Delhi District Court
Sh. Kamaljeet Singh vs Ms. Jasmine Singh on 19 February, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SENIOR CIVIL JUDGE,
SAKET COURTS, NEW DELHI
MCA NO. 33/12
1. Sh. Kamaljeet Singh
S/o late Sh. Sewa Singh
R/o 1st Floor, B2/87,
Safdarjung Enclave, New Delhi
2. Smt. Jasjeet Kamal
W/o Sh. Kamaljeet Singh
R/o 1st Floor, B2/87,
Safdarjung Enclave, New Delhi
..... Appellants
Vs.
Ms. Jasmine Singh
D/o Sh. Nirmal Singh
C11/93, Moti Bagh,
New Delhi 110021
..... Respondent
JUDGMENT
1. This is an appeal against the impugned order dated 27.07.2012 passed by Ms. Ritu Singh, Ld. Civil Judge (South), Saket MCA No. 33/12 Page 1 of 12 Courts, New Delhi by which application U/o 39 Rule 1 & 2 moved by the appellants was dismissed .
2. Brief facts as borne out from the Trial Court record are that the appellants filed a suit for permanent injunction against the respondent. The appellant contended that appellant no. 1 is the owner of 1/6th undivided share in the property bearing No. B2/87, Safdarjung Enclave, New Delhi and is in possession of first floor by virtue of Will dated 19.03.1980 executed in his favour by his deceased mother Smt. Harbans Kaur and as such the aforesaid property is the self acquired property of appellant no. 1. The respondent is the divorced wife of son of the appellants. Respondent was married to their son in 2001 and the son of the appellants and the respondent emigrated to Canada in 2004. A son was born from the said marriage to the respondent and the son of the appellants. It is stated that marriage between the respondent and son of the appellants stands dissolved by order dated 23.07.2009 passed by superior court of justice at Ontario, Canada on a divorce case filed by the son of the appellants. It is further averred that the respondent and the son of the appellants have lastly resided together in their matrimonial home at Canada and since 17.01.2006 the respondent even deserted her husband. The respondent and her family members have become MCA No. 33/12 Page 2 of 12 aggressive towards appellants and have been threatening to grab the house of the appellants. The appellants are living under constant danger and apprehension of the respondent that she may forcefully enter or trespass in the house of the appellants. It is stated that the respondent has no legal right in the suit property and whatever was the stay of the respondent or of her husband in the house of the appellants was only of permissive user. The house in question belongs exclusively to the appellants and as the son of the appellants is permanently settled at Canada, therefore the house of the appellants could never be considered as matrimonial home of the respondent. Hence, the appellants filed the suit with the prayer that the respondent be restrained by a decree of permanent injunction from entering into the house of the appellants and from creating any nuisance in the peaceful enjoyment of life in the said property.
3. Along with the suit, the appellants also filed an application U/o 39 Rule 1 & 2 CPC praying for temporary injunction restraining the respondent from entering into the house of the appellants and from creating any nuisance in the peaceful enjoyment of life in the said property till the final disposal of the suit.
4. The respondent filed the written statement in which it is MCA No. 33/12 Page 3 of 12 denied that the property in question is self acquired property of appellant no. 1 . It is stated that the respondent being married to the son of the appellants and the property in question being the matrimonial house of the respondent, she has every right of residence in the said house. It has been denied that vide order 23.07.2009, the marriage has been dissolved. It is stated that the said decree had been taken exparte and the Canadian laws are not applicable to the case where one of the party is resident of India. The respondent contended that she has a right to live in her matrimonial house under the provisions of the Protection of Women from Domestic Violence Act 2005 The respondent has denied the other contents of the suit and has prayed for dismissal of the suit as well as of the interim application.
5. The Ld. Trial Court vide impugned order dated 27.07.2012 dismissed the application U/o 39 Rule 1 & 2 CPC of the appellants and the said order has been challenged by the appellants by way of this appeal.
