1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3647 OF 200 7 IN SUIT NO.2656 OF 2007 BINDIYA A. CHAWLA & ORS. ..PLAINTIFFS VS. AJAY LAJPATRAI CHAWLA & ORS. ..DEFENDANTS Mr. Vaibhav Singdare with Ms. Uma Vyavahare i/b Khaitan & Jaykar for Plaintiffs Mr. M.R.Irani for Defendant No.1 Mr. Arif Bookwala with Mr. Gautam Ankhad i/b A. Ankhad & Associates for Defendants No.2 & 3 CORAM: Smt. ROSHAN DALVI, J. DATED : 31ST MARCH, 2009 P.C.: 1. Plaintiff No.1 is the mother of Plaintiffs No.2 & 3 who are her minor children. The suit is filed by Plaintiff No.1 for herself as well as on behalf of Plaintiffs No.2 & 3. Defendant No.1 is the husband of Plaintiff No.1 and father of Plaintiffs No.2 & 3. Defendant No.2 is the father- in-law of Plaintiff No.1 and the grand father of Plaintiffs No,2 & 3. Defendant No.3 is the 2 brother- in-law of Plaintiff No.1 and the Uncle of Plaintiffs No.2 & 3. Defendant No.4 is the mother- in-law of Plaintiff No.1 and Grandmother of Plaintiffs No.2 & 3. 2. Plaintiff No.1 and Defendant No.1 got married in November, 1991 in Mumbai. They lived in the USA from 1991 onwards. The suit flat stood in their names. Plaintiff No.1 also claims to have a key to the suit flat as shall be seen presently. 3. Since October, 2006 there have been proceedings for divorce between the parties. Under certain restraint orders passed by the Superior Court of California in the USA. Plaintiff No.1 has been granted the right of residence in what is stated to be their ''family home'' in the USA. In those proceedings Defendant No.1 has shown a list of properties stated to be belonging to him. The Plaintiff No.1 has claimed a ½ share in the said properties. That, of course, is not a part of this suit. 4. The Plaintiffs returned to Mumbai on 02.07.2007. 5. This suit is filed in August 2007 by the Plaintiffs claiming an equal share with Defendant No.1 in his HUF properties, movable and immovable enumerated in Exhibits D & E to the Plaint. The Plaintiffs have challenged a Deed of Gift executed by Defendant No.1 in respect of one of the suit flat 3 registered on 11.12.2006, after their divorce proceedings commenced in the USA. The Plaintiffs claim that the suit flat is the matrimonial home of the 1st Plaintiff and have sought to restrain Defendants No.2 to 4 from entering thereupon or from interfering with the Plaintiffs' possession therein and have also sought to restrain all the Defendants from alienating, encumbering or creating any third party rights in all the suit properties, movable and immovable. 6. The Plaintiffs have sought rights as members and co- parceners of the Hindu undivided family (HUF) of Defendant No.2. It is the Plaintiffs' claim that Defendant No.2 has formed a HUF with Defendants No.1 & 3 and the said HUF acquired larger properties which have been treated as joint family properties though purchased in various names. It is their case that the HUF owns several movable and immovable properties listed in Exhibits D & E to the Plaint. It may be stated that though so claimed, the Plaintiff No.1 is not and cannot be a member of the HUF of Defendant No.2. Plaintiffs NO.2 & 3 may claim to be such members if there is such a HUF. Hence the rights and entitlements of Plaintiff No.1 and Plaintiffs No.2 & 3 are distinct. 7. The Plaintiff No.1, as the wife of Defendant No.1, would be entitled to a ½ share in all the assets and properties of 4 Defendant No.1 including a ½ share in his share in the HUF properties as a co-parcener upon partition, consequent upon her marriage with him and her divorce. Her claim would subsist in the joint family properties as well as self acquired properties of Defendant No.1. Her right to the ½ share of the self acquired properties of Defendant No.1 and the joint properties of Defendant No.1 with herself would be adjudicated upon by the Competent Court in the USA having jurisdiction in the divorce proceedings between the parties. I am told that the list of the properties stated to be of Defendant No.1 has been furnished by Defendant No.1 in the superior court at California. This suit cannot concern itself with those properties or the rights of Plaintiff No.1 in those properties. Her right in the HUF properties of Defendant No.1 would only have to be considered in this suit. 8. Plaintiffs No.2 & 3 would have an interest as co-parceners by virtue of their very birth in the family of Defendant No.1. Hence if Defendant No.1 is a member of HUF, Plaintiffs NO.2 & 3 would also be co-parceners therein. The rights and entitlements of Plaintiffs No.2 & 3 would be as such co- parceners. They would be entitled to a share in the HUF properties and to ask for partition thereof. Plaintiffs No.2 & 3, as the minor children of Defendant No.1, would only be entitled to be maintained by Defendant No.1. They would not 5 per- se have a right in the assets and properties of Defendant No.1 as such children, save and except as co-parceners of the HUF. 9. The Plaintiffs have claimed the right of residence as aforesaid in respect of the suit flat. This right is essentially claimed as the right in respect of her matrimonial home. She is entitled to the right of residence, which is implicit in her right of maintenance, as a wife, u/s 17 of the Protection of Women from Domestic Violence Act, 2005 (the said Act). 