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In-laws can evict Daughter-in-law

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED
AFR
Court No. – 46

Case :- SECOND APPEAL No. – 1079 of 2019

Appellant :- Sujata Gandhi

Respondent :- S.B. Gandhi

Counsel for Appellant :- T. Islam

Counsel for Respondent :- Anil Kumar Srivastava

Hon’ble Vivek Kumar Birla,J.
1. Heard Sri Jatin Sahgal, learned counsel for the appellant and Sri J.B. Singh, learned counsel for the respondent.

2. The present appeal has been filed for setting aside the judgment and decree dated 19.9.2019 and 23.9.2019 passed by the Additional District Judge, Court No. 13, Ghaziabad in Civil Appeal No. 63 of 2017 (Sujata Gandhi vs. S.B. Gandhi) and judgment and decree dated 8.3.2017 and 22.3.2017 passed by Civil Judge (S.D.), Ghaziabad in Original Suit No. 907 of 2014 (S.B. Gandhi vs. Smt. Sujata Gandhi).

3. Necessary facts shorn of details are that the appellant was married with the plaintiff’s son namely, Vijay Gandhi on 29.4 .1998 and two children born out of this wedlock. In the year 2013 Vijay Gandhi, son of the plaintiff deserted the appellant and thereafter filed a divorce petition under section 13 of the Hindu Marriage Act. One NCR/FIR was lodged at police station Link Road, Ghaziabad by the plaintiff against the appellant. According to the plaint case the plaintiff is owner of House Number A-242, Surya Nagar, Ghaziabad. After marriage of his son he permitted his son and the defendant to live on the first floor of his house. It is alleged that he is old and his wife is also old and is handicapped. The defendant started harassing the plaintiff and his wife. Under such circumstances the plaintiff asked his son to vacate the house along with the defendant. His son Vijay Gandhi left the suit property and started living somewhere else with the defendant, however, after sometime she came back and forcibly occupied the suit property and thereafter the defendant refused to vacate the house. As such, the suit for eviction of the defendant was filed. The case of the defendant is that she never left the matrimonial house and is continuously living in the same.

4. I have heard learned counsel for the parties at length.

5. I find that the arguments of learned counsels for the parties have been appropriately noted in the order dated 19.11.2019 when the appeal was admitted and substantial question of law was framed by this court, which is quoted as under;

“Heard Sri Jatin Sahgal, counsel for the appellant and Sri S.B. Singh, counsel for the respondents.

This second appeal has been filed under section 100 of CPC being aggrieved by judgment and decree dated 19.9.2019 and 23.9.2019 passed by Additional District Judge, Court No. 13, Ghaziabad in Civil Appeal No. 63 of 2017, Sujata Gandhi Vs. S.B. Gandhi, affirming the judgment and decree passed by the Civil Judge (S.D.), Ghaziabad in OS No. 907 of 2014, S.B. Gandhi Vs. Sujata Gandhi on 8.3.2017 asking the present appellant-defendant before the Trial Court to evict the suit property situated at A-242, Surya Nagar, Ghaziabad.

Counsel for the appellant submits that it is an admitted position that father-in-law of the present appellant namely S.B. Gandhi filed a suit without impleading his son Vijay Gandhi as party. It is submitted that appellant’s marriage was solemnized with the plaintiff’s son namely Vijay Gandhi on 29.4.1998 and two children born out of this wedlock on 23.4.2004 and 8.3.2007. In the year 2013 Vijay Gandhi deserted the appellant and thereafter has filed a petition seeking dissolution of marriage under section 13(1) (ia) and Section 13 (I) (ii) of Hindu Marriage Act, 1955 in Delhi. An NCR/FIR was lodged at police station Link Road, Ghaziabad by the plaintiff against the appellant stating that Vijay Gandhi had left the suit property and the appellant is still living in the suit property. It is submitted that in the year 1998 the appellant in absence of Vijay Gandhi, who married him, was allowed to stay on the first floor of the suit property. Merely Vijay Gandhi left the suit premises will not made that appellant has lost interest in share and shared household.

Counsel for the appellant has drawn attention of this court to Section 2(s) read with Section 17 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act, 2005) which defines ”shared household’, and submits that in absence of the son being a party, household in which she had first stepped in alongwith her husband will continue to be her share household, and she cannot be evicted unless Vijay Gandhi, her husband and son of the respondent is not impleaded as party.

In support of his contention, counsel for the appellant has placed reliance on the judgment of the Delhi High Court as referred in Case of Kavita Gambhir Vs. Hari Chand Gambhir & Anr as reported in [(2009) 162 DLT 459]. He has also placed reliance on the judgment of the High Court of Allahabad in case of Nishant Sharma Vs. State of UP [[2013(1) RCR (Civil) 410 and in case of Neetu Rana Vs. State of UP [2016 (2) ACR 1797].

On the other hand, counsel for the respondent has placed reliance on the judgment of Supreme Court in case of S.R. Batra and another VS. Tarun Batra (Smt) [(2007) 3 SCC 169)] wherein Hon’ble Supreme Court in para-29 has taken note of provisions contained in Section 2(s) of Act, 2005 and has expressed its opinion that 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 neither belongs to Amit Batra nor was it taken on rent by him nor it is a joint family property of which the husband Amit Batra is a member. Therefore, it is exclusive property of Appellant – 2, mother of Amit Batra. Hence it cannot be called a “Shared household”. Similarly reliance has been placed on the judgement of Delhi High Court in case of Virendra Kumar and another Vs. Jaswant Rai and another in RAS NO. 46 of 2011, wherein in para-7, it has been noted that even if defendant had raised money to construct the rooms on the first floor, it would not be by itself give any right to the defendant in the land beneath as raising of the super structure would not have made him owner of the suit land.

