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HIGH COURT OF DELHI
MANJU BIDHURI
W/o Shri Anup Kumar Bidhuri, R/o E-128, (First Floor), Saket, New Delhi-110017 ..... Plaintiff
Through: Mr. Praveen Suri & Mr. Sagar, Advocates.
JUDGMENT
1. JAGWANT SINGH W/o Late Shri Partap Singh, R/o E-128, (Ground Floor), Saket, New Delhi-110017..... Defendant No. 1
2. ANUP KUMAR BIDHURI S/o Late Shri Partap Singh, R/o E-128, (First Floor), Saket, New Delhi-110017..... Defendant No. 2
3. JAGBIR SINGH R/o E-128, (Second Floor), Saket, New Delhi-110017..... Defendant No. 3
4. RAHUL SINGH R/o E-128, (Ground Floor), Saket, New Delhi-110017..... Defendant No. 4
5. KAVITA W/o Shri Deepak Chaudhari, D/o Late Shri Partap Singh, R/o 27, Sector-23, Block-C, NOIDA, Uttar Pradesh..... Defendant No. 5
6. REKHA W/o Shri Vijay, R/o 54/21-B, New Colony, Fatehpur Chandila, Tehsil & Distt. Faridabad, Haryana..... Defendant No. 6
7. RAJNI RAWAT W/o Shri Yogesh Rawat, R/o 161-A, Kariappa Marg, Sainik Farm, New Delhi..... Defendant No. 7 Through: Mr. Hitendar Mahalwal, Advocate for D-2. Ms. Richa Kapoor, Mr. Kunal Anand & Ms. Atika Singh, Advocates for D-1,[3] & 7. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. The plaintiff has filed the present Suit for Declaration, Permanent and Prohibitory Injunction and the Reliefs claimed are as under: "a) a decree of declaration regarding the fact that the relinquishment deed dated 29.06.2017 registered in Book No. I, Volume No. 1863, on pages 139-143 on 04.07.2017 with Sub-Registrar, Hauz Khas executed in favour of defendant No. 1 qua the transfer of share of defendant No. 1 Sh. Anup Kumar Bidhuri i.e. 1/7th share as illegal, unauthorized and void ab-initio and the defendant no. 2 has no right to execute such documents as it adversely affect the right of the plaintiff as well the children to reside in the property and to enjoy the same as it is a shared hold house and matrimonial home of the plaintiff and her children. b) a decree of permanent and prohibitory injunction whereby the defendant No. 1 be restrained from creating any third party interest in respect of the property in question bearing No. E-128, Saket, New Delhi as shown in the site plan filed along with this plaint. c) a decree of permanent prohibitory injunction with regard to the fact that all the defendants be restrained from interfering in the peaceful enjoyment and possession of the plaintiff with refard to the first floor of property bearing No. E-128, Saket, New Delhi, 110017 as shown in red colour in the site plan annexed with this plaint belonging to the plaintiff;
(d) Costs of the suit be also awarded in favour of the plaintiff and against the defendants; (e) Pass any other order, relief(s) as may be deemed fit and proper in view of the above facts and circumstances may also be passed in favour of the plaintiff and against the Defendants."
2. The defendants Nos. 1, 3 to 7 have taken a Preliminary Objection in regard to the maintainability of the Suit.
3. The facts as stated by the plaintiff are that the plaintiff is the daughter-in-law of the defendant No. 1, defendant No. 2 is her husband and the defendant Nos. 3 to 7 are two brothers-in-laws and three sisters-in-law.
4. The plaintiff got married to defendant No. 2 Sh. Anup Kumar Bidhuri according to Hindu customs and rites on 19.11.2003. Two children i.e., the daughter, Ms. Kashvi Bidhuri and son, Mr. Neev Pratap Bidhuri were born from the said wedlock, who were aged 13 years and 11 years, respectively at the filing of the present Suit.