10. The Plaintiffs must therefore show that the suit flat is the matrimonial home of the Plaintiff No.1 and Defendant No.1. Paragraph 1 & 2 of the plaint show that after marriage in November 1991 Plaintiff No.1 and Defendant No.1 started residing in the USA from 1991 itself. They resided in the USA until October 2006 when their marriage broke down and divorce proceedings were filed. Even thereafter the Plaintiffs continued to reside in their family home in the USA. She has been granted the right of residence in that home with a restraint order against Defendant No.1. Hence that home has been and has remained her matrimonial home at all times. She came to India on 02.07.2007. Upon coming to India she started residing in the suit flat. Paragraph 14 of the plaint shows that she was constrained to break open the lock as 6 she had lost the key of that flat. 11. The concept of Matrimonial Home has been explained in Advanced Law Lexicon by P. Ramnathan Iyer, 3rd edition, at page 2939, referring to Black's Law Dictionary, 7th edition, 1999 as '' the house where husband and wife live together'' The concept of such matrimonial home can also be gathered from the legal provisions granting territorial jurisdiction to court in case of matrimonial disputes - to cite - u/s 19 of the Hindu Marriage Act, 1955 the court to which a Petition under the act could be presented was, inter alia, the court in which the parties last resided together. That precept takes into consideration what is referred to as the matrimonial home of the parties to the marriage. 12. Section 17 of the said Act deals with the said concept. It runs thus ; 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. (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. 7 13. It may be mentioned that ''matrimonial home'' would be the place of residence of the parties in matrimony. A ''shared residence'' is a wider concept. It would be the place of residence even of parties not in matrimony. Every woman in a domestic relationship, whether a wife or not, is sought to be included in the said section to be entitled to a right to reside therein, whether or not she has any title thereto. Hence a wife claiming a right of residence u/s 17 of the said Act in fact claims a right to what has always been called the ''Matrimonial Home''. 14. Plaintiff No.1 claims a right to reside in the suit flat under the protection granted by the said statutory possession. She cannot be dispossessed therefrom. This is under the premise that it is her matrimonial home. The section does not confer any ownership rights on the woman seeking the right to reside in such residence. In fact she may have no right, title or beneficial interest in the same. Her right is only the right to reside. She would require to reside there in peace and have such possession protected against eviction or exclusion. Consequently the right to reside contemplated u/s 17 is implicitly in only one such residence. That is required to be the shared household of the woman who claims the right of residence. That is, therefore, the household which 8 she shared along with her husband. That is, in short, her matrimonial home. The fact that she has been given the statutory right only of residence in such household, implicitly shows that she can have such right in only one such household. That is the right given to her whether or not she otherwise has any other right, title or beneficial interest therein. She cannot be given the mere right of residence in more than one household. By the very nature of things she cannot be expected to live in more than one such shared household. The right is only protective. It is not proprietory. It does not confer title upon her. It is the right of residence which is included in her right of maintenance. She would have the right to reside in the household she shared with her husband until she is given either a permanent right to reside in another property or is given her alimony which may include more than one such residence and immovable properties. Until that is given, her residence is required to be protected. Hence she is given the right to reside and to continue to reside in the household she shared with her husband (i.e her matrimonial home). 15. The parties may, from time to time reside in different properties one after another. In such case their shared household or matrimonial home would change from time to time. The wife would be entitled to continue to reside in only 9 one such residence which she shared with her husband. It would essentially be the last of the residences which the parties shared. Hence if the parties shifted residence, the wife would not have the right in more than one such residence. 16. In this case the parties essentially resided in the USA during a good length of their marriage. The wife continued to reside there even after Divorce proceedings were filed. Her residence has been protected by the competent court in the USA. The parties shared that residence from 1991- 2006. Mr. Vaibhav on behalf of the Plaintiffs argued that the suit flat was the residence in which the parties resided soon after their marriage and hence it is her shared household. Much water has flown between 1991 when the parties married and in 2007 when she returned to the residence which she shared with her husband before moving to the USA. Such residence cannot continue to be the shared residence of the parties. The wife cannot, therefore, have the right of residence u/s 17 of the Act in the suit flat in which the parties did not share their residence since 1991. 