Reliance has also been placed on the judgment of Delhi Court in case of Kanhaiya Lal and another Vs. Nathi Lal in RSA No 27 of 2017, wherein in para-15 and 16, it has been observed that merely because out of love and affection father-in-law has permitted his son and daughter-in-law to live on the first floor, does not mean that he is in some legal obligation to provide shelter and accommodation to disobedient son or daughter-in-law who are source of continued nuisance for him. In para 16, it has been observed that none of the statute dealing with the rights of a married women, be it the Hindu Marriage Act, 1955; The Hindu Succession Acct, 1956; The Hindu Adoption and Maintenance Act, 1956, the Protection of Women from Domestic Violence Act, 2005 confer any right of maintenance including residence, for the married women as against the parents of her husband. Law permits a married woman to claim maintenance against her in-laws only in a situation covered under Section 19 of the Hindu Adoption and Maintenance Act, 1956. Thus, the contention raised on behalf of the appellant that the Civil Court has no jurisdiction in view of the provisions of the Family Court Act, 1984 and the Protection of Women from Domestic Violence Act, 2005 is liable to be rejected.

Reading such observations of the Delhi High Court, counsel for the respondent-plaintiff submits that there is no infirmity in the concurrent findings of two courts and that need not be disturbed in the second appeal.

As this stage, counsel for the appellant submits that in all of the judgments stated above, husband was impleaded. In fact, in case of Kanhaiya Lal and others it has been observed that the status of son and daughter-in-law i.e. appellant could not be more than that of a licencee and that status also come to end when they were served a notice to vacate the suit property. The suit property being self-acquired, the respondent-plaintiff is under no obligation to maintain his son and daughter-in-law in view of the legal position enunciated in the decision of SR. Batra Vs. Taruna Batra (Supra). Therefore, these judgments have not refered the earlier judgments of Delhi High Court as referred in case of Kavita Gambhir & Another, they turn on their own facts.

After hearing counsel for the parties, this second appeal is admitted on the following substantial questions of law.

(I) Whether as per definition of shared house hold provided under section 2(s) of the Act, 2005 appellant daughter-in-law can be evicted without seeking a decree of eviction against son with whom she had admittedly moved on the first floor of the suit property after marriage of the son of the plaintiff with appellant?

(ii) As parties are represented, no fresh notice is required.

Heard Civil Misc. Stay Application No/I.A. No 1 of 2019. It is directed that till the next date of listing execution of impugned judgments and decree dated 19.9.2019 and 23.9.2019 passed by Additional District Judge, Court No. 13, Ghaziabad in Civil Appeal No. 63 of 2017, Sujata Gandhi Vs. S.B. Gandhi, affirming the judgment and decree passed by the Civil Judge (S.D.), Ghaziabad in OS No. 907 of 2014, S.B. Gandhi Vs. Sujata Gandhi on 8.3.2017 shall remain stayed.

With the consent of parties, list this case on 22.1.2020 for final hearing.”

6. Elaborating the arguments, attention was also drawn to Section 17 of the Act, 2005. Arguments were mainly advanced on the term “shared household”. Learned counsel for the defendant-appellant has placed reliance on the judgments rendered in the cases of Kavita Gambhir vs. Hari Chand Gambhir and another (2009) 162 DLT 459 (Paragraphs 6, 18, 19, 20, 23 and 24), Neetu Rana vs. State of U.P. (2016) 94 ACC 408 (Paragraphs 5 and 7), Nishant Sharma vs. State of U.P. 2012 (78) ACC 328 (Paragraphs 4, 10, 12, 13 and 14), Subhash and others vs. Shivani 2016 (4) RCR (Civil) 21 (Paragraphs 3, 5, 8 and 9), Prabhakaran S. Vs. State of Kerala 2009 (1) KLJ 278 (Paragraphs 14, 19, 20 and 23), Roma Rajesh Tiwari vs. Rajesh Dinanath Tiwari (Writ Petition No. 10696 of 2017) Paragraphs 13, 17 and 18, Preeti Satija vs. Raj Kumari AIR 2014 Delhi 46, B.P. Achala Anand Vs. S. Appi Reddy and another 2005 (3) SCC 313 (Paragraphs 5, 32 and 33), Harbans Lal Malik vs. Payal Malik ILR 2010 (6) Delhi 625 (Paragraphs 17, 18 and 19) and S.R. Batra vs. Taruna Batra 2007 (3) SCC 169 (Paragraphs 7, 21 and 29).

7. Much emphasis was given on the definition of “shared household” and it was submitted that the house in question is a matrimonial house of the petitioner and is a shared house as after marriage the defendant came to reside in the house in question along with the husband and even if her husband has left the house, she cannot be evicted from the house unless the husband is impleaded and his license is also revoked by the plaintiff. It was further submitted that in any case the impleadment of husband is necessary so that the defendant may be able to show that the house in question is a shared house on cross-examining the husband. The crux of the submission is that unless husband is impleaded in a case seeking decree of eviction filed against the daughter-in-law, she cannot be evicted as she had moved in the suit property after marriage of the son of the plaintiff with the defendant.

