Arti Bhargava vs Sh. Kavi Kumar ...
2001 Latest Caselaw 551 Del

ORDER

K.S. Gupta. J.

1. This order will govern the disposal of I.A.8035/90 under Order 39 Rules 1 & 2 read with section 151 CPC filed by the plaintiff and I.A.No.1160/94 filed under Order 39 Rule 4 read with section 151 CPC for vacation of ex parte ad interim injunction order dated 24th September 1990 by the defendants.

2. Suit was filed on 22nd September 1990 alleging that Kavi Kumar Bhargava, defendant is the brother of the plaintiff. Dularey Lal Bhargava, father or plaintiff, Bharti Bhargava and husband of Smt.Savitri Devi Bhargava expired in September 1975. Smt.Savitri Devi Bhargava too died on March 7,1990. Defendant herein had instituted suit being Suit No.477/74 against Smt.Savitri Devi Bhargava who was defendant No.1, Bharti Bhargava who was defendant No.2 and plaintiff herein who was defendant No.3, for partition of two properties bearing Nos.3/13-B, Asaf Ali Road and E-15&16, Nizamuddin West, New Delhi. During the pendency of suit with the consent of parties the disputes were referred to the sole arbitration of Sh.B.P.Sinha, Ex-Chief Justice of India. Arbitrator made the award on 28th March 1975 and pursuant thereto a decree was passed on 15th May 1975 after recording the statements of parties. in terms of said award and decree it was, interalia, held that Smt.Savitri Devi Bhargava shall continue to possess and realise the rent during her lifetime of said property No.E-15 & 16 Nizamuddin West. It is further alleged that plaintiff has been in possession of first and second floors of property No.E-15 & 16, Nizamuddin West for the last over 20 years. Tenancy on a monthly rental of Rs.500/- in respect of both the floors or property was created in her favor with effect from 1st August 1984 by Smt.Savitri Devi Bhargava with the knowledge and consent of defendant. Thereafter a lease deed was reduced into writing. Plaintiff has been paying rent since 1st August 1984. She also handed over a cheque towards rent for the month of March 1990 to the defendant as desired by him after the death of Smt.Savitri Devi Bhargava on 7th March 1990. It is stated that the defendant had been pressurising the plaintiff to vacate the tenanted premises. On 16th September 1990 the defendant threatend and attempted to dispossess the plaintiff from tenanted premises by having recourse to physical violence and illegal means. It was prayed that decree of permanent injunction be passed in favor of the plaintiff and against defendant restraining the later from dispossessing the former from the tenanted premises except in due courses of law. Decree of permanent injunction restraining the defendant from interfering with and/or obstructing the plaintiff's enjoyment of tenanted premises is further sought to be passed by the plaintiff.

3. In the suit aforesaid I.A.8035/90 on the grounds identical to those taken in plaint, was filed and by the order dated 24th September 1990 by means of an ex parte ad interim injunction the defendant was restrained from dispossessing the plaintiff from 1st and 2nd floors of property No.E-15 & 16, Nizamuddin West in addition to his either personally or through his servants obstructing the plaintiff's ingress to and egress from the said property.

