Delhi District Court
Smt. Usha Luthra vs Smt. Shweta Luthra on 31 October, 2022
IN THE COURT OF SH FAHAD UDDIN
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS, DELHI.
CS SCJ No: 1001/2018
CNR No. DLWT03-001934-2018
Smt. Usha Luthra
W/o Pardeep Luthra,
R/o A-2/78, 2nd Floor,
Prateek Apartment,
Paschim Vihar,
New Delhi-63. ...Plaintiff
VERSUS
Smt. Shweta Luthra
W/o Sh. Jatin Luthra
D/o Sh. Balwant Rai Miglani
At Present Resident of
R/o A-2/78, 3rd Floor,
Prateek Apartment,
Paschim Vihar,
New Delhi-63.
Also At:-
WZ-1456 A, Rani Bagh,
New Delhi. ...Defendant
Date of Filing : 14.08.2018
Date of Judgment : 31.10.2022
CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 1 of 27
ORDER
1. Vide this order, I shall dispose of the present application filed on behalf of the plaintiff namely (Smt. Usha Luthra) against the defendant namely (Smt. Shweta Luthra) under order XII rule 6 read with section 151 CPC for passing a decree of possession and mandatory injunction in respect of the suit property. The brief facts necessary for the disposal of the said application may be described as under:-
2. The plaintiff namely (Smt. Usha Luthra) has filed a suit for possession, mandatory injunction and permanent injunction against the defendant namely (Smt. Shweta Luthra) on the ground that the plaintiff and her husband are senior citizens and suffering from various old age ailments and they had been dragging into false and frivolous litigation by the defendant which further deteriorated the health of the plaintiff and her husband and further caused lot of harassment, financial loss, mental agony and humiliation to them. The plaintiff is exclusive, legal and lawful owner of flat bearing No. A- 2/78, 2 nd and 3rd Floor, Prateek Apartment, Paschim VIhar, Delhi 63 by virtue of registered Will dated 17/07/1984, Agreement to sell dated 17/07/1984, registered receipt dated 17/07/1984 and GPA and registered Special Power of Attorney duly registered before the Sub- Registrar (UP). The plaintiff had purchased the suit property from the previous rightful owner namely Sh. Satpal Jain who was the director allottee of the suit property. He had executed the above said documents in favour of the plaintiff after receiving the entire consideration value of the suit property. The defendant is at present living on the top floor that is 3rd floor of the suit property consisting of 2 rooms, one drawing room, CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 2 of 27 kitchen, toilet, bathroom, Veranda, gallery and open courtyard forcibly, unauthorizedly, illegally and unlawfully as the defendant illegally broken open the locks of the property taking the forcible possession of the property by way of misusing the process of law. The plaintiff is living under constant fear and threat of life and property from the defendant and her family members. The plaintiff had solemnized the marriage of her son Jatin Luthra with the defendant on 23/11/2009 at Delhi according to Hindu rites, ceremonies and customs. The marriage was solemnized in a simple manner, however the said marriage between the parties was love cum arrange marriage and therefore the marriage was performed in a very simple manner without any demands of dowry. The suit property is the self earned and self acquired property of the plaintiff and her husband and none other than the plaintiff has complete right, title and interest in the suit property. The husband of the plaintiff had purchased the suit property from his own income and earning in the year 1984 and since then the plaintiff is in continuous physical possession and enjoyment of the suit property. It is the case of the plaintiff that the plaintiff and her husband had never interfered in the marital life of their son Jatin Luthra rather they always advise their son and his wife that is the defendant to maintain good and healthy atmosphere in their matrimonial accord but in vain. The plaintiff could not understand the malafide intention and act of the defendant and her family members. The conduct and behaviour of the defendant towards the plaintiff and her husband became rude and harsh. However the plaintiff was tolerating all her atrocities and torture for the sake of reputation and honour of the family in the society with the hope that one day good senses would prevail upon the defendant but the defendant absolutely failed to fulfill her marital obligations and duties and always used to insult, CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 3 of 27 ignore the plaintiff and entire family members.
