Without mincing any words, the Delhi High Court has as recently as on August 24, 2021 in a brief, brilliant, balanced and bold judgment titled Aarti Sharma & Anr vs Ganga Saran in RSA 14/2021 & CM APPLs. 3964/2021, 3966/2021, 21708/2021 made it absolutely clear that the provisions of Domestic Violence Act, being a social welfare legislation, cannot be used by a son as a ploy to either claim a right in his father’s property or to retain possession of the same on the strength of his wife’s right of residence. This commendable, cogent and convincing ruling will ensure that son are not able to most wrongly deprive their parents from enjoying the property which they created on their own by their incessant toil. So it must be hailed as a very progressive, powerful and path breaking judgment in favour of the parents who work hard immensely to build a house for themselves to live in their old age!
To start with, a Single Judge Bench of Justice Prathiba M Singh of Delhi High Court sets the ball rolling by first and foremost observing in para 2 that, “The present second appeal has been filed challenging the impugned order dated 16th November 2019, passed by the ld. ADJ (North-east), Karkardooma Courts, Delhi (hereinafter, “first Appellate Court”) in RCA DJ No. 46/19, arising out of the initial order of the ld. SCJ, (North-east), Karkardooma Courts, Delhi (hereinafter, “Trial Court”) dated 18th April 2019, in Suit No. 148/16. The trial court had allowed the application under Order 12 Rule 6 of the CPC, and decreed the suit. The First Appellate Court, dismissed the appeal challenging the said judgement/decree passed by the Trial Court.”
While elaborating on the background, the Bench then puts forth in para 3 that, “The background to the present second appeal is that the Plaintiff/Respondent in the suit Sh. Ganga Saran (hereinafter `Plaintiff’), who is the father of Appellant No.2, filed a suit against his son and daughter-in-law i.e., Sh. Vinay Kumar and Ms. Aarti Sharma, respectively (hereinafter ‘Defendants’). The reliefs sought in the suit before the Trial Court, are as under:
i. Pass a decree of permanent injunction in favour of the plaintiff and against the defendant, their attorney, successor, assignee, legal heirs, associates etc. thereby restraining them from disposing-off the suit property No. A-65, Gali No.03, A-Block, Rama Garden, Delhi-110094, which is more specifically shown in red colour in site plan attached.
ii. Pass a decree of mandatory injunction in favour of the plaintiff and against the defendants, their attorney, successor, assignee, legal heirs etc. thereby directing them to remove themselves from the suit Property and hand over peaceful vacant possession of the same to plaintiff in respect of property bearing No. A-65, Gali No.3, A-Block, Rama Garden, Delhi-110094, as more specifically shown in red colour in site plan attached.
iii. Pass a decree of future/pendent-lite damages/mesne profits @ Rs. 8,000/- p.m. from the dated of filling present petition till suit property is vacated and peaceful possession is handed over to plaintiff.
iv. Any other relief as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendants, in the interest of justice.”
While elaborating on the plaintiff’s case, the Bench then enunciates in para 4 that, “The case of the Plaintiff in the suit is that he is the owner of the property bearing No. A-65, Gali No.3, A-Block, Rama Garden, Delhi, (hereinafter, “suit property”) as shown in the site plan. In view of various disputes between him and his son/daughter-in-law, he sought permanent and mandatory injunction, damages seeking vacant and peaceful possession of the suit property and removal of his son and daughter-in-law. Damages and mesne profits were also sought by the Plaintiff in the suit.”
On the contrary, the Bench then brings out in para 5 that, “In the written statement before the Trial Court, the case of the Defendants, was that the suit property was purchased from the joint family fund. The said property is stated to have been purchased out of the funds generated by the sale of the earlier property which was originally registered in the name of the mother i.e., the wife of the Plaintiff, and upon her demise in 2007, the said property had devolved upon the husband i.e., the Plaintiff, as also their children, i.e., the Defendants. Thus, it was claimed in the Written Statement that as the suit property was bought using the funds that were generated out of the sale of the earlier property, to which the son had a right, it does not exclusively belong to the Plaintiff.”