4. Defendant contested the suit by filing written statement. By way of preliminary objections, it is alleged that original lease deed which was required to be failed along with plaint, was not filed with it and a false stand was taken that the same was with answering defendant. Answering defendant controverter this false allegation in the reply to I.A.8035/90. In the rejoinder filed on 2nd December 1990 the plaintiff did not stick to said false allegation and the court directed the plaintiff to produce alleged original lease deed within a week by the order dated 3rd December 1990. Same was still not produced. In reply to I.A.11391/90 under Order 11 Rule 21 CPC filed by answering defendant, during the course of hearing counsel of plaintiff admitted that o regional lease deed was with the plaintiff and she undertook to produce it in court on 7th January 1991 and allow inspection there of to the counsel of defendant in the meantime. It is further alleged that on 16th September 1990 answering defendant was at Shimla. In the rejoinder filed to the reply in I.A.8035/90 the plaintiff changed her stand that threat was given on telephone from Shimla which assertion is again false to the knowledge of plaintiff. On merits, it is admitted that answering defendant filed Suit No.477/74 against Smt.Savitri Devi Bhargava and other seeking partition of two properties and with the consent of parties disputes were referred for adjudication to Sh.B.P.Sinha, arbitrator. The arbitrator made the award dated 28th March 1975 and after recording parties' statements said suit was disposed of in terms of the award by the order dated 15th May 1975, as alleged. However, it is pleaded that as per judgment and decree dated 15th May 1975 the plaintiff got the basement while Ms.Bharti Bhargava the ground floor of property No.3/13-B, Asaf Ali Road. Answering defendant go the first and second floors of said property in addition to property No. 15 & 16-E, Nizammudin West as absolute owner subject, however, to the life interest of Smt.Savitri Devi Bhargava in second floor of property No.3/13-B, Asaf Ali Road and property No.15-16, Nizammudin West. Possession and enjoyment of properties by Smt.Savitri Devi Bhargava was that of a licensee which license stood terminated with her demise on 7th March 1990. It is further alleged that parties to the suit along with Smt.savitri Devi Bhargava and Ms.Bharti Bhargava started living in the first and second floors of property NO.E-15 & 16, Nizammudin West in July/August 1964. First floor comprises of a living room connected with two bed rooms in a row with two bath rooms and a kitchen and a third bed room opening in the corridor. First bed room was being used by answering defendant before and after his marriage which took place in the year 1969. Second bed room and the store were used by Smt.Savitri Devi Bhargava. Third bed room was used by the plaintiff and Ms.Bharti Bhargava till the marriage of later in 1977. It is stated that in October 1979 the ground floor of said property was vacated by Punjab National Bank, tenant for 17 or 18 years and it was occupied by answering defendant, his wife and children. Thereafter Smt.Savitri Devi Bhargava started using first bed room as a dining room. It is claimed that plaintiff was living in the first floor of property as a daughter with mother till her demise on 7th March 1990. Smt.Savitri Devi Bhargava continued to remain in possession of the first and second floors as also mezzanine floor in between the two floors continuously with a pack of servants without any break till her death. It is emphatically denied that tenancy in respect of first and second floors of said property was created in favor of plaintiffs alleged. It is asserted that alleged tenancy could not have been created by Smt.Savitri Devi Bhargava with effect from 1st August 1984 or any subsequent date. Smt.Savitri Devi Bhargava had been paying house tax by claiming 25% rebate on account of self occupation of both the floors and she never divested herself of possession of any of these floors. It is alleged that for the purpose of claiming income tax benefit or house rent allowance from the employer , the plaintiff seem to have procured what may ostensibly appear to be rent receipts issued by Smt.Savitri Devi Bhargava or made some token payments in the sum of Rs.500/- per month by cheques and such a manipulation, even if established, would not amount to creation of relationship of landlady and tenant. It is denied that any cheque towards rent for the month of March 1990 was handed over to answering defendant as alleged. Plaintiff had blank cheques, blank rent receipts bearing the signatures of Smt.Savitri Devi Bhargava. It is alleged that dispute between the parties was in connection with unauthorised construction made by plaintiff and Ms.Bharti Bhargava on the top of second floor of property No.3/13-B, Asaf Ali Road, New Delhi.

5. By way of counter claim answering defendant has also sought decree of mandatory injunction requiring the plaintiff to remove herself from the first and second floors and mezzanine floor of said property No.E-15 & 16, Nizamuddin West or in the alternative, decree for possession in respect of said portions of property against the plaintiff. He has also sought decree of mesne profits for the period from 25th September 1990 up to the date of institution of counter claim calculated @ Rs.7500/- per month and future mesne profits at that rate as also interest @ 15% p.a.

6. In the written statement to counter claim of the defendant, the plaintiff has alleged that lease deed dated 27th July 1984 has since been filed in court and she in addition to being a tenant is also co-owner of property No.E 15 & 16, Nizammudin West, owned by Smt.Savitri Devi Bhargava. The number of cheque towards rent for the month of March 1990 drawn on Grindleys Bank which was encashed on 17th March 1990 through clearing, is alleged to be 466018.

7. In addition to filing reply to aforesaid I.A.8035/90 the defendant also filed aforementioned I.A.1160/94 seeking vacation of ex parte ad interim injunction order dated 24th September 1990 on the pleas similar to those raised in written statement.

