Delhi District Court
Sh. Subhash Chander Manchanda vs Sh. Gaurav Manchanda on 26 September, 2019
IN THE COURT OF ADDITIONAL DISTRICT JUDGE05,
SOUTH WEST, DWARKA COURTS, NEW DELHI
Civil Suit No: 226/17
IN THE MATTER OF
Sh. Subhash Chander Manchanda
S/o. Late Sh. J.N. Manchanda
R/o D1C/74B, Janakpuri,
New Delhi110058
.......... Plaintiff
versus
1. Sh. Gaurav Manchanda
S/o Mr. Subhash Chander Manchanda
R/o. HG04, Amrapali Zodiac,
Sector120, Noida,
Uttar Pradesh201301
2. Ms. Namrata Singh
W/o Gaurav Manchanda
R/o H.No. Y65,
Vivekanand Apartment,
Plot No.2, Sector5, Dwarka,
New Delhi110075.
.......... Defendants
SUIT FOR POSSESSION, MANDATORY INJUNCTION,
PERMANENT INJUNCTION, DECLARATION AND
RECOVERY OF MESNE PROFITS AND DAMAGES
CS No. 226/17
Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 1 of 60
Date of institution : 18.02.2017
Date when judgment reserved : 05.09.2019.
Date of Judgment : 26.09.2019
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiff for possession, mandatory injunction, permanent injunction, declaration and recovery of mesne profits and damages against the defendants.
2. The case of the plaintiff as set out in the plaint is summarized as under: 2.1. The plaintiff is a senior citizen of 74 years of age and is presently residing at D1C/74B, Janakpuri, New Delhi which belongs to his brotherinlaw who has allowed the plaintiff to use his house as a gratuitous gesture for a limited period of time and without any rental charges. The plaintiff is dependent upon his pension for his survival and multiple health ailments.
2.2. The plaintiff is the sole and absolute owner of the property bearing House No. Y65, Vivekanand Apartment, Plot no.2, Sector5, Dwarka, New Delhi (hereinafter referred to as 'suit property') which he CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 2 of 60 purchased out of his own funds for his residential purposes in the year 1999 vide agreement dated 20.03.1999 and possession thereof was given to him vide possession letter dated 21.04.2001 and a gate pass was also issued to him by Vivekanand Cooperative Group Housing Society Limited (hereinafter referred to as "the Society"). 2.3. The plaintiff lost his wife in a tragic road accident in the year 1996. Due to social pressure and responsibility of his two children, the plaintiff married again with Ms. Uma but plaintiff's second wife could not form a strong bond with his children.
2.4. The defendant no.1 is son and defendant no.2 is daughterin law of the plaintiff and their marriage was solemnized in December 2011. The plaintiff allowed the defendants to use and occupy the suit property for residential purpose as a gesture of goodwill and as a gratuitous gesture.
2.5. Plaintiff although disowned the defendant no.1 but acceded to the request of defendants to allow them to reside in the suit property and since both the defendants assured the plaintiff that they will not cause any inconvenience to the plaintiff and his wife, the plaintiff allowed CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 3 of 60 them to use the property as a permissive use only and no right was transferred by the plaintiff to the defendants with respect to the suit property. It was agreed that defendants would move to their own accommodation after the delivery of their child which was due in May 2012.
2.6. However, soon after the defendant nos. 1 and 2 started facing troubles in their married life and they used to get into regular ugly fights even to the extent that within four months of marriage, the defendant no. 2 registered a police complaint in the CAW Cell alleging violence by defendant no.1.
2.7. In the month of August 2012 after a baby girl was born to the defendants in May 2012, the plaintiff asked the defendants to vacate the suit property as also assured by them, but the defendants asked for some more time to vacate the suit property since the baby was very young and assured the plaintiff that they would vacate the suit property within a period of 68 months. The plaintiff acceded to their request as a goodwill gesture.
2.8. The house where the plaintiff is presently residing alongwith CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 4 of 60 his wife is situated at the first floor and since the plaintiff had undergone a knee replacement surgery in 2013, he is unable to climb stairs and is in urgent need of the suit property being situated at the ground floor. He requested the defendants to vacate the suit property, however the defendants did not vacate the suit property despite multiple requests made by the plaintiff. The plaintiff being dissatisfied by the conduct of the defendants got issued a legal notice dated 31.05.2013 to the defendants thereby calling upon them to immediately vacate the suit property and to hand over the possession of the same to the plaintiff. 2.9. The defendants after a lapse of almost 45 months approached the plaintiff and requested him to recall the notice dated 31.05.2013 and also requested the plaintiff not to initiate any judicial proceedings against them. The defendants at that time told the plaintiff that they had booked a flat in Noida, possession whereof would be handed over to them in short time. The plaintiff believing the documents of booking shown by the defendants allowed them to reside in the suit property till the time the possession of the flat was not handed over to them and agreed not to initiate judicial proceedings against them in terms of notice CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 5 of 60 dated 31.05.2013 and revoked the said notice orally. All this while, the plaintiff now and then visited the suit property and would also access the room in his possession for his needs and requirement. 2.10. Subsequently, some disputes and differences arose between the defendants and defendant no.2 lodged various complaints against defendant no.1 due to which relation between the plaintiff and the defendants has soured beyond repair. The plaintiff and his wife are not in a position to reside peacefully in the suit property in presence of defendants and around in November 2015, the plaintiff again requested the defendants to vacate the suit property and by that time the possession of the flat at Noida had also been handed over to the defendants. 2.11. Upon the request of the plaintiff, the defendant no. 1 vacated the suit property in or around December 2015 and shifted to his above mentioned flat at Noida, however defendant no. 2 did not shift from the suit property stating that she would shift after 23 months once the locality where the new house is located is developed and habitable. 2.12. The defendant no.2 is well qualified and post graduate and she is working professional with a handsome salary of approximately CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 6 of 60 Rs. 50,000/ per month. The defendant no. 2 is also getting monthly maintenance from the defendant no. 1 to the tune of Rs.15,000/ for the expenditures of her daughter. On the contrary, the plaintiff is an old man suffering from various old age ailments having limited source of income and he is made to suffer by the defendants as he was deprived of his own property. The plaintiff again in the first week of February 2016 requested the defendant no. 2 to vacate the suit property but she made excuses and requested for some more time to vacate the suit property and this continued for almost 78 months. Finally, the plaintiff ran out of patience and in the month of September 2016 asked the defendant no.2 to vacate the suit property within 7 days without any further extension of time, however the defendant no. 2 flatly refused to vacate the suit property claiming her valid legal right on the suit property being her matrimonial home. The defendant no. 2 is unauthorized and illegal possession of the suit property alongwith her daughter and did not vacate the suit property despite several requests of the plaintiff. Hence, the plaintiff has filed the present suit.
2.13. The plaintiff by way of present suit has prayed for following CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 7 of 60 reliefs:
a) a decree of possession of the suit property in his favour and against the defendant thereby directing the defendant to hand over the vacant peaceful of the suit property i.e. property bearing No. Y65, Vivekanand Apartment, Plot no.2, Sector5, Dwarka, New Delhi, to him;
b) a decree of permanent injunction thereby restraining the defendant from subletting, parting with the possession or creating third party interest in the suit property;
c) a decree of mandatory injunction in his favour and against the defendant thereby restraining the defendants from causing any nuisance, interference in the peaceful possession of the plaintiff in the suit property,
d) a decree of declaration thereby declaring that the defendants are liable to pay a sum of Rs. 1,08,000/ towards outstanding dues of electricity, water, maintenance and other charges for their period of occupation in the suit property;
e) a decree of mesne profits and damages of Rs. 1,25,000/ for CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 8 of 60 illegal use and occupation of the suit property @ Rs.25,000/ per month from October 2016 till filing of the present suit and a decree of mesne profits and damages @ Rs.25,000/ per month from filing of the present suit till suit property is handed over to him by defendant.