5. The plaintiff has asserted that the defendants always treated her with utmost cruelty and even on smaller issue, they gave beatings to her. Matrimonial disputes arose on account of demands of dowry and incessant cruelty. The defendant No. 2 failed to provide any maintenance to the plaintiff or to the two children. On account of differences, various criminal proceedings i.e., FIR No. 1329/2015 under Sections 308/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) were registered at Police Station, Saket against the defendants. A counter FIR bearing NO. 1330/2015 under Sections 325/34 of IPC, 1860 was also registered against the plaintiff. Another FIR bearing No. 20/2016 under Sections 498A/406/34 of IPC, 1860 was registered at Police Station, Nanak Pura, New Delhi against the defendants.
6. Since the defendant No. 2 failed to pay any maintenance and caused hindrances in the proper development of the children, the plaintiff was compelled to institute the Petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “DV Act, 2005”) wherein she sought various reliefs of Prohibitory injunction, residence, maintenance etc., from all the defendants and especially from the defendant No. 2, her husband.
7. The defendant No. 2 in order to be able to secure Anticipatory Bail in FIR No. 1329/2015 under Sections 308/34 of IPC, 1860 entered into a compromise with the plaintiff and agreed to give maintenance and to take care of the minor children. The Anticipatory Bail was granted to the defendant No. 2 and the family members on 18.05.2016; however, defendant No. 2 never abided by the terms of the settlement. Three Applications under Section 23(2) of DV Act, 2005 seeking compliance of the settlement were filed by the plaintiff, but the defendant No. 2 on 24.04.2017 informed the learned Metropolitan Magistrate that he shall not abide by the terms of the settlement or to take care of the children.
8. The defendant No. 2 had assured the plaintiff that he would shift her to the first floor of the Property bearing No. E-128, Saket, New Delhi-110017 (hereinafter referred to as “property in question”), the matrimonial home but he failed to do so.
9. It is asserted that the plaintiff has a Right to Residence on the first floor of the property in question. The plaintiff consequently filed an application in this regard before the Metropolitan Magistrate which was allowed vide Order dated 10.04.2019.
10. The plaintiff has asserted that without seeking permission from the Metropolitan Magistrate, the defendant No. 2 had executed a Relinquishment Deed dated 29.06.2017 in respect of his 1/7th share in the property in question, in favour of his mother/defendant No. 1.
11. It is explained by the plaintiff that the property in question was originally allotted to the father of defendant Nos. 2 to 6 vide Perpetual Lease Deed dated 08.06.1977. He died on 10.11.2008 and all the defendants inherited the property in question, being the legal heirs.
12. The relinquishment of the share by the defendant No. 2 in favour of his mother/defendant No. 1 vide Relinquishment Deed dated 29.06.2017 has been challenged on the ground that the said relinquishment is mala fide and the defendant No. 2 had no right, title or interest to transfer 1/7th property in question, since it is the shared household in which the plaintiff and the children have a right to residence.
13. Hence, the present Suit has been filed on behalf of the plaintiff seeking a Declaration that the Relinquishment Deed dated 29.06.2017 is a void ab initio and the defendant No. 1 be restrained from creating any thirdparty interest in the property in question and also to prevent the defendants from interfering in the peaceful enjoyment of the first floor of the property in question, by the plaintiff.
14. Learned counsel for the defendants have submitted that the plaintiff may have a right of residence in the property in question, it being a matrimonial home, but it cannot be any impediment to the right of the defendant No. 2 to relinquish his share in favour of his mother/defendant No. 1. It is submitted that the reliefs of maintenance and residence which are sought to be agitated in the present Suit, have already been secured in the Petition under DV Act, 2005. The present Suit is claimed to be not maintainable.
15. Submissions heard.
16. It is not in dispute that the father of defendant Nos. 2 to 7 and the husband of defendant No. 1 was the original owner of the property in question vide Perpetual Lease Deed dated 08.06.1977. On his demise on 10.11.2008, the defendant Nos. 1 to 7 acquired 1/7th undivided share each in the property in question, being the legal heirs. The defendant No. 2, being one of the co-owners, had relinquished his 1/7th undivided share in favour of his mother/defendant No. 1 vide Relinquishment Deed dated 29.06.2017.
