Full Text
HIGH COURT OF DELHI
RAKESH KUMAR AGGARWAL & ANR. .....Plaintiffs
Through: Mr. Manish Vashisht, Sr. Advocate with Mr. Sameer Vashisht, Advocate.
Through: Mr. Manish Kr. Srivastava, Mr. Akhil Hasija, Mr. Sagar Arora &
Mr. Aaditya Mishra, Advocates.
YASHASWI AGGARWAL AND ANR. .....Plaintiffs
Through: Mr. Jeevesh Nagrath, Ms. Kirti Mewar & Mr. Arjun Gaur, Advocates.
Through: Mr. Manish Vashisht, Sr. Advocate with Mr. Sameer Vashisht, Advocate.
Mr. Lalit Gupta, Mr. Siddharth Arora & Mr. Priyansh Jain, Advocates for D-9 to 13.
Mr. Manish K. Srivastava, Mr. Akhil Hasija, Mr. Sagar Arora &
Mr. Aaditya Mishra, Advocates for D-14.
J U D E M E N T
NEENA BANSAL KRISHNA, J. I.A.3934/2012 in CS(OS) 1587/2011 (U/O XII Rule 6 of CPC, 1908)
JUDGMENT
1. The present application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been filed on behalf of the plaintiffs seeking decree of possession in respect of the Suit Property bearing No. 42 and 44, Sunder Nagar, New Delhi, on the basis of admissions of the defendant.
2. The plaintiffs have filed the present Suit for Permanent and Mandatory Injunction against the defendant for restraining the defendant from entering the suit premises and interfering in peaceful possession of the Plaintiffs; to remove its security guards from the suit property; and for restraining the defendant from selling, alienating and creating any third right party interest in the suit property.
3. The facts in brief as narrated in the present Suit that the Suit Property bearing No. 42 and 44, Sunder Nagar, New Delhi (hereinafter referred to as “suit property”) admeasuring 1732.72 sq. yards comprises of ground floor, first floor and second floor along with roof, front lawn, open spaces in the rear, two drive ways, passages, two stair cases, four garages and eight servant quarters and is a residential house.
4. Late Smt. Bimla Devi, Late Smt. Shanti Devi and Late Smt. Pushpa Devi who were the real sisters-in-law, were allotted this undivided suit property by perpetual Lease Deed executed in their favour on 08th November, 1954. Smt. Shanti Devi died on 16th August, 1977 leaving behind her legal heirs, namely, Shri Mahender Kumar Gupta, Shri Mahesh Kumar Gupta, Shri Surender Kumar Gupta and Shri Deepak Kumar Gupta and accordingly perpetual Lease Deed was amended and the names of the afore-mentioned legal heirs were added in her place on 06th July, 1992 along with Late Smt. Bimla Devi and Smt. Pushpa Devi.
5. Smt. Bimla Devi, mother of the plaintiffs, died on 06th October, 2003 leaving behind the plaintiffs and Smt. Preeti Jain and Smt. Anju Jalan as her legal heirs who are entitled to 1/3rd undivided share each, in accordance with her Will dated 30th July, 2003.
6. Smt. Pushpa Devi and legal heirs of Smt. Shanti Devi had entered into a sale transaction with the defendant and sold their undivided 2/3rd right in the suit property to it on or around 02nd June, 2011 as per the statement to this effect made by their respective counsels in Civil Suit bearing No. CS(OS) 2443/1993 titled M/s Caravan Commercial Company Limited vs. Pushpa Devi & Others filed by the defendant for Specific Performance of Agreement to Sell dated 15th November, 1991 and 16th November, 1992. Smt. Pushpa Devi through her counsel also informed this Court that the delivery of possession of the ground floor of the suit property has already been delivered to the defendant. Shri Arun Batra was impleaded as defendant No. 8 in the aforesaid suit as he was claiming prior rights in the suit property by way of some alleged Agreement purportedly executed in his favour by the co-owners. Shri Arun Batra has also filed Civil Suit bearing CS (OS) 1578/1992 against the co-owners which was absolutely frivolous and malicious. The said two suits have been contested by the plaintiffs disputing the existence of any Agreement to Sell and have challenged the grant of discretionary relief of Specific Performance.
7. Inter se dispute between the plaintiffs and other co-owners arose and the legal heirs of Late Smt. Shanti Devi filed the Civil Suit bearing CS (OS) 690/2006 titled Mahender Kumar Gupta & Others vs. Smt. Pushpa Devi & Others for Partition of their 1/3rd share in the suit property and physical possession against the plaintiffs and Smt. Pushpa Devi of the suit property. However, the legal heirs of Late Smt. Shanti Devi unconditionally withdrew their suit on 20th May, 2011.
8. It is asserted that possession of a portion of the undivided property i.e., the ground floor has been transferred to the defendant by Smt. Pushpa Devi and the legal heirs of Late Smt. Shanti Devi have also re-sold their share in favour of the defendant on some new terms and conditions dehors the terms of the Agreement dated 15th November, 1992.
