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2013 DIGILAW 1898 (DEL)

Satwant Kaur v. Sanjeev Singh Chawla

2013-09-30

VIPIN SANGHI

body2013
ORDER Vipin Sanghi, J. CS (OS) No. 1032/2011 and I.A. Nos. 6968/2011, 7962/2011, 9569/2011 and 1755/2012 1. I have heard learned Counsel for the parties as well as the applicant in I.A. No. 9569/2011, and I proceed to dispose of the same by this common order. The plaintiff has filed the present suit to seek the passing of a preliminary decree for partition declaring the share of plaintiff and the two defendants in the suit property i.e. B-3, Second Floor, Geetanjali Enclave, Malviya Nagar, New Delhi and also seeking the passing of a final decree of partition by metes and bounds allocating the respective shares of the three parties. In the alternative, the plaintiff seeks auction/sale of the suit property and distribution of the proceeds as per the share of the parties. Decrees of permanent injunction have been sought restraining the defendants from dealing with the suit property or for dispossessing the plaintiff or allowing the entry of others in the suit property. The undisputed facts of the case are that the plaintiff, wife of defendant No. Jasmine Kaur Chawla and defendant No. 2 Rishu Chawla jointly purchased the suit property. It is not in dispute that the share of the said three persons in the suit property was 1/3rd each. Defendant No. 1 is the son of plaintiff and defendant No. 2 is the wife of the elder son of the plaintiff. The plaintiff claims that on 29.8.2008, the applicant/Jasmine Kaur Chawla gifted her 1/3rd share in the suit property in favour of defendant No. 1 vide registered gift deed dated 29.8.2008. The applicant has filed IPA No. 4/2009 before this Court assailing the said gift deed dated 29.8.2008. The said IPA is still pending disposal. The applicant has also filed proceedings under The Protection of Women from Domestic Violence Act, 2005 (DV Act) claiming that the suit property was a shared household and she, therefore, claims the right to reside in the said property. 2. In the aforesaid background, the applicant has filed the aforesaid application seeking impleadment as party defendant in the suit. 3. On the other hand, the parties to the suit are agreeable that the suit property be partitioned and for that purpose I.A. No. 1755/2012 has been moved by the plaintiff under Order 12 Rule 6, CPC. 4. The submission of Mr. 3. On the other hand, the parties to the suit are agreeable that the suit property be partitioned and for that purpose I.A. No. 1755/2012 has been moved by the plaintiff under Order 12 Rule 6, CPC. 4. The submission of Mr. Ravi Gupta, learned Senior Counsel for the plaintiff is that defendant No. 1, who is the registered title holder by virtue of the aforesaid gift deed, or the applicant' even if she succeeds in assailing the gift deed, at best, would be entitled to 1/3rd share in the suit property. This position is not even disputed by learned Counsel for the applicant Mr. Amitabh Narayan. Mr. Gupta further submits that merely because the applicant has undertaken other proceedings to assail the gift deed, and claims right of residence under the DV Act, the rights of other co-sharers i.e. plaintiff and defendant No. 2 -- to claim partition of the suit property, cannot be denied. 5. Mr. Gupta further submits that unless the right of the applicant is established -- which would happen only if the gift deed is cancelled by the Court, the applicant has not right to be impleaded in the suit. He, however, submits that the plaintiff has no objection in associating the applicant in the process of partitioning the property or, alternatively, selling the same, so as to safeguard her rights. He further submits that, in case, the suit property is eventually required to be sold (if the same is found to be incapable of physical division as per the share of the parties), the sale proceeds falling to the share of defendant No. 1 may be required to be deposited in this Court, and be not disbursed to him. This submission has not been objected to by the learned Counsel for the defendant No. 1 as well. In support of his submission, he has placed reliance on a decision of the Division Bench of this Court in Shravan Kapur v. Anup Kapur, 88 (2000) DLT 108. 6. Mr. Narayan, learned Counsel for the applicant/Jasmine Kaur Chawla submits that the applicant's petition under the DV Act to seek right of residence cannot be defeated by ordering partition of the suit property. He submits that in case the said property is partitioned and sold off--in the eventuality of it not being partitioned by metes and bounds, the said right of the applicant would get defeated. 7. He submits that in case the said property is partitioned and sold off--in the eventuality of it not being partitioned by metes and bounds, the said right of the applicant would get defeated. 7. In his rejoinder, Mr. Gupta points out that orders have already been obtained by the applicant in the proceedings under the DV Act, where under defendant No. 1 - who is the husband of applicant, has been directed to pay maintenance of Rs. 30,000/- per month and also pay rent of Rs. 30,000/- per month to enable the applicant to take another accommodation on rent, which she has done. He further refers to Section 17 and 19(1)(f) of the DV Act. Section 17 provides that, 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. Section 17(2) provides that 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. Section 19(1)(f) provides that while disposing of an application under Sub-section (1) of Section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order 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. 8. Mr. Gupta submits that the right of the applicant against defendant No. 1, at the highest, is to secure an equivalent accommodation, for which purpose order under Section 19(1)(f) has already been passed by the learned Magistrate. Learned Counsel for the applicant has pointed out that the said order is under challenge by her before this Court. 9. Having heard learned Counsel, I am of the view that the applicant cannot seek impleadment in the present proceedings, at this stage, for the reason that her IPA is still pending, and the Court has not cancelled the registered gift deed made by her in favour of defendant No. 1. 