8. On the other hand, submission of learned counsel for the plaintiff-respondent is that in view of the judgment of S.R. Batra (supra) submission is that the plaintiff is admittedly exclusive owner of the house in question and therefore, the same cannot be said to be a shared house therefore, the question of impleading husband does not arise and in any case his impleadment is not at all necessary. He further summits that the ownership of the plaintiff was not disputed and was infact, rather admitted in the written statement filed by the defendant and the objection regarding non-impleadment of husband was never raised before the courts below and therefore, the same now cannot be raised. He has placed reliance on the judgments rendered in the cases of Virendra Kumar and another vs. Jaswant Rai and Another RSA No. 46 of 2011 decided on 10.3.2011 (Paragraph 7), Kanhaiya Lal and another vs. Nathi Lal RSA No. 27 of 2017 decided on 16.2.2017 (paragraphs 15 to 18), Shumita Didi Sandhu vs. Snajay Singh Sandhu and others 2007 (96) DRJ 697, S.R. Batra and another vs. Taruna Batra 2007 (3) SCC 169 (Paragraphs 22, 23, 24, 25, 26, 27, 29, 30).

9. In rejoinder, learned counsel for the defendant-appellant submitted that the arguments on Act, 2005 were not available at the time when judgment in S.R. Batra (supra) was rendered and therefore, the same is distinguishable and no reliance can be placed by the plaintiff on the same. He further summits that in any case wife cannot be rendered roofless in such a situation, therefore, impleadment of husband is necessary.

10. Before proceeding further it would be relevant to take note of Section 2 (s), Section 17 and Section 26 of the Domestic Violence Act, 2005, which are quoted as under:-

“2. (s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equality and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

17. Right to reside in a shared household- (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

26. Relief in other suits and legal proceedings- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that that aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”

11. It would also be appropriate to note the provisions of Order 1 Rules 3, 9 and 10 CPC, which are quoted as under:-

“3. Who may be joined as defendants- All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transaction is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.

9. Misjoinder and non-joinder- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

[Provided that nothing in this rule shall apply to non-joinder of a necessary party.]

10. Suit in the name of wrong plaintiff- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties- The court may at any stage of the proceeding, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

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(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1988 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”

12. Insofar as the argument that the house in question is a “shared household” is concerned, it is relevant to note that in paragraph 1 of the plaint it has been categorically stated by the plaintiff that he is owner in possession of residential House Number 8-242, Surya Nagar, Ghaziabad U.P. through registered sale deed. Suffice to note that in the written statement filed by the defendant-appellant in paragraph 1 the contents of paragraph 1 of the plaint had been categorically admitted. No additional plea has been taken in the written statement disputing the aforesaid fact. Therefore, any evidence, documentary or oral, cannot be seen in absence of a pleading. A reference may be made to the judgment rendered by Hon Supreme Court in the case of Arikala Narasa Reddy versus Venkata Ram Reddy Reddygari (2014) 5 SCC 312 wherein it has been held that party has to plead necessary and material facts; party cannot go beyond pleadings; in absence of pleadings, evidence cannot be considered; relief not founded on pleadings should not be granted, paragraph 15 whereof is quoted as under:-

“15. This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been “materially affected”. There can be no dispute to the settled legal proposition that “as a rule relief not founded on the pleadings should not be granted”. Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. (Vide: Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors AIR 1964 SC 1249; Bhabhi v. Sheo Govind and others AIR 1975 SC 2117; and M. Chinnasamy v. K.C. Palanisamy and others (2004) 6 SCC 341).”

(emphasis supplied)

13. Even otherwise, a concurrent finding has been recorded by both the courts below that the defendant has even failed to demolish the case of the plaintiff or to prove her argument/assertion that the plaintiff is not the exclusive owner of the house. On the strength of judgments relied on by learned counsel for the defendant-appellant, much emphasis was given that unless the husband is impleaded in the suit she did not have the opportunity to prove that the plaintiff was not the exclusive owner of the house in dispute and that the same is a shared house. This argument is entirely misconceived in as much as exclusive ownership of the plaintiff was admitted and the plea of husband being a necessary party was never raised before the courts below.

14. A reference may be made in this regard to the judgment of Hon Supreme Court in S.R. Batra (supra), paragraph 7, 21, 22, 23, 24, 25, 26, 27, 29, 30 are quoted as under:-

“7. It is admitted that Smt. Taruna Batra had shifted to her parent’s residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant no.2 which is at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in- law, Smt. Taruna Batra, along with her parents forcibly broke open the locks of the house at Ashok Vihar belonging to appellant No. 2, the mother- in-law of Smt. Taruna Batra. The appellants alleged that they have been terrorized by their daughter-in-law and for some time they had to stay in their office.

21. It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. Taruna Batra was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226or 227 of the Constitution. Hence, Smt. Taruna Batra cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.

22. Apart from the above, we are of the opinion that the house in question cannot be said to be a `shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’). Section 2(s) states:

“2. (s) `shared household` means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household”.

23. Learned counsel for the respondent Smt. Taruna Batra has relied upon Sections 17 and 19 (1) of the aforesaid Act, which state:

“17. (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

19. (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order–

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman”.