17. The concept of matrimonial home has been considered in the case of Alka Bhaskar Bakre Vs. Bhaskar Bakre, AIR 1991, BOM 164 in that case the parties to the marriage 10 changed their respective residences from time to time upon transfer of the husband's employment. Before the break up of the marriage the parties resided in Bombay. That house was purchased on ownership basis. The husband had contributed the initial amount. The wife had paid the remaining amount. The parties resided there until the husband was transferred again when the wife refused to follow him. The parties' house at Bombay was held to be their matrimonial home as that was the last in the series of homes in which the parties had lived together and had intention to live together. In this case the parties may have lived in the suit flat soon after their marriage. That was for an extremely short period. Having married in November, 1991 they moved to the USA in 1991 itself. They lived in their house in the USA till 2000 when their marriage broke down and the wife continued to live there after her husband left the matrimonial home. So soon as she left that home and returned to Mumbai, there were a dispute with regard to her right in the home claimed by her. The matrimonial home of the parties is the home in the USA where they last lived together during the subsistence of their marriage and in which they intended to so live. Plaintiff No.1, therefore, cannot claim the right of residence in the suit flat as her matrimonial home or as her 11 shared residence u/s 17 of the said Act. 18. It is contended on behalf of the Defendants that this court has no inherent jurisdiction to grant the Plaintiffs the right of residence in the suit flat under section 17 of the Act. 19. Nevertheless the Plaintiff's claim upon the suit flat is also based on the title. It is contended by the Defendants that the suit flat actually comprises of two flats being flat No.101 & 102. Flat No.101 is in the names of Defendants No.3 & 4. Flat No.102 is admittedly in the names of Plaintiff No.1 & Defendant No.4. Hence the Defendants contend that the Plaintiff No.1 would be entitled to flat No.102 and that can be partitioned and given to her. Plaintiff No.1 has mortgaged the flat No.102 to Citibank against a loan taken by her for her jewellery business. 20. Flat No.101 initially stood in the names of Defendant No.4 and Defendant No.1. Defendant No.1 is stated to have executed a Deed of Gift in favour of his brother Defendant No.3 on 16.01.2007. That Deed of Gift has been registered only on 11.12.2006. The registration is after divorce proceedings between the parties were filed by Plaintiff No.1 on 10.10.2006. Defendant No.1 claims in this court that there is no HUF in which he has any share and that he owns 12 no property. He has been residing in India almost since about 2007. He claims to be residing in his parents' flat which is another flat in Seakist Building in Bandra. The only flat in his name was flat No.101 on the 1st floor of Legacy Building. It cannot be comprehended how and why he would gift that flat to his brother who is shown to have other properties as well. The registration of the Deed of Gift of 11.12.2006 shows that the Deed of Gift stated to be dated 16.01.2006 is a bogus, antidated document only to prevent the Plaintiffs' claiming any rights therein. 21. It is seen that Plaintiff No.1 as well as Defendant No.1 are shown as owners jointly with Defendant No.4 in both these flats. The said flat, therefore, essentially belonged to the husband and wife in which the name of the mother of the husband was shown jointly with their names. Though the Plaintiff No.1 is otherwise not entitled to a right of residence in the said flat, while she has the right of residence in the family property in the USA, she would be entitled to rights in respect of the suit flat by virtue of her joint ownership admitted by the Defendants. 22. It is her case that there is only one flat, though there are two documents in respect thereof. There is admittedly no partition in the suit flat. The Defendants claim to partition it 13 and offer ½ the suit flat stated to be flat No.102 to the Plaintiffs. The fact remains that, admittedly it has been used as single flat and Defendant No.1 has under an anti dated Deed of Gift, gifted the flat to his brother for no apparent reason after the divorce proceedings between the parties. 23.The Plaintiffs claim that Defendants No.2 to 4 have sought to enter upon the suit flat though their permanent residence is in two flats on the ground floor of Seakist Building at B.J.Road , Bandra (W), Mumbai 400050. The fact that those two flats stand in the names of Defendants No.2 & 4 is not denied. The Defendants have in fact produced documents relating to those flats. 24. Yet the Defendants claim to be in possession of the suit flat also. They claim to have some maid servants in that flat. 25. The Defendants have relied upon certain photographs showing what they call ''possession'' of Defendants No.2 to 4 in the suit flat. The photographs merely show Defendants no.2 & 4 and another person dining in the suit flat. The Plaintiffs contention, that Defendants No.2 to 4 have merely entered upon the suit flat and disturbed the Plaintiffs' possession and seek only to harass the Plaintiffs while they are not actually in possession of that flat and do not actually 14 live there, stands to reason upon seeing the photographs produced by Defendants No.2 to 4 in which they are seen dining at the dining table from a tiffin box ! No one would dine in this fashion in their own home in which they continuously reside. It is, therefore. clear that though the flat on the 1st floor of Legacy Building stood in the names of Plaintiff No.1 and Defendant No.1 with Defendant No.4 as a joint owner in respect of each of the flats, Defendants No.2 to 4 have never resided therein. Their continuous possession by way of their residence is not shown. Their claim of possession by virtue of having some maid servants therein cannot be accepted. 