Kuljeet Singh & Anr. vs Jaspal Kaur & Anr.
2017 Latest Caselaw 4408 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No. 226/2015 and RSA No. 227/2015

%                                  Reserved on: 18th August, 2017
                                   Pronounced on: 24th August, 2017
+     RSA No. 226/2015

KULJEET SINGH & ANR.                           ..... Appellants
                  Through: Mr. Rajat Aneja, Advocate and
                           Ms. Nisha Sharma, Advs.
                           Appellants in person.
                  versus

JASPAL KAUR & ANR.                                  ..... Respondents

Through: Mr. Sharad Chandra and Mr. Sanjay Aggarwal, Advocates for R-1.

Ms. Vandana, Advocate for R-2.

Respondents in person.

+     RSA No. 227/2015

KULJEET SINGH                                        ..... Appellant
                          Through: Mr. Rajat Aneja, Advocate and
                                   Ms. Nisha Sharma, Advs.

                          versus

JASPAL KAUR & ANR.                               ..... Respondents
                          Through: Mr. Sharad Chandra and Mr. Sanjay
                                  Aggarwal, Advocates for R-1.
                                  Ms. Vandana, Advocate for R-2.
                                  Respondents in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?




 VALMIKI J. MEHTA, J (ORAL)

1. These two Regular Second Appeals have been filed by

the father-in-law Sh. Kuljeet Singh impugning the concurrent

judgments of the courts below; of the trial court dated 13.12.2013 and

the first appellate court dated 18.11.2014; by which the courts below

have dismissed the suit for possession filed by the appellant and

decreed the suit filed by the respondent no.1 for injunction against

being dispossessed from the suit property. The suit property is a three

bedroom DDA flat bearing no. 107, SFS Phase-IV, Ashok Vihar,

Delhi-52. The two suits which were filed, one by the appellant and

second by the respondent no.1, were consolidated before the trial

court. The suit of the appellant filed was a suit for possession of the

suit property as against the respondent no.1/daughter-in-law/Smt.

Jaspal Kaur whereby the appellant pleaded that the daughter-in-law

was harassing the aged parents-in-law and that the son of the appellant

was no longer living with the parents-in-law, and therefore, the

respondent no.1 who is occupying one bedroom along with the other

related portion of the suit property be asked to handover possession of

the same to the appellant. Mesne profits were also prayed for being

granted. Respondent no.2 is the husband of the respondent no.1 and

the son of the appellant. The second suit was the suit filed by the

daughter-in-law/respondent no.1/Smt. Jaspal Kaur seeking the relief

that she should not be dispossessed from the suit property as it is her

matrimonial home and where she is living with her two children.

Respondent no.1 denied ownership of the appellant and pleaded that

actually her husband/respondent no.2 being the son of the appellant

was the owner of the suit property. Respondent no.1 thus prayed for

injunction against being dispossessed from the suit property. It may be

noted that the two children of the respondent no.1, wife of the

respondent no.2 and the daughter-in-law of the appellant, are one son

and one daughter. One son has already attained majority and is

pursuing his MBBS course. The second child being the daughter is

soon to achieve the age of majority and has now to take up studies in

college. The children of the respondents are however not parties to

the suit.

2. Two main issues arose in the two suits which were filed

by the appellant and the respondent no.1. The first main issue was as

to whether the appellant was or was not the owner of the suit property

and the second issue was as to whether the suit property was the

matrimonial home of the respondent no.1/Smt. Jaspal Kaur/daughter-

in-law although the respondent no.2 is not living with the parents-in-

law in the suit property and with the fact that it was not the respondent

no.2/husband but it was the appellant who was the owner of the suit

property.

3. Both the courts below have given a finding that the

appellant is not the owner because appellant has not filed any

documents of title of the suit property inasmuch as he has only filed

and proved one possession slip (Ex. PW1/2) issued by DDA in favour

of the appellant with respect to the suit property. The courts below

have also held that the respondent no.1 has made various structural

changes in the property as well as paying the electricity bills, water

bills, house tax bills etc, and therefore, respondent no.1 has an

irrevocable licence to stay in the suit property. The courts below have

also held that the suit has been filed by the appellant in collusion with

his son being the respondent no.2 herein.

4. For disposal of these regular second appeals, the

following substantial questions of law are framed:-

(i) Whether the courts below have not committed a complete

illegality and perversity in requiring that the appellant should

prove himself as an owner in terms of a title deed whereas all that

was required to show was a better claim of ownership and

possession of the appellant as compared to the respondent no.1

(and even respondent no.2) with respect to the suit property?