6. In the present appeal, the appellants have contended that the Ld. Trial Court failed to consider that the marriage of the respondent and son of the appellants already stood dissolved and the respondent was having her matrimonial home at Canada only. The Ld. Trial Court MCA No. 33/12 Page 4 of 12 failed to consider that the property in question is neither the joint family property nor the shared household and, therefore, the appellants have nothing to do with the matrimonial dispute between the respondent and their son. The Ld. Trial Court failed to consider that the respondent has no legal right in the suit property and any stay of the respondent or of her husband was only of permissive user. The Trial court failed to consider that property in question belongs exclusively to appellant no. 1 and the appellants are under no obligation to maintain or provide residence to the respondent. The appellant no. 1 became the owner of the suit property by virtue of Will dated 19.03.1980 and therefore the house in question is exclusive property of appellant no. 1 and not a shared household. If the respondent forcefully lives with the appellants, there are apprehension of serious breach of peace as there is lack of mutual trust, love and affection between the appellants and the respondent. The appellants cannot be forced to keep son or daughterin law with them as the house in question is the self acquired property of appellant no. 1. The Ld. Trial Court erred in ignoring the provisions of Hindu Succession Act as contemplated u/s 8 of the Act. The Ld. Trial Court failed to consider the material on record and the issues involved and wrongly applied the ratio of judgments. It is stated that the MCA No. 33/12 Page 5 of 12 impugned order is wrong, erroneous and same is liable to be set aside.
7. I have heard the Ld. Counsel for appellants, but none turned up for the respondent to advance the arguments . I have also perused the record. Trial Court record was also summoned and I have also perused the same.
8. The appellants have claimed that the property in question is self acquired property of appellant no. 1 by virtue of Will dated 19.03.1980 and the respondent or her husband who is son of the appellants have no legal right in the said property. It was also claimed by appellants that the marriage of the respondent and their son has already been dissolved by decree dated 23.07.2009 passed by superior court of justice at Ontario, Canada and since the son of the appellants is permanently settled at Canada, the respondent who is the divorced wife of the son of the appellants cannot claim the suit property to be her matrimonial house.
9. The respondent has denied the aforesaid claim of the appellants and has contended that decree dated 23.07.2009 of dissolution of marriage was expare and same has no applicability on the respondent being citizen of India. It was also denied by the respondent that the property in question is self acquired property of MCA No. 33/12 Page 6 of 12 appellant no. 1 and it was contended that the respondent being married to the son of the appellants and the property in question being the matrimonial house of the respondent, she has every right of residence in the said house.
10. The Ld. Civil Judge vide impugned order dated 27.07.2012 has observed that "shared household" as defined in judgment of the Hon'ble Apex Court in S.R. Batra Vs. Taruna Batra 2007 (2) SCC (Crl) 56 is a 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. The Ld. Civil Judge further returned a finding that by virtue of Will dated 19.03.1980 only 50% share of the suit property has been bequeathed in favour of the appellant no. 1 and remaining 50% share of suit property has been devolved upon the legal heirs of father of appellant no. 1 including the appellant no. 1 himself and as such 50% share of the suit property is ancestral family property in the hands of appellant no. 1. It was also observed by the Ld. Civil Judge that since the property is unpartitioned jointly family property, it cannot be factually ascertained as to which part is covered by the Will or which part is ancestral property. Therefore, the Ld. Civil Judge came to the conclusion that even if the marriage between the respondent and son of MCA No. 33/12 Page 7 of 12 the appellants has been dissolved by the decree dated 23.07.2009 passed by the Superior Court of Justice at Ontario, Canada, still the respondent who has not conducted the second marriage is entitled to protection under the provisions of Protection of Women from Domestic Violence Act, 2005 and since the property in question is joint family property of her exhusband and comes within the definition of share household, therefore the respondent has right to reside in the property in question. Therefore, the Ld. Civil Judge declined to grant interim injunction to the appellants.
11. The appellant no. 1 has claimed that he has 1/6th undivided share in the property in question which he has inherited from his father Sh. Sewa Singh and his mother Smt. Harbans Kaur by virtue of registered Will dated 19.03.1980 and same is self acquired property of appellant no. 1. The Ld. Trial Court has rightly observed that the Will dated 19.03.1980 reveals that only 50% share of the suit property has been bequeathed by Smt. Harbans Kaur in favour of appellant no. 1 and remaining 50% share of the suit property is the ancestral family property in which the husband of the respondent has also some share. The Ld. Trial Court found that 50% share in the suit property being ancestral property comes within the definition of 'shared household' MCA No. 33/12 Page 8 of 12 and, therefore, respondent who is the exwife of son of the appellants has right to reside in the said property under the provisions of Protection of Women from Domestic Violence Act, 2005.
