* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA NO. 179 OF 2008
% Date of Decision: 7th September, 2009
# KAVITA GAMBHIR ....Appellant
! Through: Mr. Kirti Uppal, Advocate.
Versus
$ HARI CHAND GAMBHIR & ANR. ... Respondents
! Through : Mr. Sanjeev Sindhwani,
Advocate.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?(No)
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes)
JUDGMENT
P.K.BHASIN, J:
The present appeal is filed by an unsuccessful defendant in a suit
for possession and mesne profits filed by the two respondents herein
RFA 179/2008 Page 1 of 40
in respect of House no. 220, Pocket-7, Block-C, Sector-8, Rohini, Delhi-
(hereinafter referred to as ‘the suit property’) for setting aside the
judgment and decree dated 27th March 2008 passed by the
Additional District Judge whereby she has been directed to vacate
the first floor of the suit property and also to pay mesne profits @
Rs.3250/- p.m.
2. The relevant facts as culled out from the pleadings and
evidence of the parties, documents on record, as well as the
submissions made before this Court by the counsel for the parties,
may first be noticed. The elder son of the respondents, who shall
hereinafter be referred to as ‘the plaintiffs’, got married to the
appellant, who shall hereinafter be referred to as ‘the defendant’, on
4th July 1995. The ‘doli’ of the defendant after her marriage was
brought to the house of Gambhirs in Rohini where at that time the
plaintiffs and their two unmarried sons were already living as a joint
family. As per the case of the plaintiffs from the day the defendant
got married to their son Anil Gambhir they started living in one room
RFA 179/2008 Page 2 of 40
set on the first floor portion and they themselves were occupying the
one room set on the ground floor while their younger son after his
marriage living in the one room which was there on the second floor
with his wife. After some years of their marriage the relations
between the defendant and her in-laws including her husband
started getting strained and became so bad that the plaintiffs who
were living on the ground floor and their younger son and his wife
who had been occupying the second floor had to shift to Gurgaon.
Defendant’s husband also left that house and started living separately
in some house in NOIDA leaving behind his wife and two children in
the Rohini house. According to the plaintiffs, the defendant had no
legal right to stay in the suit property which was their exclusive
property having been acquired from DDA by plaintiff no.1, Hari Chand
Gambhir from his own funds and constructed also from his own
money and the loan taken by him from his employer and that it was
only out of love for his wife that he had got her name also included in
the perpetual lease deed executed by DDA. It was further pleaded
that the defendant in their absence took possession of the ground
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floor and second floors also, taking advantage of their having shifted
to Gurgaon. Since the plaintiffs did not want their daughter-in-law to
stay any more in their house they served a notice dated 27/10/04
upon the defendant to vacate the suit property by 30/11/04 but she
did not do that. Hence, the suit was filed by the plaintiffs on 11/01/05
against the defendant for getting back the possession of the suit
property from her. Since her occupation of the entire suit property
was claimed to be unauthorised after she had failed to surrender the
possession, the plaintiffs also claimed mesne profits @ Rs.15,000/-
p.m. The plaint was valued for the purposes of court fees and
jurisdiction at Rs.12 lacs being the value of the suit property.
3. The suit was contested by the defendant. She claimed that the
suit had been filed by her in-laws to force her and their own grand-
children to live the life as destitutes and roofless. Regarding the claim
of the plaintiffs that they were the exclusive owners of the suit
property her stand was that the suit property belonged to an Hindu
Undivided Family(HUF) and her husband being one of the members
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of that HUF, she and her children had a right to reside in the
property in their occupation. That property in any case was alleged to
be her matrimonial home also and for that reason as well she could
not be asked to move out from there or to pay any money for residing
there. She denied the allegation that she had unauthorisedly
occupied the ground and second floors also. She claimed that the
ground floor had been locked by the plaintiffs themselves and as far
as second floor is concerned she stated that since entry to that floor
was through the first floor portion, she was going to the second floor
only to keep that portion clean.
4. In the replication the plaintiffs while reiterating their case set
out in the plaint pleaded that even the children born out of the
wedlock between their son, Anil Gambhir and the defendant had no
right to remain in the suit property.
5. The trial court framed the following issues for its decision:-
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1. Whether the plaintiffs are only titular owners of the suit
