned or tenanted by either of the aggrieved person and the Respondent in respect of which either of them jointly or singly have any right, title or interest and it would include any household which may belong to the joint family of which the Respondent is a member regardless of the fact whether the aggrieved person or the Respondent has a right therein. However, it goes without saying that in order to qualify as a shared household, there has to be some permanency to the living and mere fleeting or casual living at different places would not make the household a shared household [para 63, Satish Ahuja (supra)].
21.In the present case, it is the own case of the Plaintiff that the Defendants had been admitted to the suit property, by the Plaintiff himself, after the marriage of the Defendants. It has nowhere been pleaded in the pleadings that the residence of the Defendants in the suit property was intended to be temporary in nature. Moreover, as discussed above, the fact that whether the Respondent, D-1 in the present case, has any right in the household belonging to the joint family of which he is a part is immaterial, negates the contention of the Plaintiff that since the Defendants do not have any right, title or interest in the suit property, the same cannot be considered CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 12 of 23 to be a shared household. Accordingly, it stands proved that the suit property is a shared household within the precincts of the DV Act.
22.However, the pre-requisites which are to be satisfied before the right of residence in a shared household can be claimed by a daughter-in-law are:
(1) That the property is a shared household. (2) That she lived in a domestic relationship in the suit property with the Respondent.
(3) That she is an aggrieved person.
23.It goes without saying that merely because the suit property is a shared household, that by itself would not grant the right of residence therein unless the aforesaid requirements are satisfied. The fact that the suit property is shared household has already been determined above and so has the fact that the Defendant-2 had lived in a domestic relationship with D-1 in the suit property / shared household. However, merely because the Defendants have lived in the suit property in a domestic relationship, by itself, would not grant the right of residence to the Defendant-2 to live in the suit property as a shared household for the requirement of her being an aggrieved person also has to be satisfied. An aggrieved person, as defined in S. 2 (a) of the DV Act, means a person who is the victim of domestic violence with the term 'Domestic Violence' being defined in S. 3 of the DV Act. Hence, D-2 was required to prove that she had been subjected CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 13 of 23 to domestic violence in order to fulfill the requirement of her being an aggrieved person in order to claim the right of residence in the suit property on account of it being her shared household. However, apart from bare averments in the pleadings, no evidence has been led by the Defendants to prove the factum of domestic violence and hence, in the absence of any such evidence, the requirement of D-2 being an aggrieved person remains unfulfilled and hence, no right of residence in the suit property can be granted.
24.The upshot of the entire discussion is that owing to the failure of the Defendants to prove D-2 as an aggrieved person, no right of residence in the shared household can be claimed by her qua the suit property.
25.Even otherwise, it is a settled proposition of law that the right of residence of a daughter-in-law in a shared household is not an indefeasible right and the Courts should always strive to balance the rights of both the parties. The same has been reiterated in Satish Ahuja (supra), where it was held as follows:
Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital dis- cord between their son and daughter-in-law. While CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 14 of 23 granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. (Para 83)
26.The same has been reiterated by the Hon'ble High Court of Delhi in Ritu Chernalia Vs. Amar Chernalia and Ors. WP (C) 6986/23 DOD 22.05.2023 wherein the Hon'ble High Court of Delhi relying upon the decision of Satish Ahuja (Supra) went on to hold as follows:
"10. Heard. The Hon'ble Supreme Court of India in its judgement dated 15 th October, 2020 in CA No. 2483/2020 titled Satish Chander Ahuja v. Sneha Ahuja while discussing the concept of shared household held as under:
"83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties.
11. Thus, the concept of shared household clearly provides that the right of the daughter-in- law in a shared household is not an indefeasible right and cannot be to the exclusion of the in- laws. The stand of the Petitioner that the in-laws should not be allowed to live in their own property is completely contrary to the settled CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 15 of 23 understanding on the subject. The daughter-in- law, while claiming rights to live in her matrimonial home or shared household, cannot be seen to argue that the in-laws ought not to live with her in the shared household. If circumstances exist which demonstrate that they cannot live together, alternate accommodation may also have to be explored for the daughter- in-law."