24. Learned counsel for the respondent Smt. Taruna Batgra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.

25. We cannot agree with this submission.

26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

27. It is well settled that any interpretation which leads to absurdity should not be accepted.

29. 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’.

30. No doubt, the definition of `shared household’ in Section 2(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.”

(emphasis supplied)

15. In the above quoted paragraph no. 29 the Hon’ble Supreme Court has considered the aspect of shared household and has held that where the plaintiff is the exclusive owner, it cannot be called a “shared household”. Even the claim of the wife for alternative accommodation against the plaintiff was rejected and was held that it can be claimed only against the husband and not against the in-laws or other relatives.

16. Thus, in the opinion of the Court, on facts, the question much less the substantial question of law, whether son was liable to be impleaded in the present case, does not arise. Needless to say that his (son) impleadment as defendant would be necessary if decree of eviction is to be passed against him. It is the settled law that a substantial question of law arises only out of pleadings and judgments of the lower court. It is needless to point out that in the present case, as already noticed, there was no pleading in this regard that husband is a necessary defendant or even a party to the suit and is liable to be impleaded. Even in appeal before the lower appellate court, this ground was not taken. Therefore, in view of the settled law on this ground no such substantial question of law arise or can be raised in the present second appeal. Thus, insofar as the present second appeal is concerned, the same has no merits.

17. Since the second appeal has already been admitted on the substantial question of law already framed in the order dated 19.11.2019, which has already been quoted above, the arguments raised by the learned counsel for the parties are being considered to answer the question in view of the observations made and as held by Hon’ble Supreme Court in Sri Chunilal Vs. Mehta Sons Ltd versus Century Spinning and Manufacturing Company Ltd AIR 1962 SC 1314, paragraph 6 whereof is quoted as under: –

“6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by. the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”

(emphasis supplied)

18. In this regard it would be relevant to notice the provisions of Order 1 Rule 3 and Rule 9 CPC, which have already been quoted above. It is not in dispute that the husband is not residing in the suit property and has left the house. It is also not being questioned that if parents permit his son to live in their house he would be a licensee. If his wife is also living with him, she would also be a licensee. Order 1 Rule 3 CPC clearly provides “Who may be joined as defendants.” It is needless to point out that in the present case or say, where the son has left and is not residing in the suit property, no relief is being or is claimed against him. Since he is not living in the suit property, question of filing a separate suit or which may attract any common question of law or fact would also not arise. Therefore, he cannot be said to be a necessary party to the litigation between the plaintiff and the defendant.

19. Order 1 Rule 9 CPC is a provision on mis-joinder and non-joinder of parties, which clearly provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. However, the Proviso was added by Act 104 of 1976, Section 52, w.e.f 1.2.1977 that provided that nothing in this rule shall apply to non-joinder of a necessary party. Thus, for a suit to be bad for non-joinder of party, it has to be proved that the party who has not been impleaded in the suit is a necessary party without whose presence the suit cannot be decided.

20. The principle of “dominus litis”, is too well-known in regard to impleadment of parties, which clearly provides that the plaintiff in a suit being dominus litis, may choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. However, this general rule is subject to provisions of Order 1 Rule 10 (2) CPC, which provides for impleadment of proper or necessary parties. Even in the aforesaid provision, a discretion is left with the court to implead a party at any stage of proceedings, either upon or without the application of either parties and on such terms strike out name of a person improperly impleaded or joined and add the name of a person who ought to have been joined whether as plaintiff or defendant or whose presence will be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit to be addressed.

21. In view of the settled law it is needless to say that a necessary party is a person who ought to have joined as a party in whose absence no effective decree could be passed at all by the court. A proper party is a party who may not be a necessary party but would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit though he may not be a person in whose favour or against whom a decree is to be made. Thus, it is clear that it cannot be said that by operation of law a particular person or category is a necessary party, unless statutorily provided in this regard. A reference may be made in the judgment of Hon’ble Supreme Court in Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and others 2010 (7) SCC 417. Paragraphs 13, 14 and 15 whereof are quoted as under:-

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“13 . The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code’ for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

“10. (2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.

15. A `necessary party’ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party’ is not impleaded, the suit itself is liable to be dismissed. A `proper party’ is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

(emphasis supplied)

22. Same view was expressed by the Hon’ble Supreme Court in Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others 2019 AIR (SC) 3577 after considering earlier law in paragraph 5.2 it was held as under, extract whereof is quoted as under: –

“…………. The Plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.”

(emphasis supplied)

23. A reference may be made to judgment of Hon’ble Supreme Court in the case of Kasturi vs. Uyyamperumal 2005 (6) SCC 733, wherein the Hon’ble Supreme Court has considered the principle of dominus litis. This judgment was recently relied on by Hon’ble Supreme Court in the case of Gurmit Singh Bhatia vs. Kiran Kant Robinson and others 2020 (1) ARC 381.

