1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 634 OF 2007 APPEAL FROM ORDER NO. 634 OF 2007 APPEAL FROM ORDER NO. 634 OF 2007 IN NOTICE OF MOTION NO. 2005 OF 2005 IN S.C. SUIT NO. 2067 OF 2005 Smt. Madhuri Gaurang Doshi ... Appellant/ Plaintiff Versus Gaurang Vinod Doshi & Ors. ... Respondents/ Defendants Mr. N.A.Ghag, Advocate, a/w. Mr. Ram Ugrah Singh, Advocate for the Appellant. Mr. S.H. Karim, Advocate for Respondent Nos.2A & 3. Mr. Bharat Chaudhari, Advocate for Respondent No.1. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 10th March,2008. DATE: 10th March,2008. DATE: 10th March,2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. The appellant is the original plaintiff and the respondents are original defendants. The appellant is 2 the wife of defendant No.1. The deceased defendant No.2 was the father of defendant No.1 and defendant No.3 is the mother of defendant No.1. The plaintiff and defendant No.1 were married sometime in 1994 and after that, according to the plaintiff, she was living in the suit flat No. 31/31, Vikas Building, Pedder Road, Mumbai. According to her, because of the behaviour of her husband, she was compelled to leave the matrimonial home in September, 2004. In May 2005, she filed the suit seeking mandatory injunction to allow her to re-enter in the suit house. She took out Notice of Motion No.2005 of 2005 for the same relief pending the suit. That Notice of Motion was contested by the defendants. It was contended that suit house belonged exclusively to defendant No.2, father-in-law of the plaintiff and the defendant No.1, the husband of the plaintiff, had no legal right on that suit house. Pending the suit, and that Notice of Motion, defendant No.2 died leaving behind son, widow and a daughter, who is defendant No.2A. According to the plaintiff, due to this development, her husband has got 1/3rd share in the suit property and has become co-owner and therefore, she is entitled to reside in the suit house which is her matrimonial home. On the other hand, the defendants contended that deceased defendant No.2 had executed a Will dated 25.8.2005 bequeathing the suit house to the defendant No.3 alone and therefore, defendant No.1 has 3 no legal right in the suit house. The plaintiff added a prayer that the defendants should not be allowed to dispose of the property pending the suit. 3. After hearing the parties, the learned trial Court dismissed the Notice of Motion holding that when the suit was filed, the husband of the plaintiff had no legal right over the suit property and as it was exclusively owned by her father-in-law, in view of the judgment of the Supreme Court in S.R.Batra & Anr. vs. S.R.Batra & Anr. vs. S.R.Batra & Anr. vs. smt. Taruna Batra AIR 2007 SC 1118 smt. Taruna Batra AIR 2007 SC 1118 smt. Taruna Batra AIR 2007 SC 1118,the plaintiff could not claim any legal right over the property or the suit house belonging to the father-in-law or mother-in-law exclusively. The learned trial court also noted that as per the defendants, deceased defendant No.2 had executed a Will bequeathing the suit property to defendant No.3 and even though the probate is not yet granted, at least the plaintiff is unable to show that the suit property belongs to her husband. The learned trial Court noted that in such circumstances, the plaintiff could only claim a right of shelter to be provided by the husband and the husband has, in fact, made an offer to provide alternate accommodation to her but she has not responded. The trial Court noted that taking into consideration all these circumstances, mandatory injunction as a temporary relief pending the suit could not be granted to her. In the result, the Notice of Motion came to be dismissed. The plaintiff has 4 preferred the present Appeal challenging the order of the trial Court. 4. It is now well settled position that a woman cannot claim a legal right of residence in the house exclusively belonging to her father-in-law or mother-in-law. She can claim right of residence in the shared house or the matrimonial house belonging to her husband. From the facts stated above, it is clear that the suit house was exclusively the property of the father-in-law of the plaintiff and, therefore, when she filed suit she did not have any legal right over that house. Her husband could claim a right over that house, had his father died intestate. But according to the defendants, the defendant No.2 - father had executed a Will and bequeathed suit property in favour of defendant No.3. The learned Counsel for the defendant no.3 makes a statement that the probate proceeding has already been filed and it is pending in the High Court. It appears that defendant No.1 and defendant no.2A who would be otherwise entitled to get share in the property, had the father died intestate, do not appear to have any problem with the Will executed by the father in favour of their mother. The objection appears to have been taken by the plaintiff, but could not claim any legal right in the property even after the death of father-in-law. 5. It is now well-settled position of law that the 5 relief of temporary injunction is discretionary in nature and generally the appellate Court will not interfere in the discretion so used by the trial court unless it appears that the order of the trial court is illegal or perverse. Taking into consideration the circumstances, it is difficult to come to such a conclusion. It may be noted that besides filing the present suit and the Notice of Motion claiming share in the suit property, the plaintiff had also filed proceeding before the Family Court seeking maintenance for herself and her child. Admittedly, the Family Court had granted maintenance at the rate of Rs.20,000/- to the plaintiff and Rs.40,000/- for the daughter. It appears that the plaintiff had filed a Writ Petition challenging the quantum of maintenance granted to her. That Writ Petition is still pending before the High Court. The Family Court can consider the requirements of the wife, while determining the quantum of maintenance, including the costs of residence or accommodation. It is material to note that before the trial court the husband had made an offer to provide alternate accommodation but the plaintiff did not respond to it. Even today, the learned Counsel for the husband made a statement that he is willing to make arrangement to provide residential accommodation on leave and license basis in the area between Bandra to Andheri. However, the learned Counsel for the plaintiff also makes a statement that she is not interested in 6 alternative accommodation unless it is purchased outright for her. Taking into consideration the facts and circumstances in the present case, I find no illegality, irregularity or perversity in the impugned order rejecting the Notice of Motion. 6. In the result, the Appeal stands dismissed. 7. As the Appeal itself is disposed of, the C.A. No.899 of 2007 does not survive and stands disposed of accordingly. 8. At this stage, the learned Counsel for the plaintiff-appellant makes a request to stay this order for a period of four weeks, in view of the fact that the status quo in respect of the suit property is in operation as the interim relief. The request is opposed on behalf of the defendants. In the interest of justice, the status quo in respect of the suit property shall be maintained for a further period of four weeks from this day. Certified copy expedited. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)