(ii) Whether the courts below have committed a complete

illegality and perversity in not referring to and deciding the suits

on the basis of the ratio of the judgment of the Supreme Court in

the case of S.R. Batra and Another Vs. Taruna Batra (2007) 3

SCC 169 and which holds that a daughter-in-law has no right in

an immovable property which belongs to her parents-in-law?

(iii) Whether the courts below have most illegally denied the

relief to the appellant and has most illegally granted relief to the

respondent no.1 on the ground that there is collusion between the

respondent no.2 and the appellant whereas even if there exists

collusion, the respondent no.1 in view of the ratio of the

judgment of the Supreme Court in the case of S.R. Batra (supra)

has no right to stay in the suit property.

5. The ratio laid down by the Supreme Court in S.R. Batra's

case (supra) is now the law of the land. As per S.R. Batra's case

(supra) a daughter-in-law has no right to the immovable property

belonging to the parents-in-law and the right of a wife for maintenance

and residence is only against her husband. I may also note that there

can be taking up a case of non-application of the ratio in S.R. Batra's

case (supra) if the husband is found to be living with the parents-in-

law and in which case a wife cannot be separated from the husband

and hence she cannot be thrown out of the house of the parents-in-law

where the husband is residing, however, in the present case, the

undisputed fact which emerges on record is that the respondent

no.2/husband has been living separately from his parents and at the

time when the suits were filed he was living at Bharat Nagar at Delhi.

There are also some facts emerging on record and so argued of the

residence of the respondent no.2 being at Sushant Lok in Gurgaon at

Haryana. The aspect of non-residence of the husband in the suit

property is reflected in the memo of parties of both the suits and the

appeals before the first appellate court showing the addresses of the

respective parties.

6. I may also at this stage mention that during the course of

hearing this Court did endeavor to bring about a settlement between

the concerned parties for residence being available to the respondent

no.1 from her husband/respondent no.2. So far as the matrimonial

relations between the respondents are concerned the same were not the

subject matter of the present proceedings and the respondents have to

independently sort out their personal issues. The issue for settlement

which was examined was that the respondent no.1 with the two

children must get reasonably suitable accommodation from the

respondent no.2 for at least for 5 years in around the same vicinity of

the suit property, which should be a two bedroom flat, so that by this

period of five years the children would complete their education. It

was also kept in mind that the children once they are adult would not

ordinarily have a right against their parents for maintenance and up

keep except of course as regards an unmarried daughter. It was also

kept in mind by the Court when the negotiations were going on

between the parties that the respondent no.1 has presently with her

benefit only one bedroom in the suit property which is three bedroom

DDA Flat whereas the alternative accommodation offered to the

respondent no.1 was to be a two bedroom flat in around the same

vicinity of the suit property in the range of rent of about Rs. 25,000/-

to Rs. 30,000/- per month and for paying of which rent the respondent

no.2 was to give necessary financial security and any other security for

ensuring the availability of the two bedroom residential

accommodation for a period of five years. The respondent no.1,

however, at the end of the settlement and compromise proceedings

refused to accept the offer of the alternative accommodation of a flat

of two bedrooms. I would like to observe that strictly speaking if the

issues are to be looked at legally then such settlement was outside the

purview of these appeals as the issue in this appeal was entitlement of

the respondent no.1/daughter-in-law to right of residence in the

house/flat belonging to the father-in-law and not the right of the

respondent no.1/wife against the respondent no.2/husband.

7. As regards the issue of ownership of the suit property of

the appellant, it is noted that the appellant had indubitably filed and

proved on record as Ex.PW1/2, the possession slip issued by the DDA

in favour of the appellant. Surely, a possession slip for a property is

only issued by DDA in favour of an owner who only is entitled to

possession, and therefore, once possession slip Ex.PW1/2 was proved

by the appellant, the courts below have erred in denying ownership of

the suit property of the appellant. Further, even if appellant failed to

strictly prove ownership in that the conveyance deed was not filed,

however, appellant/plaintiff indubitably proved his better entitlement

to ownership and possession of the suit property because he had filed

the possession slip Ex.PW1/2 as also an allotment letter from DDA to

the appellant which was marked A, and the respondent no.1

admittedly did not file any document whatsoever to show that the

ownership of the suit property was of the respondent no.2/husband. I

may also note that along with the present appeal the appellant has filed

the Conveyance Deed dated 6.5.2015 executed in his favour by the

DDA, and therefore, this public document is taken on record and there

therefore remains no doubt as to ownership of the appellant of the suit

property. Accordingly, I hold that the courts below have wrongly held

that the appellant had no ownership right to the suit property and in

any case since the appellant was found entitled to a better right to

possession of the suit property as against the respondent no.1,

therefore, the suit for possession filed by the appellant was bound to

be decreed.