property? OPD
2. Whether the suit property is part of the joint family
properties possessed and owned by hindu undivided
family? OPD
3. Whether the plaintiff is entitled to a decree of possession
as prayed for? OPP
4. Whether the plaintiff is entitled to a decree of mesne
profits in the sum of Rs. 15,000/- per month from
01.12.2004 till the date of handing over the peaceful and
vacant possession as prayed for? OPP
5. Relief.
6. The plaintiff no.1 had claimed in his evidence that he,
alongwith his wife had acquired the land, from DDA vide perpetual
lease deed dated 19/12/1989 (Ex.PW-1/9) and that he had taken a
loan of Rs.1,47,250/- in the year 1990 for the construction of the
house. He placed on record a certificate dated 13/12/04, Ex.PW-1/3,
from his employer to the effect that in the year 1990 he had been
given a loan of Rs.1,47,250/- for the construction of the house in
Rohini and that the loan had been recovered back from his salary. The
learned trial Court after considering the evidence adduced from both
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the sides came to the conclusion that the suit property was the self-
acquired property of the plaintiffs and not an HUF property. For
arriving at this conclusion the learned trial Judge relied upon the
perpetual lease deed dated 19/12/89 in respect of the plot of land
over which the suit property was constructed. That lease deed,
Ex.PW-1/9, was in the joint names of the plaintiffs and it shows that
the plaintiffs had been given the land on perpetual lease for a sum of
Rs.7200/-. The Court also relied upon the admission made by the
defendant regarding the ownership of the plaintiffs in respect of the
suit property in a civil suit for injunction which she had filed before
the filing the present suit by the plaintiffs. That suit was by the
defendant against the plaintiffs, her husband Anil Gambhir, his
brother Ajay Gambhir and his wife Madhu for a decree of permanent
injunction restraining them from dispossessing her and her two
children from the first floor of the suit property and which suit came
to be compromised. The trial Court, however, has held that the
plaintiffs had not produced any evidence to show that the defendant
was in occupation of the other two floors as well and so passed a
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decree for mesne profits only @ Rs.3250/- p.m. for her occupation of
the first floor only from 01/12/04 till the delivery of possession of the
property to the plaintiffs. The plaintiffs have not challenged that
conclusion of the trial Court going against them.
7. I heard the arguments advanced by Shri Kirti Uppal, learned
counsel for the appellant and Shri Sanjeev Sindhwani, learned counsel
for the respondents, and during the course of hearing of the appeal
both of them also took me through the evidence adduced by the
parties during the trial of the suit, oral as well as documentary.
8. As far as issues no. 1 and 2 relating to the controversy
regarding the ownership of the suit property are concerned, Mr. Kirti
Uppal, learned counsel for the appellant, argued with vehemence
that the plaintiffs alongwith their two sons and their daughters-in-law
were all living together as a joint family in the suit property for years
and that showed that the suit property was joint family property and
so the defendant was not an unauthorised occupant of the first floor
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of the suit property. It was also contended that the trial Court had
wrongly come to the conclusion that the suit property belonged to
the plaintiffs exclusively and was not an HUF property. He also
argued at length to convince me that the appellant’s occupation of
the property in her possession was protected even under The
Protection of Women from Domestic Violence Act,2005.
9. On the other hand Shri Sanjeev Sindhwani, learned counsel for
the respondents, while not disputing the fact that the plaintiffs
alongwith their two sons, two daughters-in-law and two grand-
children were living in the suit property as a joint family when there
were no disputes between the defendant and their son Anil Gambhir
but simply for that reason it could not be inferred that the suit
property was a joint family property. It was submitted that there was
no presumption that if members of a joint Hindu family reside
together in some property which stands in the name of one of the
family members would automatically become the joint family
property of each member of the joint family. Mr. Sindhwani also
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submitted that the plaintiff no.1 had sufficient funds of his own to
acquire the plot and for raising the construction also he had used his
own money and that although some loan was also taken by him from
his employer but that was repaid from his salary. Learned counsel
also contended that the burden to prove that the suit property was
joint family property lay on the defendant which she had failed to
discharge. It was also submitted that in order to shift the burden to
the plaintiffs to show that the suit property was their self acquired
property the defendant had to show that there was some joint family
nucleus with the aid of which the plot of land in question could be
purchased or construction thereon could be raised with that nucleus
but the defendant had miserably failed to establish that. Learned
counsel also submitted that the provisions of The Protection of
Women from Domestic Violence Act, 2005 could not be invoked in
the present proceedings since no such case was pleaded by the
appellant in her written statement and nor could she have done that
since at the time she had filed her written statement this Act had not
even been promulgated. It was also contended that if at all the
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defendant wanted the Court to take notice of that legislation as a
subsequent development taking place after the filing of the written
statement by her and before the disposal of the suit that could be
done only if there was necessary foundation laid in the written
statement by alleging facts therein which, according to her, entitled
her to get some benefit available under the said Act of 2005 but shes
did not lay any foundation in her written statement by seeking
necessary amendment in the written statement and so she cannot be
allowed to make any submissions based on the provisions of the said
Act. In support of this contention Mr. Sindhwani cited one judgment
of the Supreme Court in ” Om Parkash Gupta vs Rambir B.Goyal“,
(2002)2 SCC 256. In any event, Mr. Sindhwani also contended, the
respondents’ suit for possession of the suit property could not be
resisted by the defendant and rejected by the trial Court by invoking
any provision of the said Act since it has already been decided by the
Supreme Court in “S.R. Batra & Anr. vs. Smt. Taruna Batra“, AIR 2007
SC 1118 that a wife cannot claim any right of occupation in the
property owned by her in-laws as a “shared household” as defined in
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Section 2(s) of this Act of 2005 entitling her to live there as a matter
of right.
