Meena Kumari v. Prema Devi

10. The Appellant No.1 is son of the Respondent/Plaintiff and Appellant No.2 is her daughter-in-law. It is the case of the Respondent/Plaintiff that in order to avoid frequent disputes and maintain peace in the household, the Appellants were permitted to occupy the first floor of the Suit Property separately around the year 2010, out of love and affection, on a permissive basis as licensees, without any payment of charges.

11. However, according to the Respondent/Plaintiff, despite the aforesaid arrangement of separate residence, the conduct of the Appellants did not improve and they continued to create disturbances, which in fact, aggravated the dispute between the parties.

12. The Appellants started harassing and humiliating the Respondent/Plaintiff and her husband, and also began exerting pressure upon them, to transfer the Suit Property in their favour. It is further averred that the Appellants set up claims of ownership on the basis of fabricated documents, and upon objection being raised, disputes escalated, leading to serious discord and deterioration of relations between the parties.

13. In view of these circumstances, the Respondent published a Public Notice dated 01.12.2022 in the Newspaper "Jansatta", severing all relations with the Appellants. They also lodged a complaint against Appellant No.1, with local police. The license of the Appellants was simultaneously terminated orally and they were directed to vacate the Suit Property, on or before 31.12.2022.

14. A Legal Notice dated 16.12.2022, was thereafter issued through counsel calling upon Appellant No.1 to vacate the Suit Property within seven days and to cease from laying any false claim, thereover. Despite receipt of the said Notice, the Appellants failed to vacate the suit property and instead disputed the claim of the Respondent/Plaintiff.

15. Hence, the present Suit for possession, permanent injunction and recovery of damages/mesne profits, along with interest @ 18% per annum, was filed by the Respondent/Plaintiff on 15.03.2024.

16. The Written Statement was filed by the Defendants; wherein preliminary objections were taken that the Suit was not maintainable, as the Respondent had not approached the Court with clean hands and had suppressed material facts. It was further contended that there was no cause of action in favour of the Respondent; the Suit was barred by limitation, and the plaint was liable to be rejected under Order VII Rule 11 of the CPC.

17. On merits, the Appellants admitted the relationship between the parties, the construction of the Suit Property up to the second floor, and the respective occupation of the floors by the parties. However, they specifically denied that their residence was by virtue of any license granted by the Respondent, asserting that they were living therein as a matter of legal right and by virtue of their share in the property. It was further denied that the Respondent was the sole and absolute owner, contending that she was a housewife with no independent source of income and that the Suit Property was purchased and constructed entirely out of joint Hindu family funds.

18. The Appellants denied having ever harassed the Respondent or pressurized her to transfer the property. On the contrary, it was asserted that it was the Respondent who had quarrelled with them, used unparliamentary language and called antisocial persons. When the Appellants objected, the Respondent threatened to falsely implicate them in criminal cases. It was further contended that the allegations in the plaint, were fabricated in connivance with the younger brother of Appellant No.1, with a mala fide intent to dispossess them.

19. The Appellants denied that the license, if any, was ever validly terminated, contending that the Public Notice dated 01.12.2022, Ex. PW1/6, had no legal sanctity and did not extinguish their legal and statutory rights. It was asserted that there was no question of any liability to pay damages, as the Suit Property had been built up entirely from joint Hindu family earnings.

20. The Appellants accordingly prayed for dismissal of the suit.

21. The Respondent filed her Replication, denying the contents thereof and reiterating the averments made in the plaint.

22. On the basis of the pleadings of the parties, the learned Trial Court framed the following issues vide order dated 02.07.2024: “(i) Whether the plaintiff is entitled to the relief of possession as prayed for? OPP.

(ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.

(iii) Whether the plaintiff is entitled to the recovery of the damages/usage charges, if so, for what amount and for what period? OPP.

(iv) Relief.”