3. It is the case of the plaintiff that the suit property is the self owned property of the plaintiff and the defendant has got no right, title or interest to stay anymore in the suit property. The defendant used to abuse and threaten the plaintiff and her husband for dire consequences with the sole intention to grab the entire suit property by illegal and unlawful means and methods in connivance with her family members. The defendant has never given any respect to the plaintiff and her husband and they were suffering at the hands of the defendant and her family members and shall suffer irreparable loss if the defendant is not directed to vacate the suit property. The plaintiff and her husband are facing lot of humiliation, harassment and mental pain and suffering because the defendant has involved the plaintiff and her husband in false and frivolous litigations in their old days of life. The plaintiff and her husband are forced to lead the life of destitute and to run here and there in the courts to protect themselves from the clutches of the defendant and her family members. During the stay of the defendant in the matrimonial home, the defendant sometimes got injured herself and used to blame the plaintiff and her husband and threatened to implicate them in a false complaint. Thus the plaintiff and her husband had left with no option but to get the defendant and her husband separated from them and made arrangement for them to live separately on the top floor of property bearing house No. A-2/78, 3 rd floor, Prateek Apartments, Paschim Vihar, New Delhi 63. The defendant started living independently in the said property having separate entrance and kitchen altogether without any interference and indulgence by the plaintiff and her husband. The reasons for giving them separate accommodation was that CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 4 of 27 from day one of the marriage, there was lot of interference by the parents of the defendant in the family affairs and matrimonial life of the defendant due to which the defendant used to quarrel with her husband under instigation and provocation of her parents without any rhyme and reason and sometime used to live with her parents for days together without consent and permission from her husband and other family members. The defendant sometimes used to be physical with her husband and used to manhandle and beat him without any default just to pressurize him to accede to her unwarranted and illegal demands of getting and demanding a separate share in the immovable property owned by the plaintiff and her husband.
4. It is the case of the plaintiff that the plaintiff shocked to learn that some time in January to February 2011, the defendant pretended to commit suicide by consuming phenyl. However she was saved with the timely efforts and intervention of her husband Jatin Luthra. When the plaintiff came to know about such act of the defendant then she openly threatened that she wanted to implicate the plaintiff and her husband and other family members to send them behind the bars to get revenge from them from. The defendant again left the matrimonial home on 14/08/2011 under the preplanned manner and she was under the pregnancy of 2 months before going to her parents house and with the support of her family members she aborted the child and killed the unborn baby in the womb which disturbed and shocked her husband Jatin Luthra who made a police complaint on 17/09/2011 in this regard and filed a case under section 13 (1)(ia) of the Hindu Marriage Act 1955. However during the pendency of the said matter, the defendant and her husband amicably resolved and settle the disputes and agreed to live together as husband and CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 5 of 27 wife and the concerned court had disposed of the petition as compromised vide its order dated 23/11/2011 after recording separate statement of both the parties. After such settlement dated 23/11/2011, the defendant and her husband took separate accommodation on rent at 85 A, ground floor, Janta flats, block A-1, Paschim Vihar, New Delhi and they started living together as husband and wife with intent to give one more opportunity to settle happily in their marriage life. During such stay together the defendant had conceived and gave birth to a male child namely Gravit Luthra on 12/12/2012. The plaintiff and her husband were quite happy with the relations maintained by the defendant and her husband. Both the defendant and her husband had approached the plaintiff and her husband to allow them to live them on 3 rd floor of the suit property which was lying vacant at that time as they were facing problem to bear the expenses of huge rent. The plaintiff and her husband after assurance and promise from the defendant and her husband for peaceful living, allowed them to live in the 3 rd floor of the property but before that a deed of family settlement dated 28/05/2013 was reduced into writing wherein as per the terms and conditions they were allowed to live as a tenant in the 3rd floor of the property. The defendant and her husband took away entire articles, jewelry articles and istridhan etc. with them during the time of shifting to the rented accommodation. The said family settlement was duly signed and executed between the husband of the plaintiff and the husband of the defendant with the consent and knowledge by the plaintiff and the defendant. Thereafter the defendant again started pressurizing her husband to demand separate share in the suit property somewhere in October 2013 and on refusal, the defendant started picking up quarrel and threatened the entire family members of the plaintiff and her husband to CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 6 of 27 involve them in false criminal cases and further threatened to ruin their life by involving them in false cases. The defendant started living separately from her husband since January 2015 out of her own sweet will under the one and the same roof. On 7th May 2017 the defendant without any rhyme and reason started quarreling with her husband Jatin Luthra followed by brutal assault and left the suit property to her parental home. The plaintiff left with no option but to ask her son Jatin Luthra to vacate the property as the plaintiff and her husband could not want to further involve themselves in such difficult situation which they have faced during the days when the marriage was solemnized. The