Be it noted, the Bench then envisages in para 6 that, “Vide order dated 18th April 2019, the Trial Court examined the matter and arrived at the following findings:
“(a) Thus, in order to succeed under Order 12 Rule 6 CPC, the admissions by the defendant must be clear, unequivocal and unambiguous.
(b) The plaintiff Sh. Ganga Saran is admittedly the father of defendant no. l and father-in-law of defendant no. 2.
(c) The plaintiff has claimed to be the owner of the said property i.e. A-65, gali no.3, A Block, Rarna Garden, Delhi measuring 100 Sq. Yards having purchased the same from Ram Prakash. The plaintiff has filed property documents in the nature of GPA, agreement to sell, receipt, will and possession letter with affidavit, all dated 26.12.2011. The site plan has also been filed.
The defendants have admitted that the property documents are in the name of the plaintiff. What is disputed though is the ownership of the plaintiff over the property.
The contention of the defendants is that the said property was purchased by the plaintiff from the funds generated through the sale of another property bearing no.A-1/103, Gali no.2, Nehru Vihar, Delhi-110094 and through funds given by defendants. The property bearing No. A-1/103, Gali No. 2, Nehru Vihar, Delhi-110094, was owned by Smt. Pushpa Devi (wife of plaintiff and mother of defendant no.1) who executed GPA in favour of the plaintiff, who then sold the said property to one Sh. Ganga Prasad. From the proceeds of the sale, the new property no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards, was purchased in the name of the plaintiff. The sale of the property and the consequent purchase of the other property as stated above was a mark of respect to the plaintiff and with mutual assurances that property would be considered to be of the plaintiff, defendant no.1 and Vijay Kumar Tiwari.
The said contention of the defendants cannot be accepted as firstly the property bearing no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards, is admittedly in the name of the plaintiff. Secondly, even if defendants contributed in purchase of the said property, they would not become the co-owners of the said property. Thirdly, the property documents in favour of plaintiff in respect of property no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards, or GPA in respect of property no. A-1/103, Gali no.2, Nehru Vihar, Delhi-110094, in favour of plaintiff or its subsequent sale by plaintiff through GPA dated 24.12.2011 are not disputed nor the said documents held to be invalid in any proceedings in any court of law. In fact, defendants admit that the documents were not challenged at the time of their execution. The said documents are the only documents in respect of the properties. Thus, it has to be held that plaintiff is the owner of the property of the bearing no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards. If the property is in name of plaintiff, then in law, simply by stating that it was meant to be owned by all including defendants, it cannot be said defendants are co-owners/joint owners of the property.
(d) The plaintiff has claimed that he has permitted defendants to reside in one room set with kitchen on ground floor of property bearing no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards, as licensee and the same is depicted in red colour in the site plan. The defendants being son and daughter-in-law of the plaintiff have to be held to be licensee of the plaintiff in respect of the said suit property and the license has been terminated by the plaintiff.
(e) The contention of the defendants that they cannot be removed from the house/suit property because the suit property is the shared house-hold and as members of the joint family property is not tenable as defendant no.2 can claim her rights from her husband i.e. defendant no.1 only and not from her father-in-law/plaintiff, who has no duty to provide residence to either son or daughter-in-law. The reference may also be held to the judgment of Hon’ble Supreme Court of India in S. R. Batra and Anr. vs. Smt. Taruna Batra. 1(2007) SLTl.
(f) In Nopany Investment (P) Ltd Vs. Santokh Singh (HUF), 2008 (2) SSC 728, it was held that filing of suit is itself a notice to quit on the tenant and therefore, no notice to quit under Section 106 T.P. Act is necessary to enable the landlord to get the decree of possession. The requirement of the present ease is lesser as defendants are claimed to be licensee and not tenant in the property.
(g) Thus, all the defendants have not denied in their written statement regarding, the existence of property documents of thy suit property in the name of the plaintiff and admissions of defendants in written statement and defendant No.1 & 2 being the son and daughter-in-law of the plaintiff and considering the ratio of Nopany Investment (supra), there is every reason to allow the request for judgment on the basis of admissions under Order 12 Rule 6 CPC.
