IN THE HIGH COURT OF DELHI AT NEW DELHI
SUDHA MISHRA ….. Appellant
Through: Ms. Rajesh Banati, Ms. Shagun Sharma and Ms. Babli Kala,
Advs. along with appellant in person.
SURYA CHANDRA MISHRA ….. Respondent
Through: Mr. Prabhjit Jauhar and Ms. Anupama Kaul, Advs. along with
respondent in person.
HON’BLE MR. JUSTICE A.K. PATHAK
O R D E R
Since caveator has appeared, caveat is discharged.
CM No. 11736/2014
Allowed, subject to all just exceptions.
Application is disposed of.
1. Appellant-defendant has filed this appeal against the judgment and
decree dated 28th April, 2013 passed by the Additional District Judge,
Karkardooma Courts, Delhi whereby suit for mandatory injunction, filed by
the respondent-plaintiff against the appellant, has been decreed and
appellant has been directed to deliver the vacant and physical possession
of the portion in her possession in the property bearing no. C-1/9-A,
Yamuna Vihar, Delhi(for short hereinafter referred to as suit
property), within three months and further not to interfere in the
peaceful possession and enjoyment of suit property by the respondent.
2. Briefly stated, facts of the case are that respondent is father-in-
law of appellant. Respondent filed a suit for mandatory injunction
against the appellant to quit and deliver the vacant possession of the
suit property to respondents. It was further prayed that appellant be
restrained from creating obstruction in any manner to the rights of the
respondent in the suit property as also to pay mesne profits @ 1 lac per
month along with interest. Respondent alleged in the plaint that he was
absolute owner of the suit property which he had acquired vide lease deed
dated 27th May, 1982 executed by the Delhi Development Authority (DDA).
Later on, a conveyance deed dated 7th April, 1995 was executed by the
said authority in favour of the respondent. His son was married to
appellant at Kanpur, U.P. on 11th December, 1996. After the marriage
appellant was living in Kanpur, Lucknow, Allahabad, inasmuch as, her
children were also born in Lucknow and Kanpur. Since beginning,
appellant and her husband were having strained relationship. Appellant
filed a complaint under Section 498-A of the Indian Penal Code read with
Section 3 and 4 of the Dowry Prohibition Act against her husband wherein
she also named respondent. Relationship between the respondent and his
son also became strained. Respondent disowned his son in the year 2011
by issuing a public notice in the newspaper Rashtriya Sahara. The suit
property was self acquired property of respondent. Appellant asked the
respondent to relinquish the suit property in her favour. Threats were
also extended to the respondent, consequently, respondent filed a
complaint on 28th June, 2011 with the Police Station Bhajanpura and
Deputy Commissioner of Police (North East Delhi). On 11th July, 2011,
appellant came to the suit property and tried to occupy the same
forcibly. Police was called. However, appellant succeeded in occupying
one room, kitchen and bathroom at the ground floor of the suit property.
Respondent alleged that appellant had illegally trespassed abovementioned
portion. Accordingly, it was prayed that appellant be directed to vacate
the suit property and pay mesne profits.
3. In the written statement, appellant took certain preliminary
objections. She alleged that suit was not maintainable in view of the
alternate remedies available under the law to the respondent. She also
alleged that suit was without any cause of action. She was legally
wedded wife of son of the respondent and has a right to live therein.
Appellant further alleged that suit property was purchased out of the
joint family funds. Respondent and his son used to harass the appellant.
They demanded dowry. Appellant is living separately from her husband due
to matrimonial discord between them. She is living in the suit property right from the beginning. Divorce proceedings are pending between the
appellant and her husband. Appellant denied that she had forcibly
occupied the suit property. She also denied that she had been living at
Kanpur, Lucknow and Allahabad after her marriage. It was prayed that
suit be dismissed.