24. This may be looked from another angle also. Order 1 Rule 9 CPC provides for mis-joinder and non-joinder of parties. Up till 1977 when a proviso was added by Act 104 of 1976 vide Section 52 w.e.f. 1.2.1977, the Rule 9 provided that no suit shall be defeated by reason of mis-joinder or non-joinder of parties. It is only by the aforesaid amendment proviso was added to the effect that “Provided that nothing in this rule shall apply to non-joinder of necessary party.” Thus, it is clear that in an original suit, unless statutorily provided, it is the discretion of the plaintiff to implead any person as party or who may be joined as defendants for that matter. It is only under the provision of Rule 10 (2) a discretion is exercised by the court either on application of either of the parties or suo moto if it deems fit that any party is a necessary or proper party to the suit. Requirements of holding a person as a necessary party are strict in nature and as already held by Hon’ble Supreme Court in the above quoted judgment, a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. Thus, in a suit for eviction or injunction, it is the discretion of the plaintiff to choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. In some of the enactments it is provided that in a suit certain party or parties are necessary party. Even in those cases, generally speaking, it has been statutorily provided and the necessary party is usually either the State or any other statutory authority and not a private person. For example, Section 176 (i) of the UP Zamindari Abolition and Land Reforms Act, 1950 (Section 116 of the UP Revenue Code, 2006) provides that a bhumidhar may sue for division of his holding. Sub-section (2) provides that to every such suit the Goan Sabha concerned shall be made a party. As already discussed, plaintiff is the dominus litis in a suit between the private parties, however, it has been left on the discretion of the court under Order 1 Rule 10 (2) CPC that the court may strike out or add parties. Even this discretion is to be exercised judiciously and not merely on whims or on mere asking of a party. A satisfaction is to be recorded by the court that addition of a party is for effectual and complete adjudication of all the questions involved in the suit. Thus, in a suit for eviction or injunction it is the discretion of the plaintiff to choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.

25. Coming back to the definition of “shared household” as provided under Section 2 (s) of the Act, 2005 it would be relevant to come back to the judgment of Hon’ble Supreme Court rendered in the case of S.R. Batra (supra) which has already been extensively quoted above where in the said definition was considered and the argument for learned counsel for the respondent (wife) that definition of shared household includes a house where the person aggrieved lives or at any stage had lived in a domestic relationship was specifically considered and rejected. On facts also it was found that the property did not belong to husband Amit Batra nor it was a joint family property of which Amit Batra is a member. It is exclusive property of mother, hence cannot be called a ‘shared household’. Hence claim of daughter-in-law was rejected. A reading of the said judgment, subject to correction, prima facie, reflects that husband was not a party to the suit and it was held that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives. The said observation clearly leads to the conclusion that the answer to the substantial question of law framed in the present second appeal would be in negative. In other words, even in view of the definition of shared house as provided under Section 2 (s) of the Act, 2005 daughter-in-law can be evicted without seeking decree of eviction against the son with whom she had admittedly moved in the suit property after marriage of the son of the plaintiff.

26. Much emphasis was given by learned counsel for the appellant on Ambika Jain (supra) where a direction was given to the trial court to implead the husband in all cases where they have not been impleaded by invoking its suo moto powers under Order 1 Rule 10 CPC. I have already discussed the provisions of Order 1 Rule 3, Rule 9 and Rule 10 CPC. For the reasons already discussed above coupled with the judgment of Hon’ble Supreme Court in the case of S.R. Batra (supra), I am in respectful disagreement with Ambika Jain (supra). There is yet another reason. In case, any such direction is given by the higher court to the trial court to invoke it suo moto powers under Order 1 Rule 10 CPC, in my opinion, the discretion left on the trial court under the provisions of Order 1 Rule 10 CPC would no longer remain a discretion left with the trial court. It is the golden rule of interpretation that when language used in statute is unambiguous, plain and simple, provision is required to be read as it is and nothing is to be added. A reference may be made to Girish Kumar Vs. State of Maharashtra (2019) 6 SCC 647 (paragraph 9). In Pam Development (Pvt.) Ltd. Vs. State of West Bengal (2019) 8 SCC 112 (paragraphs 19 and 20) it was held that a provision under a statute cannot be read in such a manner that it takes away the power conferred under that statute. Therefore, this provision of Order 1 Rule 10 CPC has to be read in its plain and simple language and cannot be read in such manner that it takes away the discretion left with the court. It would amount to legislate if husband, in general is directed to be impleaded as a necessary party whereas impleadment of a particular category (i.e. husband/son) party in general can only be provided by statutory provision. The settled law on the principle of dominus litis would also be compromised if any such general direction is issued or if it is held that husband, in such proceedings, is a necessary party and has to be impleaded or added as one of the defendant and/or relief of eviction against him must also be claimed to make the suit maintainable. In other words, if husband is not a necessary party then how claiming relief of eviction against him can also be held to be mandatory? Clearly, answer is in negative.

27. Learned counsel for the appellant has also placed reliance on the judgment of Hon’ble Delhi High Court in the case of Kavita Gambhir (supra). In that case the question of joint Hindu property was raised. In the present case, concurrent finding has been recorded by both the courts below that the defendant has even failed to demolish the case of the plaintiff or failed to prove her argument/assertion that the plaintiff is not the exclusive owner of the house. In Kavita Gambhir (supra) it was not the case of the plaintiff that they have terminated the arrangement with their son under which he was occupying their property with his family. In the present case, the son along with his wife, the defendant and children was asked to go out and thus, his license was cancelled and he in fact, left the house and started living elsewhere. Moreover, in Kavita Gambhir (Supra) although a reference has been made to S.R. Batra (supra), however, why the said judgment is not applicable or is distinguishable has not been discussed at all and the judgment is strongly based on the judgment of Hon’ble Supreme Court in B.P. Achala Anand Vs. S Appi Reddy and another (2005) 3 SCC 313 which was rendered on 11.2.2005 whereas the Act, 2005 came into force on 26.10.2006. Thus, said judgment cannot be a ground for answering the substantial question of law raised in the present case. Even otherwise, in view of the judgment of Hon’ble Supreme Court in S.R. Batra (supra) I am not inclined to place reliance on the same.