3. The defendant no.1 has filed the written statement denying his illegal possession in the suit property though he admitted the ownership of the plaintiff over the suit property, his health conditions and the income. He also admitted that he resides in Noida but denied that he is liable to pay damages or mesne profits because he does not reside in the suit property. It is stated that by defendant no. 1 that he had made the payments towards the maintenance and the electricity and water for the period for which he resided in the suit property and is not liable to pay any further bills. He admitted that the plaintiff resides in the property of his brotherinlaw. The other contents of the plaint are stated to be denied for want of knowledge. The defendant no. 1 has prayed for dismissal of the suit qua him.
4. The defendant no. 2 has filed separate written statement CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 9 of 60 contending that the suit is an abuse of process of law and same has been filed by plaintiff in collusion with defendant no.1 to illegally evict the defendant no.2 from the suit property which is her matrimonial home and shared household. It is stated that defendant no.2 has been continuously living in the suit property right after her marriage with defendant no.1 and under the provisions of Domestic Violence Act, 2005, residence of a wife in shared household is protected. It is further stated that defendant no.2 is victim of extreme violence in the hands of defendant no.1 and the real intention of the present suit is to secure the eviction of defendant no.2 from her matrimonial home. On merits, the defendant no.2 has not denied the age of plaintiff but has denied that the plaintiff is dependent on the pension amount for his survival. It is stated that the plaintiff has good investments in multiple properties from where he earns good rental incomes. It is denied that the suit property is self acquired and only property of the plaintiff. It is stated that the suit property is an ancestral property of the plaintiff's family. It is further stated that defendant no.2 is not averring any rights in the title of the suit property but is only seeking protection given under the law to restrain CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 10 of 60 the plaintiff and the defendant no.1 to illegally evict her from the suit property and protection to continue to stay in suit property being her matrimonial house and shared household. It is stated that plaintiff and defendant no.2 have always enjoyed cordial relationships and have lived in the suit property together, however after discord between the defendants due to the brutalities and cruelties committed by defendant no. 1 on the defendant no. 2, the plaintiff favoured his son and is now adamant to illegally oust the defendant no. 2 from the suit property. The suit property has three bedrooms and defendant no.2 can share and stay with the plaintiff in the suit property. It is denied that defendant no.2 is in unauthorized illegal possession of the suit property or that she is earning a salary of Rs. 50,000/ per month. It is stated that the defendant no. 2 lost her previous job and is now working from home and is only earning at the most Rs. 15,000/ to Rs. 29,000/ per month which is not sufficient to maintain herself and her minor daughter. It is stated that minor daughter of defendant no.2 is studying in Sector22, Mount Carmel School, Dwarka which is near the suit property and hence the residence of the wife being a shared household is liable to be protected. CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 11 of 60
It is stated that the suit property is ancestral property and daughter of plaintiff also has a right in the joint Hindu family. However, defendant no.2 is not averring any right in the title of the suit property but she is seeking protection given under the law. It is denied that defendant no.2 is liable to pay any damages/mesne profits. It is stated that since the suit is filed in collusion with defendant no.1, therefore, the same is liable to be dismissed.
5. The plaintiff has filed replications to the written statement filed by the defendant no. 1 and to the written statement filed by the defendant no. 2 separately in which the averments made in the plaint have been reiterated and reaffirmed and those made in the written statements have been controverted.
6. From the pleadings of the parties, following issues have been framed by the Ld. Predecessor vide order dated 06.05.2017 for adjudication : (1)Whether the plaintiff is entitled to a decree of possession thereby directing the defendants to hand over the vacant and peaceful possession of the suit property, as prayed for ? OPP.
CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 12 of 60 (2)Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ? OPP.
(3)Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for ? OPP.
(4)Whether the defendants are liable to pay a sum of Rs. 1,08,000/towards outstanding dues, as prayed for ? OPP. (5)Whether the plaintiff is entitled to a decree to the tune of Rs.1,25,000/ against the defendant being the mesne profits/damages for illegal use and occupation of the suit property, as prayed for ? OPP.
(6) Whether the plaintiff is entitled to a decree to the tune of Rs.25,000/ per month towards future mesne profits and damages against the defendant, as prayed for ? OPP. (7) Relief
7. In order to prove his case, the plaintiff has examined three witnesses including himself as PW1. As PW1, the plaintiff has filed his evidence by way of affidavit which is Ex.PW1/A in consonance of averments made in the plaint. During his deposition before the Court as PW1, the plaintiff also relied upon and exhibited the following documents: Ex. PW1/1 : Copies of his PAN card, Pension Card and Form 16 CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 13 of 60 Ex. PW1/2 : Copy of letter written by defendant no. 2 Mark A : Photocopies of letters dated 14.10.2016 (Colly) and 25.12.2016 written by Vivekanand CGHS to him Ex. PW1/4 : Copy of medical documents of himself (Colly) and his wife Ex. PW1/5 : Agreement dated 20.03.1999 issued by Vivekanand CGHS in his favour Ex. PW1/6 : Possession letter dated 21.04.2001 issued by Vivekanand CGHS in his favour Ex. PW1/7 : Gate pass dated 21.04.2001 issued by Vivekanand CGHS in his favour Ex. PW1/8 : Copy of website page of www.magicbricks.com reflecting the prevailing rent in the neighborhood Ex.PW1/9 : Certificate u/s 65 B of Evidence Act Ex.PW1/10 : Site plan of the suit property
8. PW2 is Ms. Ashima Gogia, the daughter of the plaintiff, sister of defendant no. 1 and sisterinlaw of defendant no. 2 who also filed her evidence by way of affidavit which is Ex.PW2/A wherein she has deposed on the similar lines as deposed by PW1 (the plaintiff) regarding his ownership over the suit property.
9. PW3 Sh. Sunil Kumar, Hony. Secretary, is summoned witness from Vivekanand Cooperative Group Housing Society Limited, CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 14 of 60 Dwarka, PhaseI, New Delhi - 75 who brought the summoned record and placed the photocopy of the said record as Ex.PW3/A (Colly). The testimony of this witness shall be discussed in detail in the later part of the judgment.
10. On the other hand, the defendant no.1 (Gaurav Manchanda) has examined himself as DW1 and filed his evidence by way of affidavit Ex.DW1/X wherein he has deposed more or less as per the averments made in the written statement filed by him.
11. The defendant no. 2 (Namrata Singh) has also examined herself as DW2 in support of her defence and filed her evidence by way of affidavit which is Ex.DW2/A in consonance of averments made in the written statement filed by her.
12. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written arguments filed on behalf of the parties.
13. On the basis of material available on record, my issuewise findings are as under: CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 15 of 60 Issue No. (1) (Whether the plaintiff is entitled to a decree of possession thereby directing the defendants to hand over the vacant and peaceful possession of the suit property, as prayed for?)