8. Issue in suit were framed on 4th March 1993 and by now statements of Priya Mohan Lahor, Assistant in Grindlyas Bank, 10-E, Connaught Place, New Delhi (PW-1), Prem Joshi, officiating clerk in Punajb National Bank Nizamuddin West, (PW-2) and part statement of plaintiff as PW-3 stand recorded.

9. Relying on the decision in Balwant Kaur and another vs.Chanan Signh & Ors, (2000) 4 LRI 838, the submission advanced by Sh.V.K.Makhija for plaintiff was that Smt.Savitri Devi Bhargava was the absolute owner of property No.E-15 & 16, Nizamuddin West and she thus could have let first and second floors thereof. In support of letting in favor of plaintiff, he drew my attention to the lease deed dated 27th July 1984 and three rent receipts dated 15th June 1987, 30th September 1986 and 6th December 1988 allegedly bearing the signatures of Smt.Savitri Devi Bhargava, landlady. As part of the submission, it was further contended that after the death of Smt.Savitri Devi Bhargava on 7th March 1990, Kavi Kumar Bhargava, deceased-defendant also received rent for the month of March 1990 by cheque No.466018 from the plaintiff and this cheque was deposited by deceased-defendant through the pay-in-slip bearing his signature on 17th March 1990 in the bank. In her statement the plaintiff has proved the said lease deed as ex.PW3/3, rent receipts as ex.PW3/5, PW3/4, Ex.PW3/6 and pay-in-slip as Ex.PW3/2 in addition to deposing that cheque Ex.PW3/1 which was issued after the death of her mother, was ante-dated at t he request of deceased-defendant. On the other hand, it was urged by Sh.O.N.Vohra for defendants that in terms of the judgment and decree dated 15th May 1975 in Suit No.477/74 Smt.Savitri Devi Bhargava had only a life interest in the said property which came to an end with her demise on 7th March 1990;she could not have let out first and second floors therefore or did she give these floors on rent on paltry amount of Rs.500/- per month to the plaintiff w.e.f.1st August 1984 as alleged and purported lease deed dated 27th July 1984 is a fabricated document. My attention was invited to the definition of world 'Interest' as occurring in Black's Law Dictionary, (6th Edition) Page 812 and also to the letter dated 27th September 1990 issued under the signature of Assistant assessor and Collector New Delhi Zone filed by the defendants. Word' Interest' at the said page has been defined thus-"In its application to real estate or things real, it is frequently used in connection with terms 'estate' right' and 'title' More particularly it means any right to have the advantage accruing from anything any right to have the advantage accruing from anything any right in the nature of property but less than title. "Above letter dated 27th September 1990 shows that rebate @ 25% was claimed in respect of the said property on the basis of its being self occupied in the years 1986-87, 1987-88 and 1988-89.

10. Obviously, plaintiff cannot take any advantage of alleged letting if Smt. Savitri Devi Bhargava was incompetent to let out the property. Thus, controversy between the parties mainly centres around the question whether Smt.Savitri Devi Bhargava was the owner or having only life interest in property which terminated with her death on 7th March 1990. Section 14 of Hindu Succession Act which is material, reads as under:-

"Sec.14. Property of a female Hindu to be her absolute property-(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner there of and not as a limited owner.

Explanation-In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or device, or at a partition or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-s(1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

11. In Balwant Kaur's case (supra), scope of section 14 came to be considered by the Supreme Court and observations made in the decision in V.Tulasamma and others vs. V.Sesha Reddi (Dead) by LRs, rendered by three Judge Bench which were quoted with approval on Pages 848 and 849 deserve to be extricated in extenso:-

"Now,sub-section (2) of Section 14 provides that nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property. This provision is more in the nature of a proviso or exception to sub-section(1) and it was regarded as such by this court in Badri Pershad vs.Smt.Kanso Devi . It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing abut change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1). The language of sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu, female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribe limited interest for her in the property. But that would virtually emasculate sub-section (1) for in that event, a large under of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument order or award would be excluded from the operation of he beneficent provision enacted in sub-section (1), since in most of such cases, where property is allotted to the Hindu female prior to enactment of the Act, there would be a provision, in consonance with the old Shastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hundu Female shall have only a restricted interest in the property and thus make a mockery of sub section (1). The explanation to sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the legislature in enacting sub-section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. This constructional approach finds support in the decision in Badri Prasad's case where this court observed that sub-section (2) can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property."