plaintiff and her husband left with no option but to disown her son Jatin Luthra and his wife from their immovable and movable assets. The plaintiff was shocked when on 26/06/2018 at about 4 PM, the defendant and her family members in connivance and conspiracy with each other illegally and unlawfully broken open the locks of the top floor of property bearing house No. A-2/78, Prateek Apartments, Paschim Vihar, New Delhi 63 in their absence and encroached upon the property illegally, unlawfully and malafidely and thereafter the defendant is living in the suit property unauthorizedly as the husband of the defendant has already shifted to a rented accommodation after the notice by the plaintiff's husband wherein they disinherited and disowned Sh. Jatin Luthra and his wife the defendant from there all movable and immovable properties and assets. The son of the plaintiff namely Jatin Luthra is at present living in a rented accommodation bearing No. A- 1/27 D, Janta Flats, Pachim Vihar, New Delhi 63 and as per the knowledge of the plaintiff the son of the plaintiff has filed a petition for divorce against the defendant due to continued misbehaviour, humiliation and harassment by the defendant with her husband which is presently pending before the Ld. CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 7 of 27 Principal Judge, Family Courts, Tis Hazari Courts, Delhi and hence the present suit has been filed by the plaintiff against the defendant seeking the following reliefs in her plaint:-
A. A Decree for possession in favour of the plaintiff and against the defendant thereby directing the defendant to hand over peaceful, vacant and physical possession of the suit property bearing house No. A-2/78, 3 rd floor, Prateek apartments, Paschim Vihar, New Delhi 63 consisting of 2 rooms, one drawing room, kitchen, toilet, bathroom, verandah, gallery and open courtyard to the plaintiff as shown in blue colour in the site plan attached with the plaint;
B. A decree for mandatory injunction in favour of the plaintiff and against the defendant thereby directing the defendant, her family members, representatives, agents and attorneys etc. not to cause hindrance, obstruction, nuisance in any manner in peaceful ingress and outgress, use, occupation and living of the plaintiff and her husband in the suit property bearing house No. A-2/78, 2nd floor, Prateek apartments, Paschim Vihar, New Delhi 63 which is in the possession and under the lock and keys of the plaintiff as shown in red colour in the site plan attached with the plaint;
C. A decree for permanent injunction in favour of the plaintiff and against the defendant, her agent, family members etc. thereby permanently restraining them not to create any third party interest or part with possession, encroach upon, lien, mortgage, rent out or sell out the property bearing house No. A-2/78, 3rd floor, Prateek apartments, Paschim Vihar, New Delhi 63 to any third party which is more specifically shown in blue colour in the site plan attached with the plaint.CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 8 of 27
5. On the other hand the defendant filed written statement to the suit of the plaintiff wherein the defendant submitted that the present suit has been filed by the plaintiff as a counter case of the defendant for domestic violence in which the Ld. MM on 26/07/2018 had restrained the respondents from dispossessing the defendant from her share household and when the respondents of the D.V. case received the summons of that case, the plaintiff filed the present suit to harass the defendant. The husband of the defendant has also filed a divorce case against the defendant and he has also given the address of flat bearing house No. A-2/78, Top Floor, Prateek Apartments, Paschim Vihar, New Delhi 63. The defendant submitted that the defendant is residing on the 3rd floor of house bearing No. A-2/78, Prateek Apartments, Paschim Vihar, New Delhi 63 and not a single document of ownership has been filed by the plaintiff in this regard. The documents filed by the plaintiff are for the flat of 2nd floor and whose possession is already with the plaintiff. The present suit for possession, mandatory and permanent injunction for the 3 rd floor is not maintainable as the plaintiff is not the owner of the said property. The defendant reiterated that the present suit has been filed by the plaintiff as a counter case of the defendant for domestic violence in which the defendant got an order that her in-laws including the husband of the defendant will not dispossess her from the house. Copy of the order is also attached on record. The defendant submitted that the plaintiff is the owner of only 2 nd floor flat and not of 3rd floor. The documents filed by the plaintiff are of 2 nd floor and is the matrimonial house of the defendant and the defendant and her husband are living at the 3rd floor. The defendant denied that the defendant took forcible possession of the 3rd floor. The entire story has been concocted by the plaintiff with her son just to harass the defendant after the Ld. MM had given a stay CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 9 of 27 from dispossessing the defendant from the house. The defendant stated that she is residing at the 3rd floor of the suit property after their reunion on 24/05/2013 vide family settlement deed by which both the husband and wife that is the defendant and her husband will remain at the 3 rd floor and they have no contact with the plaintiff and her husband. Copy of the said family settlement is also attached along with the written statement. The defendant stated that the averments made in the plaint have been made to throughout the defendant from her matrimonial home. The defendant is residing at the 3 rd floor after their reunion on 24/05/2013 vide family settlement deed by which the defendant and her husband will remain at the 3 rd floor and they have no contact with the plaintiff and her husband. The defendant stated that it is correct that the husband of the defendant had filed a divorce case against the defendant and in the divorce petition there is no mentioning of the rented accommodation by the husband of the defendant. There is no ownership proof of the plaintiff qua the 3 rd floor where the defendant is residing and hence all the averments made in the plaint by the plaintiff are wrong and denied by the defendant and the defendant prayed for dismissal of the suit of the plaintiff along with cost.