27.However, as the Defendants in the present suit have failed to prove the right of residence of D-2 in the suit property, no question arises for balancing the rights of the Defendants with that of the Plaintiff. Still, owing to the duty cast on the Courts to resolve and balance the rights of the parties in cases where the dispute is essentially between parents-in-law and daughters-in-law, this Court will now proceed to adjudicate upon the conflicting interests / claims of the parties. Even if the existence of the right to residence in the suit property of D-2 on account of it being a shared household is presumed, having regard to the pronouncement of the Hon'ble Delhi High Court in Vinay Varma Vs. Kanika Pasricha and Anr. 2019 SCC Online DEL 11530, wherein certain guidelines were laid down to be considered while attempting to properly balance the aforesaid conflicting interests, this Court will now proceed to apply the ratio of Vinay Varma (supra) to the facts of the present case and attempt to balance the rights of the Defendants with that of the Plaintiff. However, before proceeding to do so, it would be appropriate to reproduce the guidelines laid down in Vinay Varma (supra) for the sake of CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 16 of 23 brevity:
"1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the son‟s/ daughter‟s family.
2. If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughter-in- law was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daugh- ter-in-law or daughter/son- in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the princi- ples under the DV Act.
4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to pro- vide for the shelter for the daughter-in-law would re- main both upon the in-laws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek evic- tion of the daughter-in-law from their property, an al- ternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is ill-treating the par- ents then the parents would be entitled to seek uncondi- tional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
6. If the son has abandoned both the parents and his own wife/children, then if the son‟s family was living as part of a joint family prior to the breakdown of rela- tionships, the parents would be entitled to seek posses- sion from their daughter-in-law, however, for a reason- CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 17 of 23 able period they would have to provide some shelter to the daughter-in-law during which time she is able to seek her remedies against her husband."
28.Applying the aforesaid ratio to the facts of the present case, the relation between the Defendants is acrimonious as is made out from the pleadings contained in the written statement wherein the Defendant has alleged that D-1 with the help of one Neelam had lodged a false and frivolous complaint against her to create pressure for settling the score. Moreover, the relation between the parties to the suit, i.e., the Plaintiff on one hand and the Defendants on the other hand is also acrimo- nious given the fact that the Plaintiff has stepped into the wit- ness box and categorically deposed that the Defendants had subjected him to mental and physical harassment. The same is also corroborated by the notice of debarment dated 15.07.2017 published in Rashtriya Sahara. No evidence what- soever has been led by the Defendants to show that the suit is collusive in nature. Hence, what arises from the abovesaid discussion is that the Plaintiff has been subjected to mistreat- ment by the Defendants. Moreover, D-2 has admitted in para 10 of her written statement that she is not living in the suit property and the averment / pleading of the Plaintiff that D-1 is not living in the suit property has gone unrebutted, with there being no reason to disbelieve the same. Hence, it be- comes apparently clear that neither of the Defendants are cur- rently living in the suit property. As already discussed above, the right of residence of a daughter in law in a shared house- CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 18 of 23 hold is not an indefeasible right and the said right has to be balanced with the rights of the parents in law. Hence, in light of the fact that neither of the Defendants are living in the suit property, coupled with the fact that the Plaintiff has been able to prove his claim of ill treatment at the hands of the Defen- dants, and also on account of the fact that D-2 has failed to lead any evidence to show that the present suit is collusive be- tween the Plaintiff and D-1, this Court is of the considered opinion that the Plaintiff is entitled to a perpetual injunction in his favour to protect his peaceful enjoyment of the suit prop- erty given the fact that his ownership and exclusive posses- sion over the suit property. As a corollary and considering the fact that a person cannot enjoy his property to the maximum extent if there is any goods or article of any Defendant is ly- ing there, the Plaintiff is also held entitled to the relief of mandatory injunction and the Defendants are hereby directed to remove their household articles / goods in the suit property.
29.These issues are accordingly decided in favour of the Plaintiff and against the Defendant.
Issue no. 3
3) Whether the Plaintiff is entitled to decree of decla- ration as prayed for? OPP.
30.The onus of proving this issue lay upon the Plaintiff.