12. In the light of above legal position it was held in Balwant Kaur's case that if the testator had created life interest to the extent of 1/3rd share in his property in favor of his maid servant or a female cook who might have served him during his lifetime, then such female legatees could not have claimed the benefit of section 14(1) and their claim would remain confined only to section 14(2) as they would not have any pre-existing legal right of maintenance or dependency qua the estate of deceased employer. The appellant No.1 as a destitute widowed daughter of the testator stands on entirely different footing. The Will in her favor by her father of 1/3rd part of suit property does not create for the first time any such right as might have been created in favor of maid servant or a cook. In fact, the Will itself recognises her pre-existing right in express terms and provides that even after his death, his other legatee brothers have to look after the welfare of his widowed daughter. Under the circumstances, section 14(1) can legitimately be pressed in service on the basis of legal right flowing to her under the relevant provisions of the Maintenance Act. Accordingly, the appeal was allowed and while setting aside the judgment of High Court, decree of dismissal of respondent's/plaintiff's suit as passed by District Judge, Hoshiarpur on 16th August 1976, was confirmed.

13. Adverting to present case, copies of plaint in Suit No.477/74 filed by the deceased-defendant, written statement filed by Smt.Savitri Devi Bhargava, defendant No.1, award dated 28th March 1975 as also judgment dated 15th May 1975 are placed on record. As is apparent from plaint, Smt.Ram Piari, mother-in-law of Smt.Savitri Devi Bhargava looking to wasteful ways of Dularey Lal, husband of Smt.Savitri Devi Bhargava with a view to provide means for the education and maintenance of Smt.Savitri Devi Bhargava and her 3 children, gave considerable cash and ornaments to her and out of that fund plot bearing No.3/13-B, Asaf Ali Road was purchased and commercial building got constructed thereon. Further, out of the savings from rental income, Smt.Savitri Devi Bhargava acquired property No.E-15 & 16, Nizamuddin West. As she was claiming exclusive ownership of both these properties the deceased-defendant (son) filed suit against her and two sisters seeking preliminary decree for partition and rendition of accounts. As is manifest from said written statement the stand taken by Smt.Savitri Devi Bhargava was that both the properties were purchased by her with her funds and deceased-defendant thus did not have any right therein. In said award which came to be made the rule of court by the order dated 15th May 1975, if was observed that both the properties were acquired for the benefit of all the parties to suit and each of them was having 1/4th share each therein. Property No.E-15 & 16, Nizammudin West together with first floor of property No.3/13-B, Asaf Ali Road were allotted to Kavi Kumar Bhargava, deceased-defendant subject to life interest of Smt.Savitri Devi Bhargava who was to continue to possess and enjoy the suit property besides Realizing rent from the tenant on ground floor thereof. In this backdrop Smt.Savitri Devi Bhargava, obviously, had a pre-existing legal right in the property E-15 & 16 Nizamuddin West before the judgment dated 15th May 1975 was passed. Applying the ratio in V.Tulsamma & Balwant Kaur's cases (supra), part of the submission advanced on behalf of defendants that Smt.Savitri Devi Bhargava could not have let out first and second Floors of said property she being having only life interest therein which came to an end on her death on 7th March 1990, therefore, deserves to be repelled being without any merit. Without further going into the question whether plaintiff was inducted as tenant by Smt.Savitri Devi Bhargava and she was attorney as tenant by the deceased-defendant by accepting rent for the month of March 1990 through cheque No.466018 as alleged, I am of the view that plaintiff has prima facie made out case for confirming aforementioned order dated 24th September 1990 on the basis of aforesaid lease deed and three rent receipts allegedly issued in her favor by Smt.Savitri Devi Bhargava. She will suffer irreparable injury if she is dispossessed from the suit property. Balance of convenience in the matter too lies in her favor. Decisions in Anwarali Bepari and others vs. Jamini Lal Roy Choudhury and others. Chandrakant Gordhandas Shah vs. Union Bank of India. 1986(I) RCJ 334 and M/s.Bhatia Co-operative Housing Society Limited vs.D.C.Patel, relied on behalf of defendants, are of little help to them at this stage.

14. For the foregoing discussion, I.A.8035/90 is allowed while I.A.1160/94 is dismissed. Order dated 24th September 1990 is made absolute. It is made clear that nothing contained in this order will tantamount to expressing any opinion on the merits of the case.