6. Thereafter replication was filed in the present matter to the written statement of the defendant by the plaintiff wherein the plaintiff reiterated her case as stated in the Plaint and denied the case of the defendant as stated in the written statement. However the plaintiff admitted in the replication that it is correct that vide family settlement deed dated 24/05/2013 both the defendant and her husband started living at the 3rd floor of the suit property. But the plaintiff remained the owner of the said 3 rd floor of the suit property as CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 10 of 27 admitted by the defendant and reflected in the family settlement relied upon by the defendant. Rest of the submissions made by the plaintiff in the replication are not being repeated herein for the sake of brevity. Suffice is to say that the plaintiff prayed for decree of the suit of the plaintiff as prayed for in the plaint.
7. In the application filed under order XII rule 6 r/w section 151 CPC on behalf of the Plaintiff, it has been submitted that the plaintiff has filed a suit for possession, mandatory injunction and permanent injunction for unauthorized, illegal and forcible use and occupation of the suit property by the defendant.
8. The defendant filed W.S. in the present case and admitted the fact that the plaintiff is the legal and lawful owner of the suit property. The defendant further failed to prove the factum of possession and use of the suit property. In the W.S. in para no. 6, the defendant has admitted that the defendant is residing at the third floor of the suit property after reunion vide Family Settlement Deed dated 24.05.2013 by which both the husband and wife i.e. the defendant and her husband will remain at the third floor and they have no contact with the plaintiff and her husband. The copy of the family settlement dated 28.05.2013 has been enclosed and relied upon by the defendant which means that the defendant has admitted the contents and averments of the said family settlement executed between the defendant, her husband on one side and the plaintiff and her husband on the other side. The said family settlement was duly signed and acknowledged by all the members connected to the family settlement dated 28.05.2013 and wherein the defendant had CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 11 of 27 admitted the fact that the plaintiff Smt. Usha Luthra and her husband Sh. Pradeep Luthra are the absolute and legal owner of the flat bearing No. A- 2/78, Prateek Apartment, New Delhi in which the defendant and her husband were living. The said family settlement reveals that after mutual consent and permission of the plaintiff and her husband, the defendant and her husband were allowed to live on the third floor of the suit property with a mutual understanding that they will vacate the premises as and when the plaintiff and her husband requires or wishes to do so. The defendant has relied upon another document which is a Rent Agreement dated 28.05.2013 which was executed on the same day when the family settlement was executed on 28.05.2013. The rent agreement was executed in the presence of the defendant and her husband and the plaintiff and her husband. The rent agreement was executed between the husband of the defendant and the plaintiff wherein it was admitted and reflected by the document itself that it was a rent agreement and therefore, the defendant admitted the fact that they are living in the suit property as tenant and not the owner which is surprisingly claimed by the defendant in her written statement. Further, the defendant has denied the contents of the plaint for the purpose of denial only and there is no constructive denial of title and rights of ownership of the plaintiff. The defendant has taken the defence that the family settlement was executed and therefore, the defendant has no ground to stand on her legs to justify and prove her case and for this reason nothing is left in the case to be decided between the parties. The defendant is enjoying the suit property illegally and unlawfully after breaking open the locks of the suit property. The defendant herself has taken a contradictory ground and stand in the W.S. which itself proofs her falsification as on one side the defendant is alleging herself to be CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 12 of 27 the owner of the suit property and on the other side she is alleging about the family settlement in which the defendant herself admitted the factum of legal and lawful ownership of the plaintiff and her husband. The defendant has no right, title or interest to stay and enjoy the suit property. Thus due to unambiguous and unconditional admission of the defendant with respect to the ownership of the plaintiff and illegal and unauthorized occupation of the suit property the plaintiff is entitled to a decree in her favour and it has been prayed by the plaintiff that a decree of possession and mandatory injunction in respect of the suit property be passed in favour of the plaintiff and against the defendant.
9. Reply has also been filed to the said application U/o 12 Rule 6 r/w Sec. 151 CPC on behalf of the defendant wherein the defendant stated that the application filed by the plaintiff is totally misconceived, baseless, frivolous and is an abuse of the process of law. The application filed by the plaintiff deserves outright dismissal and the suit filed by the plaintiff is also liable to be dismissed as she is not the owner of the suit property. The defendant denied that she is illegally and forcibly occupying the suit property and stated that the plaintiff is not the owner of the third floor of the suit property and for that the plaintiff has not filed a single document to show the ownership of the same. The defendant again denied that the plaintiff is the owner of the third floor of the property. The defendant stated that even in the family settlement deed, nowhere it is mentioned that the plaintiff is the lawful owner of the third floor of the property bearing No. A-2/78, Prateek Apartment, Paschim Vihar, New Delhi and the averments made by the plaintiff are wrong and have been made to harass the defendant. The defendant stated that she has not relied upon CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 13 of 27 the rent agreement. The defendant had only annexed the copy of the divorce petition filed by the husband of the defendant wherein the husband of the defendant had also given the address of the flat i.e. A-2/78, Top Floor, Prateek Apartment, Paschim Vihar, New Delhi. The rent agreement annexed with the divorce petition is a conspiracy of the plaintiff and her son and it can be proved by attesting the date of family settlement deed and the rent agreement attestation date. The family settlement deed attestation date is 29.05.2013 and rent agreement is 03.06.2013 and the rent agreement did not contain the name of the defendant. Thus, the application of the plaintiff is false, frivolous and motivated and is liable to be dismissed.