10. I have examined and analysed the evidence on the point of
ownership of the suit property and in my view the findings of the
learned trial Court to the effect that the plaintiffs have been able to
show that the suit property was their self-acquired property and that
the defendant has failed to show that it was a joint family property
cannot be sustained. As has been noticed already, it is not in dispute
that the plaintiffs and their two sons constituted a joint Hindu family
and that the suit property is registered in the joint names of the two
plaintiffs as lessees. In these circumstances it was rightly submitted
by the learned counsel for the plaintiffs that the burden rested on the
shoulders of the defendant to show to the contrary that despite the
perpetual lease deed being in the names of the plaintiffs the suit
property in fact belonged to the joint family of the plaintiffs and their
two sons. That is the legal position settled way back in the year 1947
by the Privy Council in “Appalaswami vs Suryanarayanamurti and
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others”, AIR 1947(34) Privy Council 189 which decision was
thereafter followed by the Supreme Court in many of its judgment on
the concept of Hindu Undivided Family and Joint Family Property
amongst Hindus. Those decisions of the Apex Court are reported as
AIR 1954 SC 379, AIR 1966 SC 411, AIR 1969 SC 1076 and AIR 1972 SC
2531. This is what the Privy Council in “Appalaswami v.
Suryanarayanamurti”(supra) had held:-
“The Hindu law upon this aspect of the case is well settled. Proof of
the existence of a joint family does not lead to the presumption that
property held by any member of the family is joint, and the burden
rests upon anyone asserting that any item of property was joint to
establish the fact. But where it is established that the family
possessed some joint property which from its nature and relative
value may have formed the nucleus from which the property in
question may have been acquired, the burden shifts to the party
alleging self-acquisition to establish affirmatively that the property
was acquired without the aid of the joint family
property…………………..”
11. And as to the nature of evidence expected from the person
claiming some property to be joint family property the Supreme
Court in ” Shrinivas Krishanarao Kango vs Narayan Devji Kango“, AIR
1954 SC 379 observed as under:-
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“11. Whether the evidence adduced by the plaintiff was sufficient to
shift the burden which initially rested on him of establishing that
there was adequate nucleus out of which the acquisitions could have
been made is one of fact depending on the nature and the extent of
the nucleus. The important thing to consider is the income which the
nucleus yields. A building in the occupation of the members of a
family and yielding no income could not be a nucleus out of which
acquisitions could be made, even though it might be of considerable
value. On the other hand, a running business in which the capital
invested is comparatively small might conceivably produce
substantial income, which may well form the foundation of the
subsequent acquisitions. These are not abstract questions of law, but
questions of fact to be determined on the evidence in the
case………………………..” (emphasis laid)
12. It is thus clear that in a case where some member of a joint
family holds any property in his own name it is shown by some other
member that when that particular property was acquired there was
some joint family nucleus out of which further acquisitions could be
made then the burden shifts to that member in whose name the
property in question stands and who claims the same to be his self-
acquired property to establish that it was his self acquisition.
13. In the present case, despite the fact that in a civil trial burden
of proof of any fact in dispute which any party wants the court to
accept in his favour is not as heavy as is in a criminal trial upon the
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prosecution, it was really very difficult for the defendant in the
present case to have adduced evidence to establish the joint family
nucleus in the family of Gambhirs since everybody in that family had
become inimical towards her and it is her case that they wanted her
to lead the life of a destitute. She had entered the Gambhir family
only in the year 1995. So, it must have been difficult for the
defendant to know the existing family situation and background of
Gambhirs before that. However, I am of the view that despite all odds
she had been able to extract a very vital piece of information from
her father-in-law during his cross-examination and that fact admitted
by him is sufficient to discharge her of the initial burden which rested
on her for showing that the suit property could have been acquired
and constructed with the aid of some joint family nucleus.
14. In cross-examination of plaintiff no.1, who is the only witness
from the side of the plaintiffs, it could be extracted from him that
before the construction of the suit property he was residing in a
house in Gurgaon which belonged to his father and he also stated
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that that was the only house which his father had left. He further
stated that he and his brothers and sisters had given that house to
the widow of one of their brothers. These facts emerging out in the
cross-examination of the plaintiff show that when the suit plot was
acquired the plaintiff no.1 was in possession of some property which
was ancestral in his hands as well as in the hands of his brothers and
sisters. So, existence of that ancestral property in the facts of this
case did constitute the joint family nucleus which in my view was
sufficient to shift the burden to the plaintiffs to show by adducing
sufficient evidence, which could be only in their special knowledge,
that the suit property was purchased and constructed with the
personal money of plaintiff no.1, Hari Chand Gambhir. As noticed
already it is the plaintiffs’ own case that the suit property was in fact
acquired by plaintiff no.1 with his own funds and his wife’s name was
only got written in the perpetual lease deed out of love and as a
measure of security for her in future in case of any need. She was a
house wife having no income of her own. Plaintiff no.1 has claimed in
his evidence that he had constructed the suit property, which is a
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three storeyed house, in the year 1990, after having acquired the land
from DDA in December,1989. Section 106 of the Indian Evidence Act
also, in the facts of this case, comes to the aid of the defendant.
