Delhi District Court
Ajay Pal Kothari vs Ruchie Kothari on 21 August, 2024
CS SCJ 482/20
Ajay Pal Kothari Vs. Ruchie Kothari
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 482/2020
CNR No :- DLST03-000577-2020
AJAY PAL KOTHARI
S/o Sh. Man Mal Kothari
R/o E-I, South Extension, Part-1,
New Delhi-110049. ..... PLAINTIFF
VERSUS
1. RUCHIE KOTHARI
W/o Sh. Yash Pal Kothari
D/o Sh. Vijay Sharma
R/o H. No. 28, Lane no.5,
5/28, Anupam Gardens, Sainik Farms,
Opposite Country Club, New Delhi
Also at:-
E-251, Second Floor
East of Kailash, New Delhi-65. ..... DEFENDANT NO. 1
2. YASH PAL KOTHARI (ex-parte vide order dated
20.04.2023)
S/o Ajay Pal Kothari
R/o F-24, 2nd Floor,
South Extension, Part-I,
New Delhi ..... DEFENDANT NO. 2
Date of Institution : 27.08.2020
Date of Decision : 21.08.2024
Date of framing of issues : 24.08.2022
Date of final arguments : 23.07.2024
Decision : PARTLY DECREED
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION Digitally signed
by KANIKA
AGARWAL
KANIKA Date:
AGARWAL 2024.08.21
17:06:37
Page no. 1 of 37 +0530
(Kanika Agarwal)
CJ01/(South) Saket Court/New Delhi
CS SCJ 482/20
Ajay Pal Kothari Vs. Ruchie Kothari
JUDGMENT
1. This is a civil suit filed for relief of permanent and mandatory injunction.
AVERMENTS OF THE PLAINT
2. Succinctly, the case of the plaintiff is that he is the absolute owner of property bearing no. 5/28, Lane no.5, Anupam Gardens, Saidulajab, New Delhi-110068 (hereinafter referred to as "suit property") by virtue of registered General Power of Attorney and sale agreement both dated 11.09.2013 executed in his favour by the erstwhile owner.
3. It is stated that defendant no. 2 who is the son of the plaintiff married defendant no.1 on 22.04.2015 as per Hindu rites and ceremonies. After marriage, defendant no.1 and 2 started residing at F-24, Second Floor, South Extension, Part-1, New Delhi-110049 (hereinafter referred to as "South Extension Property"). It is stated that after about six months of marriage, the defendant shifted to the suit property on pretext that their south extension house is under renovation.
4. It is stated that due to matrimonial disputes, defendant no. 2 shifted back to his south extension property, however, the defendant no. 1 continued to stay in the suit property. Subsequently, plaintiff asked defendant no. 1 to vacate the suit property and live with defendant no. 2 at their South Extension property, however, she failed to vacate the suit property and also extended threats to create third party interest in the portion of the suit property. It is stated that defendants have no right to claim anything in the suit property or to cause any Digitally signed by KANIKA KANIKA AGARWAL Page no. 2 of 37 AGARWAL Date: 2024.08.21 17:06:46 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari interruption in the peaceful possession and enjoyment of the suit property of the plaintiff. It is stated that plaintiff has disowned his son, defendant no. 2 and has also severed all relations from him by issuing public notice in the newspaper.
5. A legal notice dated 03.06.2020 was issued to the defendant no.1 to vacate the suit property to which, reply dated 29.06.2020 was sent by defendant no.1 to the plaintiff consisting of false and frivolous story. Having left with no other option, present suit was filed seeking following reliefs:-
(i) Pass a decree of permanent injunction restraining the defendant, her legal heirs, successors, administrators, assignees, servants etc. from illegally selling, alienating, transferring, creating successors, administrators, assignees, servants etc. from illegally selling, alienating, transferring, creating third party interest in the said portion of the suit property in the site plan bearing H.No. 28, 5/28, Lane No. 5, Anupam Gardens, Sainik Farms, Opp. Country Club, New Delhi-110068 without due process of law;
(ii) Pass a decree of mandatory injunction directing the defendant to handover the peaceful vacant physical possession of the said portion of the suit property in the site plan bearing H.No. 28, 5/28, Lane No. 5, Anupam Gardens, Sainik Farms, Opp. Country Club, New Delhi-110068; and
(iii) Any other relief.WRITTEN STATEMENT OF DEFENDANT NO. 1
6. Per contra, it is stated that present suit suffers from suppression of material facts and misrepresentation of facts. It is Digitally signed by KANIKA KANIKA Page no. 3 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:06:54 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari stated that present suit not been properly valued as per law. It stated that defendant is the wife of plaintiff's son Mr. Yash pal Kothari (defendant no.2 herein) having married on 22.04.2015 according to Hindu rites and ceremonies at New Delhi. Defendant no. 1 submits that defendant no. 2 is her third husband as her earlier two marriages ended in divorce. It is submitted that as per oral partition in the family of the plaintiff, the suit property has fallen into the share of defendant no. 2 and therefore the plaintiff is not the owner of the suit property.
7. It is asserted that the defendant no. 1 is entitled to reside in the suit property being her shared household as per Section 2(s) of Protection of Women for Domestic Violence Act, 2005 (hereinafter referred to as "DV Act") . It is submitted that that defendant no. 1 and 2 have been residing in the suit property since the time of their marriage and therefore the suit property is her matrimonial home/ share household and as such she is thus legally entitled to reside in the suit property. It is denied that the plaintiff in is in possession of the one bed room, attached store room and bathroom on the ground floor of the suit property. It has been contended that the plaintiff is residing in a separate property. It is further stated a person namely Mithun Paswan has been employed in the suit property to keep a watch on the defendant and there have been in numerous incidents where he acted and behaved inappropriately and indecently thus fueling fear in the mind of the defendant regarding her safety and modesty.
Digitally signed by KANIKA AGARWALKANIKA Date:
AGARWAL 2024.08.21 17:07:04 Page no. 4 of 37 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
8. Defendant no. 1 alleges the act of domestic violence by her husband/ defendant no. 2. She has alleged that her husband/ defendant no. 2 is very abusive and violent and she is the victim of physical, emotional and economical abuse by her husband. On many occasion, defendant no. 1 has been beaten up by her husband/ defendant no. 2 and the plaintiff despite having full knowledge of this, has never stopped his son from doings such cruel acts. Defendant no. 1 claims that both the plaintiff and defendant No. 2 have not only subjected her to emotional abuse but have also engaged in abusing her financially. It is alleged that the plaintiff had forced her to advance a loan of Rs. 2 crores to his son/ defendant no. 2. That she was made to work by plaintiff and her husband for promotion of their jewellery business and that she has also modelled for various promotion campaign for plaintiff's jewellery business. However, she has never been paid for her professional services despite repeated assurances. All the other averments of the plaint are denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed.