10. Submissions heard. Record Perused. Judgment filed and relied upon by the counsels for the parties are also gone through.
11. For reference Order 12 Rule 6 CPC may be reproduced as under:-
"6. Judgment on admissions:- (1). Where admission of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2). Where a judgment is pronounced Under Sub Rule -(1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
The object of the rule is to enable the party to obtain a speedy judgment atleast to the extent of the admission of the defendant, entitled that relief to the plaintiff. The court should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 14 of 27 had made a plain admission entitling the former to succeed, it should apply and wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed. Such an admission in the W.S. could be in the respect of the entire claim made in the suit or even for a part of the claim for which decree could be passed separately. A bare reading of Rule 6 would indicate that the court either on the application of any party or on its own motion and without waiting for determination of any other question between the parties proceed to give judgment as it may think fit having regard to the clear and unequivocal admission. The rule secures that if there is no dispute between the parties and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment, he should be able to obtain it at once to the extent of the admission. The rule enables either party at any stage of the suit to obtain judgment or an appropriate order either on motion by him or by the court acting suo-moto on admissions made by the other party. Either party may by availing himself of the rule, get rid of so much of the suit as to which there is no controversy. A decree can be passed under this rule on the basis of an admission, whether it is contained in the pleadings or elsewhere. Such an admission may be in writing or may even be oral. No particular form of admission is necessary.
12. Reference may be made to the case of Sachin & Ors. Vs. Jhabbo Lal & Ors. [RSA 136/2016 and CM no. 19123/2016 decided on 24.11.2016 by the Hon'ble High Court of Delhi ]; wherein it was observed:-
"Where the house is self acquired house of the parents, son whether married or unmarried has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life."
13. In the case of S.R. Batra & Ors. Vs. Taruna Batra [Civil Appeal No. 5837/2006 (arising out of SLP (Civil) no. 6651-6652/2005 and Contempt CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 15 of 27 Petition ( C) No. 38/2006 decided on 15.12.2006 by the Hon'ble Supreme Court of India] ; wherein it was observed that:-
"There is no such law in India like the British Matrimonial Homes Act 1967 and in any case the rights which may be available under any law can only be as against the husband and not against the father in law or mother in law. Here the house in question belongs to the mother in law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence Smt. Taruna Batra cannot claim any right to live in the said house. Appellant no. 2, the mother in law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.
Apart from the above, we are of the opinion that the house in question cannot be said to be a 'shared household' within the meaning of Sec. 2(S) of the Protection of Women from Domestic Violence Act 2005.
Section 2(S) states :
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 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.
Ld. counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contented that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household. We cannot agree with this submission.
If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a share household. It is quite possible that the husband and wife may have lived together in dozen of CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 16 of 27 places example with the husband's father, husband's paternal grand parents, his maternal parents, Uncles, Aunts, Brothers, sisters, nieces, nephews etc. If the interpretation canvassed by the ld. Counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. It is well settled that any interpretation which leads to absurdity should not be accepted. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household and shared 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. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant no. 2, mother of Amit Batra. Hence it cannot be called a shared household. No doubt the definition of shared household in Sec. 2(s) of the Act is not very happily worded and appears to be the result of clumsy drafting but we have to give it an interpretation which is sensible and which does not lead to chaos in society."
14. In another case namely Shumita Didi Sandhu Vs. Sanjay Singh Sandhu & Ors. [FAO (OS) 341/2007 decided on 26.10.2010 by the Hon'ble High Court of Delhi]; wherein it was held that:-
"It is apparent that the concept of maintenance, in so far as a Hindu Lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. In so far as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a shared household and such a household would only means a house belonging to or taken on rent by the husband or the house which belongs to the joint family of which CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 17 of 27 the husband is a member. The property which neither belongs to the husband nor is taken on rent by him nor is it a joint family property in which the husband is a member cannot be regarded as a shared household. Clearly the property which exclusively belongs to the father in law or the mother in law or to them both, in which the husband has no right, title or interest cannot be called a shared household. The concept of matrimonial home as would be applicable in England under the Matrimonial Homes Act 1967 has no relevance in India.