14. The onus to prove this issue is on the plaintiff. From the pleadings of the parties, it is not in dispute that the defendant no. 1 is son and defendant no. 2 being wife of defendant no. 1 is daughterinlaw of the plaintiff. It is also not in dispute that after their marriage, the defendant no. 1 and the defendant no. 2 started residing in the suit property. The plaintiff has claimed that he is sole and exclusive owner of the suit property having purchased the same from the Society in the year 1999 from his own funds and he, as a gratuitous gesture since the defendants are his family members and also as the defendant no. 2 was pregnant at the time of marriage, allowed the defendants to stay in the suit property only as a permissive use of the same and it was agreed that the defendants would move to their own accommodation after delivery of their child. However, the defendants failed to vacate the suit property even after delivery of a baby girl in the month of May 2012 and kept on seeking time to vacate the suit property and did not vacate the suit CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 16 of 60 property despite repeated requests of the plaintiff. The plaintiff also kept on extending the time as a goodwill gesture, and in between some disputes and differences arose between the defendants due to which the defendant no. 2 lodged various complaints against the defendant no. 1. Owing to these disputes between the defendants, the plaintiff again asked the defendants to vacate the suit property, consequent to which the defendant no. 1 vacated the suit property in the month of December 2015 and shifted to his own flat at Noida, however the defendant no. 2 refused to vacate the suit property despite last request made by the plaintiff in the month of September 2016 claiming her legal right in the suit property being her matrimonial home and shared household. Hence, the plaintiff was constrained to file the present suit.
15. The defendant no. 1 in his written statement has not disputed the fact that the suit property is self acquired property of the plaintiff and that the plaintiff is the sole and exclusive owner of the suit property. However, he has claimed that he is no longer in possession of the suit property and he has already vacated the same in the month of December 2015 after paying all the dues and hence he is not liable to CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 17 of 60 pay any damages/mesne profits to the plaintiff.
16. The defendant no. 2, on the other hand, who is contesting defendant has denied in her written statement the sole and exclusive ownership of the plaintiff over the suit property and claimed that suit property is ancestral property of the plaintiff in which apart from the plaintiff, her husband i.e. defendant no. 1 Gaurav Manchanda (son of the plaintiff) and her sisterinlaw Smt. Aashima Gogia (daughter of the plaintiff) are also having equal share and, therefore, being a "shared household" and her "matrimonial home", she has got a valid legal right to stay in the suit property as per the provisions of Protection of Women from Domestic Violence Act, 2005. She has further claimed that the present suit has been filed by the plaintiff in collusion with her husband i.e. defendant no. 1 to illegally evict her from the suit property.
17. It is admitted position from the aforesaid pleadings of the parties that there are matrimonial disputes between the defendant no. 1 and defendant no. 2 and there are litigations between them including one under the Protection of Women from Domestic Violence Act, 2005. It is also an admitted fact that the defendant no. 1 (son of the plaintiff) has CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 18 of 60 already vacated the suit property and presently the defendant no. 2 (daughterinlaw of the plaintiff) is occupying the suit property. From the written statement filed by the defendant no. 2, it is apparent that though she is not claiming any title against the plaintiff in the suit property but she is claiming her right to residence in the suit property being her matrimonial home and shared household as per the provisions of the Protection of Women from Domestic Violence Act, 2005.
18. During course of arguments, the Ld. Counsel for defendant no. 2 vehemently argued that under the provisions of the Protection of Women from Domestic Violence Act, 2005, residence of a wife in a shared household is protected which cannot be defeated by a Civil Court and since the suit property being jointly owned by the plaintiff and his children including the defendant no. 1, the defendant no. 2 who is legally wedded wife of defendant no. 1 has a valid and legal right to stay in the suit property and her possession is protected under the said Act.
19. Per contra, the Ld. Counsel for the plaintiff submitted that the suit property being exclusively owned by the plaintiff does not come under the definition of "shared household" as defined under the CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 19 of 60 aforesaid Act and the defendant no. 2 being daughterinlaw of the plaintiff cannot claim any right against the plaintiff in the suit property either for residence or for anything else. He has placed reliance on the judgment of the Hon'ble Apex Court in S.R. Batra & Ors vs. Taruna Batra, 2007 (3) SCC 169 and the judgment of the Hon'ble High Court of Delhi in Jotsna @ Jyoti & Anr. vs. Lakhpat Rai, RSA 352/2016 & CM No. 43607/2016 decided on 02.12.2016.
20. The Hon'ble Apex Court in S.R. Batra case (cited supra) reflecting the correct legal proposition qua the rights of a woman to reside in a shared household under the provisions of the Protection of Women from Domestic Violence Act, 2005, clearly stated in para no. 22 of the judgment that, "As regards Section 17 (1) of the Act, in our opinion, the wife would only be entitled to claim a right of residence in "shared household" and such a household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member." Stating this, the Hon'ble Apex Court held that the property which neither belongs to husband nor is taken on rent by him nor it is a joint family CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 20 of 60 property in which the husband is a member cannot be regarded as a "shared household" and the property belonging to inlaws does not come within the definition of "shared household".
21. Citing the aforesaid judgment of the Hon'ble Apex Court in S.R. Batra Case, the Hon'ble Delhi High Court in its judgment in Jotsna vs. Lakhpat Rai (cited supra) held that a daughterinlaw cannot claim any right in the self acquired property of her fatherinlaw.
22. In view of above legal proposition, the plaintiff is required to prove that he is sole, absolute and exclusive owner of the suit property and the defendant no. 1 has no right or share in the same. If the plaintiff is able to prove the same, the suit property cannot be termed as "shared household" under the Act and the defendant no. 2 being daughterinlaw shall have no right to stay in the suit property. On the other hand, in case the defendant no. 2 is able to establish that the suit property is ancestral property in which her husband is also having a share, she will definitely have a right to stay in the suit property as per the provisions of the Protection of Women from Domestic Violence Act.
23. In order to prove his exclusive ownership over the suit CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 21 of 60 property, the plaintiff himself appeared in the witness box as PW1 and reiterated in his examinationinchief by way of affidavit Ex. PW1/1 that the suit property is his self acquired property exclusively owned by him which he purchased in the year 199293 out of his own funds after availing loans on his provident funds savings. He has also deposed that he is not a member of any Joint Hindu Family nor inherited any ancestral movable or immovable assets from his ancestors as alleged by the defendant no. 2. In support of his claim, the plaintiff has also relied upon the agreement dated 20.03.1999 Ex.PW1/5, possession letter Ex.PW1/6 and the gate pass Ex. PW1/7 issued by the Society.
24. PW1 (the plaintiff) was crossexamined at length by the Ld. Counsel for defendant no. 2, however only relevant cross examination which is material for disposal of issue between the parties is being discussed herein.
25. PW1 (the plaintiff) in the crossexamination stated that he does not recollect the exact date, month and year when he applied for membership of the society, however it might be in the year 1993. Voluntarily, he stated that the documents are lying in the suit property. CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 22 of 60 He stated that he was posted as Asstt. Technical Officer in IB at Delhi and was residing with his deceased wife, namely, Shashi Bala Manchanda alongwith two children when he applied for membership of Society. He stated that he can produce the documents showing that he has applied for membership of Society from his own funds. He stated voluntarily that if he will be allowed to access the suit property as the same are lying inside the same. He admitted that he received a compensation after the death of his wife in an accident prior to final payment of the suit property. He stated voluntarily that the amount of compensation was around Rs.40,000/. He stated that he has shown in his income tax records that the suit property is his self acquired property. He denied the suggestion that the suit property is not self acquired property and that is why he has not placed on record any document in this regard. He admitted that a joint application was moved by him and his deceased wife for membership of the society on the basis of which, present suit property was alloted. He further admitted that he alongwith his deceased wife jointly contributed at the time of membership of the Society. He also admitted that he alongwith his deceased wife jointly CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 23 of 60 contributed in respect of the membership and allotment of the suit property till she was alive.