(h) In view of the above discussion, the plaintiff has shown himself to be the owner of the property bearing no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards, and defendants are residing in a portion of the suit property i.e. one. room set with kitchen on ground floor of property bearing no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards as shown in red colour in the site plan, in the capacity of the licensee of the plaintiff. All the ingredients under Order 12 Rule 6 CPC are satisfied. Accordingly, oral application under Order 12 Rule 6 CPC is allowed and suit for mandatory injunction directing defendants to remove themselves from the suit property i.e. one room set with kitchen on ground floor of property bearing no. A-65, gali no.3, A Block, Rama Garden, Delhi measuring 100 Sq. Yards as shown in red colour in the site plan, and hand over the possession of the same to the plaintiff, is decreed.
Decree-sheet be accordingly prepared. No order as to cost.””
Of course, the Bench then clearly states in para 7 that, “The Trial Court recognized that the Plaintiff was the exclusive owner of the said property and the son and daughter-in-law i.e., the Defendants were merely licensees. Accordingly, a decree was passed in favour of the Plaintiff in his application under Order 12 Rule 6 of CPC.”
As it turned out, the Bench then observes in para 8 that, “The said order was appealed by the Defendants before the first Appellate Court, which confirmed the findings of the Trial Court in the following terms:
“12. As was also rightly noted by Ld. Trial court, contention of the defendants that they cannot be removed from the suit property because suit property is shared household and as members of the joint family property is not tenable as defendant no.2 could claim her rights from her husband i.e. defendant no.l and not from her father in law who has no duty to provide residence to either son or daughter in law. Reference was made to the judgment of Hon’ble Supreme Court in S.R. Batra & Anr. Vs. Smt. Taruna Batra 1 (2007) SLT1.
13. The documents as available on record categorically point out towards the ownership of the plaintiff with regard to the subject premises and the status of the defendants in the suit property as licensee being son and daughter in law of the plaintiff which license could be revoked with the conveying of intention by plaintiff seeking vacation of the defendants from the subject premises.
14. The unequivocal and unambiguous admission that the property was owned by plaintiff and there being no challenge to the documents executed in favour of plaintiff till now, the legal position which emerges on record regarding the plaintiff being the absolute owner of the suit property and his son i.e. appellant no. 1 having no right, title and interest therein. Appellant no.1 had been occupying the suit property being son of plaintiff and after the marriage, appellant no.2 joined the company of her husband i.e. appellant no.1. Son and daughter in law acquire no legal right to occupy the self-acquired property of the parents or parents in law as the case may be, against their consent and wishes. Mere denial of the defendants/appellants contrary to the documentation available on record and their admission with regard to property being in name of the respondent, no triable issue qua that aspect remained to be adjudicated and Ld. Trial court thereby did not err in considering the matter for disposal under order 12 Rule 6 CPC.””
Simply put, the Bench then underscores in para 9 that, “It is this order of the first Appellate Court that has been challenged by the Defendants in the present second appeal.”
It is worth noting that the Bench then elegantly states in para 10 that, “There are two issues that have arisen in the present case. The first issue concerns with condonation of delay of 342 days, in filing the present second appeal. The second issue concerns with the merits of the matter.”
ANALYSIS AND FINDINGS
On Condonation of delay in filing the appeal
While dwelling on this condonation, the Bench then holds in para 21 that, “CM Appl. 21708/2021 and CM Appl. 3966/2021 are applications that have been filed on behalf of the Defendants, seeking condonation of delay in filing the present second appeal. The impugned order in this case was passed on 16th November, 2019. The Defendants applied for a certified copy on 9th December, 2019, which was received on 13th January, 2020. As per the Supreme Court order in In Re: Cognizance for extension of limitation (supra), the period of 15th March, 2020 till 14 th March, 2021 is to be excluded while calculating the limitation period, in light of the COVID19 pandemic. Accordingly, after deducting the period during which the certified copy was to be issued by the Court, the limitation of 90 days to file the present second appeal, has not expired prior to 15th March, 2020. The appeal was filed on 25th January, 2021, which is within the period excluded by the Supreme Court’s order.”
As a corollary, the Bench then holds in para 22 that, “Considering these facts, there is no delay in filing the present appeal. However, the Defendants have filed these applications by way abundant caution. Accordingly, the delay, if any, in filing the present appeal stands condoned. Applications are disposed of.”
