Delhi District Court
Smt. Anita vs Smt. Parmeswari Devi on 4 July, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
RCA No. : 71/14
Suit No. : 19/14
In the Matter of :
Smt. Anita
W/o Late Sh. Anil Kumar
R/o WZ9, (80 Sq. yards)
Harijan Colony, Tilak Nagar, New Delhi
.........Appellant
Vs.
1. Smt. Parmeswari Devi
Widow of Sh. Hukam Chand
R/o WZ9, Harijan Colony
Tilak Nagar, New Delhi
Also At:
E 185, New Baljit Nagar,
Near Patel Nagar, New Delhi
2. Smt. Kiran
W/o Hari Chand
R/o 154, MCD Flats, Sector4
Rohini, Delhi 85
.........Respondents
Date of Institution : 01.09.2014
RCA No. : 71/2014 1/10
Date of taking over the charge
in this court : 24.01.2015
Date of Arguments : 20.05.2015, 03.06.2015 & 03.07.2015
Date of Judgment : 04.07.2015
JUDGMENT
1. This is an appeal filed on behalf of appellant aggrieved by the judgment and decree of Ld. trial court dated 2.8.2014 whereby the suit for possession and permanent injunction filed by the respondent/plaintiff was decreed in favour of plaintiff/respondent and against the appellant/defendant.
2. The respondent/plaintiff had based her claim on the facts that she is the legal owner of property bearing no. WZ9, admeasuring 80 sq. yds situated at Harinaj Colony, Tilak Nagar, New Delhi having purchased the same from Smt. Brahma Devi vide GPA, agreement to sell, will, receipt, possession letter and affidavit. Son of plaintiff/respondent, as stated, was married to the defendant in year 1998 who unfortunately expired in year 2006 and after the death of her son, defendant/appellant started creating nuisance in the family of plaintiff with the support of her parents. Appellant/defendant even filed a suit for permanent injunction against the plaintiff/respondent wherein statements of both the parties were recorded to the effect that they shall not interfere in the peaceful possession of each other, however even thereafter, defendant/appellant kept on harassing the plaintiff and various police complaints were made in this regard. Defendant/appellant, as stated, was not only residing in the suit property but was also collecting RCA No. : 71/2014 2/10 rent from the tenants residing therein without handing over any money to plaintiff. Legal notice dated 30.08.2006 served to the appellant/defendant yielded no result and plaintiff/respondent was constrained to file the instant suit against defendant/appellant.
3. In written statement filed on behalf of defendant/appellant, it was stated that defendant/appellant who is widow of deceased son of plaintiff was the owner of suit property having received the same in lieu of maintenance by virtue of section 14 of Hindu Succession Act. As stated, the documents relied upon by the plaintiff/respondent have no legal sanction or validity and no property could be transferred by such documents. Defendant/appellant is totally dependent upon the rent she is receiving from the suit property for her maintenance whereas plaintiff/respondent wanted to get rid of her as she was unable to beget a child and the present suit is counter blast to the suit of permanent injunction filed by defendant/appellant against the plaintiff.
4. Replication was also filed by the plaintiff wherein the contents of written statement were denied and those of plaint was reiterated and reaffirmed.
5. From the pleadings of parties, following issues were framed by Ld. trial court vide order dated 31.10.2007: (1) Whether the suit has been undervalued for the purpose of court fees and jurisdiction? OPD (2) Whether the defendant is the owner of property in question by RCA No. : 71/2014 3/10 virtue of section 14 of Hindu Succession Act, as alleged in the written statement? OPD (3) Whether the plaintiff is entitled for the decree of possession, as sought for ? OPP (4) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for ? OPP (5) Relief.