26. In view of aforesaid admissions made by the plaintiff during his crossexamination, the Ld. Counsel for the defendant no. 2 vehemently argued that it is apparent that the plaintiff and his deceased wife had jointly applied for membership of the Society and they jointly contributed towards the purchase/allotment of the suit property and thus they both had half undivided share in the suit property being joint owners of the same. He further submitted that after the demise of deceased wife of the plaintiff, her half undivided share in the suit property devolved upon her legal heirs i.e. the plaintiff, defendant no. 1 and PW2 Smt. Ashima Gogia (daughter of the plaintiff) as per law of succession and as such the defendant no. 1 has a share in the suit property and the defendant no. 2 being wife of defendant no. 1 has a right to stay in the suit property being the same a "shared household".
27. It is pertinent to mention here that in her entire written statement, no such plea has been taken by the defendant no. 2 that the suit property was jointly owned by her motherinlaw with the plaintiff CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 24 of 60 and after the death of her motherinlaw, her share was inherited by her husband i.e. the defendant no. 1 alongwith the other heirs. The defence of the defendant no. 2 in her entire written statement has been that the suit property is ancestral property in which her husband is also having a share. However, in view of admission of the plaintiff during his cross examination regarding joint membership in the Society, the defence put by the defendant no. 2 to PW1 in his crossexamination cannot be brushed aside.
28. The Ld. Counsel for the plaintiff during course of the arguments though conceded that Smt. Shashi Bala Manchanda, the deceased wife of the plaintiff was the original member of the Society but he submitted that Smt. Shashi Bala Manchanda during her lifetime made her husband i.e. the plaintiff as her nominee in the membership of the Society. He further submitted that after her death as per the byelaws of the Cooperative Society, the said membership stands transferred in the name of the plaintiff and thereafter, the plaintiff paid the outstanding dues towards the membership of the Society and alone made all the payments towards allotment of the flat. He further submitted that an CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 25 of 60 agreement was also executed between the Society and the plaintiff on 20.03.1999 for allotment of the flat and consequently the flat in question was allotted in the sole name of the plaintiff and as such the plaintiff is the sole and exclusive owner of the suit property. He further submitted that the possession letter and gate pass have also been issued in favour of the plaintiff by the Society which again prove the exclusive ownership of the plaintiff over the suit property.
29. PW1 (the plaintiff) in his crossexamination also stated that he can produce the document showing that the payments of allotment of suit property were made from his own independent source. He voluntarily stated that all the documents are lying in the suit property. He was suggested by the Ld. Counsel for the defendant no. 2 that the agreement dated 20.03.1999 does not confer any ownership rights in respect of the suit property which he denied. He was further suggested that his son and daughter are also having rights in the suit property as the membership was jointly obtained by him and his deceased wife, which he again denied. He further denied the suggestion that the suit property is part of HUF property.
CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 26 of 60
30. In view of rival submissions of the Ld. Counsel for the parties, it becomes relevant to examine as to initially in whose favour the membership was applied for, who contributed funds towards the membership of the Society and towards allotment of the flat, in whose favour the Society allotted the flat and on what basis.
31. Therefore, the most important and crucial witness in this case is PW3 Sh. Sunil Kumar, Hony. Secretary of Vivekanand Co Operative Group Housing Society Limited, Dwarka, PhaseI, New Delhi
- 75 who brought the summoned record i.e. copy of agreement dated 20.03.1999, possession letter dated 21.04.2001, gate pass dated 21.04.2001, personal ledger no. 26 from 31.03.1995 to 16.07.1998, details of amended cost of flat and ledger account from 17.05.2004 to 01.08.2017 alongwith covering letter dated 21.09.2017 bearing his signature at point A and signature of Sh. V.K. Dutta, Treasurer of the Society at point B. He placed the photocopy of the said record as Ex.PW3/A (Colly) running into 22 pages.
32. In his crossexamination by Ld. Counsel for defendant no. 1, PW3 stated that the suit property was alloted on 14.02.1999. He CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 27 of 60 further stated that which flat will be allocated to which member was not predecided and was determined on the day of allotment. He further stated that he has no personal knowledge about the record apart from the record.
33. This witness (PW3) was crossexamined at length by the Ld. Counsel for defendant no. 2 and in his crossexamination he stated that as per record, the membership was applied in the name of Smt. Shashi Bala Manchanda and the nominee was Sh. S.C. Manchanda, husband of the member. He further stated that he needs time to find out record of transfer of membership from Smt. Shashi Bala Manchanda to her nominee Sh. S.C. Manchanda. He voluntarily stated that an endorsement is already made in the personal ledger at point X at page no. 10 of Ex.PW3/A (Colly). He stated that he will have to check in whose name the share certificate was issued. He will have to further check whether the receipt of share money was issued in the name of Smt. Shashi Bala Manchanda. Voluntarily, he stated that the share money of Rs. 2900/ was paid on 31.05.1995. He will have to check the record to answer whether the money paid in respect of allotment of suit CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 28 of 60 property till the death of Smt. Shashi Bala Manchanda was paid by her and receipts were also issued in her name. He further stated that he will have to check as to under what Rules the membership is transferred to her nominee on account of death of member. He will have to check the Rules as to whether membership devolves in the legal heirs after death of member. In a reply to the question put to him, he stated that the unregistered agreement dated 20.03.1999 is a document to show that flat has been allotted in the name of Sh. S.C. Manchanda. He denied the suggestion that the aforesaid document does not confer transfer of ownership from Society to Sh. S.C. Manchanda. A question was put to the witness that the unregistered agreement dated 20.03.1999 is mere document of allotment and not transfer of ownership to which he admitted that the said document is the allotment of flat .A court question was put to him as to whether any document of ownership is issued to the member of the Society to which he replied that only a possession letter is issued to the Member. He admitted that some of the members of the Society got their flats free hold from lease hold from DDA and conveyance deed has been executed by DDA in their names. CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 29 of 60
34. The crossexamination of this witness was deferred for want of documents i.e. original membership, record of share certificate and share money, Rules of Succession of membership, transfer of membership, payments receipts and he was directed to bring the said record.
