Smt. Vijay Lakshmi & Ors. vs Smt. Ravinder Seth
2014 Latest Caselaw 972 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.218/2013

%                                                   21st February, 2014

SMT. VIJAY LAKSHMI & ORS.                                 ......Appellants
                  Through:               Mr. Shiv Charan Garg, Advocate with
                                         Mr. Imran Khan, Advocate.


                          VERSUS


SMT. RAVINDER SETH                                      ...... Respondent

                  Through:               Mr. Sumesh Gandhi, Advocate.



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal has been filed against the

judgment of the first appellate court dated 6.5.2013 by which the first

appellate Court set aside the judgment of the trial Court dated 16.7.2007

dismissing the suit for possession and mesne profits filed by the

respondent/plaintiff. The respondent/plaintiff was the mother-in-law. The

appellant/defendant is the daughter-in-law.

2. The appellate court has dismissed the suit on the following

main grounds:-

(i) A daughter-in-law has no right to live in the house of the

mother-in-law inasmuch as the house of the mother-in-law is not a shared

household under the Domestic Violence Act, 2005 and so held by the

Supreme Court in the case of S.R. Batra & Anr. Vs. Smt. Taruna Batra

(2007) 3 SCC 169.

(ii) The appellant/defendant failed to prove that any amounts were

paid by her husband late Sh. Harish Chander who died on 13.11.1988 for

construction of the ground floor of the house on the suit plot bearing

no.6/70, Geeta Colony, Delhi and which plot was as per records owned by

the plaintiff Smt. Sheela Devi in view of the registered perpetual lease deed

dated 4.2.1963 (Ex.PW1/2) in her favour by the President of India.

(iii) The appellant/plaintiff has otherwise sufficient properties and

amounts with her because her husband had purchased a property bearing

no.7/206, Geeta Colony, Delhi, one other plot in Faridabad, an industrial

plot, and shares and debentures.

3. In my opinion, the first appellate court need not have gone into

the details with respect to the husband of the appellant/defendant having

paid the money for construction inasmuch as such a plea is in fact barred by

The Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as

"Benami Act") inasmuch as it was not the case of the appellant/defendant

that there was any HUF or the property was brought in trust in terms of

provision of Section 4(3)(b) of the Benami Act. In any case, the first

appellate court has given a finding of fact in para 13 of the impugned

judgment that no doubt appellant/defendant stated that construction was

raised by her husband, however, no evidence to this effect was led including

either by submitting any document or bank passbook regarding the source of

the funds or any other cogent evidence to prove this contention of the

appellant/defendant.

4. Once the suit house was owned by the erstwhile plaintiff, Smt.

Sheela Devi/mother-in-law, in my opinion, the judgment of the Supreme

Court in the case of S.R. Batra (supra) squarely applies that a daughter-in-

law has no right to live in the property which is owned by her mother-in-law.

I may state that the Division Bench of this Court has also in the case of

Shumita Didi Sandhu Vs. Sanjay Singh Sandhu & Ors. 174 (2010) DLT

79 (DB) relied upon the judgment of the Supreme Court in the case of S.R.

Batra (supra) and also held that a daughter-in-law has no right to live in the

house which belongs to the mother-in-law. The relevant paras of the

judgment in the case of Shumita Didi Sandhu are paras 40, 41 and 45 to 48

and the same read as under:-

"40. From this line of cases, it is apparent that the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lumpsum in money or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a "shared household" and such a household would only 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. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a "shared household". Clearly, the property which exclusively belongs to the father-in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called a "shared household". The concept of matrimonial home, as would be applicable in England under the Matrimonial Homes Act, 1967, has no relevance in India.

41. In the light of the aforesaid principles, the appellant/plaintiff would certainly have a right of residence whether as a part of maintenance or as a separate right under the said Act. The right of residence, in our view, is not the same thing as a right to reside in a particular property which the appellant refers to as her 'matrimonial home'. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household.

45. From the aforesaid provisions, it is clear that the expression "matrimonial home" does not find place in the said Act. It is only the expression "shared household" which is referred to in the said Act. "Shared household" is defined in Section 2(s) to mean a household where the person aggrieved lives or at any stage has lived in a

domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity. The 'shared household' also includes such a household which may belong to the joint family, of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. The word "household" has not been defined in the said Act, however, Black's Law Dictionary, 9th Edition defines 'household' in the following manner:

household, adj. Belonging to the house and family; domestic.

household, n. (14c) 1. A family living together, 2. A group of people who dwell under the same roof. Cf. FAMILY. 3. The contents of a house.