However, there is no evidence adduced by the plaintiffs, except the
ipse dixit of plaintiff no.1 that he had acquired the suit land and
constructed the suit property with his own money, to discharge the
burden which stood shifted on their shoulders because of the
admission of existence of an ancestral property in which the plaintiff
no.1 had a share. According to plaintiff no.1 he had sought pre-
mature retirement from Indian Air Force in 1984 and his salary was
only about Rs.2000/- p.m. and he used to save about Rs.500/- to
Rs.600/- p.m. from his salary. The lease consideration paid to DDA
was Rs.7200/-. For constructing three storeyed house he must have
spent lacs of rupees but he has not come out with the exact amount
spent on construction. Although he claimed to have obtained loan of
Rs.1,47,250/- from The New India Assurance Company Ltd. for the
construction of his house but no one from that Company has been
examined by him to establish that fact. Although he had placed on
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record one document purporting to be a certificate issued by the said
Company in 2004(Ex.PW1/3) to the effect that he had been given
loan of Rs.1,47,250/- in the year 1990 but its contents cannot be said
to have been established in the absence of anybody from this
Company coming to the Court to prove its correctness and to be
cross-examined by the defendant.
15. As far as the ancestral property of the plaintiff no.1 in Gurgaon
is concerned no evidence has been led by him to show as to under
what arrangement he had given up his claim in that property. All the
relevant facts in that regard were within his special knowledge but he
has not divulged any information in that regard. In these
circumstances it can be safely presumed that he must have
relinquished his interest in that ancestral house, which he claims to
have done, after taking money in lieu of his share and that money
might have been utilised by him to acquire and build the three
storyed house in Rohini, Delhi as the Head of his own joint family.
Unfortunately the learned trial Judge did not do the job expected of
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him while deciding the valuable rights of the litigants before him. If
only he had taken the trouble of going through the cross-examination
of plaintiff no.1 the fate of the suit might have been different. The
trial Judge does not appear to have known the importance of cross-
examination of a witness which is as much a part of evidence in the
suit as the examination-in-chief is. No decision should be given
without examining the entire evidence including the cross-
examination of witnesses. It is possible that the counsel of some party
also may not point out some part of the evidence which goes in
favour of his client like in the present case as appears to have
happened not only during the trial but even in this appeal the
learned counsel for the appellant-defendant did not draw my
attention towards the cross-examination of plaintiff no.1 Hari Chand
during the course of arguments. But that does not absolve the Court
of its duty to carefully consider and analyse the entire evidence which
is adduced by the parties to a suit. The learned trial Judge has also
observed while deciding issues no. 1 and 2 against the defendant that
she had failed to show that her husband had contributed anything
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towards the purchase of the suit property. That view taken by the
learned Judge appears to have been taken in ignorance of the legal
concept of a joint family property which the superior courts have
been laying down in various judgments some of which I have noticed
in the earlier paras. Contribution by each member of a joint family
towards the acquisition of some property in the name of one of the
members of that family alone is not the sine qua non for that
property to assume the character of joint property in which each
member of the joint family has an interest. It is the existence of some
joint family nucleus and the possibility of acquisition by some
member of a joint family with the aid of that nucleus which is the
determining factor whenever such a dispute comes up before the
court.
16. There is no doubt that in her suit for permanent injunction the
defendant had claimed that the suit property was owned by her in-
laws, the two plaintiffs here but that admission cannot come in her
way in getting justice in this case because of her having been able to
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establish in the present suit the facts which show that the suit
property was a joint family property even though it was recorded in
the perpetual lease deed in the names of the two plaintiffs only and
which fact appears to have led her earlier to believe that they were
the only owners.
17. I am, therefore, of the view that the findings of the learned trial
Court on issues no.1 and 2 cannot be sustained and are liable to be
reversed. It is held that the plaintiffs have failed to establish that the
suit property was their self-acquisition in which their sons had no
right or interest and in view of the foregoing discussion the
conclusion of this Court is that the same was a joint family property in
the hands of the plaintiffs.