23. In support of her case, the Respondent examined herself as PW-1 and tendered her affidavit of evidence Ex. PW1/A, reiterating the contents of the Plaint. She relied upon General Power of Attorney, Agreement to Sell, Affidavit and Receipt all dated 24.02.1993 Ex. PW1/1 (Colly), executed by Sh. Milan Acharya in her favour in respect of 40 sq. yds.; Agreement to Sell, General Power of Attorney and Possession Letter all dated 12.05.1994 Ex. PW1/2 (Colly), executed by Smt. Shanti Devi in her favour in respect of 32 sq. yds.; and Agreement to Sell, General Power of Attorney and Possession Letter all dated 11.05.2004 Ex. PW1/3 (Colly), executed by Sh. Milan Acharya in her favour in respect of 20 sq. yds. She further relied upon photocopies of Electricity Bills Ex. PW1/4 (Colly), latest water bill Ex. PW1/5, newspaper cutting of public notice dated 01.12.2022 Ex. PW1/6, police complaint dated 01.12.2022 along with postal receipt Ex. PW1/7, legal notice dated 16.12.2022 along with tracking report Ex. PW1/8, reply dated 06.01.2023 sent by Appellant No.1 Ex. PW1/9, legal notice dated 11.02.2023 issued by Appellant No.1 to the Respondent and her husband Ex. PW1/10, reply dated 09.03.2023 sent by the Respondent and her husband along with postal receipt and tracking report Ex. PW1/11, site plan of the Suit Property Ex. PW1/12 and copy of Aadhaar Card Ex. PW1/13. She was duly cross-examined. The Respondent also examined her husband, Sh. Milan Acharya, as PW-2, who supported her case and was also duly crossexamined.

24. On behalf of the Appellants, only Appellant No.1 was examined as DW-1, who filed his affidavit Ex. DW1/A and relied upon the Aadhaar Cards of both Appellants as Ex. DW1/1 and Ex. DW1/2. He was thoroughly cross-examined.

25. The learned Trial Court, observed that the Appellants had clearly failed to state in whose name the title documents of the Suit Property existed, if not in the name of the Respondent. It was further observed that Sh. Milan Acharya, PW-2, had himself confirmed the execution of the title documents in favour of the Respondent and no suggestion of non-payment of consideration was put to him, in cross-examination. The Appellants having failed to place any document on record to establish the existence of any HUF, and Appellant No.1 having admitted to being merely 14 years of age and a student incapable of any financial contribution at the time of the first purchase, the Appellants were held to have no title in the Suit Property and the Respondent was declared to be the owner thereof.

26. The learned Trial Court further held that since the Appellants had set up neither tenancy nor trespass, they were licensees whose license stood validly terminated by the Legal Notice dated 16.12.2022, Ex. PW1/8. The specific testimony of the Respondent and Sh. Milan Acharya, PW-2, regarding the threat to sell and create third party interest in the Suit Property on 06.03.2023 having remained wholly unchallenged in cross-examination, a decree of Permanent Injunction was also passed.

27. Damages were assessed at Rs.5,000/- per month from 07.01.2023 till actual delivery of possession with a 10% annual increase from the date of the decree, and costs were awarded in favour of the Respondent.

28. Aggrieved by the said Judgment and Decree, the present Appeal has been preferred.

29. The Appellants, in the grounds of challenge, have contended that the learned Trial Court has failed to properly appreciate the pleadings and evidence on record and consequently returned findings contrary to the material available before it. It is urged that the impugned Judgment suffers from misreading of evidence and non-consideration of material aspects raised by the defence.

30. It has been further contended that the Respondent/Plaintiff failed to establish her exclusive ownership over the Suit Property. According to the Appellants, the documents relied upon by the Respondent/Plaintiff, including the General Power of Attorney and allied documents, contain material discrepancies, including inconsistencies in the boundary descriptions, absence of signatures on certain documents and lack of proof regarding payment of consideration. It has also been alleged that the said documents are forged, fabricated and manipulated and have been relied upon only to create a false chain of title in favour of the Respondent/Plaintiff.

31. The Appellants have further asserted that the Suit Property originally belonged to Late Sh. Jata Dhari Acharya, grandfather of Appellant No.1, and formed part of the family property. According to the Appellants, after the property came into possession of the family members, Sh. Milan Acharya subsequently got certain documents prepared in his own name and thereafter executed GPA and allied documents in favour of the Respondent/Plaintiff in an attempt to create an exclusive chain of title in her favour.

