Delhi High Court
Shri Om Prakash vs Smt. Mithlesh Devi & Ors. on 10 November, 2009
Author: Shiv Narayan Dhingra
* 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
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
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
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
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
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