18. I am also of the view that even if it were to be accepted by this
Court that the suit property was of the plaintiffs alone the decision of
the trial Court holding the defendant to be an unauthorised occupant
and liable to pay mesne profits cannot be sustained. As has been
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noticed already, the defendant’s husband Anil Gambhir was living on
the first floor of the suit property when he got married to the
defendant on 04/07/1995. This fact was not disputed during the
course of hearing of the appeal from the side of the respondents. It
was also the plaintiffs’ own case that after marrying the defendant,
their son Anil Gambhir had brought her to the suit property and from
the day of their marriage itself they had started living on the first
floor of the suit property. The plaintiffs’ case is that their son’s
possession of the first floor of their house was only a sort of
‘permissive occupation’ and so was the occupation of his wife. It was
suggested to the defendant in her cross-examination on behalf of the
plaintiffs that her husband also had no right to stay in their house and
even their children had no right to remain in occupation of their
property. It is also the plaintiffs’ case that the moment the permission
given to their son and his wife to occupy the first floor of their
property was revoked that portion was bound to be vacated by their
son and his family. During the course of arguments this Court asked
the learned counsel for the plaintiffs as to why the defendant’s
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husband had not been sued by his parents to get back the possession
of the portion of their house which they had permitted him to occupy
as a ‘permissive user’ and when the plaintiffs themselves were
claiming that even he had no right to stay in their property. Counsel’s
reply was that this aspect need not be gone into because the
defendant had not taken any objection regarding the non-joinder of
her husband in her written statement and even in appeal no such
objection was raised on her behalf by her counsel during the course
of arguments and secondly, the plaintiffs were not required to
implead him since he had already vacated the first floor, had shifted
to NOIDA before the filing of the present suit and only his wife and
two minor children had continued to stay there and had become
unauthorised occupants and suit could be filed against the defendant
alone as the children were minors they also need not have been
impleaded separately when their mother was a party. The counsel
also said that in any event during the pendency of this suit both the
children had been handed over by the defendant to their father. It
was also submitted that a plaintiff being dominus litus can sue
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someone against whom he has to claim any relief through the process
of law and he cannot be compelled to sue anybody whom he does
not wish to sue or against whom no relief is to be claimed, as is the
position in the present case where the plaintiffs do not want any
relief against their son Anil Gambhir because of his having already
vacated the house and shifted to a separate house. The occupation of
the defendant’s husband in the house of his parents being only
permissive because of his being the son of the plaintiffs he was,
according to the counsel, not a necessary party. In support of these
submissions learned counsel placed reliance on three reported
decisions of this court reported as 160 (2009) Delhi Law Times 642,
“National Thermal Power Corporation Ltd. v. Wig Brothers Builders
& Engineers Ltd.“, 2002 (65) DRJ 146, “Ranbir Yadav v. State Bank of
India” and 81 (1999) Delhi Law Times 370, “Amrit Kaur v. M/s. Om
Prakash Fateh Chand Ltd. & Anr.” and one unreported decision in
RFA No. 286/2007 ” Ramesh Kumar Handoo vs Binay Kumar Basu”
decided on 19/11/07. Mr. Sindhwani, however, did not dispute the
legal position that the Court can suo moto also invoke the provisions
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of Order 1 Rule 10 CPC if it is felt that a necessary party without
whom there can be no effective adjudication of the controversy
between the parties has not been impleaded and also that this power
can be invoked even by the appellate Court. While not disputing this
position the learned counsel, however, kept on maintaining that the
defendant’s husband was not at all a necessary party.
19. As far as the defendant is concerned a reading of her written
statement would show that she is claiming the right to be in
occupation of the first floor through her husband only who was
already living there when he had brought her ‘doli’ there. The learned
trial Judge has also observed in the impugned judgment that: “Even
according to the plaintiffs she was not a tenant rather a permissive
user, being the wife of the son of the plaintiffs.” For the defendant
the first floor of the suit property was her matrimonial home from
where the plaintiffs cannot evict her. For ousting her from there the
plaintiffs have to first oust their son who only had brought her there
and it is the plaintiffs’ own case that they had permitted their son to
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live there with his wife. It is not the case of the plaintiffs that they
had terminated the arrangement whatsoever they had with their son
under which he was occupying their property with his family. It is also
not their case that they had asked their son to move out from their
house lock stock and barrel i.e. alongwith his cantankerous wife and
children. So, the plaintiffs cannot simply ask their daughter-in-law
alone to move out of their house. And if actually the plaintiffs have
revoked the permission/licence of their son to stay in their house
then they have to obtain a decree of possession against their son
because of his failure to surrender vacant possession of their property
in his occupation and only in that way they can get their son’s family
also evicted. Unless the plaintiffs get a declaration against their own
son Anil Gambhir that he having failed to put them in possession of
their property by moving out of the first floor of their property
alongwith his family despite revocation of the permission which they
had given to him to stay on the first floor they were entitled to
get him and his family evicted through a decree of the Court
they cannot claim that the occupation of their daughter-in-
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law Kavita Gambhir was unauthorised. Now, whether the plaintiffs’
son was living there as a tenant or as a licencee or in any other
capacity could be known only if he had been impleaded in the suit by
the plaintiffs and in whatever capacity their son was permitted by
them to occupy the first floor the ‘privity’ was between them and
their son and not between them and their daughter-in-law. They
have, however, chosen not to implead him. In my view the
defendant’s husband was certainly a necessary party and in fact the
suit should have been filed only against him and if an order of
eviction had been passed against him that would have bound his wife
also because she is not claiming any independent right. This position
was not disputed even by the learned counsel for the defendant
during the course of arguments.