WRITTEN STATEMENT OF DEFENDANT NO. 29. Defendant no. 2 has admitted the absolute ownership of the plaintiff in the suit property. He has alleged that he along with defendant no. 1 had started residing in South Extension Property after their marriage on 22.04.2015. It is averred that defendant no. 1 is a second wife of the defendant no. 2 as his first wife had expired due to cancer. It is averred that defendant no. 1 and 2 shifted to suit property as their South Extension Property was under renovation. Defendant no. 2 Digitally signed by KANIKA KANIKA Page no. 5 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:07:13 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari alleges that he moved out of the suit property after he discovered that defendant no. 1 was having extra marital affair with an Australian namely Hugh Mcgold Rick. It is alleged that the defendant no. 1 has stolen valuable jewellery kept by defendant no. 2 in his bank account at HDFC, Saket qua which a criminal case is also pending. It is averred that a divorce case and a domestic violence complaint is pending between defendant no. 1 and 2.
REPLICATION
10. In replication, averments of the plaint have been reiterated and contents of the written statement have been denied. ISSUES
11. From the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 24.08.2022.
(i) Whether plaintiff is entitled to decree of permanent injunction as claimed? OPP
(ii) Whether plaintiff is entitled to decree of mandatory injunction as claimed? OPP
(iii) Whether the suit property is the matrimonial home of defendant no. 1? OPD1
(iv) Relief.
12. It is pertinent to note that defendant no. 2 had stopped appearing before the court and therefore, he was proceed ex-parte on 20.04.2023 by Ld. Predecessor of this court. PLAINTIFF EVIDENCE
13. To prove his case, the plaintiff himself stepped into Digitally signed by KANIKA KANIKA AGARWAL Page no. 6 of 37 AGARWAL Date: 2024.08.21 17:07:22 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari the witness box as PW-1 and tendered his affidavit as Ex. PW1/A. He placed reliance upon the following documents:
(i) Ex. PW1/1 (OSR) i.e. Copy of registered GPA dated 11.09.2013;
(ii) Ex. PW1/2 (OSR) i.e. Copy of notarized agreement to sell dated 11.09.2013;
(iii) Mark PW1/3 i.e. Copy of marriage certificate of D1 & D2;
(iv) Mark PW1/4 i.e. Copy of passport of D1;
(v) Ex. PW1/5 i.e. Public notice issued in newspaper dated 31.05.2020;
(vi) Ex. PW1/6 i.e. Legal notice dated 03.06.2020 addressed to D1; and
(vii) Ex. PW1/7 i.e. Site plan of suit property.
14. PW1 was duly cross examined by Ld. Counsel for defendant. During cross-examination, PW1 has stated that in the year 2013, he used to reside at his house at E-1, South Ex-I, New Delhi. It is stated by PW1 that he does not have any address in Chandani Chowk, however, his son had a property in Chandani Chowk. It is stated by PW1 that Sh. Yashpal Kothari has one floor i.e. third floor in his name in Chandani Chowk. It is stated by PW1 that the Chandani Chowk property i.e. 1706, Dariba Kalan, Chandani Chowk, Delhi-110006 are co-owned by his other two sons Kumar Pal and Mahipal.
15. It is stated by PW1 that in the registered GPA, he had given his residential address to be of E-1, South Ex-I, New Delhi. It is stated by PW1 that he was never a resident of Digitally signed by KANIKA KANIKA AGARWAL Page no. 7 of 37 AGARWAL Date:
2024.08.21 17:07:31 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari Chandani Chowk. It is stated by PW1 that all his sons used to reside at the Chandani Chowk property. It is stated by PW1 that the agreement to sell of the said property is a notarized agreement to sell.
16. It is stated by PW1 that agreement to sell was signed by the seller Mr. Dalip Tulli and his wife Neeru Tulli. It is stated by PW1 that all five of them i.e. Dilip Tulli, Neeru Tulli, Yashpal Kothari, Charan Jyot Singh and himself were present in the office of notary public and signed the document in the presence of each other. It is stated by PW1 that he is aware of the whereabouts of Dilip Tulli and Neeru Tulli who resides in Sainik Farm itself.
17. It is denied by PW1 that the registered Power of Attorney and the notarized agreement to sell are false and fabricated documents which have been done on a later date to create evidence of title and ownership for this particular suit. It is stated by PW1 that it was just a matter of coincidence that Yashpal Kothari was taken as a witness for signing of the agreement to sell and at the time of registration of the Power of Attorney. It is stated by PW1 that he has purchased and transacted in properties by way of agreement to sell, Power of Attorney, Will. It is stated by PW1 that he had purchased two properties earlier before this property in a similar transaction.
18. It is stated by PW1 that the properties which have been purchased in a similar transaction are still owned by him and one is in Connaught Place and another is in Bikaner. It is stated by PW1 that in the present case, the registered Power of attorney and the notarized agreement to sell are in his name. It is Digitally signed by KANIKA KANIKA AGARWAL Page no. 8 of 37 AGARWAL Date: 2024.08.21 17:07:39 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari stated by PW1 that he bought the property and hence, both the Power of attorney and agreement to sell are in his name. It is denied by PW1 that the notarized agreement to sell is a forged and fabricated document and in reality the agreement to sell was in favour of Yashpal Kothari and he was only the Power of attorney holder to register the property in the name of Yashpal Kothari as and when such transactions would become legal.
19. It is denied by PW1 that in the year 2013, Yashpal bought the suit property and had started renovation and interior work for him and his family i.e. his late wife and two sons to move in to the suit property. It is stated by PW1 that the renovation was conducted by him and not by defendant no. 2. It is stated by PW1 that he has not placed on record any proof that the renovation was done by him. It is stated by PW1 that no person was staying in the property from 2013 to 2015 as it was inhabitable. It is denied by PW1 that the marriage between defendant no. 1 and defendant no. 2 took place with her consent. It is stated by PW1 that defendant no. 1 was residing in Greater Kailash before the solemnization of marriage with defendant no.
2.