6. After framing of issues as above, an application under order 1 Rule 10 CPC was filed by Smt. Kiran, daughter of plaintiff/respondent and sister in law of defendant which was allowed and accordingly, she was impleaded as defendant no.2 in the suit and additional issue was also framed as to "
Whether the suit of plaintiff is bad for nonjoinder of necessary party? OPP
7. In support of its case, plaintiff/defendant examined two witnesses who relied upon documents Ex. PW1/1 to Ex. PW1/12 and mark PW1/B to mark PW1/D, whereas defendant/appellant examined herself as DW1 in her defence and relied upon documents Ex. DW1/1 and Ex. DW1/2. After hearing final arguments, suit filed by plaintiff/appellant was dismissed, which order is under challenge before this court. It may be noted that Defendant no.2 did not lead any evidence before Ld. trial court upon the additional issue framed as well as did not appear before this court despite service in the appeal against whom even otherwise no relief was sought nor was granted.
RCA No. : 71/2014 4/10
8. I have heard Ld. counsel for both the parties and have perused the record. Issue wise discussion is as under:
9. Issue no.1: Value of the suit property, as stated, by appellant/defendant was not less than Rs. 40 lacs. However as noted by Ld. trial court, the suit had been filed by mother in law against her daughter in law seeking possession of the suit property on the ground that appellant was only a licensee and permissive user in the property in question . While placing reliance upon Sunil Sharma & Ors. Vs. Uma Sharma RSA no. 166/2012 , Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 and Puneet Chaddha Vs. B.K. Chaddha CRP No. 152/2009, it was observed by Ld. trial court that the suit for possession was required to be tried as suit for mandatory injunction having been filed against licensee, therefore valuation was also required to be done under the provisions of section 7 (iv) (d) of Court Fee Act which prescribed the valuation of relief for mandatory injunction at Rs. 130/ and affixation of court fee of Rs. 13/ thereon , whereas in the instant matter, much more court fees than required was affixed. Besides the abovesaid, onus to prove this issue was upon the appellant who failed to bring on record any evidence to show the value of property for more than Rs. 40 Lacs, therefore also, this issue is decided against the defendant/appellant and in favour of plaintiff/respondent no.1.
10. Issue no.2 & 3 : The appellant had taken the plea that she was widow of the deceased son of plaintiff/respondent no.1 and the property in RCA No. : 71/2014 5/10 question was given to her in lieu of maintenance whereby she became owner in possession of the suit property u/s 14 of Hindu Succession Act who also had legal right , title and interest in the various other joint Hindu Family properties owned by her deceased father in law and as the husband of appellant had expired, so under law, she got legal right over all the joint family properties being widow . It is also the plea of appellant that she is widow and has no independent source of income and under the law, plaintiff/respondent no.1 is legally bound to maintain her as the husband of appellant had already expired. The appellant being widow of the son of respondent/plaintiff has legal right to residence in the suit property as earlier also she had been residing in the same alongwith her husband. It was also submitted that the plaintiff/respondent no.1 herself is not the legal owner of the suit property and has no locus standi to file the suit since she is claiming ownership over the suit property by virtue of the agreement to sell and other documents which do not confer any right, title or interest under law and has no legal sanctity in the eyes of law. It was submitted that since plaintiff has failed to prove that she was the lawful owner, therefore no decree for possession could have been passed in her favour.