Section 17 of the D.V. Act deals with the right of every woman in a domestic relationship to reside in the shared household and Sec. 17(2), specifically provides that such a woman 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. In other words the wife can be evicted or excluded from the shared household after following the due procedure established by law and it is not an absolute right of a wife to reside in a shared household. However, in the present case we need not to go into these aspect of the matter because Sec. 17 in itself would inapplicable in view of the fact that the property in question cannot be regarded as a shared household. The residence orders that may be passed U/Sec. 19 are also subject to the Magistrate/court being satisfied that domestic violence has taken place. All the residence orders also relates to a shared household. Consequently, Sec. 19 would also not come in the aid of the appellant or plaintiff.
We feel that in view of the prima facie findings that the property in question does not belong to the appellants/plaintiff's husband nor does he have any share or interest in the same, there is no question of the said property being regarded as a shared household in terms of Sec. 2(s) of the said Act. We also find that the expression matrimonial home is not at all defined in the said Act and the concept of the matrimonial homes as prevailing in England by virtue of the Matrimonial Homes Act 1967 cannot be applied in India as pointed out in S.R. Batra and B.R. Mehta case. There is no doubt that the Appellant/plaintiff has a right of a residence whether as an independent right or as a right encapsulated in the right to maintenance under the personal law applicable to her. But the right of residence does not translate into a right to reside in a particular house. More so because her husband does not have CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 18 of 27 any right, title or interest in the said house. As noted by the Supreme court in the case of Komalam Amma as well as in Mangatmal case, the right of residence or provision for residence may be made by either giving a lump sum in money or property in lieu thereof.
We must emphasize once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. In order to illustrate this proposition we may take example of a house being allotted to a high functionary, say a Minister in a Central Cabinet and who resides in the same house along with his wife, son and daughter in law. It is obvious that since the daughter in law and son reside in the said house, which otherwise is a government accommodation alloted to the father in law, the same could be regarded as the house where the son and daughter in law live in matrimony. Can the daughter in law claim that she has a right to live in that particular property irrespective of the fact that the father in law subsequently is no longer a minister and the property reverts entirely to the Government ? Certainly not. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that too if no commensurate alternative is provided by the husband."
15. In the case of Neha Jain & Anr. Vs. Gunmala Devi Jain & Anr. [RSA 282/2015 decided on 30.07.2015 by the Hon'ble High Court of Delhi] ; wherein it was observed:-
"12. The legal position which can be culled out from the above reports is that daughter in law has no right to continue to occupy the self acquired property of her parents in law against their wishes more so when her husband has no independent right therein nor is living there as it is not a shared household within the meaning of Sec. 17(1) of the Protection of women from Domestic Violence Act, 2005. Wife is entitled to claim a right in a shared house hold which means a house belonging to or taken on rent by the husband or the house which belongs to joint family of which husband is a member. Daughter in law CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 19 of 27 cannot assert her rights, if any, in the property of her parents in law wherein her husband has no right, title or interest. She cannot continue to live in such a house of her parents in law against their consent and wishes. In my view even an adult son or daughter has no legal right to occupy the self acquired property of the parents against their consent and wishes. A son or daughter if permitted to live in the house occupies the same as a gratuitous licensee and if such license is revoked he has to vacate the said property."
16. Lastly, in the case of Madalas Sood Vs. Maunicka Makker & Ors. [CS (OS) 93/2021 decided on 10.12.2021 by the Hon'ble High Court of Delhi]; wherein it was observed that :-
"124. Drawing the analogy from the above case, we are of the opinion that the expression "save in accordance with the procedure established by law" in Sec. 17(2) of the 2005 Act contemplates the proceedings in the court of competent jurisdiction. Thus suit for mandatory and permanent injunction/ eviction or possession by the owner of the property is maintainable before a competent Court. We may further notice that in Sub Sec. (2) the injunction is (shall not be evicted or excluded from the shared household.... Save in accordance with the procedure established by law." Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the woman need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Sec. 19(f) itself. There may be cases where the plaintiff can successfully prove before the competent court that the claim of the plaintiff for eviction of the respondent is accepted. We need not ponder for cases and circumstances where the eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case.
90. before we close out discussion on Sec. 2(s), we need to observe that the right to residence U/Sec. 19 is not an CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 20 of 27 indefeasible right of residence in shared household especially when the daughter in law is pitted against aged father in law and mother in law. The senior citizens in the evening of their lives are also entitled to live peacefully not haunted by marital discord between their son and daughter in law. While granting relief both in application U/Sec. 12 of the 2005 Act or in any civil proceedings, the court has to balance the rights of both the parties.
Thus it is clear that even where a residence is clearly a shared household, it does not bar the owner, the plaintiff herein, from claiming eviction against her daughter in law if the circumstances called for it."