20. In my view, non-impleadment of their son in this suit by the
plaintiffs is a fraud on the right of the defendant to stay in her
matrimonial home being played by her husband in collusion with his
parents. Learned counsel for the plaintiffs had submitted that the
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defendant’s matrimonial home could be where her husband was
living and the suit property had ceased to be her matrimonial home
after her husband shifted to NOIDA. So, what was being suggested
was that the defendant could go to occupy the house in NOIDA where
her husband is staying. I do not agree with this submission. The
husband may have many places to reside, whether as a tenant or
licencee or in any other capacity and in each such place the wife also
gets the right to stay claiming that to be her matrimonial home so
long as their jural relationship as husband-wife subsists. It is also not
necessary that both husband-wife must be staying in a particular
house for it being labelled as the matrimonial home of the wife. In
this regard I may refer to the views of Bombay High Court in a
judgment which was cited by the counsel for the plaintiffs before me.
That judgment is reported as 2008(5) Bom C R 149, ” Shammi Nagpal
vs Sudhir Nagpal“. In that case one of the points under consideration
was as to what is meant by the expression ‘matrimonial home’ and it
was observed that ” In other words, the ‘matrimonial home’ is the
domicile where persons live together actually or constructively, as
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man and wife.” Now, in the present case if the plaintiffs had
impleaded their son Anil in this suit only then, as observed already
also, it could be known as to in what capacity he was staying on the
first floor of the suit property, whether as a tenant, licencee or in any
other capacity and whether that right to occupy the first floor was
subsisting or had stood determined. In his absence it cannot be
decided by the Court that his occupation was only permissive or as a
gratuitous licencee of his parents. The plaintiffs have also not pleaded
that they had revoked the permission given to their son to occupy the
first floor of their house. All these facts are required to be gone into
since if the plaintiffs’ permission to their son to occupy the first floor,
if at all his possession was permissive, has not been revoked the first
floor would continue to be the defendant’s matrimonial home.
21. The reason given by the learned counsel for the plaintiffs for
the non-impleadment of their son in this suit was that their son
having voluntarily left their property they were not obliged to obtain
any declaration against him that he was an unauthorised occupant
RFA 179/2008 Page 29 of 40
when he actually was not no more in physical possession and no
decree of possession was required to be obtained against him. I,
however, do not find any substance in this submission also of the
learned counsel for the plaintiffs that since the husband of the
defendant had shifted to NOIDA before the filing of this suit he was
not required to be sued. I do not agree with this submission. As
noticed already, in the judgment of Bombay High Court relied upon
by the counsel for the plaintiffs it had been held that for a house to
be called a matrimonial home of the wife it is not necessary that the
possession of both husband and wife has to be actual. It can be
constructive also. Here, in the cross-examination of plaintiff no.1 he
had also admitted that after they all had moved out of the suit
property the defendant’s son had lived with the defendant in the suit
property. No doubt he had also clarified that that was during the
pendency of conciliation proceedings before the Legal Aid Cell at
Patiala House Courts but that shows that the defendant’s husband
was still treating the place where his wife was residing to be her
matrimonial home as otherwise he could have invited her to live
RFA 179/2008 Page 30 of 40
with him in his house at NOIDA claiming the same to be her
matrimonial home.
22. In any case, even though the plaintiffs’ son had shifted to
NOIDA before the filing of the present suit it cannot be said that he
had surrendered the possession of the property in his occupation to
his parents resulting in the cessation of that house as being the
matrimonial home of the defendant. He continued to be in
occupation thereof through his wife whom he had brought to that
house after marrying her and also through his children. He having not
done so the plaintiffs cannot claim that their son had surrendered the
property which he was occupying alongwith his family with their
permission as a gratuitous licencee. In this regard a useful reference
can be made to a judgment of the Hon’ble Supreme Court in the case
of “B.P. Achala Anand vs S. Appi Reddy & Anr.“, (2005) 3 SCC 313.
There a case was instituted against the husband by his landlord for his
eviction from the tenanted premises. The tenant did not contest the
petition effectively and left the tenanted premises and settled
RFA 179/2008 Page 31 of 40
somewhere else but left behind his wife in the tenanted premises
with whom his relations were strained. The landlord took the plea
that since his tenant had surrendered the tenanted premises his wife
had been left with no interest or right to remain in the premises.
While dealing with that plea of the landlord and finally rejecting the
same, the Supreme Court referred to some English decisions wherein
it was held that if a tenant leaves the tenanted premises and settles
somewhere else but leaves behind his wife, with whom his relations
were strained, to stay in the tenanted premises he would still be
considered to be in possession of the tenanted premises through his
wife. The relevant portions of the judgment of the Supreme Court
dealing with the rights of a Hindu wife to stay in her matrimonial
home even when the husband goes away to live separately are re-
produced below:-
“2. The facts which are either not disputed, or, are, at this
stage, beyond the pale of controversy, may briefly be noticed.
The appellant Smt. B.P. Achala Anand (hereinafter ‘Smt. Achala’
for short) was the legally wedded wife of H.S. Anand-
respondent No. 2. Their relationship got estranged so much so
that in the year 1983 H.S. Anand deserted his wife Smt. Achala.