9. It is claimed that the suit property being a dwelling house, the defendant gets no right to the joint possession or common enjoyment of the house, including the ground floor thereof. The plaintiffs and their family members including ladies, children and senior male citizens are residing in the suit property and are entitled to seek protection against the intrusion on their privacy by the defendant into the dwelling house. Even otherwise, the plaintiffs are entitled to protection of their possession and enjoyment of the whole undivided property, including lawns, open spaces in the rear, drive way and passages.
10. The defendant being a stranger cannot be allowed to occupy and enjoy the suit property to the detriment of the plaintiffs. There is an imminent danger to the plaintiffs and their family members as the third parties and the directors of the defendant have been seen on the ground floor of the property giving directions to labour and carpenters. The defendant has also deputed its security guards in the suit property who sit in the verandah leading to the first floor and the second floor and keep a constant eye on the movement of the plaintiffs and other family members.
11. It is claimed that even though the defendant has stepped into the shoes of the other co-owners, but being a stranger and an outsider, it cannot be permitted to interfere in the dwelling house and the life of the plaintiffs and cannot be allowed to deploy its security guards in the suit property. The defendant has also demolished the ground floor of the suit property and removed the doors and windows which may be dangerous and fatal to the safety of the suit property. The defendant is also creating nuisance in order to compel the plaintiffs and other family members to vacate the house or to deliver the vacant possession of the suit property to it. The plaintiffs being the co-owners of the undivided dwelling house are entitled to protection of their possession. Hence, the present Suit has been filed on behalf of the plaintiffs for restraining the defendant from entering into the suit property and interfering in the peaceful possession and other ancillary reliefs.
12. It is submitted in the present Application under Order XII Rule 6 of CPC, 1908 that the defendant has made admissions in the litigations as referred above and also in the Written Statement, which are as following: - (i). That the suit property is an undivided one. (ii). That the plaintiffs are the co-owners of the property or in any event are the legal heirs of Late Smt. Bimla Devi who was the co-owner to the extent of 1/3rd undivided share in the suit property. (iii). That the property is a residential property and the plaintiffs are residing on the first floor of the same. (iv). That the defendant is bound by the pleadings of the erstwhile co-owners which were made in CS (OS) No. 690 of 2006. (v). That the defendant is a transferee pendente lite in CS (OS) No. 690 of 2006 and in any event there was a privity of contract between the defendant and the erstwhile co-owners. Therefore the defendant is also bound by the admissions in respect of the nature of the suit property and the fact of it being an undivided one which was admitted by the previous co-owners before transferring their interest in favour of the defendant.
13. It is asserted that in terms of Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to as “TPA”), a stranger cannot enjoy the joint possession of undivided property with a family which is residing in the property. The defendant is a legal separate entity. There is no equity in favour of the defendant to continue to be in possession of the ground floor. The plea that the house cannot be termed to be an undivided dwelling house because the same was owned by three individual ladies and not by a joint family is a matter of legal interpretation on the basis of admitted facts. Hence, a prayer is made that the suit of the plaintiffs be decreed under Order XII Rule 6 of CPC, 1908.
14. The defendant in its Reply has asserted that there is no admission or otherwise in any pleadings based on which a decree under Order XII Rule 6 of CPC, 1908 can be made. In the previous litigations, including CS (OS) 1578/1992, CS (OS) 2443/1993 and CS (OS) 1561/1994, the defendant may have admitted the plaintiffs as natural legal heirs of Late Smt. Bimla Devi, but the plaintiffs have claimed a right to the suit property on the basis of an alleged Will dated 30th July, 2003 of Late Smt. Bimla Devi without placing the Will on record. The plaintiffs‟ conduct is willful and deliberate in concealing the Will which has raised grave issues about the alleged share of the plaintiffs in the suit property. The defendant has raised the issue of locus standi of the plaintiffs to file the present suit on account of non-production of the alleged Will. Moreover, the alleged share of the plaintiffs is a triable issue and cannot be decided under Order XII Rule 6 of CPC, 1908.
15. The plaintiffs have alleged that a share in the suit property has devolved upon them and their two sisters pursuant to the alleged Will, however, two sisters i.e., daughters of Late Smt. Bimla Devi have not been made party in the present Suit which is bad for non-joinder of necessary parties.
16. It is further asserted that in the Suit bearing No. 1561/1994 filed by the sons of the plaintiff No. 2 (nephews of plaintiff No. 1) a stand was taken that the land appurtenant to the suit property had been purchased out of joint family funds and that 1/3rd share in cost of construction of the suit property was contributed out of joint family funds and the suit property belonged to a Hindu Undivided Family. The plaintiffs herein in their Written Statement filed in the said suit, admitted that the suit property was purchased in the name of defendant Nos. 3 and 8 (Smt. Pushpa Devi and Bimla Devi) and Smt. Shanti Devi and that Shri Mai Dayal was deriving a substantial income from rents, dividends and interest. It was also not denied that the plot had been purchased sometime in the year 1949. The plaintiffs, therefore, do not deny the stand that the land on which the suit property is situated, was purchased from the family funds. However, in the present suit, the plaintiffs have alleged a right to the share in the suit property on the basis of an alleged Will of Late Smt. Bimla Devi. Such contrary stands being taken raise substantial issues for trial, arising out of the facts stated by the plaintiffs themselves in the Plaint.