20. It is stated by PW1 that in the property, F-24, South Ex-I, New Delhi which belongs to his son Yashpal, there are only two rooms, two Bathrooms and one kitchen and out of the two rooms, one is a sitting room and one is a bedroom. It is stated by PW1 that the two children of defendant no. 2 from the first marriage were residing with their uncle Sh. Mahipal on the first floor of F-24. It is stated by PW1 that he was called by defendant Digitally signed by KANIKA KANIKA AGARWAL Page no. 9 of 37 AGARWAL Date:
2024.08.21 17:07:47 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari no. 1 and 2 around May, 2017 and he has a letter in the hand writing of defendant no. 1 that in case any incident of violence happens between defendant no. 1 and 2, they shall vacate the Sainik Farms property. It is stated by PW1 that he never resided with defendant no. 1 and 2. It is stated by PW1 that a partition happened orally in 2011 wherein Yashpal got second floor of property no. F-24 and part of business i.e. Kothari Arts & Jewels. It is stated by PW1 that defendant no. 1 received alimony however it was not Rs. 4 Crores. It is stated by PW1 that defendant no. 1 has given him some advance around Rs. 40,00,000/- for paying Income Tax dues of defendant no. 1. It is stated by PW1 that he had returned this money to defendant no. 1 as this money was paid for Income Tax Dues.
21. It is stated by PW1 that it is mentioned in Ex. PW- 1/8 that if in case of any future quarrel, defendant no. 2 i.e. Yashpal shall leave the house. It is stated by PW1 that defendant no. 2 has written this letter voluntarily and without any coercion. It is denied by PW1 that defendant no. 1 was forced to write this letter to resolve the domestic dispute on that particular day. It is denied by PW1 that defendant no. 1 had written this letter for herself and on behalf of defendant no. 2. PW1 cross-examination was concluded on 20.04.2023. Thereafter, vide separate statement, plaintiff evidence was closed on 20.04.2023. DEFENDANT EVIDENCE
22. On the other hand, in support of her case, defendant has examined herself as DW-1 and tendered her affidavit of Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
Page no. 10 of 37 2024.08.21 17:07:55 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari evidence as Ex. DW1/A. She has placed reliance upon the following documents:
(i) Ex. DW 1/1 i.e. Photographs of the Defendant with the Plaintiff's grand-children which clearly reflect that they enjoyed her company and were closely attached to her;
(ii) Ex. DW 1/2 i.e. Photographs of the Defendant along with the Plaintiff's family members which clearly reflects that she tried her best to conduct herself as per their likes and dislikes and wholeheartedly participated in their family functions and gatherings;
(iii) Ex. DW 1/3 i.e. True Copies of hte Bank Account statements of the Defendant showing transfer of funds to the Plaintiff and his son's bank accounts;
(iv) Ex. DW 1/4 i.e. Photographs of the advertisement posters where the Defendant's face has been used for promoting the Plaintiff's Jewellery business;
(v) Mark DW 1/5 i.e. True copy of the business card with the Defendant's name along with the Defendant no. 2's;
(vi) Ex. DW 1/6 i.e. Photograph of the Defendant along with the Defendant no. 2 taken at the client's wedding event at Kashmir;
(vii) Ex. DW 1/7 i.e. Photograph of the Defendant at various Jewellery Exhibitions where she promoted the business for Plaintiff and his son;
(viii) Ex. DW 1/8 i.e. Photographs of the Defendant after being physically assaulted by the Defendant no. 2 on
23.10.2016; Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
Page no. 11 of 37 2024.08.21 17:08:02 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
(ix) Ex. DW 1/9 i.e. Photographs ofhte Defendant after being physically assaulted by the Defendant no. 2 on 1.07.2018;
(x) Ex. DW 1/10 i.e. True copy of the Discharge Summary (MLC NO. 5817) prepared by the Max Hospital after the 1.07.2018 incident wherein the Doctors have specifically mentioned that the injuries caused to the Defendant were due to domestic violence;
(xi) Ex. DW 1/11 i.e. Photographs of the Defendant after she was physically assaulted on 27.04.2009;
(xii) Ex. DW 1/12 i.e. The Video Recordings of the assault on Pandeyji, an old helper of the Defendant by the Defendant no. 2 along with th incidents of domestic violence thereafter and the incidents of domestic violence that occurred on 29.10.2019 in a CD / Pen Drive;
(xiii) Ex. DW 1/13 i.e. Printout of the WatsApp messages exchanged between the Defendant and Defendant no. 2 which show the economic abuse by him;
(xiv) Ex DW 1/14 i.e. The complaints of the household staff wherein they are submitting under oath that the Defendant no. 2 has stopped paying them salaries;
(xv) Ex DW 1/15 i.e. Written statement; and (xvi) Ex DW 1/16 i.e. Certificate 65 B under Indian Evidance Act.
23. DW1 was duly cross-examined by Ld. Counsel for plaintiff. During cross-examination, DW1 has stated that she did not received any alimony in her First marriage. It is stated by DW1 that she received any alimony in her Second marriage. It is Digitally signed by KANIKA KANIKA AGARWAL Page no. 12 of 37 AGARWAL Date:
2024.08.21 17:08:09 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari stated by DW1 that there was a gap of two and a half - three years between second divorce and third marriage. It is stated by DW1 that from 2015, she was staying in Sainik Farms after her marriage with defendant no. 2. It is denied by DW1 that after her marriage with defendant no. 2, she was officially residing in F 24, second floor, South Extn part I, New Delhi 110049 and it is only when defendant no. 2 asked after about six months of marriage that she move to Sainik Farms with defendant no. 2. It is stated by DW1 that she never stayed at F 24, Second floor, South Extn part I, New Delhi 110049, after her marriage with the defendant. It is stated by DW1 that the deceased wife of her husband informed that her husband bought a property in Sainik Farm and he would be shifting there. After the death of first wife of her husband, she shifted to Sainik Farms in March, 2015 and she was always told that the property belongs to her husband/D2. It is stated by DW1 that Mrs. Ranjana Kothari Passed away in 2014. It is stated by DW1 that the electricity bill of the suit property used to come in the name of Sh. Ajay Pal Kothari. It is stated by DW1 that the gas bill / utility bills of the suit property used to come in the name of her husband Yash pal Kothari. DW1 cross-examination was concluded on 30.11.2023.