32. Further the appellant claimed that the Suit Property is ancestral/joint family property and that Appellant No.1, being a member of the family, had contributed towards its construction and maintenance and, therefore, possesses a subsisting right and interest therein. The Appellants have further submitted that the defence regarding the joint family nature of the Suit Property was not adjudicated in its proper perspective by the learned Trial Court.

33. The Appellants have also assailed the findings of the learned Trial Court on the ground that material contradictions in the testimony of the Respondent/Plaintiff and her witnesses, were not properly appreciated. It has additionally been urged that Appellant No.2, being the daughter-in-law of the family, has a right of residence in the shared household, which could not have been defeated in the manner directed by the learned Trial Court.

34. A further challenge has been laid to the grant of damages/mesne profits, on the ground that the same were awarded in the absence of any cogent evidence regarding prevailing market rent or unauthorized use and occupation. It is contended that no proper inquiry, as contemplated under Order XX Rule 12 of the Code of Civil Procedure, 1908, was conducted prior to the award of mesne profits and, therefore, the findings in this regard, are liable to be set aside. Submission heard and record perused

35. The present Appeal arises in a Suit for Possession, Permanent Injunction and recovery of damages/mesne profits, filed by the mother against her own son and daughter-in-law, wherein the learned Trial Court, upon appreciation of the pleadings and evidence on record, has decreed the suit in favour of the Respondent/Plaintiff.

36. The essential question for consideration is whether the learned Trial Court was justified in holding the Respondent to be the owner of the Suit Property and the Appellants to be mere licensees, liable to be evicted therefrom.

37. The Respondent has proved her title through three sets of traditional documents of the mode of transfer prevalent in Lal Dora Abadi areas. These are General Power of Attorney, Agreement to Sell, Affidavit and Receipt all dated 24.02.1993 Ex. PW1/1 (Colly), executed by Sh. Milan Acharya in favour of the Respondent in respect of 40 sq. yds.; Agreement to Sell, General Power of Attorney and Possession Letter all dated 12.05.1994 Ex. PW1/2 (Colly), executed by Smt. Shanti Devi W/o Late Mehar Chand in favour of the Respondent in respect of 32 sq. yds.; and Agreement to Sell, General Power of Attorney and Possession Letter all dated 11.05.2004 Ex. PW1/3 (Colly), executed by Sh. Milan Acharya in favour of the Respondent in respect of 20 sq. yds., collectively establishing a complete chain of title over the entire area measuring 92 sq. yds.

38. The photocopies of electricity bills Ex. PW1/4 (Colly) in the name of the Respondent and copy of latest Water Bill Ex. PW1/5, further establish her continuous possession and occupation of the Suit Property, as owner.

39. The Respondent, Smt. Prema Devi, examined herself as PW-1. She also examined her husband, Sh. Milan Acharya, as PW-2, who supported her case and specifically confirmed the execution of General Power of Attorney, Agreement to Sell, Affidavit and Receipt all dated 24.02.1993 Ex. PW1/1 (Colly) and Agreement to Sell, General Power of Attorney and Possession Letter all dated 11.05.2004 Ex. PW1/3 (Colly), in favour of the Respondent. No suggestion was put to PW-2 in his cross-examination regarding nonpayment of consideration or fabrication of the said documents, nor was the execution of Agreement to Sell, General Power of Attorney and Possession Letter all dated 12.05.1994 Ex. PW1/2 (Colly), executed by Smt. Shanti Devi, challenged in cross-examination.

40. It is well settled that if the testimony of a witness on a material point, remains unchallenged in cross-examination, it must be accepted as true, and the party who failed to cross-examine on that point is deemed to have accepted the said testimony. In Muddasani Venkata Narsaiah (Dead) through LRs v. Muddasani Sarojana, (2016) 12 SCC 288, the Supreme Court held that if no questions are put to a witness on a particular aspect, the Court may presume that the witness account has been accepted and that unchallenged testimony deserves acceptance.

