JUDGMENT
B.N. Chaturvedi, J.
1. When materialistic outlook predominates one’s mind outweighing all other considerations, no bond of relationship is strong enough to withstand its onslaught. This explains the controversy between a husband and his wife in the present context, where the husband, Shri Devender Lal Mehta (plaintiff), in assertion of his ownership rights in relation to the premises No. D-135, Anand Vihar, New Delhi, has to contend with his wife, Smt. Saroj New Delhi, has to contend with his wife, Smt. Saroj Mehta (defendant No. 2) and his son, Dharmender Mehta (defendant No. 1) to secure an unhindered ingress and egress to/from t he suit property and peaceful enjoyment thereof. This apart, he also seeks a permanent restraint order against his son Shri Dharamender Mehta (defendant No. 1) from entering, living in or keeping any of his goods/belongings in the aforesaid premises.
2. Needless to mention that both the defendants are presently living in the suit premises. The plaintiff also claims tobe occupying the same for his residence. he is allegedly engaged in the business of sale/publication of medical books/Journals, etc. with his office at Qutab Road, Sadar Bazar, Delhi. All his goods/belongings, including books etc. are stated to by lying in portion of the suit property. It is alleged that defendant No. 2 is a quarrelsome lady and defendant No. 1, a drug-addict and alcoholic. Both the defendants, according to the plaintiff, keep on misbehaving with him and his other son Bhupinder Mehta. The defendant No. 1 is not only being imputed with being abusive to the plaintiff, he is also alleged to have had assaulted him once with a stick resulting in a fracture in his hand. Both the defendants have, according to the plaintiff, been acting in a concerted manner to make his stay in the suit premises miserable to drive him out of the same.
3. The defendant No. 2 earlier filed a suit bearing No. 127/99 against the plaintiff asserting to be owner of the suit premises by virtue of having allegedly provided funds for purchase thereof and sought an injunction against him from dispossessing her there from and from selling, alienating or transferring the suit property. On an application under Order XXXIX Rules 1 & 2 CPC, defendant No. 2 was, however, protected against dispossession only holding that being wife, she had a right to live in her matrimonial home.
4. Anxious to find an end to the acrimony and to bring about rapprochement between the parties, efforts made be the Court in this direction from the very outset proved abortive in the face of acquisitive posture demonstrated by defendant No. 2.
5. There is no denial on the part of defendant No. 2 that the suit property stands in the name of the plaintiff. The plaintiff relies upon an agreement to sell and a will, coupled with delivery of possession of suit property to him, by the previous owner, to claim ownership thereof. The plea of the defendant No. 2, on the other hand, is hat the entire sale consideration was paid by her out of income derived from SATSANG and sale of her jewellery. Thus, according to her, the plaintiff is only a benami owner of the property and real ownership thereof vests in her. On record, however, there is absolutely no material to support the plea of alleged benami transaction. This apart, such a plea is otherwise barred in view of Section 4 of the Benami Transactions(Prohibition) Act, 1988. Moreover, the defendants in their written statement admit that the plaintiff is an affluent person with millions of rupees lying in his bank account. If that be the case, how could there be an occasion to mobilises the funds for purchase of suit property by sale of jewellery of defendant No. 2 and by asking her to part with her money collected out of SATSANG?
6. Evidently, relationship between the parties is far from cordial and they are not prepared to live together under the same roof. In the course of hearing, the plaintiff offered to place a two-room accommodation on the first floor of the suit premises exclusively at the disposal of the defendant No. 2. He also proposed to make provision for a separate kitchen as well o the fist floor. Alternatively, he offered to purchase a two-room accommodation separately in his name to make the same available for occupation by defendant No. 2 for her residential purpose for life. Either of these proposals, however, met with outright rejection by defendant No. 2. Record would show that the plaintiff had earlier sought appointment of a local commissioner to visit the premises to prepare inventory of books and journals etc. lying there and help him remove the same from there. The local commissioner had to make repeated visits to the premises to execute the commission in view of stiff resistance offered by defendants and it was eventually with the help of police only that the commission could be executed. The conduct of the defendants in attempting to circumvent execution of the commission, under orders of this Court, speaks volumes about their mental disposition towards the plaintiff.