28. Learned counsel for the defendant-appellant has placed reliance on B.P. Achala Anand (supra), however, for the reasons stated above no reliance can be placed on the same as at that point of time the Act, 2005 was not in force and was obviously not available for consideration before the Court.

29. Insofar as the judgments in Neetu Rana (supra) and Nishant Sharma (supra) are concerned, suffice to note that they have been rendered in proceedings arising out of criminal proceedings and turn on their own facts.

30. In view of the judgment of Hon’ble Supreme Court in the case of S.R. Batra (supra) I am not inclined to place reliance on the other judgments of Hon’ble High Courts. I, however, find that in most of the judgments interpretation has been given on a sympathy or sentiments showed towards the daughter-in-laws either by observing that for proving that suit property is a “shared household” or not, the daughter-in-law needs the presence of son as one of the parties and it has also been provided that till the litigation between the plaintiff and the defendant, in other words, the in-laws and the daughter-in-law, accommodation is to be provided by the parents till any order is made against the son. In my opinion, this sentiment is misplaced and misconceived. In this regard a reference may be made to the judgment of Hon’ble Supreme Court in the case of Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and others 2008 (4) SCC 649, wherein the provisions of the Act, 2005 and the provisions of Hindu Adoptions and Maintenance Act, 1956 have also been considered, paragraph 21, 22, 27, 28, 48 and 49 whereof are quoted as under:-

“21. Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.

22. Wholly un-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in-law.

27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.

28. Interpreting the provisions of the Domestic Violence Act this Court in S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169 held that even a wife could not claim a right of residence in the property belonging to her mother-in-law, stating :

“17. There is no such law in India like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in- law or mother-in-law.

18. Here, the house in question belongs to the mother- in-law of Smt Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt Taruna Batra cannot claim any right to live in the said house.

19. Appellant 2, the mother-in-law of Smt Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.”

48. Sympathy or sentiment, as is well known, should not allow the Court to have any effect in its decision making process. Sympathy or sentiment can be invoked only in favour a person who is entitled thereto. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences.

49. We are at a loss to understand as to on what premise such a contention has been raised. If we accept the contention of the learned counsel the same would mean that we send the old couple to jail or deprive them of their lawful right of a valuable property and/or ask them to meet obligations which statutorily are not theirs. Such a direction, in our opinion, should also not be passed, keeping in view the conduct of the 3rd respondent. She not only filed a large number of cases against her in-laws, some of which have been dismissed for default or withdrawn but also have been filing applications for cancellation of their bail on wholly wrong premise.”

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(emphasis supplied)

31. In the above noted decision the Hon’ble Supreme Court has also held that it is not for the owner of the property to establish that it is a self-acquired property and the onus would be on the person who pleads contra. Thus, the law is clear that for these reasons it cannot be held that in view of the provisions of the Act, 2005 a suit for eviction of daughter-in-law is not maintainable without seeking decree of eviction against the son. In paragraph 28 as quoted above the Hon’ble Supreme Court has quoted the judgment of S.R. Batra (supra) with approval. In fact considering the conduct of the daughter-in-law, apart from passing other orders cost was also imposed on her.

32. In view of the above, I observe that the argument of learned counsel for the defendant-appellant that the arguments on Act, 2005, were not available at the time when judgment in S.R. Batra (supra) was rendered is patently misconceived. In fact, I find it to be misleading, contrary to the record and somewhat against the majesty of the Hon’ble Supreme Court. Moreso, when the same was relied on by Hon’ble Supreme Court in the case of Vimlaben Ajitbhai Patel (supra) with approval.

33. Learned counsel for the plaintiff-respondents has placed reliance on judgment of the High Court of Delhi in Shumita Didi Sandhu (supra) wherein S.R. Batra (supra) was relied on, paragraph 17 and relevant extract of 18 whereof are quoted as under:-

“17. Learned Counsel for the plaintiff, however, submitted that the Supreme Court did not go to the extent of holding that daughter-in-law had no right to stay in the house belonging to parents-in-law even if it was a matrimonial home. His submission was that in the aforesaid judgment it was not decided as to whether the house in question was a matrimonial home and if it was so, whether daughter-in-law had right to stay in the said house or not. He pleaded that in the absence of authoritative pronouncement on this aspect by the Supreme Court, decision in the case of Taruna Batra (supra) should prevail. I am afraid and it is difficult to read the judgment of the Supreme Court in the manner learned Counsel for the plaintiff wants me to read. Ratio of this case is clear, namely, the daughter-in-law has no legal right to stay in the house which belongs to her parents-in-law.

18. Legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is no dispute between the husband and wife but the parents of the husband do not want their son and son’s wife to stay in the said house for certain reasons. Obviously, their son, who is only a permissive licensee and staying in the house with his wife cannot claim legal right therein. If son cannot claim any such right against his parents to stay in a house which belongs to his parents, his wife obviously would also have no case to claim such a right. That is how I read the principle of law laid down by the Supreme Court in the aforesaid judgment. In the present case, even otherwise, there is a serious dispute as to whether the suit property can be termed as matrimonial house. In the plaint it is nowhere stated by the plaintiff that she was living in the suit property with the defendants even before their marriage. From the pleadings it prima facie appears that she lived in the suit property from the date of marriage till 1996 when she moved out to defense Colony in May 1996 (para 5 of the plaint). She returned to the suit property in March 1999 and reading of the plaint gives an impression that she remained there till 2004 when she was forced to leave the house allegedly to avoid any harm to her life and limb. In her statement recorded on 19.1.2006 it is admitted by her that she took a flat in Mumabi during the period December 1999 till November 2000. The lease of the said flat was in her name and she stayed there for 3-4 months. Her husband also joined her. There is no complaint by her that she was forced to leave the matrimonial house in 2004. The plaintiff has also admitted that she re-entered the house on 10.10.2004. Though she states that she opened the first floor with her keys, it is strange that she had to come in the dead of night, i.e. at 2:30 am for re-entering the house as she had admitted the timings of her so-called entry. It prima facie lends some credence to the allegations of the defendants that she (plaintiff) forced her entry into the house of the defendant Nos. 2 and 3 at odd hours.”

(emphasis supplied)

34. Learned counsel for the plaintiff-respondent has placed reliance on judgment dated 16.2.2017 of the High Court of Delhi in Kanhaiya Lal (supra) wherein S.R. Batra (supra) was relied on, paragraph 15, 16, 17 and 18 whereof are quoted as under:-

“15. The respondent/plaintiff is the original allottee of the suit property. Merely because out of love and affecftion, he has permitted his son and daughter-in-law to live on the first floor, does not mean that he is under some legal obligation to provide shelter and accommodation to disobedient son or daughter-in-law who are source of continuance nuisance for him. After the mutual relationship of love, respect and trust vanished and the stage reached to the extent that criminal case has been filed against the father-in-law, he is under no statutory obligation to provide residence to his son and daughter-in-law and also suffer at their hands.

16. None of the Statute dealing with the rights of a married woman in India, be it The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoption and Maintainance, 1956; The Protection of Women from Domestic Violence Act, 2005 confer any right of maintenance, including residence, for the married woman as against the parents of her husband. Law permits a married woman to claim maintenance against her in-laws only in a situation covered under Section 19 of the Hindu Adoption and Maintenance Act, 1956. Thus, the contention raised on behalf of the appellant that the Civiil Court has no jurisdiction in view of the provisions of The Family Court Act, 1984 and The Protection of Women from Domestic Violence Act, 2005 is liable to be rejected.

17. It is settled law that in second appeal the High Court cannot set aside concurrent finding of fat given by the Courts below unless a substantial question of law is raised. Where there is a clear enunciation on a question of law the appellant cannot claim that the case involves substantial question of law.

18. I completely agree with the conclusions arrived at by the Courts below as law is now well settled by the judgment of the Supreme Court in S.R. Batra’s case (Supra). The status of the respondent/plaintiff being that of the allottee of the plot, he is residing there in his capacity as a allottee, the status of his son and daughter-in-law i.e. appellants herein could not be more than that of a licencee and that status also came to an end when they were served with a notice to vacate the suit property. The suit property being self-acquired, the respondent/plaintiff is under no legal obligation to maintain the his son – appellant No. 1 and daughter-in-law appellant No. 2 in view of the legal position enunciated in the decision S.R. Batra vs. Taruna Batra (Supra).”

(emphasis supplied)

35. Under the similar circumstances where son, husband of the defendant had left the house and started residing somewhere else, it was held by me in Richa Gaur versus Kamal Kishore Gaur 2020 (1) AWC 667 that the status of defendant being that of a licensee she had no right to reside in the house after cancellation of the license. In the facts and circumstances of the case it was also held that house in question cannot be treated a shared household. Reliance was placed on S.R. Batra (supra) and Vimlaben Ajitbhai Patel (supra), which have already been quoted above extensively. Further reliance was placed on decision of Hon’ble Single Judge dated 29.9.2015 passed in First Appeal No. 76 of 2014 (Smt Sunita Vs. Smt Ramawati and another). Paragraph 12, 13, 14, 15 and 16 of Richa Gaur (supra) are quoted as under:-

“12. It would also be relevant to extract the relevant paragraphs of Smt. Sunita (supra) which are quoted as under:-

“The appellant is daughter-in-law of the plaintiff who has filed a suit for mandatory injunction against her son and daughter-in-law. The defendant no. 1, son of the plaintiff did not appear in the suit and hence the suit had proceeded ex-parte against defendant no. 2. The claim made by defendant no. 2 was that soon after marriage, she came to this house and as such she has a right to reside therein. The plaintiff cannot evict her from her marital home.

……………

More so, in view of the findings recorded by the court that the defendant no. 2 was a mere licencee and has no right to reside in the house in question after cancellation of licence by the original owner i.e. plaintiff.