12. Admittedly, the respondent has not been residing in the property in question with the appellants. The respondent has claimed that property in question is joint family property in which her husband has also some share and, therefore, being married to son of the appellants, she has right to reside in the suit property.
13. Be that as it may, even if the property in question is undivided joint family property in which the appellant no. 1 has 1/6 th undivided share and husband of the respondent has also some share in the 50% share of the property, but the fact of the matter remains that the appellants are residing at the first floor of the property which consists of one drawing room, one dining room, one bed room, kitchen, bath as shown in red colour in the site plan. The appellants are seeking interim protection against the respondent from interfering into their peaceful possession in the aforesaid portion occupied by the appellants.
14. Though, the respondent has filed a petition under the provisions of Protection of Women from Domestic Violence Act, 2005, but admittedly no order of residence has been passed yet. Further, MCA No. 33/12 Page 9 of 12 though the Ld. Civil Judge has observed that unless the property is partitioned, it is difficult to find out which portion of the property has come under the Will and which portion of the property has come under the remaining 50% of ancestral family property, but since the appellants are in settled possession of the first floor in respect of which they are seeking the injunction as shown in red colour in the site plan, it cannot be said that the respondent has got right to interfere in the said portion occupied by the appellants only because 50 % of suit property is joint family property and as such comes within the definition of shared household.
15. Therefore, unless any residence order is passed by the court dealing with the petition filed by the respondent under the provisions of Protection of Women from Domestic Violence Act, 2005, the appellants being in settled possession of the first floor of the property as shown in red colour in the site plan are entitled to protect their possession and to reside peacefully. The respondent cannot interfere in the peaceful possession of the appellants against their wishes. In case the possession of the appellants is disturbed by the respondent, the appellants shall suffer more comparative hardship and irreparable loss which cannot be compensated in terms of money. Therefore, irrespective of the fact that MCA No. 33/12 Page 10 of 12 50% share of the property in question is ancestral property in the hands of appellant no. 1 in which husband of the respondent has also some right as observed by the Ld. Trial Court, the respondent cannot be allowed to interfere in the peaceful possession of the appellants. Therefore, the appellants are entitled for injunction as prayed for.
16. In the light of foregoing discussions, the impugned order dated 23.07.2012 by which the interim injunction sought by the appellants was declined cannot be sustained and is hereby set aside. The application of the appellant U/o 39 Rule 1 & 2 CPC is allowed and the respondent is restrained from interfering in the peaceful possession of the appellants against the wishes of the appellants .
17. However, it is made clear that since entire property has not been bequeathed in favour of the appellant no. 1 by virtue of Will dated 19.03.1980 and husband of the respondent has also some share in the property and same comes under the definition of shared household, this order shall be subject to the residence order if any passed by the court dealing with the petition filed by the respondent under the provisions of Protection of Women from Domestic Violence Act, 2005. This order shall not prejudice the right to residence of the respondent in the suit property if any residence order is passed by the said court. MCA No. 33/12 Page 11 of 12 Appeal file be consigned to Record Room TCR be sent back to the Trial Court along with copy of this judgment.
Announced in Open Court (Balwant Rai Bansal)
on 19th February, 2013 Additional Senior Civil Judge (South)
Saket Courts, New Delhi
MCA No. 33/12 Page 12 of 12
MCA No. 33/12
19.02.2013
Present: None.
Vide my separate judgment of even date dictated and announced in the open court, the appeal filed by the appellants is allowed.
Appeal file be consigned to Record Room.
TCR be sent back to the trial court along with copy of judgment.
(Balwant Rai Bansal) JSCC/ASCJ(South) Saket Courts, New Delhi 19.02.2013 MCA No. 33/12 Page 13 of 12