Ajay Kumar Jain vs Baljit Kaur Jain
2009 Latest Caselaw 2196 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+     FAO (OS) No. 278/2007, CM Nos.10094/2007 (for stay
      by the appellant); 13082/2007 (for stay by the
      respondent),     13083/2007     (cross-objections),
      13084/2007 (condonation of delay in filing cross-
      objections) & 15652/2007 (for directions by the
      appellant)

                                           Reserved on : 14.05.2009
%                                      Date of decision : 21.05.2009

AJAY KUMAR JAIN            ...    ...     ...    ...      ...     ...APPELLANT
                      Through : Mr. Aman Lekhi, Sr. Adv. with
                                Mr. Jaspreet S. Rai, Advocate.

                              -VERSUS-

BALJIT KAUR JAIN           ...    ...    ...      ...    ...  RESPONDENT
                      Through : Mr. Adhip Iyer & Ms. Mandira Mitra,
                                Advs. along with the Respondent.


CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?         No

2.        To be referred to Reporter or not?          No

3.        Whether the judgment should be
          reported in the Digest?                     No


SANJAY KISHAN KAUL, J.

1. The respondent / wife filed a suit under Section 18, 23

and 28 of the Hindu Adoption and Maintenance Act,

1956 against the appellant / husband seeking grant of

maintenance at the rate of Rs.50,000/- per month with

the declaration to have a right of residence in her

matrimonial home on the first floor of D - 291, Defence

Colony, New Delhi ( hereinafter referred to as, 'the suit

property' ) as also for restraining the appellant from

dispossessing her from the said premises. The

respondent also filed an application for interim

maintenance of Rs.30,000/- per month as well as for

interim relief in respect of the suit property. The suit

and the interim applications were contested by the

appellant. In terms of the impugned order dated

02.07.2007 apart from the admitted rental income of

Rs.22,500/- per month of the respondent, the appellant

was directed to pay a further sum of Rs.22,500/- per

month as interim maintenance. A further direction was

issued restraining the appellant from alienating or

selling off his portion of the suit property though the

order would not stand in the way of partition of the said

property by metes and bounds in view of pendency of

the partition suit between the appellant and his brother.

2. The appellant has impugned this order by filing the

present appeal. The respondent has filed cross-

objections. In the cross-objections, the respondent has

sought to set up a case that her right of residence in the

matrimonial home had been made contingent and

subordinate to the appellant's right to affect partition of

the suit property.

3. The dispute is an unfortunate one where the parties are

well educated and have settled children, but do not

seem to be able to live together. The appellant is

stated to be 60 years of age while the respondent is 54

years old.

4. It is in view thereof that right from the inception of the

appeal in the year 2007 itself, various Benches made an

endeavour to see that an overall settlement could be

arrived at. The matter was also referred for mediation.

However, none of the proceedings for settlement proved

to be successful. We may note that even after the

mediation proceedings failed, endeavour was made for

settlement, but even the same proved to be fruitless.

On the other hand, we found on 04.05.2009 that in the

middle of the process of an endeavour for settlement,

there was a change of counsel by the respondent. We

did not appreciate such conduct of the respondent and,

therefore, found it appropriate to direct that the earlier

counsel should also remain present, as he was in the

know of what endeavour was made for settlement. On

the next date of hearing, i.e., 13.05.2009, the earlier

counsel appeared and the new counsel, who had been

engaged, sought to be recused. Since no settlement

was possible, we proceeded to hear the matter as the

earlier counsel stated he would make the submissions.

On the learned senior counsel for the appellant

concluding his submissions, learned counsel for the

respondent again sought one day's accommodation to

make his submissions with the objective of finding out if

some settlement was possible. However, on

14.05.2009, we again found that the respondent was

only vacillating and prevaricating and, thus, no

settlement was possible. We, thus, asked the counsel

for the respondent to proceed with the arguments. At

this stage, learned counsel for the respondent stated

that the respondent wanted to engage a Senior

Advocate. We declined such a request for adjournment

in the middle of the hearing as we considered the

request inappropriate and only a dilatory tactic, which

had resulted in the pendency of the appeal already for

two years and reserved the judgment.

5. We have perused the pleadings and considered the

submissions of the parties. At this interim stage, there

are only two aspects, which require consideration :

(i) the extent of maintenance, which should be paid to the respondent to maintain her lifestyle in the manner she has been used to; and

(ii) the nature of protection necessary for the matrimonial home, which was stated to be in the suit property.

6. In so far as the aspect of maintenance is concerned,

learned Single Judge has observed in para 8 of the

impugned order that the respondent admitted to having

rental income of Rs.22,500/- per month. The offer of the

appellant that he was willing to purchase another house

was declined by the respondent and, thus, considering

the residence available with the respondent and her

rental income, an additional sum of interim

maintenance of Rs.22,500/- per month was directed to

be paid.

7. We were informed that the interim maintenance was

being paid by the appellant to the respondent at the

rate of Rs.12,500/- per month. Learned senior counsel

for the appellant explained that the reason for the same

was that even on the Original Side, endeavour was

made by learned Single Judge to arrive at a settlement

and it had been pointed out that some part of the rental

income being received by the respondent appeared to

have inadvertently escaped notice in the impugned

order. In this behalf, the impugned order refers to the

rental income of Rs.22,500/- per month of the

respondent. This income relates to a shop in DLF City

Centre let out for Rs.45,000/- per month, which is owned

in equal share by the appellant and the respondent and

both were getting equal share in the rent. The

respondent actually had another 7% share in the rentals

received in respect of commercial flat at Kanchenjunga

Building of Rs.9,800/- per month (i.e., approximately

Rs.10,000/-). It is in these circumstances that

Rs.12,500/- per month was being paid by the appellant

after taking into account Rs.10,000/- per month being

received by the respondent as rent from the flat in

Kanchenjunga Building. Even the respondent has

admitted in the plaint and in the interim application to

be carrying out a tailoring business, though she claims

that the same is not yielding any profits.

