Bombay High Court
Bharati Rajesh Bhave vs Shri Vijay Shankar Bhave on 3 December, 2015
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 31217 OF 2015
ALONGWITH
CIVIL APPLICATION (ST) NO.31221 OF 2015
IN
APPEAL FROM ORDER (ST) NO. 31217 OF 2015
Bharati Rajesh Bhave )
Aged 44 yrs. Occupation: service )
Residing at Flat No.15, )
Ajanta Om Uma Maheshwar ig )
Co-Operative Housing Soc.Ltd., )
Plot No.51/54/56, Sector -1 )
Chheda Nagar, Mumbai 400 089 ) ..... Appellant / Applicant
VERSUS
1. Vijay Shankar Bhave )
Aged 77 yrs., Occupation: Retired )
Residing at Flat No.15, )
Ajanta Om Uma Maheshwar )
Co-Operative Housing Soc.Ltd., )
Plot No.51/54/56, Sector -1 )
Chheda Nagar, Mumbai 400 089 )
2. Vasudha Vijay Bhave )
Aged 72 yrs., )
Residing at Flat No.15, )
Ajanta Om Uma Maheshwar )
Co-Operative Housing Soc.Ltd., )
Plot No.51/54/56, Sector -1 )
Chheda Nagar, Mumbai 400 089 )
3. Rajesh Vijay Bhave )
Aged 44 yrs., Occupation :Service, )
Residing at Flat No.15, )
Ajanta Om Uma Maheshwar )
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Co-Operative Housing Soc.Ltd., )
Plot No.51/54/56, Sector -1 )
Chheda Nagar, Mumbai 400 089 ) ..... Respondents
Mr.V.S.Kapse for the Appellant.
Ms.Uma Wagle for Respondent Nos. 1 and 2.
CORAM : R.D. DHANUKA, J.
DATED : 3rd DECEMBER, 2015
Oral Judgment :-
By this appeal from order, the appellant has impugned the order passed by
the trial judge on 3rd October, 2015 allowing the notice of motion filed by the
respondent nos. 1 and 2 and directing the appellant to quit the suit flat along with
her son and all her belongings within two months from the date of passing of the
said order.
2. Mr.Kapse, learned counsel appearing for the appellant submits that the
appellant was married to the respondent no.3 who is son of the respondent nos. 1
and 2 and has been staying in the suit property as her matrimonial home. He
submits that the suit property was purchased jointly by the husband of the
appellant with respondent no.1 though the said property is standing in the name of
the respondent no.1 exclusively. He submits that the respondent no.3 who is
husband of the appellant has also filed a false affidavit against the appellant to
support respondent nos. 1 and 2. It is submitted that by the impugned order dated
3rd October, 2015, the learned trial judge has passed an order directing the
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appellant to quit the suit flat which order is in the nature of final decree at the
notice of motion stage.
3. It is submitted by the learned counsel for the appellant that the appellant and
her son cannot be directed to quit themselves from the suit property. She has
already filed a complaint before the learned Matropolitan Magistrate at Vikhroli
under the provisions of Domestic Violence Act against the respondents and the
same is pending. He submits that if the impugned order passed by the learned trial
judge is not set aside and/or stayed, the appellant not having any other premises
where she can occupy, she will be on street along with her son.
4. Mrs. Wagle, learned counsel for the respondent nos. 1 and 2 on the other
hand supported the prima facie observations made by the learned trial judge. The
learned counsel produced the original of the share certificate in respect of the suit
flat for perusal of this court and would submit that when the suit flat was
purchased by the respondent no.1 which is his self acquired property, husband of
the appellant was hardly seven years old and there was thus no question of
husband of the appellant contributing any amount for acquisition of the suit
property.
5. Learned counsel invited my attention to the affidavit dated 10th September,
2015 filed by the husband of the appellant in the Notice of Motion No.2719 of
2015 before the trial court and would submit that the allegations of the appellant
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that the suit property was acquired jointly by the respondent no.3 with respondent
no.1 are denied by the respondent no.3. She submits that the husband of the
appellant has clarified the position that he was minor when the suit property was
acquired by the respondent no.1 and had not contributed any amount for purchase
of the said property. She submits that the appellant herein is working in Indian
Post GPO Mumbai and has been earning more than Rs.65,000/- per month with
other allowances and benefits including house rent allowances. She submits that
the appellant has been harassing her clients who are aged and are not keeping good
health. It is submitted that the appellant has no right, title or interest of whatsoever
nature in the said self acquired property of the respondent no.1. Even if the
appellant has any right of occupation in the matrimonial home, the right would be
only against the respondent no.3 and not in the self acquired property of the
respondent no.1.
6. Learned counsel placed reliance on the judgment of the Supreme Court in
case of S.R.Batra and another vs.Taruna Batra (2007) 3 SCC 169 and more
particularly paragraphs 27 to 31. She states that the learned trial judge after
adverting the judgment of Supreme Court in case of S.R.Batra (supra) has rightly
passed a mandatory order and injunction against the appellant and her son to quit
the suit premises having prima-facie found that she has no semblance of right in
the suit property.