7. Prima facie, the plaintiff being the owner of the suit property, his ownership rights in respect thereto cannot be curtailed by the defendants. Defendant No. 2, being his wife, is certainly entitled to live with him in the suit premises but she cannot claim to live in the premises to the exclusion of the plaintiff. She has no right of residence in the suit premises independent of her status as the wife of the plaintiff. The defendant No. 1, being son, can live in the suit premises only with the permission of the plaintiff. Once the plaintiff revokes the license in this respect, he is reduced to the status of an unauthorised occupant and the plaintiff would be within his right to recover possession of the suit property from him in accordance with law. Since the defendant No. 1 has, admittedly, been in occupation of the suit premises, even if he is an unauthorised occupant, the plaintiff cannot seek to recover possession, from him simply by seeking a permanent restraint order against him from entering upon the suit property or living therein or keeping any of his goods there. The proper remedy would be to bring a suit for recovery of possession from him.
8. The application is, thus, partly allowed. Ad interim injunction granted on 2nd of November, 2001 is made absolute. In addition, the defendants are restrained from interfering, in any manner, with the removal of his goods/belongings by the plaintiff from the suit premises. Application for ad interim injunction restraining defendant No. 1 from entering upon or living or keeping any of his goods/belonging in the suit premises is, however, disallowed to that extent.
IA.2178/2000
9. The nature of proceedings pending before this Court, though did not call for any adjudication on the issue of maintenance to the defendant No. 2, in an earnest hope of creating an atmosphere of reciprocity with a view to find an amicable resolution of unfortunate controversy an order was passed on 1st of December, 1999, material part of which, relevant for the present context, reads in the following terms:-
“Heard the parties’ counsel. The plaintiff in order to ensure happiness of his wife, defendant No. 2 and sons, defendant No. 1, undertakes to pay Rs. 5,000/- per month to his wife as maintenance. It also appears that he wife of the plaintiff is sick and in addition to Rs. 5,000/- towards maintenance, the plaintiff shall pay Rs. 5,000/- more to enable his wife to incur her medical expenses and to get the reimbursed the same.
Parties are coming to terms is apparent from the fact that at least the son and daughter-in-law of the parties have started living together.
A cheque of Rs. 5,000/- has been handed over to defendant No. 2/wife in Court today by the plaintiff.
Learned counsel for the defendants undertakes that the defendants would not obstruct the local commission from visiting premises No. D-135, Anand Vihar, New Delhi and from preparing inventory of books, medicines and monthly magazines published by the plaintiff.”
10. Learned counsel for the plaintiff contended that it was, in fact, on a suggestion emanating from this Court, as a measure of good gesture on his part and in view of an assurance from defendant No. 2 that she would thenceforth do everything that was expected of a good wife to make their living happy as husband and wife, agreed to pay Rs. 5,000/- to defendant No. 2 on account of maintenance. It is pointed out that in practice, however, no change whatsoever in the conduct of defendant No. 2 towards the plaintiff could be noticed. The situation, it is alleged rather turned from bad to worse. Contrary to their undertaking to the Court that they will not cause any hindrance of any kind on execution of commission and peaceful enjoyment of the suit property by the plaintiff, the defendants allegedly acted in total defiance thereof.
11. To provide a fillip to the ongoing conciliatory efforts, personal presence of the parties was required during the course of hearing on the application. While interacting with the defendant No. 2, her belligerent disposition could not go unnoticed. She appeared totally averse to any kind of suggestion aimed at bringing an end to the controversy. To plead reason with her turned out to be a difficult experience. Overtaken by her acquisitive nature a mere possible thought of suffering an order adverse to her liking made her forget that she was before a Court and was expected to acquit herself with a temperate behavior. Realizing that it was a futile exercise, she had ultimately to be asked to go out of the Court room in view of her indulging in tantrums.
12. Undoubtedly, the undertaking on the part of plaintiff noted in the order dated 1.12.1999 was actually in the nature of a concession in favor of defendant No. 2 and the defendant No. 2 in return was obliged to give a better account of herself as a housewife. Proceedings pertaining to execution of commission, however, revealed that the defendants did not really abide by the undertaking to the Court given by their counsel on their behalf. Undertaking from either side could work on reciprocal basis only. The total absence of any reciprocity on the part of defendant No. 2 mae the plaintiff approach the Court with the present application pleading for absolution from the undertaking to keep on paying monthly maintenance allowance to defendant No. 2 Since the undertaking given by the plaintiff was dependant on reciprocity and as the defendant No. 2 has chosen to keep on treading a confrontantionist course, the plaintiff is justified in seeking absolution from the bondage of his aforesaid undertaking. The application is, accordingly, liable tobe granted making it no longer obligatory on the part of the plaintiff to keep on making payment of monthly maintenance allowance to defendant No. 2. This is, however, without prejudice to the right of the defendant No. 2 to claim maintenance in appropriate proceedings, if so advised.
13. In the result, the application is allowed and the order dated 1.12.1999 pertaining to payment of maintenance allowance to defendant No. 2 is ordered to become inoperative.