17. It is denied that the defendant has made any admission of fact which could entitle the plaintiffs to any judgement on admission. It is asserted that the suit property was tenanted from its very inception, initially to Embassy of Poland and then to the Embassy of the Democratic Republic of Korea who had occupied the suit property till 03rd March,
1994. The clear intention of the co-owners of the suit property was to sell the same once the tenancy came to an end as evidenced by Agreement to Sell dated 15th November, 1992 which formed the subject matter of the Suit No. 2443/1993 filed by the defendant herein. The case of the defendant did not fructify allegedly on account of the defendant not fulfilling its obligation under the Agreements and not because the defendant had developed a sudden intention to occupy the suit property.
18. It is claimed that the suit property does not belong to an undivided family but a self-acquired property of three individuals who happened to be sisters-in-law, namely, Smt. Bimla Devi, Smt. Shanti Devi and Smt. Pushpa Devi who own 1/3rd undivided share each in the suit property. Upon the demise of Smt. Shanti Devi her 1/3rd share devolved on her legal heirs and not on any undivided family, including the plaintiffs.
19. Smt. Shanti Devi and after her demise, her legal heirs never resided in the suit property, rather they were forcefully kept out of the premises by two other factions resulting in their filing a Partition Suit in order to gain possession of their part of the premises.
20. It is asserted that in the light of defences set up by the defendant, it cannot be held that there is any admission made on which a judgement can be passed in favour of the plaintiffs. Triable issues have been raised and the legal issues raised need to be decided and no decree under Order XII Rule 6 of CPC, 1908 can be made on the basis of alleged admissions.
21. Learned Senior Counsel on behalf of the plaintiff has argued that the suit property is a residential house situated in a residential area of Sunder Nagar, New Delhi belonging to an undivided family within the meaning of Section 44 of the TPA. The contention of the defendant that it is three ladies and not an undivided family property is fallacious. Even though, three owners may be assumed to have severed their status as joint owners, they were holding the property as owners in common in equal undivided 1/3rd share, their status being owners in common, would not make the dwelling house to be a non-residential house not belonging to an undivided family. Even if the family is divided in status, but the suit property was never divided by metes and bounds and it would thus come within the scope of Section 44 of the TPA. For this, reliance has been place on Dorabcawasji Warden vs. Coomisarob Warden (1990) 2 SCC
117.
22. Furthermore, the defendant cannot claim itself to be a family member or its predecessor-in-interest merely be entering into an Agreement to Sell with the co-owners of a property. The property was occupied by the co-owners in the year 1994 when the same was vacated by the tenant and till date the property is in actual, physical possession of the plaintiffs which is being used for residential purpose which fact is sufficient to demonstrate the willingness of the co-owners to retain the same as a dwelling house.
23. It is further submitted that to qualify as an undivided family, it is not necessary that the members should have a joint mess, but the essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners.
24. The reliance has been placed by the plaintiffs on Boto Krishna Ghose vs. Akhoy Kumar Ghose AIR 1950 CAL 111, Bhim Singh vs. Ratankar Singh AIR 1971 ORISSA 198, M.V.S. Manikyala Rao vs. M. Narshima Swami AIR 1966 SC 470, Ram Dass vs. Sita Bai (2009) 7 SCC 444, Gajara Vishni Gosai vs. Prakash Nana Saheb Kamble (2009) 10 SCC 654 and Dulal Chandra vs. Gosthabehari Mitra AIR 1953 CAL 259 (DB).
25. It is further argued that mere creation of tenancy does not terminate the possibility of the house being used as a dwelling house and the coowners of the house returning to its occupation. The Lease of Korean Embassy was not renewed after 1994 and the two co-owners stated living in the property thereof. For this reliance has been place on Dulal Chandra (supra).
26. Moreover, a desperate objection has been taken by the defendant about the non-production of the Will. In fact, the plaintiffs had been impleaded as the legal heirs of Late Smt. Bimla Devi in Suit NO. 2443/1993 by the defendant itself. The recitals in the Agreement to Sell dated 25th May, 2011 and 30th May, 2011 demolish the plea of the defendant vis-a-viz title of the plaintiffs. The non-availability of the Will was made known to the Court by the plaintiffs on 20th May, 2008 in CS (OS) No. 1578/1992 titled Arun Batra vs. Smt. Bimla Devi, wherein the present defendant was also a party. The sisters of the plaintiffs had filed their affidavit stating that the Will of the mother is not traceable and that there is no dispute inter se the brothers and sisters relating to the undivided 1/3rd share of the plaintiffs as legal heirs of Late Smt. Bimla Devi. It is further contended that the defendant is fully aware of the fact that its predecessor-in-interest had 2/3rd undivided share in the suit property and a Suit for Partition bearing No. CS (OS) 690/2006 is pending in this Court.
27. The defendant has purchased 2/3rd undivided share in a secret manner which was disclosed in the Court only on 01st June, 2011. The defendant cannot be permitted to take the advantage of its own secretive acts and defeat the claim of the plaintiffs that they are not entitled to the equitable relief.