11. The plaintiff claimed to have purchased the property in question even prior to the marriage of appellant with her son in year 1993 from one Smt. Bharma Devi from her own income. GPA, Agreement to Sell, Affidavit, Will, Receipt etc. were executed as the purchase documents and witness to the GPA was examined as PW2 in support of the case of plaintiff. Ld. counsel for RCA No. : 71/2014 6/10 appellant/defendant also in support of his plea regarding no right in immovable property having been flown with the above execution of documents in favour of plaintiff placed reliance upon 154 (2008) DLT 707 Dr. Vijay Kumar Gupta Vs. DDA & Anr. , Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana & Anr. 183 (2011) DLT 1 SC and 2013 (1) CCS 657 (SC) M/s Gyan Chand and Brothers Vs. Rattan Lal @ Rattan Singh wherein interalia it was observed that " there cannot be sale by execution of power of attorney nor can there be a transfer by execution of an agreement of sale. Any agreement to sell which is not registered deed of conveyance would fall short of the requirements of sections 54 and 55 of TP Act and would not confer any title nor transfer any interest in an immovable property except to the limited right granted under section 53A of TP Act ". As rightly noted by Ld. trial court, the defendant's/appellant's case is that the suit property had been given to her in lieu of her maintenance and not that the suit property is owned by a third person or that the suit property was owned by her husband. She is not claiming right on the basis of a separate set of documents although had disputed the documents of suit property in favour of plaintiff. As noted, the plaintiff had proved her ownership by means of usual documentation which were executed prior to 25.9.2001 when by act 48 of 2001, the provisions of section 53A of Transfer of Property Act and other related provisions were amended, therefore documents would create rights as per provisions under section 53 A of Transfer of Property Act regarding part RCA No. : 71/2014 7/10 performance and also as per section 202 of Indian Contract Act which protected the right of transferee if the transferor had executed will in faovur of transferee. The original owner having already expired which fact was not disputed by the appellant and for the failure of defendant/appellant to place on record any document to show better title , it was observed by Ld. trial court that the plaintiff/respondent proved her ownership to the extent required for the instant case over the suit property.
12. The contention on behalf of defendant that she got the ownership of the suit property having received the same in lieu of maintenance remained unproved on record as no evidence was led by appellant to prove the said contention.
13. No doubt that in terms of section 14 of Hindu Succession Act, any property possessed by a female Hindu whether acquired before or after the commencement of this act, shall be held by her as full owner thereof and not as a limited owner. The property as referred in section 14 includes both movable and immovable property acquired by a female Hindu by inheritance or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or prescription ". It is also correct that the appellant shall have right to claim her share in the joint family properties as widow of her husband for which her husband was the rightful owner or had/would have inherited any right in any property but the fact remains that the instant case is pertaining to the property which is claimed to be the self RCA No. : 71/2014 8/10 acquired property of the mother in law of appellant whereby appellant does not possess any right over the same. It was also rightly noted by Ld. trial court that the appellant had no where clarified that how and in what capacity she came into possession of the suit property if the suit property was not belonging to the plaintiff/respondent and as per settled law the sons and daughter in law of any person enjoy a right of possession/residence in self acquired property of any parent only at the will and pleasure of the owner of property and once license is revoked, they are under duty to handover vacant and peaceful possession of the property to their parents. The plaintiff terminated the license/permissive user of defendant by issuance of legal notice dated 28.08.2006 receipt of which was admitted by defendant/appellant, yet appellant failed to vacate the suit property. Hence the plaintiff/respondent no.1 was rightly held entitled for decree of possession of the suit property as prayed for. Findings of Ld. trial court on both these issues are accordingly affirmed.
14. Issue no. 4: The plaintiff/respondent no.1 having been able to prove her better title over the suit property than the defendant/appellant and the defendant/appellant herself having failed to prove any right or title over the suit property, the plaintiff was rightly held entitled to the equitable relief of injunction in her favour. The findings of Ld. trial court on the abovesaid issue are also affirmed.
5. Issue no. 6 : The findings of Ld. trial court on issue no.6 have not been challenged by the appellant which was framed on the objection taken by RCA No. : 71/2014 9/10 respondent no. 2, though she herself failed to appear before the court subsequently nor any evidence was brought on record in this respect. In absence of any evidence on this issue, findings of Ld. trial court having decided the issue in favour of respondent no.1/plaintiff and against the appellant are affirmed.
6. Relief : In view of the above discussion, the findings of Ld. trial court are affirmed and present appeal stands dismissed with no order as to cost. Decree sheet be drawn. Copy of this judgment be sent to trial court alongwith trial court record. Appeal file be consigned to record room.
Announced in Open Court
on 04.07.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
RCA No. : 71/2014 10/10