24. Further, Sh. Vijay Sharma/ defendant no. 3 was examined as DW3 who tendered his affidavit of evidence as Ex. DW3/1.
25. During cross-examination, it is stated by DW3 that Mark 1/3 (marriage certificate) of defendant no. 1 & 2 and mark 1/4 (passport of defendant no. 1) bear the residence address as F Digitally signed by KANIKA KANIKA Page no. 13 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:08:15 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari 24, South Extension part I. It is stated by DW3 that before marriage, Yashpal Kothari, defendant no. 2, took them to the suit property and informed that they are going to reside in the suit property after marriage and the suit property has fallen to his share in oral partition amongst his father and brother. It is denied by DW3 that the suit property belongs to the plaintiff, Sh. Ajay Pal Kothari. DW3 cross-examination was concluded on 31.01.2024.
26. Further, Sh. Kamla Prasad Pandey was examined as DW4 and has relied upon his aadhar card Ex. DW4/1 (OSR). It is stated by DW4 that he is working with Ms. Ruchie Kothari, defendant no. 1 for last 22 years. It is stated by DW4 that Ruchie Kothari is married to Yashpal Kothari. It is stated by DW4 that he is witness to domestic violence during the marriage while he was employed as a servant with Ruchie Kothari at Lane no. 5, House no. 28, Anupam Gardens, Sainik Farm, Opposite Country Club, New Delhi. It is stated by DW4 that Sh. Yash Pal Kothari used to beat Ruchie kothari and he was also hit by Yashpal and even Yashpal's brother has hit him. It is stated by DW4 that Yash Pal Kothari has not given him salary for 3 months that was paid to him by Ruchie Kothari. It is stated by DW4 that Mr. Yash Pal Kothari has at many occasions threatened defendant no. 1.
27. During cross-examination, DW4 stated that he is not aware if defendant no. 1 Ms. Ruchie Kothari has filed any document to show if the property is owned by defendant no. 2 Sh. Yash Pal Kothari. It is stated by DW4 that he is not aware if this property is owned by the plaintiff Sh. Ajay Pal Kothari. It is Digitally signed by KANIKA KANIKA AGARWAL Page no. 14 of 37 AGARWAL Date:
2024.08.21 17:08:22 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari stated by DW4 that he used to work for the husband and wife i.e. defendant no. 1 & 2. DW4 cross-examination was concluded on 19.12.2023. Thereafter, vide separate statement of defendant no. 1 dated 27.02.2024, defendant evidence was closed and matter was fixed for final arguments.
FINAL ARGUMENTS
28. Final arguments was advanced by both the sides and were concluded on 23.07.2024. The detail written final arguments filed by both the sides have been considered. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under: -
ISSUE NO. 1Whether plaintiff is entitled to decree of permanent injunction as claimed? OPP ISSUE NO. 2 Whether plaintiff is entitled to decree of mandatory injunction as claimed? OPP AND ISSUE NO. 3 Whether the suit property is the matrimonial home of defendant no. 1? OPD1
29. The burden to prove issue no. 1 & 2 is upon the plaintiff whereas the burden to prove issue no. 3 is upon the defendant no. 1. All these issues are taken up together as they involve common discussion of facts and law and same being interconnected have their bearing upon each other.
Digitally signed by KANIKAKANIKA AGARWAL AGARWAL Date:
2024.08.21 Page no. 15 of 37 17:08:30 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
30. The plaintiff has filed the suit on the footing that he is the absolute owner of the suit property by virtue of registered General power of Attorney Ex. PW1/1 (OSR) and Sale Agreement Ex. PW1/2 (OSR) (both dated 11.09.2013) executed in his favour by the erstwhile owner of the property. It is averred that his son Sh. Yash Pal Kothari (who is defendant no. 2) in the present suit married defendant no. 1 Mrs. Ruchie Kothari on 22.04.2015 as per hindu rites and Customs and started residing at F-24, Second Floor, South Extension-I, New Delhi. However, after about six month of marriage, defendant no. 1 and 2 made a request to plaintiff to allow them to stay in the suit property as their matrimonial home was required to renovated. Thus, out of love and care, the plaintiff allowed the defendants to reside in the property as permissive licensee.
31. Unfortunately, with passage of time, the relationship between defendant no. 1 and 2 turned sour, owing to which defendant no. 1 shifted back to South Extension house while Defendant No. 2 occasionally lived at suit property and sometimes stayed at her parent's house. Eventually, the plaintiff requested that the defendant no. 1 to vacate the suit property and move in with her husband at their South Extension property. However, the defendant no. 1 despite being given repeated opportunities to vacate the suit property, has failed to do so. Thus, in these facts and circumstances, the present suit has been filed.
32. Per contra, the suit of the plaintiff is resisted by the defendant no. 1 on grounds that the suit property is her Digitally signed by KANIKA KANIKA AGARWAL Page no. 16 of 37 AGARWAL Date: 2024.08.21 17:08:39 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari matrimonial home as she is residing in the suit property even prior to her marriage with the defendant no. 1. The claim of the plaintiff being an owner of the property is disputed on grounds that following an oral partition in the family, the defendant 2 is the absolute owner of the property. Defendant No. 1 denies that she and her husband/ (Defendant No. 2) have lived at F-24, Second Floor, South Extension-I, New Delhi, after their marriage. It is further denied that the defendants were allowed to stay in the suit property by the plaintiff since their South- Extension property was under renovation. Defendant No. 1 alleges that her husband (Defendant No. 2) is highly abusive and violent, subjecting her to significant physical, emotional, economic, and domestic abuse. She claims that Defendant No. 2 has physically abused her in fits of rage, but she endured this unacceptable behavior in an effort to preserve their marriage.
33. In this backdrop, the court shall first determine whether the suit property is an absolute property of the plaintiff or not. The plaintiff has relied upon registered General power of Attorney Ex. PW1/1 (OSR) and Sale Agreement Ex. PW1/2 (OSR) to assert his ownership rights over the suit property whereas the defendant has disputed the ownership of the plaintiff on grounds that following an oral partition, the suit property fell into the share of her husband /defendant no. 2.
34. As far as plea of oral partition is concerned, the defendant no. 1 has miserably failed to prove the said plea. It is pertinent to mention that defendant in her written statement has taken a stand that the suit property is the absolute property of her Digitally signed by KANIKA AGARWAL KANIKA Page no. 17 of 37 Date:
AGARWAL 2024.08.21 17:08:55 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari husband after an oral partition was effected amongst the family members, however, in her cross-examination dated 30.11.2023, she has deposed that she was told by the deceased wife of her husband/ defendant no. 2 that the suit property has been purchased by defendant no. 2. Further, even during cross- examination of PW1 on 24.01.2023, the counsel for the defendant had given a suggestion to the plaintiff that he is not the owner of the suit property and that the suit property was purchased by defendant no. 2/ Sh. Yashpal Kothari. On the same date of cross-examination, another suggestion was given by Ld. Counsel for defendant no. 1 that plaintiff is only the Power of Attorney Holder of the suit property whereas Agreement to Sell qua the suit property was executed in favour of Sh. Yashpal Kothari /defendant no. 2.