8. We find that learned Single Judge has taken note of

rental income of Rs.22,500/- per month. Learned Single

Judge has found that an additional amount of

Rs.22,500/- per month should be paid by the appellant.

The rent from Kanchenjunga Building approximately

Rs.10,000/- appears to have escaped notice and the

total rent being realized is Rs.22,500/- + Rs.9,800/-,

which is equal to Rs.32,300/-. This appears to be also

the reason that on perusal of the suit file, it is found that

on 29.01.2009, a direction has been issued that the

appellant would continue to pay interim maintenance of

Rs.12,500/- per month. There is, of course, an

allegation made during the court proceedings by the

respondent that the tenant of the shop in Gurgaon is

absconding. If the complete rent is taken into account,

then the interim maintenance to be paid should be

Rs.12,500/- per month and we order accordingly.

9. The real bone of contention is the suit property. The

respondent is adamant that the same is her matrimonial

home and she is not willing to shift to another place. On

the other hand, it has been pointed out by learned

counsel for the appellant that a suit for partition in

respect of the said complete property had been filed by

the brother of the appellant as both the appellant and

his brother own 50% share each and preliminary decree

had been passed. The question of the mode of division

or sale of property was pending consideration before

the competent court and it was in view thereof that the

appellant had offered to shift the respondent to another

house.

10. Learned Single Judge in the impugned order has laid

great emphasis on the fact that both the appellant and

the respondent had been originally residing in the suit

property being the first floor. We, however, feel that a

matrimonial home is a place where both the parties

seek to reside and the object of protecting the same is

that the wife should not be left homeless by any action

of the husband. We are in agreement with the

submission of learned counsel for the appellant that the

wife cannot have a right of living in a particular property

and the same cannot become a clog on the property

denying the right of the appellant to deal with the

property when he is willing to provide an alternative

matrimonial home. It has to be appreciated that the

claim of the respondent is not to any title, but of

residence in the home. The appellant and his brother

seek separation. The brother of the appellant cannot be

denied his right to realize the best value for his share of

the property or get enjoyment of a demarcated share.

The brother of the appellant owes no obligation to the

respondent. We are, thus, unable to agree with the

conclusion of learned Single Judge that there should be

a blanket injunction against the appellant restraining

him from alienating or selling the suit property other

than partitioning it by way of metes and bounds. In

fact, there is no merit in the cross-objections in this

behalf of the respondent.

11. We feel the appropriate order to be passed is that the

rights of the appellant and his brother have to be

determined in the suit for partition and if the eventuality

arises that the complete property consisting of the plot

and the superstructure raised thereon has to be sold, so

be it so long as there is proper accommodation made

available to the respondent for her residence. The

appellant cannot be worse of than the respondent and,

thus, if both the appellant and the respondent are

unable to live together, then the proceeds from the sale

of the said property should be dealt with in such a

manner that 50% of the said proceeds should be utilized

to purchase a flat by the appellant in his name, but for

the benefit of the respondent. The appellant has 50%

share in the said property and, thus, if the plot and the

structure raised thereon are sold for 'X' price, then the

share of the appellant would be 'X/2". The appellant,

thus, must make available accommodation, i.e., a

residential flat of a value of 'X/4' for the benefit and

occupation of the respondent and the respondent

should not be dispossessed from the said property at

the first floor till such alternative arrangement is made.

The respondent cannot, however, insist on residing in

the suit property alone. It is no doubt true that a flat,

which could be purchased for the total price to be

realized by the appellant, would be a larger and better

located flat than of half the value. That is, however, an

inevitable result of the strained relationship between

the appellant and the respondent where they would like

to live in separate accommodation and, thus, our

direction will ensure that 50% of the amount realized by

the appellant in case of sale is utilized for purchase of

an immovable property by the appellant for the benefit

of the respondent, though the title would remain with

the appellant. The flat can be in any South Delhi colony.

12. We may notice at this stage that on 28.01.2009, it was

pointed out to us that there were certain other

properties including a property at Kasauli, which was

owned by other colaterals of the appellant, but the

respondent had keys of the same. Learned counsel for

the respondent on instructions from the respondent

present in Court had stated that there was no difficulty

in depositing the keys. The keys were subsequently

deposited, but it transpired that the property at Kasauli

continued to be occupied by the mother of the

respondent, though neither the respondent nor her

mother had any right to occupy it or title to the same.

This was found to be clearly in violation of the

understanding and undertaking given by the respondent

and learned counsel for the respondent had stated that

necessary corrective measures would be taken. We

expect that the corrective measures would have been

taken by now. The keys deposited should be placed in

the Original Side file for necessary directions by the

learned Single Judge.

13. The appeal is accordingly allowed to the aforesaid

extent and the impugned order stands modified and the

cross-objections, the application for condonation of

delay in filing cross-objections and the interim

application stand disposed of.

14. Parties are left to bear their own costs.

SANJAY KISHAN KAUL, J.

May 21, 2009                               SUDERSHAN KUMAR MISRA, J.
madan