41. It is well settled that in a suit for possession based on title, the Plaintiff is required to establish a better title over the Suit Property, by leading cogent and reliable evidence. Once the Plaintiff duly proves the title documents in her favour, the burden shifted upon the Defendant to rebut the same by leading credible evidence, and a mere bald denial, is insufficient in law to discharge the onus.

42. It may be observed that the Appellant has not challenged the title documents in favour of his mother, but had taken the defence that it was HUF property and he was residing in it, in his own right and not as a licencee.

43. Appellant No.1, Sh. Anil, in support of his defence, examined himself as DW-1. The Appellants relied upon Aadhaar Card of Appellant No.1 Ex. DW1/1 and Aadhaar Card of Appellant No.2 Ex. DW1/2 to show their residence in the Suit Property and to support their claim in respect thereof. However, apart from disputing the title documents relied upon by the Respondent, no documentary evidence or any other cogent material was placed on record by the Appellants to substantiate the plea that the said title documents were forged or fabricated. The Appellants have thus failed to prove the plea of forgery.

44. It is well settled that a plea of joint Hindu family property must be specifically pleaded with full material particulars as to when and how the property acquired such a character, and the burden of proving the same, lies squarely upon the person asserting such claim. The Supreme Court in Commissioner of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567, held that the self-acquired property of a Hindu male does not become joint Hindu family property, merely by reason of his being a member of a joint family.

45. In Yudhishter v. Ashok Kumar, 1987 (1) SCC 204 the Supreme Court held that after the coming into force of the Hindu Succession Act, 1956, property inherited under Section 8 does not automatically assume the character of HUF property in the hands of the successor. Building upon the said principle, the Delhi High Court in Sunny (Minor) & Anr. v. Raj Singh & Ors. CS(OS) No. 431/2006, held that a party asserting existence of HUF property must specifically plead and prove when and in what manner the HUF came into existence, whether it existed prior to 1956 or was subsequently created by throwing the property into the common hotchpotch, and mere use of expressions such as „ancestral property‟ or „joint family property‟ is insufficient in law

46. In the present case, the Appellants claimed that the Suit Property originally belonged to Late Sh. Jata Dhari Acharya, the grandfather of Appellant No.1, Sh. Anil, and was distributed pursuant to a family settlement dated 20.05.1997.

47. The mere fact that the western boundary in Agreement to Sell Ex. PW1/1 dated 24.02.1993, is described as the property of Late Sh. Jata Dhari Acharya, only establishes that he owned an adjoining property and not the Suit Property itself.

48. Furthermore, the first purchase under Ex. PW1/1 dated 24.02.1993 was effected by Sh. Milan Acharya acting as the General Power of Attorney holder of Sh. Beer Singh, a third party, which conclusively negates the claim of ancestral character. Neither was it pleaded that Sh. Milan Acharya ever threw his self-acquired property into any joint family hotchpotch, nor was any such suggestion put to Sh. Milan Acharya, PW-2 in his cross examination. The Appellants have thus, miserably failed to prove the joint Hindu family character of the Suit Property.

49. It is well settled that where a person claims right in a property on the basis of financial contribution, he must prove with specificity the quantum of contribution, the source of funds and the direct nexus between such contribution and the acquisition of the property. A mere bald assertion of financial contribution unsupported by any documentary evidence cannot be accepted, as proof thereof.

50. Appellant No.1, Sh. Anil, examined as DW-1, merely stated in examination-in-chief that all the property was purchased on joint funds of the Hindu joint family.

51. Crucially, Sh. Anil, examined as DW-1, admitted in his crossexamination that he was only about 14 and 15 years of age at the time of the first and second purchases respectively, vide General Power of Attorney, Agreement to Sell, Affidavit and Receipt all dated 24.02.1993 Ex. PW1/1 (Colly) and Agreement to Sell, General Power of Attorney and Possession Letter all dated 12.05.1994 Ex. PW1/2 (Colly), and that he was still a student at the relevant time.

52. This was further corroborated by Sh. Milan Acharya, examined as PW-2, who admitted in his cross-examination that “Defendant No.1 was very young at that time.”