35. Thus, it is clear that on one hand, the defendant is relying upon some oral partition to assert that her husband is the absolute owner of the suit property whereas on the other hand, the defendant is taking a plea that defendant no. 2 is the owner of the suit property as a result of sale and purchase transaction. Clearly, both the pleas of oral partition and ownership by virtue of sale transaction cannot co-exist together.
36. Coming to the property documents of the plaintiff, there is no gain saying the fact that General Power of Attorney Ex. PW1/1 (OSR) and unregistered Agreement to sell Ex. PW1/2 (OSR) do not create any ownership rights in favour of the plaintiff. However, the rights of the plaintiff in the suit property has to be seen vis-a vis the defendant no. 1 who has Digitally signed by KANIKA KANIKA AGARWAL Page no. 18 of 37 AGARWAL Date: 2024.08.21 17:09:05 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari failed to show even a semblance of any right/ title /interest in the suit property. Additionally, even if we assume for a moment that the suit property does not belong to the plaintiff then the defendant's right to reside in the suit property would also be invalidated, as she cannot claim residence rights in a third party's property.
37. In so far as objection of defendant no. 1 with respect to legality and validity of sale of immovable property through General Power of Attorney/ Agreement to Sell is concerned, the court deems it fit to refer to judgment of Hon'ble High court of Delhi in Hardip Kaur vs Kailash & Anr. (RFA No.648/2006 decided on 18.05.2012), wherein the Hon'ble court in light of judgment of Hon'ble Supreme Court of India in Suraj Lamp & Industries Pvt. Ltd v. State of Haryana and Anr. (AIR 2012 SC
206) has observed that even though the the purchaser of an immovable property by way of Agreement to Sale and General Power of Attorney may not be a classical owner of the property, however, he would by virtue of having paid the entire consideration amount and being put in possession of the property would have better rights qua the person who lacks any entitlement to reside in the property. The relevant paragraph from the judgment is quoted herein below:
"Applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under:-
(i) Vide agreement to sell dated 5th June, 1989, the plaintiff agreed to sell first, second and terrace floors of the suit property to Mohinder Kaur for a total consideration of Rs. 4,50,000/-. The plaintiff received the entire sale consideration from Mohinder Kaur, handed over the vacant and peaceful possession to her and simultaneously executed the agreement to sell, receipt, affidavit, will, indemnity bond and irrevocable General Digitally signed by Page no. 19 of 37 KANIKA KANIKA AGARWAL AGARWAL Date: 2024.08.21 17:09:13 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari Power of Attorney all dated 5th June, 1989. The plaintiff declared in the agreement that she is not left with any right, title or interest in the suit property. The plaintiff authorized defendant No.1 to make construction, additions and alterations in the suit property. The General Power of Attorney authorized the attorney to sell the suit property as well as to carry on additions and alterations.
Clause 19 of the General Power of Attorney declared it to be irrevocable. The plaintiff also deposed on oath in her affidavit that she would not withdraw or cancel any of the documents under any circumstances. The agreement to sell, receipt, indemnity bond and affidavit are legal, valid and subsisting and have not been cancelled by the plaintiff. The plaintiff has no interest left in the suit property and, therefore, cannot claim the possession or mesne profits in respect of the suit property.
(ii) The agreement to sell „of itself‟ may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of the Contract Act.
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
(iv) The Power of Attorney has been conferred not for the benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable. The reason to appoint Surinder Jit Singh, the son and nominee of the purchaser, obviously was that the attorney was regarded as a person interested in the purchaser rather than in the plaintiff whose interest was opposed to that of the purchaser. It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser. His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject-matter of the agency should be conveyed by the plaintiff to the purchaser.
(v) The Power of Attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject-matter of the agency, namely, the suit property. If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney. Digitally signed by KANIKA KANIKA AGARWAL Page no. 20 of 37 AGARWAL Date: 2024.08.21 17:09:20 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
(vi) The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant No.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorised construction, the plaintiff‟s remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction.
(vii) The plaintiff has argued that the purchaser and her attorney are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that the attorney had no interest in the property which is the subject-matter of the agency. The interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. The Power of Attorney was executed only to facilitate the execution of the sale deed in favour of the purchaser and, therefore, the attorney was interested in the subject-matter of agency, namely, the suit property.
(viii) The object of giving validity to a Power of Attorney given for consideration even after death of the executants is to ensure that entitlement under such Power of Attorney remains because the same is not a regular or a routine Power of Attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the Power of Attorney.
(ix) The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.
(x) All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from Mohinder Kaur. It was given to Surinder Jit Singh, son and nominee of Mohinder Kaur to ensure and secure the performance of the contract by the plaintiff in favour of Mohinder Kaur. Digitally signed by KANIKA AGARWAL KANIKA Date:
AGARWAL 2024.08.21 Page no. 21 of 37 17:09:31 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
(xi) The General Power of Attorney dated 5 th June, 1989 is irrevocable in view of Section 202 of the Contract Act.
The plaintiff, therefore, had no right to terminate the said General Power of Attorney. The General Power of Attorney is legal, valid and subsisting. The revocation of the General Power of Attorney by plaintiff is, therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property.
(xiii) The mere fact that the defendants did not file a Counter- claim or suit for specific performance cannot lead to a conclusion that they have given up all their rights in the suit property. It can, at best, be said that the defendants have lost the opportunity of perfecting their title but it would not entitle the plaintiff to claim the possession."
38. Thus, in light of principles as laid down by Hon'ble High Court in judgement as referred above, the plaintiff may not the dejure owner of the suit property owing to absence of registered sale deed in his favour, he nonetheless has superior rights to occupy the property as compared to the defendant no. 1.