17. Now, coming to the facts of the present case. The mother in law/plaintiff Smt. Usha Luthra has filed the present case against the daughter in law/ defendant Shweta Luthra for possession, mandatory injunction and permanent injunction stating that the plaintiff had solemnized the marriage of her son Jatin Luthra with the defendant on 23.11.2009 at Delhi according to Hindu rites, Ceremonies and customs. The marriage was solemnized in a very simple manner and the plaintiff and her husband had never interfered in the matrimonial life of his son Jatin Luthra rather advised her son and his wife i.e. the defendant to maintain good and healthy atmosphere in their matrimonial accord. Some time in January-February, 2011, the defendant pretended to commit suicide by consuming phenyl. However, she was saved with the timely efforts and intervention by her husband Jatin Luthra. The defendant left the matrimonial home on 14.08.2011 and the husband of the defendant filed a case u/Sec 13(1)(ia) of the Hindu Marriage Act seeking divorce from the defendant. However, the matter was amicably resolved and the defendant and her husband agreed to live together peacefully. After the said settlement dated 23.11.2011, the defendant and her husband took CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 21 of 27 separate accommodation on rent at 85-A, ground floor, Janta Flats, Block-A1, Paschim Vihar, New Delhi and they started living together as husband and wife with intent to give one more opportunity to live happily in their marital life. During such stay together the defendant had given birth to a male child namely Garvit Luthra on 12.12.2012 and the plaintiff and her husband were quite happy with the relations being maintained by the defendant and her husband and both the defendant and her husband approached the plaintiff and her husband to allow them to live on 3 rd floor of the property which was lying vacant at that time as they were facing problem to bear the expenses of huge rent. The plaintiff and her husband after assurance and promise from the defendant and her husband for peaceful living allowed them to live in the third floor of the property and a deed of family settlement dated 28.05.2013 was also reduced in writing containing the terms and conditions to allow them to live as a tenant in the third floor of the property. The said family settlement was duly signed and executed between the husband of the plaintiff and the husband of the defendant with the consent and acknowledged by the plaintiff and the defendant. However, the defendant again started pressurizing her husband to demand separate share in the suit property somewhere in October 2013 and on refusal by Sh. Jatin Luthra, the defendant started picking up quarrel and threatened the entire family members of the plaintiff and her husband to involve them in false cases. The defendant started living separately from her husband since January 2015 out of her own sweet Will under the one and the same roof. On 07.05.2017, the defendant without any rhym and reasons started quarreling with her husband Sh. Jatin Luthra and left the property to her parental home. The plaintiff finding no other option asked her son Sh. Jatin Luthra to vacate the property as the plaintiff and her CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 22 of 27 husband could not want to involve themselves in such difficult situation which they faced earlier. The plaintiff and her husband also disowned her son Jatin Luthra and his wife from their immovable and movable assets. The plaintiff stated that on 26.06.2018 at about 4:00 p.m., the defendant and her family members in connivance and conspiracy with each other illegally and unlawfully opened the locks of the top floor of the property bearing H. No. A- 2/78, Prateek Apartment, Paschim Vihar, New Delhi-63 in their absence and encroached the property illegally, unlawfully and thereafter the defendant is living in the suit property and the husband of the defendant has already shifted to the rented accommodation after the notice by the plaintiff's husband wherein they disinherited and disowned sh. Jatin Luthra and his wife i.e. the defendant from their all movable and immovable properties and assets. The son of the plaintiff namely Jatin Luthra is at present living in a rented accommodation bearing No. A-2/27D, Janta flats, Paschim Vihar, New Delhi- 63 and as per knowledge of the plaintiff, the son of the plaintiff has also filed a petition for divorce against the defendant which is pending before the Ld. Principal Judge, Family Court, Tis Hazari courts, Delhi and for this reason the present suit for possession, mandatory injunction and permanent injunction has been filed by the plaintiff against the defendant.
18. In the W.S. filed by the defendant, the defendant submitted that the present suit has been filed by the plaintiff as a counter case of the defendant for domestic violence in which the Ld. M.M. on 26.07.2018 had restrained the respondents from dispossessing the defendant from shared household. However, the defendant submitted that the defendant is residing at the third floor of the suit property after their reunion on 24.05.2013 vide Family CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 23 of 27 settlement deed by which both the husband and wife i.e. the defendant and her husband will remain at the third floor of the suit property and they have no contact with the plaintiff and her husband. Copy of said family settlement is also attached with the W.S. by the defendant.