17. Indisputably, defendant No. 2 was the owner of the 1/7th property in question and the law recognises the right of the defendant No. 2 to relinquish his share in favour of the other co-owners. Per se, there is no illegality attached to the Relinquishment Deed dated 29.06.2017 executed in favour of the defendant No. 1 by the defendant No. 2.
18. The question which thus arises is whether the plaintiff has any right, title and interest in the property in question and whether she can object to the transfer of the undivided 1/7th share by the defendant No. 2, her husband, in favour of his mother/defendant No. 1.
19. The entire narration of the facts in the Plaint reveals that the plaintiff after her marriage with the defendant No. 2 on 19.11.2003, she came to the property in question which became her „shared household‟ as defined under Section 2(s) of DV Act, 2005, since the property in question is her matrimonial home. The Apex Court in Satish Ahuja v. Sneha Ahuja (2021) 1 SCC 414, held that the daughter-in-law can exercise her right to live in the „shared household’, which is completely owned by the in-laws until alternate accommodation is provided by the husband. In this case, the Apex Court interpreted “shared household” in the context of Section 17 of DV Act to imply that such right in shared household is irrespective of whether she has any legal interest or not.
20. The plaintiff in recognition of her rights in the DV Act, 2005 has admittedly filed the petition before the Metropolitan Magistrate under the DV Act, 2005 and her residence on the first floor of the property in question has also been protected by the Metropolitan Magistrate vide Order dated 10.04.2019.
21. It may be an unfortunate situation emanating from the law as it stands today exits wherein the right of a woman has not been recognised by the law in a property inherited by the husband from his father; the plaintiff being a daughter-in-law cannot claim any right or title nor can she seek any declaration to challenge the relinquishment of the interest by the defendant No. 2 in favour of the defendant No. 1, as void ab initio. The Defendant no.2, being the owner of the 1/7th undivided share in the property in question, has an absolute right of transferring/ alienating his share in the suit property, as incidence of transfer is inherent in the enjoyment of the immoveable property.
22. Before concluding, it is pertinent to observe that it being her matrimonial home/ shared household, her absolute right of residence is protected, not only against the husband but against all family members to whom she is so related. Her right of residence is connected to the suit property, it being a shared household and is in no way impacted by the relinquishment of the his 1/7th share by the defendant No.2 in favour of his mother. Therefore, even if the defendant No. 1, husband has transferred his share in favour of the mother-in-law, the property in question being the matrimonial home/shared household of the plaintiff to which she came after her marriage, her residence is absolutely protected under the relevant proceedings of DV Act, 2005. Sections 2, 17 and 19 of the DV Act, 2005 grant entitlement to woman of her right of residence in the shared household, irrespective of her having no legal title of the property in question. The plaintiff has already filed the petition under the DV Act to secure her right of residence.
23. There is no cause of action in favour of the plaintiff either to challenge the Relinquishment Deed executed by the defendant No. 2 in favour of the defendant No. 1 or to seek any such similar restraint in regard to the transfer of property against any of the defendants. The present Suit does not disclose any cause of action and is not maintainable.
24. Before concluding, it is pertinent to observe that the Suit has been valued at Rs. 3.[5] crores for the purpose of jurisdiction, while for the purpose of court fee its valuation has been made at Rs. 2000/- and the Court Fee of Rs. 272/- has been paid. Section 8 of Suits Valuation Act, 1887 read with Section 7(iv) of the Court Fees Act, 1870 make it abundantly clear that the valuation of the Suit under Section 8 for the purpose of jurisdiction, would be the valuation for the purpose of the court fee which shall be paid ad valorem. Therefore, valuation effected for the purpose of Court Fee at Rs. 2000/- is incorrect and the requisite Court fee has not been paid.
25. Therefore, the plaintiff is directed to make good the deficit court fee within three months and in case, she fails to pay the requisite court fee, the Registry shall initiate the proceedings for recovery of the deficit court fee as land revenue, in accordance with law.
26. In view of above, there is no merit in the present Suit which is hereby dismissed. The pending applications also stand disposed of.
JUDGE JUNE 28, 2024 S.Sharma