28. It is further argued that balance of convenience also does not lie in its favour and no irreparable injury shall be caused to the defendant if the plaintiffs‟ possession in the undivided property is protected.
29. It is further submitted that there is no requirement under Section 44 of the TPA that it should be an undivided family. What is required is that there should be co-owners and even though the three original owners were sisters-in-law, there was unity and cohesion and being the co-owners, they were entitled to maintain the integrity of their family.
30. It is further argued by the learned Senior Counsel for the plaintiff that even though the property had been initially rented out, but after it was vacated by the tenants, it came to be occupied by the family members for the purpose of residence and once the family members came to reside in the property, no portion of the same was given on rent. The property is essentially a dwelling house and merely because at some point of time, it had been rented out, would not take away its status of a dwelling house.
31. It is further argued that essentially the objective of Section 44 of the TPA is to ensure that no stranger intrudes into the privacy of the family. Therefore, all the ingredients of Section 44 of the TPA are fully satisfied and the defendant is liable to be asked to vacate the ground floor of which it is in possession.
32. Learned Senior Counsel on behalf of the plaintiff has placed reliance on Jujhar Singh vs. M/s. Hotz Industries Ltd. EFA (OS) 21/2009 dated 21st December, 2019, Jujhar Singh Ors. vs. M/s. Hotz Industries Ltd.& Anr. CS(OS) 114/2018 dated 20th March, 2018, Dinesh Sharma vs. Mrs. Krishna Kainth 290 (2022) DLT 579, Caravan Commercial Co. Ltd. Vs. Yashasvi Aggarwal 238 (2017) DLT 643 and Vidur Impex & Traders vs. Tosh Apartments 213 (2014) DLT 783.
33. Learned counsel on behalf of the defendant has argued that there is no admission whatsoever that the suit property is a dwelling house belonging to an undivided family or that there exists a dwelling house or an undivided family. In fact, the defendant has categorically denied these facts in its Written Statement. The fundamental requirements of Section 44 of the TPA are neither pleaded in the Plaint nor are they satisfied. Section 44 of the TPA is not applicable to the present facts. Moreover, there were three co-owners, namely, Smt. Pushpa Devi, Smt. Bimla Devi and Smt. Shanti Devi who are not related by blood or any ancestry and therefore, do not constitute an undivided family.
34. It is asserted that protracted litigation was commenced about 20 years ago by one Shri Arun Batra and in order to buy peace, the defendant entered into an amicable settlement with the two co-owners i.e., legal heirs of Late Smt. Shanti Devi as well as Smt. Pushpa Devi who were desirous of putting an end to the litigation during their lifetime. Accordingly, in furtherance of earlier Agreement to Sell, a registered General Power of Attorney, registered Special Powers of Attorney, registered Wills and affidavit etc. were executed on 30th May, 2011 and 25th May, 2011 by Smt. Pushpa Devi and legal heirs of Late Smt. Shanti Devi respectively. The entire consideration amount was paid and the defendant became an absolute owner of 2/3rd share in the suit property. Smt. Pushpa Devi transferred the possession of the ground floor of the suit property to the defendant. Thereafter, the present Suit has been filed by the plaintiffs.
35. It is further claimed that the principles for a decree under Order XII Rule 6 of CPC, 1908 are not satisfied in the present case as though the suit property was owned by three sisters-in-law, they were not an undivided family, but merely co-owners, they all never lived in the suit property as a family and, therefore, they are not entitled to the relief as claimed by the plaintiffs. There is neither any dwelling house nor an undivided family for which reliance has been on Jeevan Diesel and Electricals Limited vs. Jasbir Singh Chadha (HUF) and Anr. (2010) 6 SCC 601, Himani Alloys Ltd. Vs. Tata Steel Ltd. (2011) 15 SCC 273, Bachhaj Nahar vs. Nilima Mandal (2008) 17 SCC 491, Narashimaha Murthy vs. Susheelabai (1996) (3) SCC 644, Sunil Gupta vs. Nargis Khanna185 (2011) DLT 760, Dorab Caswasji Warden vs. Coomisarab Warden (1990) 2 SCC 117 and Commissioner of Income-Tax vs. Sun Engineering Works (P.) (1992) 4 SCC 363.
36. Submissions heard.
37. The plaintiff has sought a mandatory injunction for removal of the plaintiff from the possession of the ground floor of the suit property under Order XII Rule 6 of CPC on the basis of the admitted facts and the alleged admissions made by the defendant in the written statement and pleadings. Before embarking on the merits of the case, it would be pertinent to first highlight under what circumstances a decree can be made under Order XII Rule 6 of CPC.
38. Hon'ble Supreme Court in Himani Alloys Ltd. Vs. Tata Steel Ltd. (2011) 7 SCR 60 had observed that Order XII Rule 6 CPC is an enabling provision and the court has to exercise its judicial discretion after examination of facts and circumstances, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and unconditional, the discretion should not be exercised to deny the valuable right of a defendant to contest. It is only when the admission is clear that it may be acted upon. Similar observations were made by the Supreme Court in the case of M/s Jeevan Diesels & Electrical Ltd. (2010) 6 SCC 601.