35. On the next date i.e. on 12.10.2017, the witness (PW3) brought the requisite records i.e. attested copies of original membership, record of share certificate and share money, rule of succession of membership, transfer of membership and receipt of payments which he collectively exhibited as Ex.PW3/D2/X (Colly), original of which are in the custody of the Society. He stated that he cannot name any person in whose possession the original record is available and he can produce the original records, if directed. He can bring the original records for verification of the documents produced by him. He stated that he will have to check whether original membership form of Smt. Shashi Bala Manchanda is available with the Society or not and if found, he will produce the same. He cannot tell from the records brought by him as to when Smt. Shashi Bala Manchanda has applied for membership of the CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 30 of 60 Society. The Society has no records of legal heirs of Smt. Shashi Bala Manchanda. He voluntarily stated that except the name of the nominees available with the Society. He cannot tell from the record as to who has received the information about the nominee as mentioned in the documents brought by him in the Court. He does not know as to who had written the details of the nominee in the ledger of the Society. He cannot tell from the record as to who was the custodian of the records of the Society from 1995 to 2002. He stated that there is no permanent employee including accountant of the Society for keeping and maintaining the records of the Society. He will have to check from the records as to who was the author of the documents produced by him in the court. He cannot tell after going the record produced by him in the court as to who had made endorsement, entries etc. in the records of the Society. He voluntarily stated that it can be either by Secretary, President or Treasure of the Society. He stated that the Society is maintaining original records of membership, accounts and relating documents. He further stated that as per the minutes of the Society, an application was moved by Sh. S.C. Manchanda for transfer of CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 31 of 60 membership but the said application is not available in the record of the Society. He cannot admit or deny whether any agenda of the meeting dated 08.02.1997 was circulated among the members of the managing committee of the society. A question was put to the witness as to whether any prior permission, approval, information or sanction was taken from the Registrar of Cooperative Societies prior to transfer of membership in the name of the plaintiff to which he replied that permission of Registrar of Cooperative Societies after the approval of the Managing Committee of the Society. He stated that it was approximately Rs.2.79 lacs which was deposited by Smt. Shashi Bala Manchanda during her lifetime. He has to check whether any information in writing was received by the Society about death of Smt. Shashi Bala Manchanda. He voluntarily stated that it is mentioned in the minutes of meeting dated 08.02.1997.
36. The crossexamination of this witness was again deferred for want of original of membership form, record of share certificate and money, rules of succession of membership, transfer of membership, payment receipts.
CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 32 of 60
37. On the next date i.e. on 15.11.2017, the witness brought the requisite documents i.e. original membership, record of share certificate and share money, rule of succession of membership, transfer of membership and receipt of payments and the same are collectively Ex.PW3/D2/X (Colly).
38. In his further crossexamination conducted on 15.11.2017, PW3 stated that he has brought the original membership form of Smt. Shashi Bala Manchanda. The said record is share certificate, personal ledger accounts, receipts of payment, rule of succession and transfer of membership in the name of Shashi Bala Manchanda. He admitted that as on today the Society does not have the original record to show that Smt. Shashi Bala Manchanda has appointed her husband as a nominee in respect of her membership of the Society. He voluntarily stated that the ledger record of the Society shows that the name of the nominee of Smt. Shashi Bala Manchanda is Sh. S.C. Manchanda. He stated that the Society does not have any document signed by Smt. Shashi Bala Manchanda appointing her husband as her nominee. He voluntarily stated that the same is not traceable. A question was put to CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 33 of 60 the witness as to whether the membership of the Society will devolve into the legal heirs of the members died as per Law of Succession to which he replied that as per the Byelaws of the Society, membership is transferred in the name of the nominee. He stated that he was not the part of the Committee which formulated the Byelaws of the Society. He denied the suggestion that membership of the Society devolves on all the legal heirs after death of members of the Society. He stated that since he has not seen the original membership form as the same is not traceable therefore he cannot say that the nominee in that form was defendant no. 1. He voluntarily stated that as per the original personal ledger, the name of nominee is the plaintiff. He denied the suggestion that the ledger brought by him are false and fabricated and entries made therein are forged and manipulated in collusion with the plaintiff. He has brought the original application moved by plaintiff for transfer of membership in his name and copy of the same is Ex.PW3/B (OSR). A question was put to the witness that has he brought any record to show that the application Ex.PW3/B was received by the Society to which he replied that as per the record, the application was received. He has CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 34 of 60 brought the record in this respect and the same is letter dated 11.02.1997 addressed to the Registrar Office of the Society and the same is Ex.PW3/C. In his further crossexamination, the witness (PW3) stated that original of the affidavit of the plaintiff is not available with the Society which is Mark X. He has not seen the original of the said affidavit. He voluntarily stated that affidavit might have been sent to the Registrar of Cooperative Societies as mentioned in Ex.PW3/C. In reply to a question put to him, he categorically stated that he personally does not know Mr. Manchanda, the plaintiff in the present case.
39. From the testimony of this witness (PW3) and the documents produced on record by him, it is transpired from Ex.PW3/D 2/X (Colly) that the same is a covering letter dated 11.10.2017 of Vivekanand Cooperative Group Housing Society Limited on its letterhead duly signed by Sh. Sunil Kumar (PW3) as Hony.Secretary and Sh. V.K. Datta as Treasurer addressed to this Court by which information was furnished to this Court point wise regarding (1) original membership, (2) record of share certificate and share money, (3) Rule of succession of Membership, (4) Transfer of Membership and (5) Receipt CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 35 of 60 of Payments.
40. Perusal of the same reveals that the original membership was in the name of Smt. Shashi Bala Manchanda and the share certificate was issued in her name on 22.05.1994. Alongwith the letter, copy of counterfoil of share certificate issued in her name is also attached as Annexure I. Copy of personal ledger of the member i.e. of Smt. Shashi Bala Manchanda attached as Annexure II also shows that share money of Rs. 2900/ was paid by her on 31.03.1994. Copies of receipts as per the personal ledger of the member found from the records of the Society are also attached as Annexure V which show that share money had been paid by Smt. Shashi Bala Manchanda till her death on 19.09.1996 and the last receipt is dated 14.07.1996 in her name. Thereafter, the receipts have been issued in the name of the plaintiff which are dated 19.04.1997, 23.05.1997, 28.10.1997, 19.03.1998, 12.05.1998, 16.07.1998.
41. Vide letter dated 31.12.1996 Ex.PW3/B, the plaintiff intimated the Society through its Secretary about the death of his wife Smt. Shashi Bala Manchanda in a road accident on 19.09.1996 and he CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 36 of 60 requested the Society to transfer the membership and money in his name being legal heir and nominee of his deceased wife. The said letter was received by the Hony. Secretary on 07.02.1996 (though date has been wrongly mentioned as 07.02.1996 and it should have been 07.02.1997).
42. Perusal of the documents brought by PW3 further reveals that the request of the plaintiff for transfer of membership of his deceased wife in his name was considered and approved by the Managing Committee of the Society in its meeting held on 08.02.1997. Pursuant to the transfer of membership in the name of the plaintiff, the Society intimated the said fact to the Registrar, office of the Co operative Societies vide its letter dated 11.02.1997 Ex.PW3/C. Alongwith the said letter Ex.PW3/C, copy of letter of the plaintiff dated 31.12.1996 for transfer of membership and his affidavit mark X were also attached alongwith other related documents.
43. A copy of the Society ByeLaws is also attached with the letter Ex.PW3/D2/X (Colly) as Annexure III placed on record by PW3 showing rule of succession of membership. Relevant clause of the same i.e. Clause 15 reads as under: CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 37 of 60 Every member may nominate a person or persons to whom on death his shares shall be transferred but no member may nominate more than one person, unless the amount to be paid to such nominees; whether by way of whole shares or by fixed proportion of the amount available for transfer, as the case may be is duly specified when the nominee is appointed and he shall attest the nomination by putting his signature or thumb impression in the register of members. If not admitted to membership the nominee or nominees shall be paid the value of the shares or interest subject to the provision of byelaw 9. If any deduction has to be made from the shares of the deceased and there are more than one nominee, the amount to be deducted shall be set off against the amount due to each nominee in proportion to his interest.