53. As regards the third purchase vide Ex. PW1/3 dated 11.05.2004, no specific evidence was led to establish any contribution. The contention that sums of Rs.1,70,000/- and Rs.1,50,000/- were transferred to the bank accounts of the Respondent and PW-2 respectively in 2018-2020, pertains to transactions well after completion of all three purchases and cannot establish any right in the Suit Property. The Appellants have accordingly, failed to establish any right on account of financial contribution.

54. It is well settled that where a person is permitted to reside in the property of another, out of love and affection, without payment of any consideration and without any agreement creating a tenancy, such person is a licensee whose license can be validly revoked at any time, and upon such revocation, his right to continue in occupation comes to an end.

55. In the present case, having failed to establish any title, joint Hindu family character or financial contribution, the Appellants' occupation of the first floor, can only be characterised as that of licensees, permitted to reside therein by the Respondent, their mother, out of love and affection without any charges. This conclusion is further reinforced by the fact that the Appellants in their Written Statement, neither set up a case of tenancy nor claimed to be rank trespassers. the Appellants in their Written Statement, neither set up a case of tenancy nor claimed to be rank trespassers.

56. The Respondent, Smt. Prema Devi, published a Public Notice dated 01.12.2022 in the newspaper "Jansatta", Ex. PW1/6, and lodged a police complaint dated 01.12.2022, Ex. PW1/7, terminating all relations with the Appellants. A Legal Notice dated 16.12.2022 was thereafter, issued through counsel, Ex. PW1/8, dispatched on 29.12.2022, which was duly served upon the Appellants, as is evident from the reply dated 06.01.2023 Ex. PW1/9 sent by Appellant No.1, Sh. Anil, through his counsel. The Appellants' continued occupation after such termination, is unauthorised and unlawful.

57. As regards the right of residence claimed by Appellant No.2 under Section 17 of the Protection of Women from Domestic Violence Act, 2005, the legal position now stands authoritatively settled by the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, wherein it was held that although the expression “shared household” is required to receive a broad interpretation, the right under Section 17 is merely a right of residence and does not create any ownership or proprietary rights, in favour of the aggrieved person.

58. The Hon’ble Supreme Court further clarified that Section 17(2) itself contemplates eviction from a shared household “in accordance with procedure established by law”, thereby recognising the maintainability of civil proceedings by a person having better legal rights in the property. It was further observed that while interpreting the provisions of the DV Act, the rights of the aggrieved woman and the civil rights of aged parents and in-laws, are required to be balanced.

59. The Supreme Court further observed that the expression “shared household” cannot be interpreted in a manner so as to mean that every house where the aggrieved person may have resided at any point of time, would indefinitely become a shared household, as such an interpretation would lead to chaos and was never the legislative intent. It was held that the object of the DV Act is to secure immediate protection and residence rights to an aggrieved woman, but the same cannot defeat the lawful rights of other persons, which remain subject to adjudication by a competent Court.

60. In the present case, the Respondent/Plaintiff, a senior citizen and mother-in-law of Appellant No.2, has successfully established a better title and lawful possessory right over the Suit Property through General Power of Attorney, Agreement to Sell, Affidavit and Receipt all dated 24.02.1993 Ex. PW1/1 (Colly), Agreement to Sell, General Power of Attorney and Possession Letter all dated 12.05.1994 Ex. PW1/2 (Colly) and Agreement to Sell, General Power of Attorney and Possession Letter all dated 11.05.2004 Ex. PW1/3 (Colly), whereas the Appellants have failed to establish any proprietary right, joint Hindu family character, financial contribution or legally enforceable interest therein.

61. The occupation of the Appellants has rightly been held to be permissive in nature. The Respondent terminated such permissive occupation by issuance of legal notice dated 16.12.2022 Ex. PW1/8 and thereafter instituted the present suit seeking recovery of possession strictly through due process of law. The decree under challenge, having been passed after full adjudication upon appreciation of oral and documentary evidence, fully satisfies the requirement of “procedure established by law” under Section 17(2) of the DV Act. The contention of the Appellants founded upon Section 17 of the Protection of Women from Domestic Violence Act, 2005 is accordingly devoid of merit and is rejected.