39. The Division Bench of Delhi High Court in Vijay Myne vs. Satya Bhushan Kaura, 142 (2007) DLT 483 (DB) explained the scope of Order XII Rule 6 of CPC as follows:-
40. The Division Bench of Delhi High Court in Delhi Jal Board v. Surendra P. Malik, 104 (2003) DLT 151 laid down the following tests:-
41. In Rajeev Tandon & Anr. Vs. Rashmi Tandon CS (OS) 501/2016 decided by Delhi High Court on 28.02.2019 it was held that while considering an application under Order XII Rule 6 CPC the court can ignore vague and unsubstantiated pleas.
42. In Abbot India Ltd. Vs. Rajinder Mohindra (2014) 208 DLT 201 it was held that once it is found that there was no defence, merely because a bogey thereof is raised at the stage of framing of issues or upon the respondents/ plaintiffs filing an application under Order XII Rule 6 of the CPC, would not call for framing of an issue.
43. In A.N. Kaul Vs Neerja Kaul & Anr. 2018(3) SCC OnLine Del 9597 it was observed that even if there is no express admission in the written statement but an intelligible reading of the written statement shows propositions or pleas taken to be not material and no issue to be arising therefrom, the Court is still entitled to pass a decree forthwith.
44. In Anil Khanna Vs. Geeta Khanna, Hon'ble High Court of Delhi had observed that the preliminary objections are based on legal advice, the same are not reply on merits wherein the party is required to plead facts specifically. In the preliminary objections parties can even take contrary pleas and same would not amount to an admission. Further, the facts stated in the preliminary objections are without prejudice and do not constitute reply on merits and the averments cannot be read in isolation. Further, in the verification it is clearly stated that the averments in the preliminary objections are believed to be true on the basis of legal information.
45. The proposition of law cannot be challenged and it is the entire document as a whole which has to be considered to determine if there are any clear unequivocal admissions on the case of the plaintiff so as to enable the plaintiff to get a decree under Order XII Rule 6 CPC. In the light of aforesaid scope of judgement on admission, the facts of the present case may now be considered.
46. The case of the plaintiffs in a nutshell is that the suit property was in the co-ownership of the three sisters-in-law, namely, Smt. Shanti Devi, Smt. Bimla Devi and Smt. Pushpa Devi by virtue of a perpetual Lease Deed executed in their favour on 08th November, 1954. The property was let out initially to Embassy of Poland and then to the Embassy of the Democratic Republic of Korea, who had occupied the suit property till 03rd March, 1994 and the plaintiffs who are the legal heirs of Late Smt. Bimla Devi came to reside on the first floor of the suit property in question. The possession from the defendant which is admittedly in the possession of the ground floor has been sought in terms of Section 44 of the TPA.
47. Section 44 of the TPA reads as under: - “Section 44: –Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”
48. The basic requirements of Section 44 of the TPA are as under:
(i) there should be a dwelling house;
(ii) it should belong to an undivided family; and
(iii) that the undivided family has a right to joint possession in the suit property.
49. In Sivaramayya vs. Venkata Subbamma AIR 1930 Mad 561, it was observed that the object of Section 44 of the TPA is to prevent the intrusion of the strangers into a family resides which is allowed to be possessed and enjoyed by the members of the family in spite of the transfer of share in favour of stranger by one or more of the owners of the property.
50. Likewise, the object of Section 44 of the TPA was explained in Sunil Gupta vs. Nargis Khanna 185 (2011) DLT 760, wherein it was stated that it is a part of a scheme of agnate and cognate statutes with an object that a stranger should not be allowed to enter into possession in a residential/dwelling house of an undivided family. The stranger who has acquired ownership in a dwelling house can seek partition and thereafter, take the possession of the property allotted to him in partition, but till such property is divided by metes and bounds, the stranger cannot come into possession of the undivided family dwelling house. This provision has its foundation in the customs and traditions of this country and denizens wherein family privacy in a dwelling house, is zealously guarded. The atmosphere and the privacy of a joint family in a dwelling house is required to be preserved against the strangers who can enforce the right of possession only after a partition by metes and bounds is effected in the undivided family house.
51. In order to ascertain whether the plaintiff is entitled to seek ejectment of defendant on admissions, the various components of Section 44 of the TPA and the admissions of the defendant may be considered individually.
I. Whether the suit property is an undivided dwelling house of an undivided family?
52. The term “dwelling house” is not defined in the Act or in the Section. According to Webster Comprehensive Dictionary, the expression "dwelling house" means a house built for habitation, a domicile. In law it may embrace the dwelling itself and such buildings as are used in connection with it.
53. In Black's Law Dictionary (sixth edition), under statute prohibiting breaking and entering a "dwelling-house", the test for determining if a building is such a house is whether it is used regularly as a place to sleep.
54. In Stroud's judicial Dictionary (fifth edition), the expression “dwelling-house" has been described as a house with the super-added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi and the legal ability to return.