To be sure, the Bench then clearly says in para 33 that, “The facts of the present case show that the suit before the Trial Court was instituted by the Plaintiff against both his son and his daughter-in-law. Undisputedly, the Plaintiff is not in a good financial condition, and in fact was required to avail of legal-aid, to be able to pursue the suit before the Trial Court.”
Delving deeper, the Bench then reveals in para 34 that, “The suit property was purchased by the Plaintiff on 26th December, 2011. His son got married in the year 2005 and both the son and daughter-in-law started living in the suit property on the ground floor. Several disputes arose amongst the said family members, which, according to the Plaintiff, were due to the interference of the family members of the daughter-in-law, including the mother and the brothers of the daughter-in-law. The Plaintiff is stated to have suffered various severe medical problems including a stroke and paralysis. The Plaintiff’s mother i.e., the grandmother of the son- is 85 years old and is also handicapped. She is living with the Plaintiff.”
More revealingly, the Bench then makes it known in para 35 that, “The Plaintiff had filed various complaints with the ACP, Bhajanpura, on 27th June, 2006, 10th June, 2006, 2nd April, 2008, 21st July, 2010, 22nd July, 2010 and 30th July, 2010, alleging humiliation, agony and threats by the Defendants. An application under the Senior Citizens Act was also filed by the Plaintiff in 2015, but no orders were passed in the same. The Plaintiff then disowned his son and got a publication issued to this effect on 27th December, 2015.”
Furthermore, the Bench then states in para 36 that, “The Defendants, i.e., the son and daughter-in-law are employed. The daughter-in-law is a teacher and the son works as a sales agent in a showroom. The Defendants are stated to have threatened the Plaintiff that they would implicate him in a dowry case.”
What’s more, the Bench then points out in para 39 that, “The Trial Court, vide order dated 18th April, 2019, has held that admittedly the Plaintiff is the owner of the suit property. It further held that even if the Defendants have contributed to the purchase of the said property, the same would not entitle them to be co-owners. It held that none of the documents of sale are disputed, and merely to argue that the property ought to have been co-owned by the Defendants also, would not create co-ownership. Due to the existence of property documents which was admitted by the parties, the decree for mandatory injunction was passed on the application under Order 12 Rule 6 of CPC.”
It cannot be glossed over that the Bench then concedes in para 40 that, “In the order passed by the Appellate Court, the Appellate Court has also held that the admission of ownership of the suit property in favour of the Plaintiff, is unambiguous and unequivocal. The relevant portion of the said order reads as under:
“14. The unequivocal and unambiguous admission that the property was owned by plaintiff and there being no challenge to the documents executed in favour of plaintiff till now, the legal position which emerges on record regarding the plaintiff being the absolute owner of the suit property and his son i.e. appellant no.1 having no right, title and interest therein. Appellant no.1 had been occupying the suit property being son of plaintiff and after the marriage, appellant no.2 joined the company of her husband i.e. appellant no.1. Son and daughter in law acquire no legal right to occupy the self acquired property of the parents or parents in law as the case may be, against their consent and wishes. Mere denial of the defendants/appellants contrary to the documentation available on record and their admission with regard to property being in name of the respondent, no triable issue qua that aspect remained to be adjudicated and Ld. Trial court thereby did not err in considering the matter for disposal under order 12 Rule 6 CPC.””
It is worth noting that the Bench then clearly states in para 46 that, “At this stage, it is trite to mention that the reliance by the Trial Court as well as the first Appellate Court on the judgment in S.R. Batra v. Smt. Taruna Batra, 1 (2007) SLT 1 was, in fact, completely misplaced in the facts of this case. The present is a civil suit filed by the father against his son and daughter-in-law, between whom there is no marital discord or estrangement. The father is merely seeking to evict both his son and daughter-in-law, on the strength of his ownership of the suit property.”