44. As per personal ledger of Smt. Shashi Bala Manchanda, the original member of the Society, her husband Sh. S.C. Manchanda i.e. the plaintiff was the nominee and, therefore, in view of byelaws of the Society particularly as per Clause 15, the membership of the Society was transferred in the name of the nominee who in the present case was Sh. S.C. Manchanda, the plaintiff. After the membership being transferred in the name of the plaintiff, the Society entered into an agreement Ex.PW1/5 with the plaintiff on 20.03.1999 by which the Society agreed to allot one of its flats to the plaintiff on the terms and conditions mentioned in the said agreement. Consequently, the plaintiff CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 38 of 60 was allotted the flat in question by the Society pursuant to the agreement dated 20.03.1999 and possession of the same was handed over to the plaintiff vide possession letter dated 21.04.2001 Ex.PW1/6. The plaintiff was also provided the gate pass dated 21.04.2001 Ex.PW1/7 by which he was allowed to bring his household goods in the premises of the Society.
45. The aforesaid crossexamination of PW3 and the documents produced on record by him clearly demonstrate that initially deceased wife of the plaintiff Smt. Shashi Bala Manchanda was the original member of the Society and the plaintiff was made nominee by her in the said membership as per personal ledger maintained by the Society. After the death of original member Smt. Shashi Bala Manchanda, as per the byelaws of the Society, her membership was transferred in the name of the plaintiff. The plaintiff thereafter contributed funds towards the allotment of the flat for which an agreement was executed between the Society and the plaintiff and consequently suit property was allotted to the plaintiff. The Ld. Counsel for the defendant no. 2 could not impeach the testimony of PW3 regarding nomination of the plaintiff by Smt. Shashi Bala Manchanda in CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 39 of 60 the membership of the Society and subsequent transfer of membership after her death in the name of the plaintiff. The PW3 has categorically stated that as per the personal ledger of the member maintained by the Society, the name of nominee is S.C. Manchanda i.e. the plaintiff. A suggestion was put to him that the ledger brought by him are false and fabricated and entries made therein are forged and manipulated in collusion with the plaintiff which he denied. However, the said suggestion is shallow and devoid of any merit. The PW3 is witness of record and he has produced the record available with the Society as directed by the Court. No evidence has been led by the defendant no. 2 that the Society has tempered with the documents to support the case of the plaintiff. This witness, on the contrary, has categorically stated that he does not know the plaintiff personally. Therefore, the question of his collusion with the plaintiff does not arise which otherwise the defendant no. 2 has not been able to establish on record.
46. The Ld. Counsel for the defendant no. 2 has also pointed out that the witness has stated that some of the members of the Society got their flats free hold from lease hold from DDA and conveyance deed CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 40 of 60 has been executed by DDA in their names and since the plaintiff has not got the suit property free hold from lease hold nor conveyance deed has been executed by DDA in his name, it shows that the plaintiff is not the owner of the suit property. I am afraid to accede to the said contention of the Ld. Counsel for the defendant no. 2. If some of the buyers have got their flats free hold and conveyance deed has also been executed by the DDA in their favour and the plaintiff has not done so, it does not ipso facto prove that the plaintiff is not the owner of the suit property. Only because the conveyance deed was not got executed by the plaintiff in his favour, it cannot be said that his membership of the flat with the Society stands terminated or he ceased to be owner of the suit property in view of documentary evidence on record.
47. Ld. Counsel for defendant no. 2 has also vehemently argued that the nominee is only a collecting hand and share of Smt. Shashi Bala Manchanda is to be governed by the general law of succession as envisaged under Hindu Succession Act which makes it apparent that the possession of defendant no. 2 in the suit property is not permissive but the same is protected under law in view of undivided share of her CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 41 of 60 husband/defendant no. 1 in the suit property. He further argued that the defendant no. 2 being legally wedded wife of defendant no. 1 started residing in the suit property after her marriage wherein her husband has undivided share and therefore the same is her matrimonial home and till partition of the suit property is effected, the plaintiff cannot claim possession of the entire suit property.
48. However, I am not in agreement with these arguments of the Ld. Counsel for the defendant no. 2. Admittedly, the flat in question was allotted by a Cooperative Society. Therefore, in view of specific Act i.e. the Delhi Cooperative Societies Act, 2003 which protect the interests of the members of Cooperative Societies, it will prevail the general law of succession. Section 28 of the Delhi Cooperative Societies Act, 2003 provides as under: Transfer of interest on death of member (1) On the death of a member, a cooperative society shall transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member or pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member's share or interest as ascertained in accordance CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 42 of 60 with the rules or the byelaws: Provided that
(i) such nominee, heir or legal representative, as the case may be, may require payment by the cooperative society of the value of the share or interest of the deceased member ascertained as aforesaid; or
(ii) the cooperative society shall transfer the share or interest of the deceased member to such nominee, heir or legal representative , as he case may be, being qualified in accordance with the rules and byelaws for membership of the cooperative society, or on his application within one hundred and eighty days of the death of the deceased member to any person specified in the application who is so qualified; and
(iii) no such transfer or payment shall be made except with the consent of the nominee, heir or legal representative, as the case may be.
(2) A cooperative society shall, subject to the provisions of section 45 and unless within three hundred and sixtyfive days of the death of member prevented by an order of a competent court, pay to such nominee, heir or legal representative, as the case may be, all other moneys due to the deceased member from the co operative society, (3) All transfers and payments made by a cooperative society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the cooperative society by any other person.
49. In view of above legal proposition, on the death of a member, a Cooperative Society shall transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf. In the present case, the plaintiff through the testimony of PW3 who is the Hony. Secretary of the Society has CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 43 of 60 successfully proved that he was made nominee by his deceased wife Smt. Shashi Bala Manchanda who was the original member in the Society and as per byelaws of the Society particularly in view of Clause 15, the share of the deceased member has been transferred in favour of the nominee i.e. the plaintiff after the death of the member. PW3 has also proved on record that the suit flat was allotted by the Society solely in the name of the plaintiff after all the payments made by him towards the allotment/purchase of the flat pursuant to agreement Ex. PW1/5 and possession of the flat was also handed over to the plaintiff vide possession letter Ex.PW1/6 and gate pass Ex.PW1/7 was also issued exclusively to the plaintiff.
50. The plaintiff has also examined his daughter Smt. Ashima Gogia as PW2 who has deposed in her examinationinchief that the suit property was purchased by the plaintiff in the year 2001 out of his own funds and savings and the plaintiff has neither inherited any ancestral property nor any share in any coparcenary property.
51. The said witness was also crossexamined at length by the Ld. Counsel for the defendant no. 2, however most of her cross CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 44 of 60 examination is not relevant for deciding the issue between the parties and only material crossexamination is discussed herein. In her cross examination, PW2 stated that she does not know about the payments made to the Society and also from whose account the said payment was made. She voluntarily stated that she was child at that time and his father was only earning member in the family when the suit property was purchased in the year 1999. No further suggestion was put to the witness that her father was not sole earning member in the family and her mother was also having funds to purchase the suit flat. She does not know in whose name the application for allotment was made to the society and also when the same was made. She does not know about the payment of installment of the suit property were made from the joint account of his father and his deceased mother. She does not know whether the suit property was purchased jointly in the name of his father and in the name of her deceased mother. She cannot produce any document to show that the suit property was purchased from the personal funds of his father. She denied the suggestion that the suit property is a joint hindu family property.
CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 45 of 60
52. From the aforesaid crossexamination of PW2, it is apparent that she is not much aware about the payments made to the Society towards allotment/purchase of the flat, whether the same was paid by her father or from joint account of her parents. She is also not aware that in whose name the allotment was made and she also could not produce any document showing that the suit property was purchased by her father out of his own funds, but the crossexamination of this witness is not of much importance in view of testimony of PW3 who has proved on record the exclusive ownership of the plaintiff over the suit property as discussed herein above.
53. The defendant no. 2, on the other hand, though in her examinationinchief has deposed that the suit property is an ancestral property in which her husband i.e. defendant no. 1 is also having a share. She has further deposed that the suit property was the property of mother of the defendant no. 1 who died intestate and the defendant no. 1 and sister of defendant no. 1 are also owners of the said property and the plaintiff is not the sole owner of the suit property. Rather the property has always been used by the plaintiff and the defendant no. 1 as a Joint CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 46 of 60 Hindu Family property.
54. However, in her crossexamination, DW2 (defendant no. 2) stated that she has not seen the title documents either in the name of her deceased motherinlaw or in the name of her husband, at the time of her marriage or thereafter. She cannot admit or deny whether she has any independent right, title or interest in the suit property. She stated that by the term HUF, she mean that the suit property is joint as the same has been purchased by motherinlaw who died intestate. She is not aware as to which immovable property was inherited by her fatherinlaw from his ancestors. She admitted that her deposition as regards the ancestral and HUF property, is on the basis of information given to her by her husband. She stated that for the ancestral property, neither she has seen nor she is in possession of any document and for HUF, the title documents of the suit property are sufficient. A question was put to her that when the suit property was allotted, her motherinlaw was no more at that time, she replied that it was allotted in the name of her motherin law and she was the owner of the same. She denied the suggestion that the suit property was allotted in the year 2001 in favour of the plaintiff. CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 47 of 60 She voluntarily stated that the same was allotted in favour of her mother inlaw. However, this statement of the defendant no. 2 is factually incorrect because it has come on record from the testimony of PW3 that the suit property was allotted in the name of the plaintiff pursuant to the transfer of membership in his favour.
55. It is pertinent to note here that the claim of the defendant no. 2 that the suit property is ancestral property or that the suit property was jointly owned by her motherin law alongwith the plaintiff and after the death of her motherinlaw, her share in the suit property devolved upon her legal heirs including her husband i.e. the defendant no. 1, is refuted by the defendant no. 1 himself who in his written statement itself admitted the sole ownership of the plaintiff over the suit property. In his crossexamination by Ld. Counsel for the plaintiff, DW1 (the defendant no. 1) categorically stated in his crossexamination that when the suit property was allotted to the plaintiff, he was posted in Aizwal, Mizoram and at that time, his father used to send money to his mother through bank and his mother used to withdraw the same. He further stated that the suit property was purchased by the plaintiff exclusively for his CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 48 of 60 personal use and the suit property is self acquired property of the plaintiff and that is why he purchased the house for himself and his wife in Noida and that is why he has not claimed any independent right in the suit property. He further categorically stated that he was staying as a licensee in the suit property and the plaintiff allowed them to reside in the suit property only because of pregnancy of defendant no. 2 at that time.
56. DW1 (the defendant no. 1) was also crossexamined by Ld. Counsel for defendant no. 2 and in his crossexamination he stated that he does not know whether his mother expired intestate or not. He further stated that he has not executed any relinquishment deed qua the suit property in favour of his father. He voluntarily stated that question does not arise as he never had any share in the suit property. He was put a suggestion that that he is 33% owner of the suit property inheriting the same from his mother, which he denied.
57. The aforesaid testimony of DW1 supports the case of the plaintiff that the suit property is self acquired property of the plaintiff and he has no claim, share or interest in the suit property as claimed by CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 49 of 60 defendant no. 2. One important thing which has come in the cross examination of DW1 (defendant no. 1) is that his father i.e. the plaintiff used to send money to the account of his mother which his mother used to withdraw from time to time. This statement strengthens the case of the plaintiff that he contributed all the payments towards the allotment of the flat i.e. the suit property and he purchased the suit property out of his own funds. There is no evidence produced on record by the defendant no. 2 that her motherinlaw Smt. Shashi Bala Manchanda was having any independent source of income and from that earnings she had purchased the suit property jointly with the plaintiff. If the suit property was applied in the name of Smt. Shashi Bala Manchanda, it cannot be said that she had purchased the suit property out of her own funds. It has come on record from the testimony of DW1 (defendant no. 1) that the plaintiff used to send money to his mother Smt. Shashi Bala Manchanda and his mother used to withdraw the said money. Meaning thereby, whatever the money Smt. Shashi Bala Manchanda had invested in the membership of the society, the same was sent by the plaintiff. Even otherwise, the plaintiff was made nominee by Smt. Shashi Bala CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 50 of 60 Manchanda in her membership with the Society and after her death on 19.09.1996, the plaintiff has paid all the remaining dues/outstanding towards the membership payable to the Society and accordingly the membership was transferred as per the byelaws of the Society in favour of the plaintiff and flat was allotted in the name of the plaintiff.
58. From the aforesaid testimony of DW2 (defendant no. 2), it is apparent that she has not been able to establish that suit property is an ancestral property of the plaintiff or same is HUF property in which her husband i.e. the defendant no. 1 is also having a share. There is no evidence that the defendant no. 1, the husband of defendant no. 2 ever contributed towards purchase/allotment of the suit property. Even it is also not the case of the defendant no. 1 that he ever contributed money towards purchase/allotment of the suit property. Rather throughout his case has been that the suit property is exclusively owned by his father i.e. the plaintiff having been purchased out of his own funds. Even the defendant no. 2 has categorically stated in her crossexamination that her husband has not claimed any right in the suit property after the death of her motherinlaw.
CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 51 of 60
59. Moreover, in the written statement, the defendant no. 2 has clearly stated that she is not averring any title in the suit property and she is only seeking protection under the law to reside in the suit property being her matrimonial and shared household. However, since it stands proved on record that the suit property is not an ancestral property of the plaintiff and the same is self acquired property of the plaintiff, therefore, in view of the law laid down by the Hon'ble Apex Court in Sudhir Batra case (cited supra), the suit property being owned by fatherinlaw of defendant no. 2 cannot be termed as "shared household" and the defendant no. 2 shall have no right to reside in the suit property and she is liable to vacate the suit property and the plaintiff is entitled to decree of possession of the suit property. Hence, this issue is decided in favour of the plaintiff and against the defendant no. 2.
Issue No. (2) (Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ?)
60. The onus to prove this issue is on plaintiff. Since under Issue No. 1, the plaintiff has proved his exclusive ownership over the CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 52 of 60 suit property and the defendant no. 2 has no right to stay in the suit property and decree of possession has also been passed in favour of the plaintiff, the defendant no. 2 cannot sublet, part with possession or create any third party interest in the suit property. Accordingly, this issue is decided in favor of the plaintiff and against the defendant no. 2.
Issue no. (3) (Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for ? OPP.)
