* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: October 23, 2009
Date of Order: November 10, 2009
+ IA No.3965/09 in CS(OS) 1553/2008
% 10.11.2009
SHRI OM PRAKASH ..... Plaintiff
Through: Mr. Sanjay Goel, Adv.
versus
SMT. MITHLESH DEVI & ORS. ..... Defendants
Through: Mr. Gagan Gupta, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. By this order I shall dispose of an application under Order 39 Rule 10 CPC made by the plaintiff seeking an order against the defendant that defendants no. 1 and 2 be directed to pay in future a sum of Rs.20,000/- per month to the plaintiff for user of his shop and house and they should also be directed to pay arrears for past at the rate of Rs.20,000/- per month to the plaintiff since May, 2008.
2. The brief facts relevant for purpose of deciding this application are that the plaintiff, who is father of defendant no. 2 IA No.3965/09 in CS(OS) 1553/2008 Page 1 of 6 and father-in-law of defendant no. 1 filed a suit for cancellation of gift deeds and possession of residential house no. 798, Church Lane, Bhogal and Shop No.73/1, Samman Bazar, Bhogal. He submitted that he was 75 years old. He had three sons. His one son Sushil Kumar died in March, 2001. After death of his son he had started living with his daughter-in-law so as to fulfill his legal and moral obligations to maintain her and her minor children. He was running a shop of general merchant at 73/1 Samman Bazar, Bhogal as a sole proprietor. He was also owner of residential house no. 798, Church Lane, Bhogal. Due to his old age and his decision to live with his daughter-in-law, he allowed his elder son, defendant no. 2, Anil Kumar to sit and run the shop and to live in the house and in lieu thereof defendant no. 2 was paying him a sum of Rs.20,000/- per month out of the earnings of the shop and as user charges of residential house by which the plaintiff was maintaining himself and was fulfilling his other legal obligations. He submitted that in February, 2008 he fell severly ill. His son, defendant no. 2 came to see him at his widow daughter -in-law's house and persuaded him to accompany him at Church Lane, Bhogal so that he could be got treated from some good Doctor. The plaintiff agreed to stay with defendant no. 2 for this reason. Defendant no. 2 took the plaintiff to different Doctor for his medical check-up and treatment. Defendant no. 2 also started giving him medicines. However, during his short stay with defendants no.1 and 2, the plaintiff always remained in a IA No.3965/09 in CS(OS) 1553/2008 Page 2 of 6 state of giddiness. Defendants no. 1 and 2s' attitude changed towards the plaintiff on 20th May, 2008 and defendants no. 1 and 2 started maltreating him and stopped taking care of him or giving him food on time and on 20th May, 2008 he was thrown on road. The plaintiff again came to stay with his widowed daughter-in-law. On 25th May, 2008, the plaintiff demanded from his son, defendant no. 2, the money, i.e. Rs.20,000/- when he (defendant no.2) visited him, which he was being paid earlier every month. The defendant no.2 virtually refused to pay this amount and he further told that he had got both the properties, i.e., House no. 798, Bhogal and the shop transferred to the name of his wife, as the plaintiff had executed gift deeds of these two properties in favour of his wife, i.e., defendant no. 1. This was a shock to the plaintiff as to the knowledge of the plaintiff, plaintiff had not executed gift deeds in favour of the defendant no. 1 in his consciousness or voluntarily within his knowledge. The plaintiff filed present suit for cancellation of the gift deeds.
3. In the application under Order 39 Rule 10 CPC, the plaintiff has prayed to the Court that he was being paid Rs.20,000/- regularly as a matter of right for user of the house and shop by defendant no. 2 and defendant no. 2 stopped paying this amount since May, 2008. He submitted that since defendants were in use and occupation of his property and he had filed a suit for cancellation of alleged gift deeds and filed a suit for possession, he IA No.3965/09 in CS(OS) 1553/2008 Page 3 of 6 was entitled to receive Rs.20,000/- per month from the defendants towards the user charges of the properties so that he could maintain himself.
4. In the WS, it has been denied by the defendants that the gift deeds were obtained by playing fraud on plaintiff. The stand taken by defendants no. 1 and 2 is that gift deeds were voluntarily executed by the plaintiff in favour of defendant no. 1. Regarding payment of Rs.20,000/-, the defendants have not denied the fact that a sum of Rs.20,000/- was being paid to the plaintiff every month. The only contention raised by the defendants is that this amount was being paid by defendants so as to fulfill their moral obligation of paying maintenance to father and this was not being paid as user charges. It is submitted that the defendant no.2 was not obliged to pay this amount to the plaintiff in a suit was for cancellation of gift deeds. It was not a suit for mesne profits and the application under Order 39 Rule 10 CPC could not be allowed since it was not made in a suit for maintenance.
5. An order can be passed under Order 39 Rule 10 CPC if there was an admission of the party that the party holds such money or the thing as a trustee for another party. In the present case, the plaintiff had pleaded in the plaint that the shop which was earlier being run by the plaintiff was allowed to be run by defendant no. 2 with the understanding that the defendant no. 2 shall pay a IA No.3965/09 in CS(OS) 1553/2008 Page 4 of 6 sum of Rs.20,000/- to the plaintiff. The defendant no. 2 was also allowed to live in the house owned by the plaintiff. In the written statement, defendant no. 2 has not denied that the shop earlier was being run by his father, i.e., plaintiff. Father was having sales tax number of this shop. Father was the owner of the shop and the house was also owned by the father. But for the gift deeds about the cancellation of which this suit has been filed, the father would have remained the owner of the shop. The defendants who are enjoying the business established by father and also enjoying other property viz. house do not have only moral obligation to pay Rs.20,000/- to the plaintiff but they have a legal obligation also to pay to the plaintiff the amount which was agreed between the parties for user of the house and the shop. Even if the plaintiff had not been the father of the defendant no. 2, and the defendant no. 2 had taken a benefit from the plaintiff of his established business and the shop and his house and agreed to pay a sum of Rs.20,000/- per month, he was holding this amount of the plaintiff under trust and cannot evade the payment of this amount on any ground.
6. Without going into the allegations whether the gift deeds were got executed by the plaintiff under fraud or not the fact remained that even after execution of the gift deeds, the defendant continued to pay this amount as per the WS. Thus, this amount of Rs.20,000/- per month was being paid by the defendant in trust for use of the shop/occupation of the house. I therefore consider that IA No.3965/09 in CS(OS) 1553/2008 Page 5 of 6 defendant no. 2 who had taken over the business of his aged father of 75 years old and had also taken over the house of his father with the result that his father is left with no business and no house, is obliged to pay Rs.20,000/- per month to the plaintiff.
7. The application is therefore allowed. The defendant no.2 is directed to pay Rs.20,000/- per month to the plaintiff from May, 2008. The monthly payment shall be made by 10th of every month. All arrears shall be paid to the plaintiff/deposited in the Court within 30 days from the passing of this order. In case the payment is not made as directed, legal and natural consequences shall follow.
CS(OS) No. 1553/2008 List for framing of issues on 14th January, 2010.
November 10, 2009 SHIV NARAYAN DHINGRA J.
ak
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