Please read concluding on thedailyguardian.com
No wonder, the Bench then holds in para 47 that, “The submissions based on S. Vanitha (supra) and Satish Chandra Ahuja (supra) would, therefore, have no applicability in the present case, as this is not a suit where the daughter-in-law pleads and claims the right of residence, against the father-in-law, independent of her claims against her own husband. In fact, there are no claims against the husband whatsoever. The husband is a co-Appellant in this appeal, and was a co-Defendant before the Trial Court, who the Plaintiff wanted to evict.”
Going ahead, the Bench then remarks in para 48 that, “In any case, the submission of the Defendants, relying on S. Vanitha (supra), is that specific proceedings under the DV Act need not be initiated. While there is no doubt about this proposition, in the opinion of this Court, all cases of family disputes cannot be characterised as cases under the DV Act. In S. Vanitha (supra), there were various proceedings which were pending both between the husband and wife, and the wife and the in-laws, under various legislations. Divorce proceedings had been initiated, dowry harassment proceedings were initiated against the mother-in-law and spouse, maintenance proceedings had been initiated and even proceedings under the Senior Citizens Act were filed. Although, the settled position of law is that proceedings under the DV Act are not required and the same can also be raised as defence in the suit, the basic requirements of the said Act ought to be satisfied. The present is not a case where the case set up is one under the DV Act, involving domestic violence.”
Most remarkably and also most significantly, what forms the cornerstone of this notable judgment is then laid bare in para 49 wherein it is stated that, “While the DV Act is a social welfare legislation granting protection to women who are victims of domestic violence, every dispute amongst family members cannot be converted into a dispute under the DV Act. The same ought not to be allowed to happen, as it may cause unintended misuse of the provisions of the said Act creating turmoil within families, especially when there is no matrimonial dispute whatsoever between husband and the wife, i.e., son and daughter-in-law. The provisions of the DV Act cannot be used as a ploy by the son, to either claim a right in his father’s property or continue to retain possession of the father’s property, on the strength of his wife’s right of residence. A civil dispute relating to ownership of property cannot be converted, in this manner, into a case under the DV Act, as the same would amount to be an abuse of the beneficial provisions of the DV Act, by stretching it over and beyond its purpose and ambit.”
No less significant is what is then stated in para 50 that, “The following peculiar facts arising in this case, deserve to be highlighted:
(i) The ownership of the Plaintiff in the suit property is not in dispute.
(ii) The sale of the property of the mother, which took place in 2011, was never challenged by the Defendants.
(iii) The purchase of this suit property in the name of the Plaintiff was never challenged by the Defendants.
(iv) There is no complaint of Domestic Violence raised by the daughter-in-law before any forum. In fact, to the contrary, the Plaintiff has filed complaints against his son and daughter-inlaw with police repeatedly, alleging ill-treatment and abuse.
(v) The Defendants i.e., the son and daughter-in-law are living together peacefully. The written statement before the trial court was filed jointly. The first appeal was also filed jointly, and so is the present second appeal. There is no estrangement or marital discord between them.
(vi) The order passed in the application under Order XII Rule 6 CPC has also been executed and the Defendants have already moved out of the suit property and are living in alternate premises.
Therefore, the facts of this case are clearly distinguishable from the facts in Satish Chandra Ahuja (supra) and Smt. Vanitha (supra).”
As a consequence, the Bench then holds in para 51 that, “Accordingly, under the facts and circumstances of this case, this Court is of the opinion that the judgments of the Trial Court and the first Appellate Court do not warrant interference in these proceedings. However, insofar as the reliance on the judgment in SR Batra (supra) is concerned, it is clear that the said judgment is not applicable to the facts of the case, and has in any case been overruled by the judgment in Satish Chandra Ahuja (supra). The reliance on the said judgment was uncalled for both by the Trial Court as well as the Appellate Court.”
Finally, the Bench then holds in para 52 that, “The present Appeal is accordingly dismissed, in the above terms, with no order as to costs.”
In conclusion, this notable judgment makes it crystal clear that the provisions of Domestic Violence Act cannot be used under any circumstance as a ploy by son to claim father’s property on the strength of wife’s right of residence. This is best illustrated in para 49 as stated hereinabove. All the lower courts as also the High Courts must adhere to what has been laid down by the Delhi High Court in this noteworthy judgment!
Sanjeev Sirohi, Advocate,