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31.The relief of declaration has been contained in S. 34, Specific Relief Act, 1963 [hereinafter called as 'SRA']. The same is reproduced below for the sake of brevity:
34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so enti-
tled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person inter- ested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
32.The intention of the legislature behind declaratory decree is that it is always in the interest of the individual as well as the society that there should be finality as regards the legal character of a person and finality as regards his right as to any property for conflicting claims upon the aforesaid aspects would lead to confusion and hence, it would be in the interest of justice to have the same settled. The conditions which has to be satisfied by the Plaintiff before such decree can be passed has been crystallized in the decision of State of MP Vs. Khan Bahadur Bhiwandiwala and Co. AIR 1971 MP 65 where it was held as follows:
CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 20 of 23
10. The requisites for a declaratory suit are well known. In order to obtain relief of this kind, the plain-
tiff must establish that (i) the plaintiff is at the time of the suit entitled to any legal character or anv right to any property; (ii) the defendant has denied or is inter- ested in denying the character or the title of the plain- tiff; (iii) the declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property, and (iv) the plaintiff is not in a position to claim a further relief than a bare declaration of his ti- tle.
33.The Court further went on to hold that even if the aforesaid requisites were satisfied, the Court still will have the discretion to grant or not to grant a declaratory relief depending upon the circumstances of each case for the same is in equitable remedy. However, the threat to the legal character or the right as to any property must be real and not imaginary and the Plaintiff has to prove that the Defendant has denied or is interested in denying the character or title of the Plaintiff.
34.By way of the present relief, the Plaintiff has sought declaration to the effect that severed all his relation and concern with the Defendants through publication dated 15.07.2017. Hence, effectively, the Plaintiff has sought for a declaration to the effect that the Defendants do not have any right, title or interest in the Plaintiff's properties and that the Defendants be declared as not being the son and daughter in law respectively of the Plaintiff, a fact duly made out from Ex. PW-1/9, i.e., the publication. The same is tantamount to CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 21 of 23 seeking the relief of negative declaration and it is settled law that a suit for seeking such a relief is not maintainable. Even otherwise, it is settled law that under the Indian Legal System disowning is not recognized per se. The effect of any publication / affidavit by the parents with the intended effect of disowning their children / offspring from the properties owned by them does not have legal effect so as to break all relevant family types. Such publication is nothing more than a gesture on the part of the parents to make their intentions clear to the public and also to serve as a warning to them from entering into any financial transaction with their offsprings on the supposed premise of backing by the parents. Moreover, the question as regards whether a father can disown his son from the property owned by him, there exists no ambiguity to the proposition that while the father is free to dispose of or bequeath such property-if it is self acquired-by any means including will or gift, however in the case of the parent dying intestate, the son would have succession rights in such property regardless of the father's wish. The said proposition would take effect regardless of the father's wish and regardless of how poor the relationship between the parties might have been.
35.The same has been reiterated by the Hon'ble High Court of Delhi in Preeti Satija Vs. Rajkumari and Anr. 207(2014) DLT 78 (DB) wherein it was observed:
CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 22 of 23 "In fact, the strategy of "disowning" sons, through pub- lic notices or advertisement, is not to be taken lightly. For example, even if a son is disowned by either par- ent, the death of that parent would, if intestate, still lead to devolution of property upon that son. Indeed, a mere proclamation does not have a dispositive legal ef- fect, breaking all legally relevant familial ties."
36.This issue is decided against the Plaintiff and in favour of the Defendants.
37.In light of the aforesaid observations, the suit of the Plaintiff is decreed to the extent that the Defendants are hereby perma- nently restrained from interfering with the peaceful posses- sion of the Plaintiff over the suit property. Defendants are also directed to remove their household articles / goods lying in the suit property within four weeks. Suit is decreed accord- ingly. Given the factual matrix of the case, no order as to costs.
38.Decree sheet be prepared.
39.All pending applications (if any) are hereby disposed off as not pressed.
40.File be consigned to record room after due compliance.
Announced in the open Court on 29.11.2023 (PRITU RAJ) CIVIL JUDGE (NORTH) ROHINI/DELHI/29.11.2023 CS SCJ 25918 KAILASH PAL Vs. DEEPAK KUMAR Page No. 23 of 23