61. In view of my findings under Issue No. 1, since the plaintiff is the exclusive owner of the suit property and decree of possession has already been passed in his favour and against the defendant no.2, the plaintiff has every right to stay in the suit property without any nuisance, interference caused by the defendant no. 2 who is presently occupying the suit property illegally being daughterinlaw of the plaintiff. Hence, this issue is also decided in favour of the plaintiff and against the defendant no. 2.
CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 53 of 60
Issue no. (4) (Whether the defendants are liable to pay a sum of Rs. 1,08,000/towards outstanding dues, as prayed for ? )
62. The onus to prove this issue is on the plaintiff. In order to discharge the onus, the plaintiff as PW1 has reiterated in his examinationinchief that the defendants are liable to clear all the outstanding dues towards electricity, water, maintenance and other charges for their period of occupation of the suit property to the tune of Rs.1,08,000/ .
63. However, in his crossexamination by Ld. Counsel for defendant no. 1, PW1 (the plaintiff) stated that defendant no. 1 has never resided in the suit property without his permission. He admitted that defendant no. 1 is not residing in the suit property presently. He stated that he is not sure if all the electricity and maintenance bills, till the date defendant no. 1 resided in the suit property, are cleared . The PW1 (the plaintiff) in his crossexamination by Ld. Counsel for defendant no. 2 has stated that he does not remember when the last payments were made against maintenance and electricity charges of the CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 54 of 60 suit property. He does not know who had lastly paid the said amount to the Society. He does not remember when he lastly paid the maintenance charges of the suit property. He further stated that he is not aware about the the dues and payables to the society towards maintenance.
64. The defendant no. 1 who has examined himself as DW1 has deposed in his affidavit in evidence that he is no longer residing in the suit property and he has already paid all the maintenance charges of the Society including water and electricity charges for the period he was residing in the suit property and the said fact has been verified by the witness summoned by the plaintiff.
65. In his crossexamination as well, DW1 (the defendant no.
1) has categorically stated that he has paid all the bills of the society for the period he stayed in the suit property. He has bank transactions to prove that he has cleared all the bills of the concerned Society and he can produce the same. He has brought the statement of account issued by Vivekanand CGHS Ltd. pertaining to the payments made to Vivekanand CGHS Ltd. towards the maintenance , utility and electricity charges for flat no. Y 65 and the said record is Ex.DW1/P1 (Colly) running from CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 55 of 60 page 1 to 14. He denied the suggestion that he has not cleared the dues after he vacated the suit property. He voluntarily stated that he had cleared utility and maintenance dues from the date of possession till he vacated the suit property.
66. From the aforesaid testimony of the plaintiff and the defendant no. 1, it has come on record that the defendant no. 1 has vacated the suit property in December 2015. The defendant no. 1 has claimed that he paid all the dues towards the electricity,water, and maintenance to the Society till he resided in the suti property. In this regard, he has also produced statement of account Ex.DW1/P1 (colly) showing payments made by him to the Society towards the aforesaid utility charges, which shows that the electricity and maintenance charges of the Society stands paid upto 31.03.2018. The said statement of account has been issued by the Society and has not been disputed by the plaintiff. Therefore, it cannot be said that the defendants are liable to pay Rs.1,08,000/ towards outstanding dues of electricity, water and maintenance charges as claimed by the plaintiff, more particularly when the plaintiff himself is not sure about the payment of the said utility CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 56 of 60 charges, whether the same has been paid or not. Hence, the defendants cannot be directed to pay the said amount. Accordingly, this issue is decided against the plaintiff.
Issue no. (5) (Whether the plaintiff is entitled to a decree to the tune of Rs.1,25,000/ against the defendant being the mesne profits/damages for illegal use and occupation of the suit property, as prayed for ?)
67. The onus to prove this issue is again on the plaintiff. Under Issue No. (1), the plaintiff has successfully proved that he is exclusive owner of the suit property and the defendants were allowed to live in the suit property as a licensee only. It has come on record that the defendant no. 1 has already vacated the suit property and presently the defendant no. 2 is occupying the suit property being daughterinlaw of the plaintiff. It stands proved on record that the defendant no. 2 has no right to stay in the suit property. The plaintiff as PW1 has testified in his affidavit in evidence that he orally terminated the said gratuitous use of the suit premises by the defendants in the month of September 2016 and, thereafter, the defendant no. 2 became unauthorized occupant in the suit CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 57 of 60 property. He has also deposed that the suit property can fetch monthly rent of Rs. 25,000/ and hence after termination she is liable to pay Rs.25,000/ per month for her illegal use and occupation of the suit property and has demanded Rs.1,25,000/ as unauthorized use and occupation charges w.e.f. October 2016 till February 2017 i.e. till filing of the suit. In this regard, the plaintiff has also placed on record the copy of website page of www.magicbriks.com reflecting the prevailing rent in the neighborhood as Ex.PW1/8 which is supported with an affidavit u/s 65B of Indian Evidence Act Ex.PW1/9.
68. However, keeping in view the peculiar facts and circumstances of the present case, since the defendant no. 2 is daughter inlaw of the plaintiff and there are litigations between the defendant no. 1 and 2 including under Protection of Women from Domestic Violence Act under which the defendant no 2 is also getting monthly maintenance from the defendant no. 2, this court does not deem it fit to direct the defendant no. 2 to pay Rs. 1,25,000/ towards mesne profits/damages. Hence, this issue is decided against the plaintiff. CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 58 of 60
Issue no. (6) (Whether the plaintiff is entitled to a decree to the tune of Rs. 25,000/ per month towards future mesne profits and damages against the defendant, as prayed for ?)
69. In view of my findings under Issue No. 5 and keeping in view the family relations between the parties, I am not inclined to direct the defendant no. 2 who is presently occupying the suit property to pay future mesne profits and damages as prayed by the plaintiff as it would financially burden the defendant no. 2 who is having responsibility of maintaining her minor daughter as well. Accordingly, this issue is decided against the plaintiff.
RELIEF
70. As a sequel to my findings under Issue No.(1) to (6), the suit filed by the plaintiff is partly decreed and a decree of possession is passed in favour of the plaintiff and against defendant no. 2 in respect of the suit property i.e. property bearing No. Y65, Vivekanand Apartment, Plot no.2, Sector5, Dwarka, New Delhi. Consequently, the defendant no. 2 is directed to vacate the suit property and to hand over the vacant, physical and peaceful possession of the suit CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 59 of 60 property to the plaintiff. However, taking a lenient view as the defendant no. 2 is having a minor daughter with whom she is residing in the suit property, to enable her to find alternative accommodation, two months time is granted to the defendant no. 2 to vacate the suit property. A decree of permanent injunction is also passed in favor of the plaintiff and against the defendant no. 2 restraining the defendant no. 2 from subletting, parting with the possession or creating third party interest in the suit property till she remains in the possession of the suit property. A decree of mandatory injunction is also passed in favour of the plaintiff and against the defendants restraining the defendants from causing any nuisance, interference in the peaceful possession of the plaintiff in the suit property. Decree sheet be prepared accordingly.
71. File be consigned to Record Room after necessary Digitally signed compliance. BALWANT by BALWANT RAI RAI BANSAL Date: 2019.10.01 BANSAL 15:04:54 +0530 Announced in the open Court (Balwant Rai Bansal) th on 26 September, 2019 Additional District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 226/17 Subhash Chander Manchanda vs. Gaurav Manchanda & Anr. Page 60 of 60