Anil Kumar & Anr vs Hans Raj Azad & Anr
2018 Latest Caselaw 5377 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 750/2018

%                                                 7th September, 2018

ANIL KUMAR & ANR                                        ..... Appellants

                          Through:       Mr. Anil K. Pruthi, Advocate
                                         with appellant no. 1 in person
                                         (Mobile No. 9891176191).

                          versus

HANS RAJ AZAD & ANR                                    ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 36287/2018 (for exemption)

1. Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 750/2018 and C.M. Appl. Nos. 36286/2018 (for stay) & 36288/2018 (for delay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit

impugning the Judgment of the Trial Court dated 27.11.2017 by which

the trial court has decreed the suit filed by the

respondents/plaintiffs/parents against the appellants/defendants/son

and daughter-in-law with respect to ground floor of the property

bearing no. B-250, Prashant Vihar, Delhi-110085.

3. One is not surprised these days in finding such litigations,

where the children have connections with their parents only for the

property of the parents, and the present case is once again

symptomatic and reflection of this malaise which is prevalent in the

society today.

4. The facts of the case are that

respondents/plaintiffs/parents have filed the subject suit for possession

and injunction with respect to the suit property pleading that they are

the owners of the entire property in terms of a Conveyance Deed dated

23.7.2002, Ex.PW2/1. Appellants/defendants/son and daughter-in-law

have been mistreating their parents and consequently the respondent

no. 2/plaintiff no. 2/mother was suffering from mental disturbance and

humiliation on account of frequent harassment meted out to the

parents. The appellants/defendants/son and daughter-in-law were

disowned by the parents in terms of the insertion in the newspaper

dated 2.9.2010. In fact, a police complaint was also lodged on

12.9.2011/Ex.PW1/1 against the appellants/defendants/son and

daughter-in-law. Ultimately, the respondents/plaintiffs/parents were

forced to send a Legal Notice dated 14.9.2011/Ex PW3/D and Ex

PW3/E (alongwith the postal receipts) and thereafter the subject suit

for possession was filed.

5. The appellants/defendants/son and daughter-in-law

contested the suit and stated that since the mother being the plaintiff

no.2 is not of a mentally sound mind, and this is reflected from the fact

that an application under Order XXXII Rule 3 CPC which was filed

by the plaintiff no.1/father in the suit, and therefore, the suit for

possession is not maintainable in the absence of consent from the

mother. It was also pleaded that the suit property is an HUF property

on account of purchase of the same from receipt of funds from sale of

ancestral land in Gannur, Haryana.

6. The following issues were framed by the trial court:-

(1) Whether plaintiff is entitled for decree of possession, as prayed for? OPP.

(2) Whether plaintiff is entitled for decree of permanent injunction, as prayed for? OPP

(3) Whether the suit is not valued properly for the purpose of court fees and jurisdiction? OPD (4) Whether there is no cause of action in favour of plaintiff as suit property is HUF property and plaintiff is not the exclusive owner of the suit property? OPD (5) Relief, if any?

7. After issues were framed, parties led evidence and which

aspects are recorded in paras 6 and 7 of the impugned judgment, and

these paras read as under:-

"A) PLAINTIFF'S EVIDENCE

6. The plaintiffs examined 03 (three) witnesses. PW1 Const. Parminder proved the police complaint Ex.PW1/1 dated 12.09.2011.

PW2 N.S. Bhatti from DDA proved the Conveyance Deed Ex.PW2/1 of the plaintiffs.

PW3/plaintiff in his affidavit Ex.PW3/1 reiterated the plaint. All these witnesses were duly cross-examined and then the PE was closed on 15.04.2013.

B) DEFENDANTS EVIDENCE

7. The defendants examined only defendant No.1/DW1 as a witness vide affidavit Ex.DW1/A reiterating their WS. He was duly cross-examined and then the DE was closed on 21.08.2014 which concluded the trial."

8. Trial court has rightly dismissed the case put up by the

appellants/defendants/son and daughter-in-law that the suit property

was an ancestral property because except making self-serving

statements nothing was shown that the suit property was purchased

from ancestral funds. Trial court has rightly held that the

respondents/plaintiffs/parents were the exclusive owners in terms of

the Conveyance Deed Ex.PW2/1. Also, I may note in law that no

longer receipt of ancestral property will entitle a son of a person who

receives an ancestral property to claim a right in the ancestral

property, because after 1956 if a person receives an ancestral property

which is a self-acquired property of the ancestor, then the person who

receives an ancestral property receives the property as self-acquired

property and not as an HUF property vide Commissioner of Wealth

Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC

567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. Therefore,

trial court has rightly rejected the case set up by the

appellants/defendants/son and daughter-in-law of the suit property

being an HUF property.

9. The next aspect which was very vehemently argued on

behalf of the appellants/defendants/son and daughter-in-law is that

since the mother is of unsound mind, and therefore, consent of the

mother being not there, the subject suit for possession could not be

filed. In the facts of the present case, I refuse to accept the argument

because of the fact that the mother had by the newspaper insertion

dated 2.9.2010 alongwith the father disowned the

appellants/defendants/son and daughter-in-law.

10. Once the father is the co-owner, and admittedly there is

no partition, in the facts of the present case since the

appellants/defendants/son and daughter-in-law have no title to the

property, thus they cannot claim any entitlement to stay in the suit

property. I reject the argument urged on behalf of the

appellants/defendants/son and daughter-in-law before this Court as

being atrocious, that if the mother being of unsound mind dies then

appellant/son would become a legal heir of the mother and hence a co-

owner to the suit property, and therefore notice be issued in this

appeal. If this Court allows such appeals to be continued, it would put

premium to the illegal and malicious actions of children who harass

their aged parents in their ripe old age, and when in fact the parents

need help and not harassment.

11. In view of the aforesaid discussion, this appeal being

totally malafide and without any legal basis, and an abuse of process

of law, is accordingly dismissed with costs of Rs.2,50,000/-. Costs of

Rs.2,50,000/- will be paid by the appellants/defendants/son and

daughter-in-law to the respondents/plaintiffs/parents within six weeks

from today.

SEPTEMBER 07, 2018                         VALMIKI J. MEHTA, J
A