4. In the replication, respondent denied that the suit property was
purchased from the joint family funds. He reiterated that suit property
was his self acquired property. Other averments made in the plaint were
5. On the pleadings of the parties following issues were framed by the
trial court on 8th February, 2012:
1. Whether the plaintiff is entitled to decree for mandatory and
permanent injunction as prayed for in respect of property bearing no. C-
1/9A, Yamuna Vihar, Delhi 93 OPP
2. Whether the plaintiff is entitled to damages/mesne profits at the
rate of rupees one lakh per month with effect from the date of filing of
the suit till date the defendant removes her articles from the suit
premises, alongwith interest at the rate of 18% per annum on the said
3. Whether the plaint is undervalued for the purpose of court fee and
pecuniary jurisdiction OPP
4. Whether the suit in its present form without praying for possession
of the suit premises is maintainable OPD
6. Respondent examined himself as PW1. Appellant examined herself as
DW1. On the basis of evidence adduced by the parties trial court has
held that respondent had succeeded in proving that suit property was his
self acquired property. Reliance was placed on the perpetual lease deed
(Ex.PW1) executed by the DDA in favour of the respondent, conveyance deed
dated 6th April, 1995 (Ex. PW1/2) executed by the DDA, site plan (Ex.
PW1/3) prepared by the DDA, occupancy certificate (Ex.PW1/4) issued by
the DDA and MCD tax receipt dated 16th June, 2011 (Ex. PW1/5). Trial
court has further held that there was matrimonial acrimony between the
appellant and her husband. In his cross-examination, PW1 specifically
deposed that his son was residing at B-3/48A, Yamuna Vihar, Delhi which
was not the suit property. He further deposed that appellant used to
visit suit property intermittently till the year 2010. He categorically
denied the suggestion that suit property was the matrimonial home of
appellant. It also came on record in his cross-examination that his son
had purchased a property bearing no. GD-28, Kalkaji along with his
brother, namely, Satish Kumar. He also stated that appellant and her
husband had removed their goods on 4th May, 2011 and left the house of
respondent. Appellant had failed to lead any evidence to show that suit
property was purchased from joint family funds as no document in this
regard was produced and proved. Trial court has concluded that
documentary evidence produced by the parties clearly indicated that suit
property was self acquired property of respondent and was not the matrimonial home since appellant had herself admitted that she was living
alone and away from her husband.
7. By placing reliance on catena of judgments rendered by the Supreme
Court and this Court, trial court has concluded that suit property was
not a shared household, thus, appellant was not having any legal right
to continue to occupy the same against the wishes of respondent. She had
no legal right to occupy the property of her father-in-law without his
consent and against his wishes.
8. In S.R. Batra and Anr. vs. Taruna Batra (2007) SCC 169, Supreme Court
has held thus :-
As regards Section 17(1) of the Act, in our opinion the wife is only
entitled to claim a right to residence in a shared household, and a
‘shared 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 in question in the present
case neither belongs to Amit Batra nor was it taken on rent by him nor is
it a joint family property of which the husband Amit Batra is a member,
it is the exclusive property of appellant No. 2, mother of Amit Batra.
Hence it cannot be called a ‘shared household’.
No doubt, the definition of ‘shared household’ in Section2(s)of
the Act is not very happily worded, and appears to be the result of
clumsy drafting, but we have to give it an interpretation which is
sensible and which does not lead to chaos in society.
9. In Shumita Didi Sandhu vs. Sanjay Singh Sandhu and Ors. 174 (2010)
DLT 79 (DB), a Division Bench of this Court has held thus :-
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.
10. In Sardar Malkiat Singh vs. Kanwaljit Kaur and Ors. 168(2010) DLT
521, a Single Judge of this Court has held thus :-
While the legal position is clear that the husband has a legal and moral
obligation to provide residence to his wife, and if the house where the
wife lived on being wedded, belongs to her husband, it would certainly be
treated as a ‘‘shared household’‘ or a matrimonial home., there is no such
obligation on the father-in-law or the mother-in-law to provide residence
to the daughter-in-law. It is also clear that if the house in question belongs to the joint Hindu family, of which the husband is a member, even
that would be termed as a ‘‘matrimonial house’‘. In the instant case, no
such assertion has been made by the respondent No. 1 and as a matter of
fact, it is fairly conceded that the house stands in the name of the
appellant, her father-in-law. This would not, in my view, vest any right
in the respondent No. 1 to stay indefinitely in the said house by
claiming right of residence.
