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4. After hearing both the parties, learned Trial Court vide order dated 29.09.2007 opined as under:-

„... Will executed by father of respondent No.1 in favour of the mother of respondent carefully, it is categorically mentioned in the Will that so long as executant is alive he shall remain sole owner of his property whether movable or immovable and she (sic) have full and absolute power to dispose of any of his belongings. After his death all his property whether movable or immovable shall vest in favour of his wife Smt.Kamal Arora for her lieftime and after her death all such property shall vest to his son Master Ajay Arora, therefore from the perusal of the Will it is itself very much clear that wife i.e. widow/mother of respondent No.1 is having only limited right in the property during her lifetime and after her death the property was automatically devolved to respondent No.1/husband of applicant. Therefore, in view of the Will the respondent No.1 is also having ownership rights in the property in question and on this ground the facts of the present case are entirely different from the facts cited in the case law. Therefore, I am of the view that case law cited above is not applicable to the facts of the present case as husband/respondent No.1 is also having rights in the property in question, hence wife is entitled to have residence orders against respondent No.1 in respect of premises in question where the applicant is residing presently. In view of my above submissions, relief No.(b) is granted in favour of the applicant and restraining the respondents from dispossessing or in any other manner disturbing the possession of applicant from the portion in which she is residing presently in property in question i.e. A 135, Shanker Garden, Vikas Puri, New Delhi till final disposal of this case.‟

5. Being aggrieved, respondent Nos.1 & 2, i.e., husband and mother-in-law of the petitioner respectively challenged the aforesaid order in Criminal Appeal No.27 of 2007 which was allowed on the issue of residence vide impugned judgment dated 25.08.2008 by learned ASJ, while observing as under:-

„In the present case also the property No.A-135 Shanker Garden, Vikas Puri does not belong to appellant No.1. It was also not taken on rent by him nor it was a joint family property of which appellant No.1 was a member. The property in question belongs to appellant No.2, who is the mother of appellant No.1. On the basis of Will, appellant No.1 did not have any right in the property during the lifetime of his mother i.e. appellant No.2. The property will devolve upon the appellant No.1 only after the death of appellant No.2. Before that, appellant No.1 cannot claim any right or title in the property. Since the property in question belongs to appellant No.2, I am of the considered view that residence order could not have been passed by the learned M.M. in respect of that property in favour of respondent. Moreover, appellant No.1 has taken the rented premises for her living but she is not willing to join the company of her husband at that rented premises. In view of this discussions, the order of learned Trial Court suffers from illegality and same is set aside so far as the residence order is concerned.‟

8. Learned counsel further submitted that it is established that respondent No.2, wife of late Sh.Rajinder Paul Arora shall enjoy the property in her lifetime, thereafter it will devolve to respondent No.1, husband of petitioner herein, thus, share of the respondent No.1 is very much in the property. Therefore, the petitioner, being wife of respondent No.1, has right in the property in question. Since the said property is a „shared-house‟, being the wife of respondent No.1, petitioner cannot be dispossessed from the said property.

9. To strengthen his arguments, learned counsel heavily relied upon the case of S R Batra & Another v Taruna Batra : 2007 II AD SC 491 wherein it has been held as under:-

‟19. 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.‟

10. On the other hand, learned counsel for respondents submitted that the learned Trial Court held erroneously that the respondent No.2 is having only limited right in the property during her life time and after her death the property would automatically devolve to respondent No.1, i.e., husband of petitioner.