39. Next, Ld. Counsel for defendant no. 1 has contended that the Agreement to Sell Ex. PW1/2 (OSR) and General Power of Attorney Ex. PW1/1 (OSR) relied upon by the plaintiff are forged and fabricated documents as they are manufactured only for the purpose of the present suit and even the signatures of witness Yashpal Kothari/ defendant no. 2 on the said documents are forged. It is to be noted that defendant no. 2/ Yashpal kothari has admitted the ownership of the plaintiff in the suit property by way of his written statement and he has not specifically denied his signatures upon the said documents. Further, the veracity of the documents cannot be doubted merely because the other side has raised plea of forgery without further establishing it. It is also to be noted that even otherwise, the Agreement to Sell Ex. Digitally signed by KANIKA KANIKA Page no. 22 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:09:51 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari PW1/2 (OSR) and General Power of Attorney Ex. PW1/1 (OSR) are not required to be attested by any witnesses.
40. Another objection that has been raised by the Ld. Counsel for defendant is that the Agreement to Sell Ex. PW1/2 (OSR) being unstampped cannot be relied upon and is liable to be impounded as per Section 33 and 34 of Indian Stamp Act, 1899. As far as this submission is concerned, it is to be noted that it has been held by Hon'ble Supreme Court of India in Javer Chand & Ors. Vs. Pukhraj Surana 1961 AIR 1655 that when the objection as to admissibility of a document is raised on the ground that it has not been stamped, or has not been stamped properly, the objection has to be decided then and when the documents is tendered in evidence. Once the court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of the penal provision and hence has far reaching effects. Therefore, parties to a litigation have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court.
41. From the record, it is evident that agreement to sell was tendered in evidence and was given an exhibit number as Ex. PW1/2 (OSR) and the plaintiff was also cross-examined on the basis of the said document. Thus, keeping in mind the fact that Agreement to Sell Ex. PW1/2 (OSR) was exhibited and the trial has proceeded all along on the footing that the document was exhibit in the case and has been used by the parties in Digitally signed by KANIKA KANIKA Page no. 23 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:10:00 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari examination and cross-examination of the plaintiff, therefore, Section 36 of the Stamp Act comes into an operation by virtue of which it is not open for the court to question the admissibility of the document at a later stage. Hence, by virtue of Section 36 of the Stamp Act, the Agreement to Sell Ex. PW1/2 (OSR) which has been admitted in evidence at the stage of plaintiff evidence cannot be impounded subsequently. Reliance is placed upon judgment of Hon'ble High Court of Delhi in Ashok Kamal Capital Builders Vs. State & Anr. AIR 2010 (NOC) 736 (Del).
42. It has to be kept in mind that the plaintiff has filed the present suit on the basis that defendants are the licensee in the suit property. The defendant no. 1 has failed to prove not only the plea of oral partition but also her last-ditch argument that the suit property was purchased by her husband by way of sale and purchase transaction.
43. It is a settled position that law recognizes only three types of possession. (i) One as that of an owner, including co- owners; (ii) second as a tenant, when a right is created in the property; and (iii) thirdly permissive possession, the possession which otherwise would be illegal or that of as a trespasser.
44. Clearly, since defendant No. 1 has failed to demonstrate that her husband (Defendant No. 2) is the owner of the property, and given that she does not claim to be a tenant or trespasser in the suit property, therefore, the only logical conclusion that follows is that defendant No. 1 and 2 are merely the licensees in the property of the plaintiff. Thus, on the basis of above-discussion and findings, the court opines that the plaintiff Digitally signed by KANIKA KANIKA AGARWAL Page no. 24 of 37 AGARWAL Date: 2024.08.21 17:10:11 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari is the owner of the suit property whereas the defendants are merely the permissive licensees in the suit property.
45. That said, it is also a settled position of law that a daughter-in-law's right to reside in the suit property is independent of her right, title, or interest in the suit property. Section 17 of the DV Act grants every woman a right to reside in the shared household if she is or has at any point of time been in a domestic relationship with the respondent against whom she is asserting this right.
46. The court shall now proceed to ascertain whether the suit property which is an exclusive property of the plaintiff qualifies as shared household of the defendant no. 1 in terms of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. At the outset, the court deems it fit to refer to Section 2(a), 2(f), 2(s) and Section 17 of the Act.
SECTION 2(A) OF THE DOMESTIC VIOLENCE ACT "(a) "aggrieved person" means any woman who is/ or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;"
SECTION 2(F) OF THE DOMESTIC VIOLENCE ACT "(f) domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;"
SECTION 2(S) OF THE DOMESTIC VIOLENCE ACT
(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 respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or Digitally signed by Page no. 25 of 37 KANIKA AGARWAL KANIKA AGARWAL Date: 2024.08.21 17:10:19 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari 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."
SECTION 17 OF THE DOMESTIC VIOLENCE ACT "17. Right to reside in a shared household.-(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
47. From the definition clause, it is clear that any woman who is or has been in a domestic relationship with the respondent and is subjected to any act of domestic violence by the respondent is entitled to invoke the provision of DV, Act. There are two conditions for a person to be treated as respondent within the meaning of Section 2(q), i.e., (i) he is in a domestic relationship with the aggrieved person, and (ii) against whom the aggrieved person has sought any relief under the Act. Furthermore, a domestic relationship exists between two persons when they live, or have at any point lived, together in a shared household by virtue of being related by marriage, a relationship in the nature of marriage, consanguinity, adoption, or as family members living in a joint family.
48. It is noteworthy to mention that Hon'ble Supreme Court in Satish Chander Ahuja Vs. Sneha Ahuja (2021) 1 SCC 414 has held that before any relief is granted by the Civil Court under Section 17 r/w Section 19, it has to necessarily proved that the respondent has committed an act of domestic violence on the Digitally signed by KANIKA KANIKA Page no. 26 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:10:28 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari aggrieved person.However, subsequently, the Hon'ble Supreme court of India in Prabha Tyagi vs Kamlesh Devi CA No. 511/2022 decided on 12.05.2022 has clarified that an aggrieved woman's right to reside in a shared household is respective of whether she is/was a victim of domestic violence by the respondent. Her right to reside in the suit property commences the moment she starts residing in the shared household on account of being in a domestic relationship with the respondent and hence her residence rights in the shared household exists even in the absence of any act of domestic violence. The relevant paragraph of judgment of Hon'ble Apex Court in Prabha Tyagi (supra) is quoted below;-
"Section 17 confers a right on every woman in a domestic relationship to reside in the shared household irrespective of whether she has any right, title or beneficial interest in the same. This right to reside in a shared household which is conferred on every woman in a domestic relationship is a vital and significant right. It is an affirmation of the right of every woman in a domestic relationship to reside in a shared household. Sub-Section (2) of Section 17 protects an aggrieved person from being evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. The distinction between Sub-Section (1) and Sub-Section (2) of Section 17 is also to be noted. While Sub-Section (2) deals with an aggrieved person which is defined in Section 2(a) of the D.V. Act in the context of domestic violence, Sub-Section (1) of Section 17 is a right conferred on every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent."