55. In Ford v. Barnes, it is described that the word "inhabitant" would seem to bring about more fully the meaning of the word "dwelling-house".
56. In Words and Phrases (Third Edition) a quotation is available from Lewin v. End, wherein according to Lord Atkinson "dwelling-house" as understood by him was "a house in which people live or which is physically capable of being used for human habitation".
57. Maule, J. in R. v. Allison, stated that a house, as soon as built and fitted for residence, does not become of dwelling-house until some person dwells in it.
58. In I.P. Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that a dwelling-house, as the words imply, projects the meaning that the house or a portion thereof is an abode of his, available to him at all times without any let or hindrance by others. Further thereat is stated that a dwelling place is one where a person inhabits and in law should be his domus mansionalis.
59. In an old decision of the Allahabad High Court in Fatima Begum v. Sakina Begum (1875) ILR 1 All 51, it has been held that the words "dwelling" or "residence" are synonymous with domicile or home and mean that place where a person has his fixed permanent home to which whenever he is absent, he has the intention of returning.
60. In Commissioner of Income Tax v. K.S. Ratanaswamy, [1980] 122 ITR 217 (SC), it was observed that primarily the expression "dwelling place" means 'residence", "abode" or "home" where an individual is supposed usually to live and sleep and in the context of a taxing provision which lays down a technical test of territorial connection amounting to residence, the concept of an "abode" or "home" would be implicit in it. In other words, a dwelling place must be a house or portion thereof which could be regarded as an abode or home of the assessee in taxable territories.
61. In Sunil Gupta (supra) it was observed that the expression "dwelling-house" has not been explained elsewhere then in the Section 23 itself. There is no specific definition of the expression in the Act as such. It was observed the word „dwelling house‟ is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self-acquired, as understood in the law applicable to the Hindus. In the context of Section 23, the Legislature had employed the word dwelling house, it has done so with a purpose which is that on the death of the intestate, a limited status quo should prevail as was existing prior to his death and the members of his family should be able to continue to be in enjoyment thereof till such time the partition by metes and bounds is effected.
62. It was further observed that what is meant to be covered in Section
23 Hindu Succession Act is a dwelling house fully occupied by the members of the intestate family and not a house let out to tenants, for then it or those would not be dwelling house, but merely in description of a residential house. A tenanted house, therefore, is not a dwelling house in the sense in which the term is used in Section 23. It may be a dwelling house in the structural sense, but it cannot be said to be a dwelling house in habitation by the members of the intestate‟s family. A dwelling house is thus that house which is an actual, physical, inhabited possession of one or the other members or the family in stricto sensu, and if some are absent due to exigencies of service or vocations, the dwelling house remains available for them to re-enter without any obstruction or hindrance. A tenanted house does not fit into this description.
63. The Hon‟ble Supreme Court in Income Tax v. K.S. Ratanaswamy, (Supra) thus held as under: “i) A dwelling-house is a residential house of a family which is exclusively occupied by and lived in by members of a family. ii) Except the members of the family, no one else has resided in the dwelling-house, i.e. a stranger has not come into possession of whole or part of the dwelling-house. iii) Once a stranger comes into possession of a dwellinghouse, then in such circumstances, the dwelling-house loses the character of a family dwelling-house considering the object that the sanctity of a family dwelling-house was required to be preserved till a stranger did not come into possession of the same. iv) the provisions of Section 23 of the Hindu Succession Act, 1956 and provisions of agnate and cognate acts being Section 4 of the Partition Act, 1893 and Section 44 of the Transfer of Property Act, 1882 are part and parcel of the same scheme and the intention of the legislature and therefore, the meaning which has to be ascribed to the expression “dwelling-house” in all the three provisions of the three Acts has to be similar.”
64. In Sunil Gupta (supra), the status/rights of the stranger who has purchased the undivided share in a family house, has been explained by observing that once in part of dwelling house, there is a stranger, then it results in the fact that the entire dwelling house is not with the family and then in such situation it cannot be said that an additional stranger cannot come in. Further, the stranger who purchases the shares of a co-owner can always get his share separated and thereafter, possess and enjoy his share. The disability to take possession is only temporary till the partition is effected. If there is already a stranger living in the house factually there is separation of a share of the dwelling house in which the tenant/stranger lives, though in law a partition by metes and bounds between co-owners can still be effected. Therefore, a balanced interpretation of Section 44 of the TPA has to be made keeping in view the fact that the inability of the stranger to take possession is temporary till the partition by metes and bounds is effected. It was concluded that once a stranger comes in there does not arise the scope of applicability of the provisions of Section 44 of the TPA.
65. Coming to the present case, the suit property is admittedly is a dwelling house located in a residential colony i.e. Sunder Nagar. It may have been rented out to Embassy of Poland and Embassy of the Democratic Republic of Korea but inherently the nature of the property did not change. It is a dwelling house which may have been used for other purpose but it does not lose its characteristic of being a dwelling house and continuing to be so. Merely, because the property was at one point of time rented out to the Embassy would not make it loose its character of a dwelling house for the simple reason that what is significant for the purpose of a house to be termed as a dwelling house is not the use to which it is put but its inherent status. Undeniably after the property was vacated by the tenant, the plaintiff came to reside on the first floor of the suit property thereby establishing that inherently it is a dwelling house capable of being used for the said purpose. It is thus held that the suit property is a dwelling house in which the plaintiffs who are the legal heirs of Smt. Bimla Devi, have been residing on the first floor. The property is held to be a dwelling house.