9. Having heard learned Counsel, I am of the view that the applicant cannot seek impleadment in the present proceedings, at this stage, for the reason that her IPA is still pending, and the Court has not cancelled the registered gift deed made by her in favour of defendant No. 1. Impleading the applicant as a party defendant, at this stage, would tantamount to assuming that the Gift Deed in favour of defendant No. 1 already stands set aside/cancelled and the right of the applicant in the suit property restored. Unless the Gift Deed is cancelled, the same cannot be assumed to be null and void. 10. The submission of learned Counsel for the applicant that on account of the claim of the applicant -- claiming a right of residence in the suit property on the ground that the same was a shared household, the suit property cannot be partitioned has no merit. Even if one were to assume that the applicant were to succeed in her challenge to the gift deed, and she were to be granted a right of residence in the suit property, that would not take away the rights of the other co-owners i.e. the plaintiff and defendant No. 2, to seek partition of the suit property. The right of the applicant to reside in the suit property has to be construed in the light of the rights of third parties, who may have a right in the shared household. 11. A perusal of Section 17(2) itself shows that the aggrieved wife could be evicted or excluded from the shared household in accordance with the procedure established by law. The present suit is a proceeding in accordance with law, and if -- as a result of the three way partition of the suit property, the property cannot be partitioned by metes and bounds, and all the co-sharers have to leave the same so that the same could be sold to give the shares of all the co-sharers, the applicant cannot insist that she must reside in the suit property to deny the rights of the plaintiff and defendant No. 2. The rights of the applicant have been protected by passing an order under Section 19(1)(f) by the learned Magistrate. Merely because that order is under challenge by the applicant before this Court, does not preclude this Court from proceeding in the matter. 12. The rights of the applicant have been protected by passing an order under Section 19(1)(f) by the learned Magistrate. Merely because that order is under challenge by the applicant before this Court, does not preclude this Court from proceeding in the matter. 12. The Division Bench in Shravan Kapur (supra) was dealing with a similar situation, wherein the wife and two children had sought impleadment in a suit for partition between the father and the son. The Court observed as follows: 6. Appellant No. 1 is the wife and appellants 2 and 3 are the two children of Shri Anup Kapur. They were not impleaded as parties in the suit for partition filed by Shri Dewan Chand Kapur. They can only claim enforcement of their rights, if any, qua the share of that part of the property which ultimately would fall into the share of Shri Anup Kumar but for that reason partition of the property cannot be ordered to be withheld. It has rightly been conceded by learned Counsel appearing for the respondents that they have no objection in case it is directed that the Local Commissioner who will carry out actual partition by metes and bounds, as per the shares declared in the preliminary decree would also ascertain the view point of the appellants so as to safeguard their interest, more particularly in view of the alleged strained relations. 7. While keeping the interests of the appellants aforementioned in view and having considered the submissions, we are of the view that there is hardly any force in the appeal. The appellants cannot resist and oppose the actual partition of the property, which is to be carried out as per the shares declared in the preliminary decree. On behalf of the appellants also it has been conceded that they can exercise their rights only qua that part of the property, which ultimately will fall to the share of Shri Anup Kapur. 8. Consequently, the appeal is dismissed but with the directions that the Local Commissioner, who pursuant to the impugned order will carry out partition of the property by metes and bounds will also take into consideration the view point of the appellants, if any, for which purpose they will be duly associated at the time of passing a final decree. 13. Consequently, the appeal is dismissed but with the directions that the Local Commissioner, who pursuant to the impugned order will carry out partition of the property by metes and bounds will also take into consideration the view point of the appellants, if any, for which purpose they will be duly associated at the time of passing a final decree. 13. I may also refer to the Division Bench judgment of this Court in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors., 174 (2010) DLT 79, wherein the Court has emphasised that the right of residence, protected by the DV Act, is not the same thing as a right to reside in a particular property which the aggrieved party refers to as her 'matrimonial home'. 14. At the same time, the applicant has the right to be associated in the process of partition of the suit property and, if necessary, its sale. Accordingly, I.A. No. 9569/2011 is dismissed. 15. Since the share of the parties to the suit are defined and there is no dispute amongst them in that regard, and no dispute has been raised in that regard even by the applicant, a preliminary decree for partition is passed declaring that the plaintiff, defendant No. 1 and defendant No. 2 have 1/3rd share each in the suit property. This is subject to the right of applicant being established in her IPA. If the applicant succeed in the said IPA, the share of defendant No. 1 would go to the applicant. 16. I appoint Mr. Devendra Singh, Advocate (Mobile No. 9811405332) as the Local Commissioner to visit the suit property and suggest ways and means for partitioning the suit property by metes and bounds, if it is so possible or, in the alternative, for sale of the suit property. The Local Commissioner shall associate the applicant in all such proceedings undertaken by him and her suggestions shall also be considered. The fees of the Local Commissioner is fixed at Rs. 50,000/- to be shared by all the three parties to the suit equally, apart from all other out of pocket expenses. 17. The parties and the applicant shall appear before the Local Commissioner on 4.10.2013 at 4.30 p.m. No further notice shall be required to be given to the parties or the applicant for the first meeting. 18. 50,000/- to be shared by all the three parties to the suit equally, apart from all other out of pocket expenses. 17. The parties and the applicant shall appear before the Local Commissioner on 4.10.2013 at 4.30 p.m. No further notice shall be required to be given to the parties or the applicant for the first meeting. 18. The parties shall not deal with the suit property till the final disposal of the suit. Interim orders dated 2.5.2011 is confirmed. 19. The aforesaid applications stand disposed of. List before the Court on 26.11.2013. Dasti.