The challenge to this finding on issue no. 1 cannot be accepted for the reason that a woman has a right to reside in the house of her husband after marriage. She has no claim on the house of her father-in-law or mother-in-law. The property in dispute was self acquired property of her father-in-law and the plaintiff had inherited the said house after death of her husband. On account of mis-deeds of defendant no. 2, the relations between mother-in-law and daughter-in-law have strained and therefore, the plaintiff has asked the defendants to leave her house. The plaintiff is a 70 years old lady and she cannot be subjected any more physical or mental harassment at the hands of the defendant, her son and daughter-in-law.”

13. Thus, not only what has been held in S.R Batra (supra) as held by Constitutional Bench in Uma Devi (supra) referred to in Vimlaben Ajitbhai Patel (supra), if any relief is granted to the defendant-appellant it would be a case of misplaced sympathy in favour of the defendant, who had already filed several cases including criminal case against the old age plaintiff and other family members.

14. In the present case, undisputedly, the house in question belongs to the father, the plaintiff and he had divested his son from his property and admittedly, the son (husband of the defendant) is not living in the house.

15. In view of the discussion as made hereinabove, it is clear that the house, which admittedly belongs to the plaintiff, cannot be treated as a shared house in the facts and circumstances of the case and as such the status of defendant, as rightly held by the trial court, would be merely of a licensee, whose license stood terminated by the original owner i.e. the plaintiff herein. As such she has no right to reside in the house in question after cancellation of the license by the original owner i.e. the plaintiff herein.

16. In case of Smt. Sunita (supra) the plaintiff was about 70 years old lady and in the present case also the plaintiff was aged about 68 years in the year 2017 when the suit was filed and as such the ratio of the said judgment applies with full force.”

(emphasis supplied)

36. Learned counsel for the appellant has half-heartedly referred to the judgment of Vaishali Abhimanyu Joshi Vs. Nanasahib Gopal Joshi (2017) 14 SCC 373 to contend that a counter claim of the daughter-in-law for residence can be considered in a case of eviction instituted against her.

37. I have gone through the judgment. I find that the same is on a different issue and is not related to the substantial question of law framed in the present case. In that case the question before the Hon’ble Supreme Court was as to whether the counterclaim filed by the appellant seeking right of residence in accordance with section 19 of the 2005 Act in a suit filed by the respondent, (her father-in-law) under the Provincial Small Cause Courts Act, 1887 is entertainable or not and whether the provisions of the 1887 Act bar entertainment of such counterclaim? It was held that the counterclaim filed by the defendant-appellant (daughter-in-law) was entertainable by Judge, Small Causes Court. Therefore, I find that the same is on a different issue and is not related to the substantial question of law framed in the present case.

38. Coming back to the facts of the present case, I find that in view of the specific assertion made in the plaint that the plaintiff is the exclusive owner of the suit property, the contents of paragraph 1 of the written statement clearly indicates that it is an admitted case of the defendant-appellant in his written statement that the suit property is the exclusive property of the plaintiff. It is also not in dispute that the plaintiff is an old person and his wife, the mother-in-law of the defendant, is a handicapped person with one amputated leg. It is also not in dispute that a divorce petition is pending between the son (husband) and the defendant and the assertion / pleadings of the plaintiff that his son has left the house and is living elsewhere could not be dislodged by the defendant-appellant and there is a concurrent finding of fact by both the courts below, which do not appear to be perverse in nature so as to require any interference by this court. No objection was ever raised before the trial court that husband is a necessary party. This was not even the ground before the lower appellate court. As such this cannot be raised at this stage. As already observed a substantial question of law arises out of pleadings and the judgments of the lower court. As such, on this ground no such substantial question of law can be raised at this stage in the present appeal. Even otherwise, the answer to the substantial question of law framed in the present case is that even considering the definition of shared household as provided under Section 2 (s) of the Act, 2005, the appellant daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the 1st floor of the suit property after marriage of the son of the plaintiff with the appellant.

39. There is yet another aspect of the matter that a futile relief cannot be granted by the court. It is not in dispute that the assertion / pleadings of the plaintiff that his son has left the house and is living elsewhere could not be dislodged by the defendant-appellant and there is a concurrent finding of fact by both the courts below, which does not appear to be perverse in nature so as to require any interference by this court. Thus, to say that the appellant daughter-in-law cannot be evicted without seeking decree of eviction against son with whom she had moved on the 1st floor of the suit property after marriage of the son of the plaintiff with the appellant, would be a futile relief claimed against the son who is not residing in the house in question, therefore, cannot be granted by the court.

40. In fact, generally speaking, it is unfortunate that a doctor son had to leave the house because of strained relationship between husband and wife leaving his parents in old age, particularly, his mother being in such physically challenged condition and even if doctor son is visiting them periodically to look after them, the same is being projected as a negative activity on his part. It is not even the case of the defendant-appellant that she is looking after them. In fact, the plaint case is contrary to the same. Therefore, it would be even more unfortunate that under such circumstances the parents are compelled to seek decree of eviction against the son when the real relief is, in fact, being sought against the daughter-in-law who has made the life of in-laws miserable.

41. Thus, for the discussion made hereinabove, the answer to the substantial question of law framed in the present case is in negative and is that even considering the definition of shared household as provided under Section 2 (s) of the Act, 2005, the appellant daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the 1st floor of the suit property after marriage of the son of the plaintiff with the appellant.

42. With the observations made hereinabove present appeal stands dismissed.

Order Date :- 12.6.2020

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