26. The Plaintiffs' right and title in respect of the suit flat is prima facie seen. The injunctive reliefs as prayed by the Plaintiffs must therefore be granted in respect of the suit flat bearing flat No.101 and 102 against the Defendants including their maid servants. 27. The Plaintiffs have also applied for appointment of Court Receiver in respect of the various movable and immovable properties enumerated in Exhibits D & E to the plaint. The Plaintiffs claim that these are joint family properties. The Defendants have disputed the existence of the joint family itself. The Defendants have claimed that Defendant No.2 15 migrated to India from Pakistan at the time of the partition of India when he was penniless and that he acquired properties thereafter. Several properties are shown not only in his name, but in the names of Defendants No.3 & 4 also. Defendant No.4 is not shown to be having any separate independent income. She has merely shown properties standing in her name. She claims to have shown those properties as her own in her tax returns. The tax returns are not produced. Only the documents of title showing the names of the Defendants No.3 & 4 are produced. If there is a HUF and if these properties are claimed by Defendants No.3 & 4 as their own separate independent properties they would require to show the income from which these properties are purchased. However, that exercise is not called for in this suit at least at this stage. In paragraphs 3 & 4 of the Plaint the Plaintiffs have claimed that there is a HUF of Defendant No.2 with Defendants No.1 & 3 and that properties are acquired and treated as their joint family properties. There is absolutely no evidence produced by the Plaintiff on this score. The Plaintiffs have not even shown or got produced the income tax returns of the Defendants showing any properties as HUF properties. The fact of the HUF itself is denied. It would be material to consider the fundamental principles of Hindu Law relating to joint family and its properties. It may be enumerated thus: 16 (i) There is a presumption that a Hindu family is joint in food , worship and estate. (ii) When the joint family is not disputed the property would be presumed to be joint. (iii)If the Joint family possessed property jointly, the presumption is that it would continue to be joint. (iv)the mere fact that the family is joint, does not cause a presumption to be made that it possesses joint property. (v) the Plaintiffs have first to show that the family had some property with the income of which the other properties were acquired. Hence the Plaintiff has to show the nucleus from which the properties could be acquired. Then the presumption of jointness in properties can be drawn. (vi)the Plaintiff must show the income that the nucleus yielded e.g. from a running business for the presumption to be drawn. (vii)if that is shown the mere purchase by the Defendants in his name would not be sufficient to show that the property is self acquired property. He would require to show the independent source of his income to prove his self acquisition and to prove that property was acquired by him without any aid from 17 the family estate. (See Madanlal Vs. Ramprasad AIR 2002 Rajashthan 1999) 28. The nucleus from which any of the properties could have been acquired is also not shown. It is settled law that a nucleus of joint family property is essentially required to be shown upon which alone can there be a presumption that the property purchased by any member of the joint family would be a joint family property (see Babubhai Girdharlal & ors. Vs. Ujamlal Hargovandas & ors. AIR 1937 Bombay 446; Shrinivas Krishnarao Kango Vs. Narayan Devji Kango & ors 1954 SCR 1; K.V.Narayanswami Iyer Vs. K.V.Ramakrishna Iyer & ors AIR 1965 SC 289 ; Mudigowda Gowdappa Sank & ors Vs. Ramchandra Revgowda Sankh, AIR 1969 SC 1076; Baikuntha Nath Paramanik Vs. Sashi Bhushan Pramanik & ors. AIR 1972 SC 2531; D.S.Lakshmaiah & Anr Vs. L. Balasubramanyam & anr. AIR 2003 SC 3800) 29. It is contended by Mr. Vaibhav on behalf of the plaintiffs that in this case the Plaintiffs would not be required to show that the properties enumerated in Exhibits D & E are joint family properties as contended by the Defendants in view of the admission of the Defendants. Defendant No.1 has relied upon an unregistered Deed of Partition under which certain 18 properties have been partitioned between the Defendants. It is contended by the Defendants that there was a partial partition of only some of the properties which were of the HUF of Defendant No.2. Mr. Vaibhav relied upon a judgment in the case of Union of India & ors Vs. M.V.Valliappan & ors. (1999) 6 SCC 259, to contend that there cannot be a partial partition. However that judgment relates to whether a partial partition is effective for the purpose of income tax law. 30. The fact of partition shows that the properties were joint before they were partitioned. Hence some of the properties at least are shown to be joint family properties. Hence, the existence of the family cannot be disputed. When the Joint Family cannot be disputed, the properties held by such family members would be presumed to be joint. The Plaintiffs' Advocate Mr. Vaibhav relied upon the case