49. Thus, it is clear that while Section 17 (1) affirms the right to residence of all women who are in domestic relationship, Section 17(2) is limited in its scope, in the sense that it protects Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2024.08.21 Page no. 27 of 37 17:10:37 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari and affirms the right to residence of an aggrieved person who has been subjected to domestic violence by the respondent.
50. Now that the scope of right to residence under Section 17 of the Act is clear, the next obvious inquiry is, if the defendant no.1 falls within the ambit of Section 17 (1) or Section 17 (2).
51. The court shall first determine if case of defendant no. 1 falls under the ambit of Section 17(2) of the Act. Since, the plaintiff is claiming residence rights in the property of the plaintiff, therefore, she has to prove that she is qualifies as an "aggrieved" person whereas plaintiff qualifies the 'respondent' within the meaning of the Act. The defendant no. 1 in the Written Statement has asserted that plaintiff has economically abused her by forcing her to advance a loan of Rs. 2 crores to his son / defendant no. 2. Defendant no. 1 alleges that she was used by the plaintiff and his son to promote their jewellery business and was frequently tasked with converting prospective clients at exhibitions and she despite being promised a commission upto 10% on sales to be generated through her efforts has never been compensated.
52. Defendant no. 1 in support of her allegations has placed reliance upon a self-prepared statement which is exhibited as Ex. DW1/3. In the opinion of the court, a self-prepared statement cannot be relied upon to infer and conclude that the defendant no. 1 had advanced a loan to the son of the plaintiff. The defendant no. 1 should have filed the proper bank account Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
Page no. 28 of 37 2024.08.21
17:10:43 +0530
(Kanika Agarwal)
CJ01/(South) Saket Court/New Delhi
CS SCJ 482/20
Ajay Pal Kothari Vs. Ruchie Kothari
statement of particular/ concerned account number for the period during which the loan amount was transferred.
53. Further, defendant no. 1 has relied upon photographs Ex. DW1/4 in support of her plea that her face was used by the plaintiff and defendant no. 2 for promotional purpose. The court is of the opinion that merely on the basis of the photographs Ex. DW1/4, it would not safe to hold that defendant no. 1 was financial abused or that she was not paid for her services. As the suit property belongs to the plaintiff, therefore it was required to be proved that plaintiff has committed an act of domestic violence upon defendant no. 1. Having failed to prove the same, the defendant no.1 is not entitled to right of residence under section 17(2) of DV Act.
54. Now the court shall determine, if the defendant no. 1 is entitled to right of residence in the suit property under section 17(1) of DV Act. It is to be noted that since the defendant no. 1 is claiming residence rights to reside in the suit property which is owned by the plaintiff, therefore, it is required to be seen that if plaintiff and defendant no. 1 have at any stage lived in a domestice relationship in the suit property. It would be apposite to refer to judgment of Hon'ble Apex Court in Satish Chander (Supra) wherein it has been held that "in event the shared household belongs to the any relative of the husband with whom in a domestic relationship the women has lived, the condition mentioned in section 2(s) are satisfied and the said house shall become a shared household".
Digitally signed by KANIKA AGARWALKANIKA AGARWAL Date:
2024.08.21 Page no. 29 of 37 17:10:51 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
55. It is noteworthy to mention that it is defendant no.1's own case that the plaintiff has never resided with her and her husband in the suit property. Even, the plaintiff in his evidence has stated that he has been residing in property bearing no.E-1, South Extension, Part-1 , New Delhi and the same fact has not been disputed by the defendant no. 1 either.
56. At this juncture, it is also important to refer to judgment of Hon'ble High court of Delhi in Navneet Arora vs Surender Kaur & Ors. FAO(OS) 196/2014 decided on 10.09.2014, wherein the Hon'ble High court of Delhi has in detail discussed that situations in which the aggrieved person shall have a right to reside in the property owned by in-law exclusively. The relevant paragraphs are quoted as below:
"3. In light of the foregoing discussion, we are of the view that Taruna Batra's case (Supra) is only an authority for the proposition that a wife is precluded under the law from claiming right of residence in a premises, owned by the relatives of the husband, wherein she has lived with her husband separately, but not as a member of the 'joint family' along with the relatives of the husband who own the premises.
44. However, in the later eventuality, if a couple live as members of 'joint family' in a domestic relationship with the relatives of the husband in a premises owned by such relatives of the husband, statutory prescription would indeed enable the wife to claim right of residence since it would fall within the realm of shared household' as contemplated under Section 2(s) of the Act irrespective of whether she or her husband has any right, title or interest in the "shared household".
59. It may be highlighted that the Act does not confer any title or proprietary rights in favour of the aggrieved person as misunderstood by most, but merely secures a right of residence in the 'shared household'. Section 17 (2) clarifies that the aggrieved person may be evicted from the 'shared household' but only in accordance with the procedure established by law. The legislature has taken care to calibrate and balance the interests of the family members of the respondent and mitigated the rigour by expressly providing under the provisio to Section 19 (1) that whilst adjudicating an application preferred by the aggrieved person it would not be open to the Court to Digitally signed by KANIKA KANIKA Page no. 30 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:10:58 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari pass directions for removing a female member of the respondents family from the „shared household‟. Furthermore, in terms of Section 19 (1) (f), the Court may direct the respondent to secure same level of accommodation for the aggrieved person as enjoyed by her in the "shared household" or to pay rent for the same, if the circumstances so require.
116. We may however allay fears that if a couple lives with the relatives of the husband for a short duration as mere "guests/visitors", in such an eventuality the fact that they live under the same roof and partake meals from the same kitchen along with the relatives of the husband (who own the premises and have extended their hospitality), would not be construed to imply that the couple lived as members of 'joint family', entitling the wife to claim a right of 'residence' therein."
57. From the judgment, it is evident that the Hon'ble Court was of the view that a property belonging to in-laws shall be termed as a shared household only if the aggrieved person has lived in a domestic relationship with the in-laws in the suit property under the same roof. In the case at hand, the defendant no. 1 herself has pleaded that the plaintiff has never resided with her in the suit property. Even from the record of the case, it is evident that plaintiff has never resided with the defendant no. 1 in the suit property.