19. At this stage, a perusal of the said family settlement dated 28.05.2013 entered into between Sh. Jatin Luthra and Smt. Shweta Luthra (first party) and Sh. Pradeep Luthra and Smt. Usha Luthra (second party) clearly shows that the defendant and her husband had admitted that the first party was living separately from the second party at the top floor/third floor of the suit property and that the second party is the absolute and legal owner of flat bearing No. A-2/78, Prateek Apartment, Paschim Vihar, New Delhi in which the first party was living. They also admitted that after settlement dated 23.11.2011, the first party vacated the top floor/third floor of the property and started living separately in the rented accommodation i.e. H. No. 85-A, Ground floor, Block A-1, Janata flats, Paschim Vihar, New Delhi and since the first party have been blessed with a son namely Garvit Luthra, the first party approached the second party and requested the second party to allow them to live on the top floor (third floor) of the property bearing No. A-2/78, Prateek Apartment, Paschim Vihar, New Delhi, subject to the terms and conditions of the said family settlement dated 28.05.2013 and the first party undertook that they shall live peacefully and without creating any problem, nuisance and disturbance to the second party and that the first party shall immediately vacate the premises as and when the second party wishes to do the same and that the first party will never misuse the liberty provided by the second party to allow the first party to live on the top floor /third floor of the property.
CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 24 of 27The said family settlement bears the signatures of the first party as well as the second party and the witnesses i.e. the defendant and her husband and the plaintiff and her husband.
20. Thus, the said family settlement which has been relied upon by the defendant in her W.S. clearly shows that the defendant and her husband accepted the absolute ownership of the plaintiff as well as her husband with regard to the flat hearing No. A-2/78, Prateek Apartment, Paschim vihar, New Delhi and that the second party i.e. the plaintiff and her husband had allowed them to live on the top floor/third floor of the said property on the mutual terms and conditions as stated in the said settlement and that the defendant and her husband had undertaken to vacate the premises as and when required by the second party i.e. the plaintiff and her husband. Thus, from the said settlement deed, it is clear that the defendant and her husband were merely the licensee/permissive users of the plaintiff and her husband and they could live on the top floor/ third floor of the property as long as the plaintiff and her husband wished to do so. The husband of the defendant is having no independent right, title or interest in the suit property and the suit property exclusively belongs to the plaintiff and her husband as mentioned in the family settlement deed dated 28.05.2013 entered into between the parties. Further, since the plaintiff and husband are no longer wiling to keep the defendants in their property, in the considered opinion of this court, the defendant cannot claim any right to live in that property and the right of residence available to the defendant can be enforced only against her husband and not against her in-laws.
21. Further the restrain order dated 26.07.2018 passed by Ld. M.M. CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 25 of 27 restrained the respondents therein from dispossessing the defendant and her child from the suit property without following due process of law only and accordingly, in view of the position of law cited in the above quoted judgments by the higher courts as well as the clear-cut admissions made by the defendant and her husband in the Family Settlement Deed dated 28.05.2013 regarding vacating the premises as and when required by the plaintiff and her husband, this court deems fit to decree the suit of the plaintiff U/o 12 Rule 6 CPC and the following reliefs are granted to the plaintiff against the defendants as prayed for in the plaint:-
A. A decree of possession is passed in favour of the plaintiff and against the defendant thereby directing the defendant to handover the peaceful, vacant and physical possession of the suit property bearing No. A-2/78, 3rd floor, Prateek Apartment, Paschim vihar, New Delhi-63 consisting of 02 rooms, 1 drawing room, kitchen, toilet, bathroom, verandah, gallery and open courtyard to the plaintiff as shown in blue colour in the site plan attached with the plaint.
B. A decree of mandatory injunction is passed in favour of the plaintiff and against the defendant thereby directing the defendant, family members, representatives and agents etc. not to cause hindrance, obstructions, nuisance in any manner in peaceful ingress and outgress, use and occupation and living of the plaintiff and her husband in the suit property bearing house No. A-2/78, 2 nd floor, Prateek Apartment, Paschim Vihar, New Delhi-63 which is in the possession and under the lock and keys of the plaintiff as shown in red colour in the site plan attached with the plaint.CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 26 of 27
C. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant thereby permanently restraining the defendant, her agents, associates, family members etc. not to create any third party interest or part with possession, encroach upon, rent out, mortgage, lien or sell out the property bearing H. No. A-2/78, 3 rd floor, Prateek Apartment, Paschim Vihar, New Delhi as shown in blue colour in the site plan attached with the plaint.
22. However, it is made clear that the defendant shall be at liberty to obtain her right of residence against her husband in accordance with law applicable to the parties.
23. No order as to costs.
24. Decree sheet be prepared in favour of the plaintiff and against the defendant accordingly.
25. No further action is required.
26. With these observations, the present suit is disposed of.
27. File be consigned to Record Room after due compliance.
Announced in the open court Digitally signed
on 31st October, 2022. FAHAD
by FAHAD
UDDIN
Date:
(This Order contains 27 pages)
UDDIN 2022.11.01
16:51:02
+0530
(FAHAD UDDIN)
Commercial Civil Judge,
West District, Delhi.
CS No. 1001/2018 Usha Luthra Vs. Shweta Luthra Page 27 of 27