The matrimonial home was a tenanted premises owned by
respondent No. 1. H.S. Anand left behind his wife with theRFA 179/2008 Page 32 of 40
children in the tenanted premises and walked away to reside in
a lodge……
5. On 28/11/1991, the landlord served a notice upon the tenant
H.S. Anand and initiated proceedings for eviction from the suit
premises…………. The tenant-H.S. Anand appeared in the Court
of Small Causes and defended the suit. However, it seems that
on account of strained relationship between him and his wife
and, further as he had discontinued his residence in the
tenanted premises, he was not serious in contesting the suit
and consequently, in the event of a decree for eviction being
passed, the family members including the appellant-Smt.
Achala, the deserted wife, ran the risk of being thrown away
from the tenanted premises which happened to be the
matrimonial home. Briefly stating these facts, the appellant
moved an application under Order I Rule 10 of the Code of Civil
Procedure (for short “the Code”) seeking her own impleadment
in the eviction proceedings so as to defend against the eviction.
The trial court, by order dated 30.01.1993, rejected the
application.
12. Having said so generally, we may now deal with the right of
a wife to reside in the matrimonial home under personal laws.
In the factual context of the present case, we are confining
ourselves to dealing with the personal law as applicable to
Hindus as the parties are so. A Hindu wife is entitled to be
maintained by her husband. She is entitled to remain under his
roof and protection…………………….
14. Any precedent, much less of a binding authority, from any
Court in India and dealing with a situation as we are called
upon to deal with is not available. At least, none has been
brought to our notice. However, English decisions can be found.
Lord Denning states in The Due Process of Law (London,
Butterworths, 1980, at page 212) — “A wife is no longer her
husband’s chattel. She is beginning to be regarded by the laws
as a partner in all affairs which are their common concern. Thus
the husband can no longer turn her out of the matrimonial
home……… Moreover it has been held that the wife’s right is
effective, not only as against her husband but also as against
the landlord……………………….”
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15. In Old Gate Estates, Ltd. v. Alexander and Anr., [1949] 2 All
E. R. 822: [1949] W. N. 431, a statutory tenant living with his
wife in a flat which constituted the matrimonial home left the
premises following a quarrel with his wife, and purported to
surrender them to the landlords by agreement. His wife
remained in occupation with the use of his furniture. On the
wife’s refusing to quit the premises, the husband gave her
written notice revoking any authority which she might have
from him to occupy the flat. In proceedings by the landlords
against the tenant and his wife for possession, the court held
that the tenant had not given up possession, as he remained in
occupation through his wife and furniture,……………………….
The reason is because the wife has a very special position in the
matrimonial home………….He is not entitled to tell her to go
without seeing that she has a proper place to
go………………………………
16. Their Lordships referred to and applied the dictum of Lord
Greene, M.R., in Brown v. Draper, [1944] 1 All E.R. 246: [1944]
K. B. 309, where the facts were somewhat similar. A husband
was the tenant of a house on a weekly tenancy. As in this case,
he left the house in a dispute with his wife, and his wife and
child remained in occupation of the house with the use of his
furniture and he continued to pay rent. He received notice to
quit from the landlord and he then stopped paying the rent, but
he did not revoke his leave to the wife to reside in the house
nor did he remove his furniture. Later, the landlord brought
proceedings against the wife for trespass and at the hearing,
the husband, who was not made a party to the proceedings,
gave evidence that he had no interest in the house. It was held
by the Court of Appeal that the husband was still in possession
of the
house…………………………………………………………………………..
17. Applying the law propounded in Brown v. Draper (supra)
and in Old Gate Estates Ltd. v. Alexander and Anr. (supra), the
Court of Appeal held in Middleton v. Baldock, [1950] 1 All
England Law Reports 708: 66 T. L. R. (Pt. 1) 650, that where a
husband had deserted his wife and the wife remained in the
matrimonial home, she was lawfully there and the husband
remained in occupation through her ………………………….
RFA 179/2008 Page 34 of 40
33. ……………………. Having been deserted by the tenant-
husband, she cannot be deprived of the roof over her head where
the tenant has conveniently left her to face the peril of eviction
attributable to default or neglect of himself. We are inclined to
hold – and we do so – that a deserted wife continuing in
occupation of the premises obtained on lease by her husband,
and which was their matrimonial home, occupies a position akin
to that of an heir of the tenant-husband if the right to residence
of such wife has not come to an end. The tenant having lost
interest in protecting his tenancy rights as available to him under
the law, the same right would devolve upon and inhere in the
wife so long as she continues in occupation of the premises. Her
rights and obligations shall not be higher or larger than those of
the tenant himself. A suitable amendment in the legislation is
called for to that effect. And, so long as that is not done, we,
responding to the demands of social and gender justice, need to
mould the relief and do complete justice by exercising our
jurisdiction under Article 142 of the Constitution. We hasten to
add that the purpose of our holding as above is to give the wife’s
right to residence a meaningful efficacy as dictated by the needs
of the times; we do not intend nor do we propose the landlord’s
right to eviction against his tenant to be subordinated to wife’s
right to residence enforceable against her husband. Let both the
rights co-exist so long as they can.” (emphasis supplied)
23. This judgement of Supreme Court also supports the view which
I have already taken that it is not necessary that if the husband settles
down somewhere else after leaving the matrimonial home of his wife
that house where the wife is left behind would cease to be her
matrimonial home. So, unless the plaintiffs obtain a decree of
possession against their son they cannot get back the possession
from his wife and consequently it has to be held that this suit is liable
RFA 179/2008 Page 35 of 40
to fail for non-joinder of a necessary party. It is well settled now that
the defect of non-joinder of a necessary party is fatal.