II. Whether the suit property is an Undivided House?
66. The Full Bench of the Allahabad High Court in Sultan Begam vs. Debi Prasad 1908 ILR 30 All 324 observed that an undivided family must be taken to mean undivided qua dwelling house in question and to be a family which owns the house and has not divided it.
67. Construing the words “family” and “undivided”, the Division Bench of Calcutta High Court in Khirode Chandra Ghoshal vs. Saroda Prosad Mitra (1910) 7 IC 436 observed in the context of the Partition Act, the word “family” ought to be construed liberally and given a comprehensive meaning to include a group of persons related in blood but live in one house or in one head or management. There is nothing in the Partition Act to support the suggestion that the term “family” was intended to be used in a narrow or restricted sense, namely, a body of persons who can trace their descent from a common ancestor.
68. The principle of Sultan Begam (supra) was applied in the decision in Nil Kamal Bhattacharjya vs. Kamakshya Charan Bhattacharjya AIR 1928 Cal 539 to hold that the group of persons who were not the descents of the common ancestors to whom the property in the suit originally belonged but were respectively the sons of the daughter or grandson of the common ancestor, have to be held to be an undivided family since the house had not been divided by metes and bounds amongst themselves.
69. In Bhim Singh vs. Ratnakar Singh AIR 1971 Ori 198, it was observed that if a property is undivided dwelling house, the possession and enjoyment of the same should be confined to the members of the family, the stranger/transferee is barred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property, should be kept out.
70. In Boto Krishna Ghose vs. Akhoy Kumar Ghose and Others AIR (37) 1950 Cal 111, it was held that “Undivided Family” mean simply a family not divided qua the dwelling house. In other words, a family which owns a dwelling house and has not divided it. It does not mean a Hindu Joint Family or even joint family. The members need not be joint in mess. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house.
71. The basic question which thus arises is whether the ownership of a house by three women as co-owners who were not related to each other by blood or by common ancestry, can be termed to be an undivided family. It is argued that they are three individuals, married in one family and question of constituting the undivided family does not arise for the purpose of Section 44 of the TPA. Incidentally in the entire Plaint as well, there is no averment that the three plaintiffs, who are the co-owners, constitute an undivided family and hence, the basic ingredient for attracting Section 44 of the TPA is not made out.
72. It is further contended that even if it is assumed that there existed an undivided family, the same was severed by unequivocal declaration of severance of alleged undivided family which is evident from the fact that all the two co-owners i.e., Smt. Pushpa Devi, and Smt. Bimla Devi had agreed to sell the suit property to the defendant vide Agreement to Sell dated 15th November, 1991 and a registered Agreement to Sell dated 16th November, 1992. It is evident that they intended to induct and hand over the possession to the defendant of the suit property. Further, the legal heirs of Smt. Shanti Devi had filed a Suit bearing CS (OS) 690/2006. Likewise, all the plaintiffs had filed a Suit for Partition bearing No. CS(OS) 1561/1994 in respect of the suit property. It is asserted that even if there ever existed an undivided family status, it stood severed.
73. From the various judgments as discussed above, it is evident that the term used in Section 44 of the TPA is “undivided family” which simply implies that the members of the family are residing as one unit. They may not be having a common mess and may be occupying different portions of the property but so long as they are residing together in a property as one unit, it has to be held to be an undivided family. Even if all the members of the family are not residing in the property at one time, so long as there is an animus of such persons to return or of being a part of an undivided family, it cannot be said that it is not an undivided family.
74. In the present case, it is undisputable that Smt. Shanti Devi, Smt. Bimla Devi and Smt. Pushpa Devi were the co-owners of the property in question having purchased the same by perpetual Lease Deed dated 08.11.1954. However, it is to be further considered whether they at any point of time resided in the suit property as one undivided family. It is the case of the plaintiff that a civil suit bearing no. CS(OS) 2443/1993 titled as M/s Caravan Commercial Company Limited vs. Pushpa Devi & Others had been field by the defendant against Smt. Pushpa Devi claiming specific performance of the Agreement to Sell of 15.11.1991 and 16.11.1992 which were executed by Smt. Pushpa Devi in respect of her undivided share in the suit property.
75. It is the assertions of the defendants that because there was some intervention by one Mr. Arun Batra, who filed civil suit bearing CS (OS) 1578/1992 against the co-owners in respect of the alleged agreement to sell claiming to have been executed in his favour. He was only claiming an Agreement to Sell in respect of the suit property in his favour. The defendant entered into fresh Agreement to Sell with the legal heirs of Smt. Pushpa Devi in the year 2011 and acquired a clear right of ownership in the undivided share of Smt. Pushpa Devi in the suit property. Likewise, it is not under challenge that Smt. Bimla Devi has sold her share by virtue of Agreement to Sell dated 15th November, 1991 to the defendants. The 2/3rd undivided share has, therefore, been acquired by way of ownership by the defendants.