46. In contrast, the impression that we get by reading Section 2(s), which defines "shared household" is that the "household" which is referred to in the said provision, relates to the property and not just to the group of people who dwell under the same roof or the family living together. Therefore, we are of the view that the word "household" used in Section 2(s) actually means a house in the normal sense of referring to a property, be it a full-fledged house or an apartment, or some other property by any other description. This is also clear because the expression "household" has been referred to as a place where the person aggrieved lives or, at any stage has lived. It also refers to a property whether owned or tenanted or in which the aggrieved person or the respondent has any right, title, interest or equity. Therefore, in order to fall within the meaning of "shared household" as defined in Section 2(s), it is essential that the property in question must be one where the person aggrieved lives, or at any stage, has lived in a domestic relationship, either singly or alongwith the respondent. It also includes such a property whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either of them or both jointly or singly have any right, title, interest or equity.

It also includes a property which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest therein. The Supreme Court has already observed in S.R. Batra (supra) that the definition of "shared household" in Section 2(s) is not happily worded, but the courts have to give it an interpretation which is sensible and which does not lead to chaos in society. In this backdrop and in the facts and circumstances of the present case, the property in question cannot be considered to be a shared "household" because neither the appellant/plaintiff, nor her husband (defendant No. 1) has any right, title or interest or equitable right in the same. The property may belong to defendant No. 3 exclusively or to defendants 2 and 3 jointly, but it certainly does not belong to the defendant No. 1 or the appellant/plaintiff. The position as it exists today also does not indicate even prima facie that the property in question is the property of a joint family of which the defendant No. 1 is a member. Therefore, in our view, the property in question does not fall within the expression "shared household" as appearing in Section 2(s) of the said Act.

47. Section 17 of the said Act deals with the right of every women in a domestic relationship to reside in the shared household and, Section 17(2), specifically provides that such a woman shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. In other words, the wife can be evicted or excluded from the "shared household" after following the due procedure established by law and it is not an absolute right of the wife to reside in a "shared household". However, in the present case, we need to go into this aspect of the matter because Section 17 in itself would be inapplicable in view of the fact that the property in question cannot be regarded as a "shared household". The residence orders that may be passed under Section 19 are also subject to the Magistrate/court being satisfied that domestic violence has taken place. All the residence orders also relate to a "shared household". Consequently, Section 19 would also not come in the aid of the appellant/plaintiff.

48. The learned Counsel for the appellant had also referred to single Bench decisions of the Kerala High Court and the Madras High

Court in the cases of S. Prabhakaran (supra) and P. Babu Venkatesh Kandayammal and Padmavathi(supra) to indicate instances of cases where the Supreme Court decision in S.R. Batra (supra) was distinguished. Those decisions are single Bench decisions and that too of other high courts and are, therefore, of no precedential values insofar as this Bench is concerned. We feel that in view of the prima facie finding that the property in question does not belong to the appellant's/plaintiff's husband nor does he have any share or interest in the same, there is no question of the said property being regarded as a "shared household" in terms of Section 2(s) of the said Act. We also find that the expression "matrimonial home" is not at all defined in the said Act and the concept of the matrimonial homes as prevailing in England by virtue of the Matrimonial Homes Act, 1967 cannot be applied in India as pointed out in S.R. Batra (supra) and B.R. Mehta (supra). There is no doubt that the appellant/plaintiff has a right of a residence whether as an independent right or as a right encapsulated in the right to maintenance under the personal law applicable to her. But that right of residence does not translate into a right to reside in a particular house. More so, because her husband does not have any right, title or interest in the said house. As noted by the Supreme Court in the case of Komalam Amma (supra) as well as in Mangat Mal (supra), the right of residence or provision for residence may be made by either giving a lumpsum in money or property in lieu thereof. In the present case, we have noted earlier in this judgment that the learned single Judge had recorded that alternative premises had been offered to the appellant/plaintiff, but she refused to accept the same and insisted on retaining the second floor of the property in question claiming it to be her 'matrimonial home'." (underlining added)

5. In view of the above, no substantial question of law arises for

this appeal to be entertained under Section 100 of CPC and the same is

therefore dismissed, leaving the parties to bear their own costs.

6. At this stage, it is clarified that besides the issues which have

been decided in the present proceedings if there are any other claims which

the appellant/plaintiff may have and for which a suit being CS(OS)

No.127/2014 has been filed in the original side of this Court, parties are at

liberty to raise all issues of facts and law except the issues which have

become final in view of today's judgment.

FEBRUARY 21, 2014                           VALMIKI J. MEHTA, J.
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