24. Since the trial Court’s conclusion holding the defendant to be
an unauthorised occupant of the 1st floor of the suit property is not
being sustained the decree passed against the defendant holding her
liable to pay mesne profits for her continuing to occupy the 1st floor
also has to be set aside . I am also of the view that the decision of the
trial Court fixing the mesne profit @ Rs. 3250/- p.m. cannot be
upheld also for the reason that the same has been fixed without
holding an enquiry, as contemplated under Order XX Rule 12 CPC. As
far as grant of past and future mesne profits/damages for
unauthorised use and occupation of some immovable property in a
suit for possession and mesne profits is concerned, the same can be
granted to a plaintiff in the same suit as provided under Order XX
Rule 12 of the Code of Civil Procedure instead of requiring the
plaintiff to file a separate suit for that relief after getting the
declaration that he was entitled to get the same from the tenant of
RFA 179/2008 Page 36 of 40
his property whose possession had become unauthorized. Rule 12 is
re-produced below:-
“12. Decree for possession and mesne profits.
(1) Where a suit is for the recovery of possession of
immovable property and for rent or mesne profits,
the Court may pass a decree:
(a) For the possession of the property;
(b) For the rents which have accrued on
the property during the period prior to the
institution of the suit or directing an inquiry as
to such rent;
(ba) for the mesne profits or directing an
inquiry as to such mesne profits;
(c) Directing an inquiry as to rent or
mesne profits from the institution of the suit
until, -
(i) The delivery of possession to
the decree-holder,
(ii) The relinquishment of
possession by the judgment-debtor
with notice to the decree-holder
through the Court, or
(iii) The expiration of three years
from the date of the decree, whichever
event first occurs.
(2) Where an inquiry is directed under clause (b) or
clause (c), a final decree in respect of the rent or
mesne profits shall be passed in accordance with the
result of such inquiry.”
RFA 179/2008 Page 37 of 40
25. The question of grant of past and mesne profits in a suit for
possession of an immovable property came to be considered by the
Hon’ble Supreme Court in “Gopalakrishna Pillai vs. Meenakshi
Ayal“, AIR 1967 SC 155, and this is what was observed by the
Supreme Court:-
“Order 20 Rule 12 enables the Court to pass a decree
for both past and future mesne profits but there are
important distinctions in the procedure for the
enforcement of the two claims. With regard to the
past mesne profits, a plaintiff has an existing cause of
action on the date of the institution of the suit in view
of Order 7. Rules 1 and 2, and Order 7 Rule 7 of the
Code of Civil Procedure and Section 7(i) of the Court
Fees Act. The plaintiff must plead this cause of action,
specifically claim a decree for the past mesne profits,
value the claim approximately and pay court-fees
thereon, With regard to future mesne profits, the
plaintiff has no cause of action on the date of the
institution of the suit and it is not possible for him to
plead this cause of action or to value it or to pay
court-fees thereon at the time of the institution of the
suit. Moreover, he can obtain relief in respect of this
future cause of action only in a suit, to which the
provisions of Order 20 Rule 12 apply. But in a suit to
which the provisions of Order 20 R 12 apply, the Court
has a discretionary power to pass a decree directing
an enquiry into the future mesne profits ……………”
26. From the foregoing, it is clear that as far as the grant of mesne
profits/damages for use and occupation for the period prior to the
RFA 179/2008 Page 38 of 40
institution of a suit for possession is concerned, the Court may either
pass a decree for mesne profits/damages which have already accrued
prior to institution of the suit provided the plaintiff has brought on
record sufficient material to enable the Court to ascertain the
damages. And in case there is no sufficient material available with the
Court for calculating the mesne profits/damages the Court has the
discretion to direct an enquiry for that purpose and thereafter
depending upon the result of the enquiry final decree for mesne
profits/damages can be passed. As far as the grant of future mesne
profits is concerned, the only discretion available with the Court is to
direct an enquiry for fixing the amount of mesne profits/damages and
if no such enquiry is ordered the plaintiff is always at liberty to file an
independent suit only for mesne profits/damages. Therefore, the
finding of the trial Court holding the defendant liable to pay mesne
profits @ Rs. 3250/- p.m. without an enquiry is set aside.
27. As a result of the fore-going discussion and conclusions, this
appeal deserves to be allowed and is hereby allowed. Consequently,
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the judgment and decree dated 27th March, 2008 passed by the
Additional District Judge directing the appellant-defendant to vacate
the first floor of property No. 220, Pocket-7, Block-C, Sector-8, Rohini,
Delhi and to pay mesne profits @ Rs. 3250/- p.m. are set aside and
the suit of the respondents -plaintiffs stands dismissed.
P.K.BHASIN,J
September 07, 2009
sh
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