76. In order to constitute an undivided family either the plaintiff should have been able to show that all the three co-owners/their family members ever resided in the suit property even if in separate portions to claim that it is an undivided family or to show that at any point of time, the legal heirs of Smt. Shanti Devi or Smt. Pushpa Devi ever came or intend to come to reside in the suit property. In fact, the Agreement to Sell of 1991 and 1992 and thereafter of 2011 have been executed by the legal heirs of Smt. Shanti Devi which clearly reflect that the two co-owners and their family members never intended to live in the suit property as an undivided family.
77. In this context, a reference may also be made to a partition suit bearing CS (OS) 690/2006 which was filed by the legal heirs of Smt. Bimla Devi seeking partition, though it was subsequently withdrawn on 20.05.2011. There are no averments whatsoever in the entire plaint that the three co-owners along with their family members ever occupied the property as an undivided family. In the light of Agreement to Sell executed way back in 1992 and subsequently thereafter on behalf of Pushpa Devi and Bimla Devi, the basic ingredient of Section 44 of the TPA of the family residing in the property as an undivided family, is not established.
III. Whether the three co-owners were in Joint Possession?
78. In Udayanath Sahu vs. Ratnakar Bej AIR 1967 Ori 139, the term “joint possession” came to be interpreted. It was held that if a stranger/transferee gets into possession of a share in the dwelling house, the possession becomes joint and is illegal. Courts cannot countenance or foster illegal possession and such possession of the transferee becomes illegal. The plaintiff‟s co-owners are entitled to get a decree for removal which eviction of such transferee. If there is any finding that there has been severance of joint status, but no partition by metes and bounds has been effected, the stranger/transferee is barred under Section 44 of the TPA and is liable to be evicted from residential house.
79. In M.V.S. Manikayala Rao vs. M. Narasimhaswami and Others AIR 1996 SC 470, it was held that without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession, although such a co-sharer may have a right to transfer such a share.
80. Likewise, in Ramdas vs. Sitabai and Others (2009) 7 SCC 444, it was held that an undivided share of a co-sharer may be a subject matter of sale but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds.
81. In Dulal Chandra vs. Gostha behari Mitra AIR 1953 CAL 259 (DB), it was observed that the creation of a tenancy does not terminate the possibility of the owners of the house returning for its occupation. What seems to be is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners as a residential house or that conditions should be such that it is still possible for them to return to the occupation of the house at some future time. Mere suspension of occupation or the absence of the owners from the house therefrom or an occupation or terminable occupation by tenants can have the effect of making the house to be a dwelling house. Applying this test, mere grant of tenancy cannot have the effect of making a house, which is otherwise a residential house of the members of the undivided family owning it, cease to be a dwelling house.
82. An objection has been taken on behalf of the defendant that since the suit property had been let out to the Embassy of Poland and then to the Embassy of the Democratic Republic of Korea which had occupied the suit property till 03rd March, 1994, it was never used as a dwelling house. The basic issue is whether the property being rented out prior to its occupation by the owners/co-owners would destroy the character of a house as a dwelling house. It has been explained by the plaintiffs that the Lease of Embassy of Korea was not renewed past 1994 and the co-owners started residing in the suit property. The earlier tenancy could not have destroyed the character of a house as a dwelling house.
83. It is not in dispute that the suit property is an undivided dwelling house in which defendant has stepped in as the 2/3rd owner along with the plaintiffs who are the owners of 1/3rd share. There as admittedly not being any partition by way of metes and bounds and in physical sense, it is a joint property co-owned by the plaintiff and defendant and is in the deemed joint possession of the plaintiff and defendant. The other two coowners having made an exit by selling their undivided share to the defendant have ceased to be in joint possession. Once, they have made an exit, they are no longer in joint possession with the plaintiff, but it is the possession of the plaintiff and the defendant which is joint. Conclusion:
84. To sum up from the pleadings and the above discussion, it is shown that the suit property is a dwelling house inherently intended for residential purposes. It is also shown that the property was owned jointly by Smt. Pushpa Devi, Smt. Shanti Devi and Smt. Bimla Devi. However, the most important ingredient of the three co-owners along with their family members, having ever resided in the suit property as an undivided family is conspicuously missing. In view of their being neither being any pleading nor any admission by the defendant of this material fact, the plaintiff cannot be held entitled to the possession of the ground floor which is in the possession of the defendant.
85. In view of the above discussion, the application under Order XII Rule 6 of CPC is hereby dismissed. CS(OS) 1587/2011 & I.As. 11060/2011, 14052/2011, 19865/2011, 2731/2018 & CS(OS) 1561/1994 & I.As. 22681/2012, 8825/2013, 13131/2013, 15857/2013, 15875/2013, 15876/2013, 862/2016, 10187/2018, 15427/2018 List before the Roster Bench on 01st February, 2023.
JUDGE JANUARY 17, 2023 S.Sharma