11. In Neetu Mittal vs. Kanta Mittal 2009 AIR (Del) 72, a Single Judge
of this Court has held thus :-
A woman can assert her rights, if any, against the property of her
husband, but she cannot thrust herself against the parents of her
husband, nor can claim a right to live in the house of parents of her
husband, against their consult and wishes.
12. In Barun Kumar Nahar vs. Parul Nahar 2013 (2) AD (Delhi) 517, a
Single Judge of this Court has held thus:
Testing the present case in the light of aforesaid discussion, the court
is of the view that the plaintiff has been able to establish a very
strong prima-facie case in his favour. The defendant No. 1 being a
daughter-in-law has no right to reside in the subject property which
belongs to her father-in-law as the said property is not covered by the
definition of ‘shared household’, the same being neither a joint family
property in which her husband is a member, nor it belongs to the
defendant No. 2 and is not even a rented accommodation owned by the
defendant No. 2.
13. The legal position which can be culled out from the above reports
is that daughter-in-law has no right to continue to occupy the self
acquired property of her parents-in-law against their wishes more so when
her husband has no independent right therein nor is living there, as it
is not a shared household within the meaning of Section 17(1) of The
Protection of Women from Domestic Violence Act, 2005. Wife is entitled
to claim a right in a shared household which means a house belonging to
or taken on rent by the husband or the house which belongs to joint
family of which husband is a member. Daughter-in-law cannot assert her
rights, if any, in the property of her parents-in-law wherein her husband
has no right, title or interest. She cannot continue to live in such a
house of her parents-in-law against their consent and wishes. In my
view, even an adult son or daughter has no legal right to occupy the self
acquired property of the parents; against their consent and wishes. A
son or daughter if permitted to live in the house occupies the same as a
gratuitous licensee and if such license is revoked, he has to vacate the
14. In this case, overwhelming evidence was produced before the trial
court by the respondent that he was the owner of the suit property which
was his self acquired property. No evidence has come on record to
suggest that the said property was purchased from the joint family funds and the husband of appellant had any share therein, during the life of
his father. It has also come on record that husband of appellant is not
residing in the suit property along with the appellant. In her affidavit
by way of evidence, appellant has deposed that she is residing separately
from her husband in one room at the ground floor. No cogent evidence was
produced before the trial court nor any such finding has been returned by
the trial court that husband of appellant is living in the suit property.
Since suit property is self acquired property of the respondent,
appellant has no right to continue to occupy the same against the wishes
15. Learned counsel for the appellant has placed reliance on the
judgment dated 15th January, 2014 passed in RFA (OS) 24/2012 titled Smt.
Preeti Satija vs. Smt. Raj Kumari and Anr. but I find the same to be in the
context of different facts. In the said case, disputed questions of
facts were raised. However, judgment was passed on admissions, under
Order 12 Rule 6 CPC. A Division Bench of this court held that no clear
admission was there, thus, the judgment could not have been passed.
Interim order was granted and the suit was directed to be proceeded
further. This judgment was also relied before the trial court and was
considered and trial court has concluded in view of the conflicting
judgments, ruling of S.R. Batra (Supra) cannot be ignored. Furthermore,
in Preeti Satija (Supra) matter was remitted back to the learned Single
Judge for trial. The view taken by the trial court in this regard cannot
be found faulted in view of Supreme Court judgment in S.R.Batra (supra)
followed by a Division Bench of this Court in Shumita Didi Sandhu
16. For the foregoing reasons, I do not find any illegality or
perversity in the impugned judgment and decree. Accordingly, appeal is
dismissed. Miscellaneous application is disposed of as infructuous.
A.K. PATHAK, J.