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7. Learned counsel on instruction states that parents of the appellant has a
house at Alibaug and she can shift with her son to stay with her parents. She
submits on instruction that the brother of the appellant has independent house at
Navy Nagar, Chembur.
8. Mr.Kapse, learned counsel for the appellant made an attempt to distinguish
the judgment of the Supreme Court in case of S.R.Batra (supra) on the ground
that the facts before the Supreme Court in the said judgment were totally different.
He submits that the appellant has been in possession of the suit property along
with her husband as her matrimonial house and she cannot be dispossessed and
that also under a mandatory order and injunction.
9. I have perused the original share certificate produced for my perusal by the
learned counsel for the respondent nos. 1 and 2 which prima-facie indicates that
the suit flat was purchased by the respondent no.1 sometime in the year 1974.
When the suit property was purchased, the husband of the appellant was seven
years old. I am thus not inclined to accept the submission of the learned counsel
for the appellant that the husband of the appellant had contributed any amount in
acquisition of the said flat in the year 1974.
10. Supreme Court in case of S.R.Batra (supra) has held that the daughter-in-
law is entitled to claim right to reside only if the said property is owned by her
husband or if it is joint family property of which the husband is a member. In the
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said judgment, Special Leave Petition was filed by the mother-in-law of the wife
which was her self acquired and exclusive property. The Supreme Court has held
that the said property could not be called a "shared household". It is held that the
"share household" would mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family of which the husband is a
member. It is held that the said property was a self acquired property and was not
"share household" and thus the daughter-in-law has no right to stay in the suit
property.
11. In my prima facie view since the suit property acquired by the respondent
no.1 is his self acquired property and the husband of the appellant has not
contributed any amount for acquisition of the suit property, the appellant who
claims to be the wife of the son of the respondent no.1 cannot claim any
independent right of residence in the said self acquired property of the respondent
no.1. In my view the principles laid down in the judgment of Supreme Court in
case of S.R.Batra (supra) applies to the facts of this case. I am respectfully bound
by the judgment of Supreme Court.
12. Insofar as allegations of the appellant that her husband had contributed any
amount for acquisition of the suit flat along with his father is concerned, the
husband who was the best person in addition to the father who could controvert
such allegation has filed an affidavit in the proceedings before the trial court
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confirming that he was a child when the property was acquired by his father and
there was no question of contributing any amount for acquiring the said flat. In
my prima-facie view the appellant thus cannot be allowed to urge that the suit
property was acquired by her husband jointly with the respondent no.1 (father-in-
law). The appellant cannot claim any right in the self acquired property of her
father-in-law including right of residence.
13. A perusal of the said affidavit filed by the husband of the appellant also
prima-facie indicates that the appellant has been working with the General Post
Office and has been drawing a salary of about Rs.65,000/- per month. The
husband of the appellant is unemployed. Learned counsel for the appellant could
not dispute the statement made by the learned counsel for the respondent nos. 1
and 2 that the parents of the appellant have their own house at Alibaug and that his
client has been earning a handsome salary including house rent allowance.
14. There are also serious allegations about misbehavior of the appellant
including allegation of assault on the respondent nos. 1 and 2 who are aged and are
not keeping good health. Though the court cannot pass the mandatory order of this
nature thereby directing the occupant to remove herself from the suit property at
the interim stage, however there is no absolute bar in the court passing mandatory
order if the circumstances so are warranted as in this case.
15. I have perused the impugned order passed by the learned trial judge very
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minutely. In the facts and circumstances of this case, in my prima-facie view the
appellant has no right of any nature whatsoever in the suit property including right
of residence. In my view the trial judge was right in passing a mandatory order of
injunction for removal of the appellant which order was warranted in the facts and
circumstances of this case. It is for the appellant to make an alternate arrangement
for her accommodation. The appellant is already drawing separate house
allowances from her employer. In my view there is no infirmity with the order
passed by the learned trial judge. The learned trial judge has already granted two
months time to the appellant to remove herself from the suit property from the date
of the said order. At the request of the learned counsel for the appellant, the
appellant is granted further four weeks time to vacate the suit premises. It is made
clear that time to vacate of four weeks is granted on the condition that during this
period the appellant or her son shall not harass the respondent nos. 1 and 2 and will
maintain law and order in the house. Considering the facts and circumstances of
this case, the trial court is directed to expedite the hearing of the suit.
16. The written statement shall be filed within eight weeks from today.
17. The learned trial judge shall make an endeavor to dispose of the suit within
one year from the date of the completion of the pleadings.
18. All parties are directed to co-operate with each other and with the learned
trial judge in the expeditious disposal of the suit.
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19. Appeal from order is devoid of merits and is accordingly dismissed. No
order as to costs. In view of the dismissal of the appeal from order, civil
application does not survive and is accordingly disposed of. No order as to costs.
[R.D. DHANUKA, J.]