62. The Appellants have further contended that the Respondent/Plaintiff, in her cross-examination as PW-1, admitted that no consideration was paid to Sh. Milan Acharya under General Power of Attorney, Agreement to Sell, Affidavit and Receipt all dated 24.02.1993 Ex. PW1/1 (Colly) and Agreement to Sell, General Power of Attorney and Possession Letter all dated 11.05.2004 Ex. PW1/3 (Colly), and that she had also taken a loan which was not specifically pleaded in the plaint. This contention, however, does not advance the case of the Appellants.

63. It is well settled that a General Power of Attorney is a document of agency and does not, by itself, constitute a conveyance of title. The consideration for the underlying transaction, is reflected in the allied documents such as the Agreement to Sell and Receipt forming part of the same set of documents. The absence of specific consideration in the GPA, particularly in transactions between spouses, does not render the transaction invalid. The fact that the Respondent, being a housewife, relied upon the income and resources of her husband or arranged funds through borrowings, does not detract from her claim.

64. The alleged contradiction between the testimonies of PW-1 and PW- 2, namely that PW-2 admitted receipt of a sum of Rs.1,50,000/- in the year 2020 from the sister of Appellant No.2, whereas PW-1 expressed lack of knowledge thereof, is wholly inconsequential. The said transaction is of a period much subsequent to the acquisition of the suit property, which stood completed by the year 2004, and has no bearing on the question of title. At best, the discrepancy pertains to a collateral aspect and does not go to the root of the matter.

65. It is, therefore, evident that the Appellants have failed to dislodge the documentary position on record or establish any infirmity of such a nature so as to negate the Respondent‟s claim. In the absence of any cogent evidence to the contrary, the Respondent/Plaintiff has been able to establish a better title to the suit property vis-à-vis the Appellants.

66. As regards the contention that no independent Legal Notice was issued to Appellant No.2 terminating her alleged license, it is pertinent to note that Appellant No.2 is the wife of Appellant No.1, Sh. Anil, and both were residing together in the first floor of the Suit Property as a family unit. The legal notice dated 16.12.2022, Ex. PW1/8, was issued to Appellant No.1 as the head of the family and was duly served, which is sufficient notice to both Appellants. No separate, independent cause of action was required to be established against Appellant No.2 over and above the established licensee status of the Appellants as a whole.

67. As regards the quantum of damages, the Respondent claimed Rs.20,000/- per month, but did not lead any specific evidence to establish the prevailing rental value of comparable properties in the vicinity. However, it emerged from the cross-examination of Smt. Prema Devi, PW- 1, and Sh. Milan Acharya, PW-2, that two rooms on the third floor of the Suit Property are let out to tenants at Rs.2,300/- per room per month, totalling Rs.4,600/- per month, a fact not denied by the Appellants in crossexamination. The learned Trial Court accordingly, assessed damages conservatively at Rs.5,000/- per month with effect from 07.01.2023, being seven days from the date of the Legal Notice Ex. PW1/8 dated 16.12.2022, which assessment is grounded in the evidence on record.

68. The contention that damages were awarded without conducting a proper inquiry under Order XX Rule 12 CPC, does not merit acceptance. The learned Trial Court assessed the damages on the basis of evidence already on record, including the rent fetched by other portions of the same property, as deposed to by PW-1 and PW-2 in cross-examination, which constitutes sufficient material for assessment of damages without a separate inquiry. The finding of the learned Trial Court on damages, calls for no interference. Conclusion:

69. In view of the findings recorded above, it is held that the learned Trial Court has rightly appreciated the evidence on record and correctly concluded that the Respondent is the sole and absolute owner of the Suit Property. The Appellants are mere licensees whose license stands validly terminated, and they are bound to deliver vacant possession of the first floor of the Suit Property to the Respondent. The impugned Judgment and Decree dated 28.11.2025 passed by the learned Judge, Family Court, North, Rohini, Delhi in CS No. 17/2024, is accordingly, upheld.

70. In view of the foregoing discussion, the present Appeal is devoid of merit and is hereby, dismissed. Pending applications, if any, are disposed of accordingly.

JUDGE APRIL 17, 2026