58. Moving ahead, in Vijay Verma vs State Nct Of Delhi & Anr. (AIR 2011 (NOC) 171 (DEL.) decided on 13.08.2010), the Hon'ble High of Delhi has further elaborated on the concept of domestic relationship and held has follows:
"Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:
"(f) 'domestic relationship' means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family." KANIKA Digitally signed by KANIKA Page no. 31 of 37 AGARWAL AGARWALDate: 2024.08.21 17:11:08 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or 'at any point of time'. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship?
I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are Digitally signed by KANIKA KANIKA Page no. 32 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:11:14 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.
7. This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence."
59. From above, it is clear that a domestic relation subsists when the aggrieved and the respondent have actually resided under the same roof as part of joint family. An aggrieved person is precluded under the law from claiming right of residence in a premises, owned by the relatives of the husband, Digitally signed by KANIKA KANIKA Page no. 33 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:11:22 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari wherein she has lived with her husband separately, but not as a member of the 'joint family' along with the relatives of the husband who own the premises.
60. Thus, if the ratio of the judgments as quoted above are applied to present case, it can be safely held that there exists no domestic relationship between the aggrieved / defendant no. 1 and the respondent/ plaintiff. Hence, the suit property is not the shared household of the defendant no. 1. Further, the defendants' allegations of domestic violence against the plaintiffs are merely bald averments and same have not been proved by leading any cogent evidence.
61. Thus, the court is of the opinion that since property is the exclusive property of the plaintiff where the defendant no. 1 was allowed to resides as permissive licensee, therefore, she is under obligation to vacate the suit property. Thus, plaintiff is entitled for relief of mandatory injunction against the defendant no. 1.
62. In so far as relief of permanent injunction is concerned, no evidence has been led by the plaintiff to prove that defendant no. 1 has attempted to create any third party interest in the suit property. Accordingly, no grounds are made out for grand of relief of prohibitory injunction against the defendant no. 1.
63. That said and observed, the court is conscious of the implications of this order on the defendant no. 1 who shall be rendered shelterless upon vacation of the suit property. It is to be noted that it is an admitted fact that both defendant no. 1 and defendant 2 have resided in a domestic relationship in the suit Digitally signed by KANIKA KANIKA AGARWAL Page no. 34 of 37 AGARWAL Date: 2024.08.21 17:11:29 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari property by virtue of legal marriage. However, when the relations between defendant no. 1 and defendant no. 2 turned acrimonious, the husband shifted back to another accommodation leaving defendant no. 1 behind in the suit property. The defendant no.1 has alleged domestic violence by defendant no.2. She has placed on record various photographs Ex. DW1/8, Ex. DW1/9 & Ex. DW1/11 showing injuries and wounds alleged to be inflicted by the defendant no. 2 in support of her allegations of domestic violence. On the contrary, defendant no. 2 alleges infidelity on the part of defendant no. 1. Proceedings under Domestic Violence Act between the husband and wife are already pending before the Mahila Court. Nevertheless, it is a settled position of law that the husband has the primary responsibility to provide for the maintenance of the wife. It has already been discussed above that the aggrieved wife has right to seek residential orders against the husband, irrespective of allegations of domestic violence. Defendant no. 2 has admitted through his pleadings that he is residing in South Extension Property, however, considering the relations between defendant no. 1 and 2, it would be unfair to expect from defendant no. 1 and 2 to live together in the South Extension Property. Thus, there is a need to balance the rights of defendant no. 1 as well. Further, the chances of the present suit being a collusive suit between plaintiff and defendant no. 2 cannot be ruled out as the latter has supported the case of the former.
64. Accordingly, keeping in view the guidelines issued by the Hon'ble Delhi High Court in the case of Vinay Varma vs Digitally signed by KANIKA KANIKA Page no. 35 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:11:38 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari Kanika Pasricha & Anr. (AIR 2020 (NOC) 512 (DEL.), the court is of the opinion that an alternate accommodation should be arranged for the defendant no. 1 by her husband / defendant no.
1. Therefore, the following directions are passed:-
(i) The defendant no. 2 shall pay a total sum of Rs. 75,000/-
per month to the defendant no. 1 in order to enable her to identify a commensurate residence for herself;
(ii) The said sum shall be paid to defendant no. 1 on a monthly basis on or before the tenth of every month directly into her bank account;
(iii) Upon the said payment being commenced, the defendant no. 1 would vacate the suit property within a period of two months. (For example, if the payment is made on 01.09.2024, the defendant no. 1 shall vacate the suit property on or before 01.11.2024).
ISSUE NO. 4Relief.
65. In light of the aforesaid discussion, the facts and circumstances of the case, the findings given in the above is- sues, documents placed on record and evidence led, the suit of the plaintiff is partly decreed.
66. Accordingly, plaintiff is entitled to relief of manda- tory injunction regarding which following directions are passed i.e.
(i) The defendant no. 2 shall pay a total sum of Rs. 75,000/- per month to the defendant no. 1 in order to enable her to identify a commensurate residence for herself;
Digitally signed by KANIKA KANIKA Page no. 36 of 37 AGARWAL AGARWAL Date: 2024.08.21 17:11:46 +0530 (Kanika Agarwal) CJ01/(South) Saket Court/New Delhi CS SCJ 482/20 Ajay Pal Kothari Vs. Ruchie Kothari
(ii) The said sum shall be paid to defendant no. 1 on a monthly basis on or before the tenth of every month directly into her bank account;
(iii) Upon the said payment being commenced, the defendant no. 1 would vacate the suit property within a period of two months. (For example, if the payment is made on 01.09.2024, the defendant no. 1 shall vacate the suit property on or before 01.11.2024).
67. Cost of the suit is also awarded in favour of the plaintiff.
68. Decree Sheet be accordingly prepared.
69. File be consigned to record room thereafter after due compliance. Digitally signed by KANIKA KANIKA Pronounced in open court:
AGARWAL AGARWAL Date:
2024.08.21 Dated: 21.08.2024 17:11:53 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/21.08.2024 Note :-This judgment contains thirty seven pages and all the pages have been checked and signed by me.Digitally signed by KANIKA
KANIKA AGARWAL AGARWAL Date:
2024.08.21 17:11:59 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/21.08.2024 Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2024.08.21
Page no. 37 of 37 17:12:05 +0530
(Kanika Agarwal)
CJ01/(South) Saket Court/New Delhi