8. The courts below have also wrongly held that there is

collusion between the respondent no.2 and the appellant and therefore

the suit has to be dismissed, inasmuch as for the sake of arguments

even if collusion existed, yet in view of the ratio of the judgment of

the Supreme Court in S.R.Batra's case (supra) the respondent no.1

had no right, title and interest to stay in the suit property which

belongs to/owned by the appellant, and which aspect is to be taken

with the fact that it is not the case of the respondent no.1, and nor was

proved by her that respondent no.2 is residing with the appellant.

Accordingly, it is held that the courts below have committed a

complete illegality and perversity in dismissing the suit filed by the

appellant and decreeing the suit filed by the respondent no.1 on the

ground of alleged collusion between the respondent no.2 and the

appellant.

9. Learned counsel for respondent no.1 placed very strong

reliance upon the admissions made by the appellant in his cross-

examination on 19.9.2013 wherein the appellant admitted that the

respondent no.2 had been paying the installments to the DDA with

respect to the suit property, and accordingly it is argued that it is the

respondent no.2 who is the owner of the suit property. This argument

of the respondent no.1 is totally misconceived because this plea is

barred by the Benami Transactions (Prohibition) Act, 1988 once it is

seen by the title document that the suit property is in the name of the

appellant. Even if it is proved that the son of the appellant being the

respondent no.2 did make payments of money for the flat in question,

those payments can be considered as gifts of these amounts to the

appellant by his son/respondent no.2 but such gifts of monies creates

no right, title and interest in favour of the respondent no.2 and as

against the appellant with respect to the suit property. Payment of

monies by a son for a property owned by the father does not lead to

the conclusion necessarily that the son has become the owner and not

the father in whose name the property stands because such a plea of

the son/respondent no.2 would be barred by the Benami Transactions

(Prohibition) Act.

10. Learned counsel for respondent no.1 then tried to argue

that the respondent no.1 is the owner of the suit property by adverse

possession or that respondent no.1 has an irrevocable licence under

Section 60(b) of the Easement Act, 1882 however it is noted that

though these pleas were taken in the written statement but these pleas

were abandoned because no such issues were got framed by the

respondent no.1. Not only no such issues were got framed, no

evidence was led with respect to these pleas of adverse possession and

irrevocable licence, and therefore, the argument of the respondent no.1

in this regard has to be rejected. The courts below have wrongly given

benefit of Section 60(b) of the Easement Act to the respondent no.1

merely on the ground of the respondent no.1 having paid electricity

bills, water bills and house tax bills for the suit property. Surely, if the

respondent no.1 is staying in the suit property then if she incurs

charges for the user and upkeep of the property and which is of

electricity, water and house tax bills then such payments would only

show that the respondent no.1 has been taking care of the maintenance

and up keep of the property but that would not give any right under

Section 60(b) of the Easement Act of an irrevocable licence being

granted. It is extremely important to note that there is not even a

whisper in the affidavit by way of evidence filed by the respondent

no.1 of her getting a right in the suit property on account of an

irrevocable licence under Section 60(b) of the Easement Act, and as

already stated above, no such issue was pressed for being framed by

the respondent no.1.

11. In view of the aforesaid discussion, all the substantial

questions of law are answered in favour of the appellant and against

the respondent no.1. The suit filed by the appellant only for possession

will be decreed but the appellant will not get mesne profits because no

evidence has been led to prove mesne profits. The suit of the

respondent no.1 for injunction will stand dismissed.

12. Accordingly these appeals are allowed. The suit of the

appellant is decreed with respect to the possession of the suit property

being DDA flat bearing no. 107, SFS Phase-IV, Ashok Vihar, Delhi-

52 against the respondent no.1. The suit of the respondent no.1 against

the appellant for injunction against being dispossessed from the suit

property will stand dismissed. Parties are left to bear their own costs.

AUGUST 24, 2017                             VALMIKI J. MEHTA, J