RFA 179/2008 Page 1 of 40 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA NO. 179 OF 2008 % Date of Decision: 7th September, 2009 # KAVITA GAMBHIR ….Appellant ! Through: Mr. Kirti Uppal, Advocate. Versus $ HARI CHAND GAMBHIR & ANR. … Respondents ! Through : Mr. Sanjeev Sindhwani, Advocate. CORAM: * HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the Judgment?(No) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest?(Yes) JUDGMENT P.K.BHASIN, J: The present appeal is filed by an unsuccessful defendant in a suit for possession and mesne profits filed by the two respondents herein RFA 179/2008 Page 2 of 40 in respect of House no. 220, Pocket-7, Block-C, Sector-8, Rohini, Delhi- (hereinafter referred to as ‘the suit property’) for setting aside the judgment and decree dated 27th March 2008 passed by the Additional District Judge whereby she has been directed to vacate the first floor of the suit property and also to pay mesne profits @ Rs.3250/- p.m. 2. The relevant facts as culled out from the pleadings and evidence of the parties, documents on record, as well as the submissions made before this Court by the counsel for the parties, may first be noticed. The elder son of the respondents, who shall hereinafter be referred to as ‘the plaintiffs’, got married to the appellant, who shall hereinafter be referred to as ‘the defendant’, on 4th July 1995. The ‘doli’ of the defendant after her marriage was brought to the house of Gambhirs in Rohini where at that time the plaintiffs and their two unmarried sons were already living as a joint family. As per the case of the plaintiffs from the day the defendant got married to their son Anil Gambhir they started living in one room RFA 179/2008 Page 3 of 40 set on the first floor portion and they themselves were occupying the one room set on the ground floor while their younger son after his marriage living in the one room which was there on the second floor with his wife. After some years of their marriage the relations between the defendant and her in-laws including her husband started getting strained and became so bad that the plaintiffs who were living on the ground floor and their younger son and his wife who had been occupying the second floor had to shift to Gurgaon. Defendant’s husband also left that house and started living separately in some house in NOIDA leaving behind his wife and two children in the Rohini house. According to the plaintiffs, the defendant had no legal right to stay in the suit property which was their exclusive property having been acquired from DDA by plaintiff no.1, Hari Chand Gambhir from his own funds and constructed also from his own money and the loan taken by him from his employer and that it was only out of love for his wife that he had got her name also included in the perpetual lease deed executed by DDA. It was further pleaded that the defendant in their absence took possession of the ground RFA 179/2008 Page 4 of 40 floor and second floors also, taking advantage of their having shifted to Gurgaon. Since the plaintiffs did not want their daughter-in-law to stay any more in their house they served a notice dated 27/10/04 upon the defendant to vacate the suit property by 30/11/04 but she did not do that. Hence, the suit was filed by the plaintiffs on 11/01/05 against the defendant for getting back the possession of the suit property from her. Since her occupation of the entire suit property was claimed to be unauthorised after she had failed to surrender the possession, the plaintiffs also claimed mesne profits @ Rs.15,000/- p.m. The plaint was valued for the purposes of court fees and jurisdiction at Rs.12 lacs being the value of the suit property. 3. The suit was contested by the defendant. She claimed that the suit had been filed by her in-laws to force her and their own grand- children to live the life as destitutes and roofless. Regarding the claim of the plaintiffs that they were the exclusive owners of the suit property her stand was that the suit property belonged to an Hindu Undivided Family(HUF) and her husband being one of the members RFA 179/2008 Page 5 of 40 of that HUF, she and her children had a right to reside in the property in their occupation. That property in any case was alleged to be her matrimonial home also and for that reason as well she could not be asked to move out from there or to pay any money for residing there. She denied the allegation that she had unauthorisedly occupied the ground and second floors also. She claimed that the ground floor had been locked by the plaintiffs themselves and as far as second floor is concerned she stated that since entry to that floor was through the first floor portion, she was going to the second floor only to keep that portion clean. 4. In the replication the plaintiffs while reiterating their case set out in the plaint pleaded that even the children born out of the wedlock between their son, Anil Gambhir and the defendant had no right to remain in the suit property. 5. The trial court framed the following issues for its decision:- RFA 179/2008 Page 6 of 40 1. Whether the plaintiffs are only titular owners of the suit property? OPD 2. Whether the suit property is part of the joint family properties possessed and owned by hindu undivided family? OPD 3. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP 4. Whether the plaintiff is entitled to a decree of mesne profits in the sum of Rs. 15,000/- per month from 01.12.2004 till the date of handing over the peaceful and vacant possession as prayed for? OPP 5. Relief. 6. The plaintiff no.1 had claimed in his evidence that he, alongwith his wife had acquired the land, from DDA vide perpetual lease deed dated 19/12/1989 (Ex.PW-1/9) and that he had taken a loan of Rs.1,47,250/- in the year 1990 for the construction of the house. He placed on record a certificate dated 13/12/04, Ex.PW-1/3, from his employer to the effect that in the year 1990 he had been given a loan of Rs.1,47,250/- for the construction of the house in Rohini and that the loan had been recovered back from his salary. The learned trial Court after considering the evidence adduced from both RFA 179/2008 Page 7 of 40 the sides came to the conclusion that the suit property was the self- acquired property of the plaintiffs and not an HUF property. For arriving at this conclusion the learned trial Judge relied upon the perpetual lease deed dated 19/12/89 in respect of the plot of land over which the suit property was constructed. That lease deed, Ex.PW-1/9, was in the joint names of the plaintiffs and it shows that the plaintiffs had been given the land on perpetual lease for a sum of Rs.7200/-. The Court also relied upon the admission made by the defendant regarding the ownership of the plaintiffs in respect of the suit property in a civil suit for injunction which she had filed before the filing the present suit by the plaintiffs. That suit was by the defendant against the plaintiffs, her husband Anil Gambhir, his brother Ajay Gambhir and his wife Madhu for a decree of permanent injunction restraining them from dispossessing her and her two children from the first floor of the suit property and which suit came to be compromised. The trial Court, however, has held that the plaintiffs had not produced any evidence to show that the defendant was in occupation of the other two floors as well and so passed a RFA 179/2008 Page 8 of 40 decree for mesne profits only @ Rs.3250/- p.m. for her occupation of the first floor only from 01/12/04 till the delivery of possession of the property to the plaintiffs. The plaintiffs have not challenged that conclusion of the trial Court going against them. 7. I heard the arguments advanced by Shri Kirti Uppal, learned counsel for the appellant and Shri Sanjeev Sindhwani, learned counsel for the respondents, and during the course of hearing of the appeal both of them also took me through the evidence adduced by the parties during the trial of the suit, oral as well as documentary. 8. As far as issues no. 1 and 2 relating to the controversy regarding the ownership of the suit property are concerned, Mr. Kirti Uppal, learned counsel for the appellant, argued with vehemence that the plaintiffs alongwith their two sons and their daughters-in-law were all living together as a joint family in the suit property for years and that showed that the suit property was joint family property and so the defendant was not an unauthorised occupant of the first floor RFA 179/2008 Page 9 of 40 of the suit property. It was also contended that the trial Court had wrongly come to the conclusion that the suit property belonged to the plaintiffs exclusively and was not an HUF property. He also argued at length to convince me that the appellant’s occupation of the property in her possession was protected even under The Protection of Women from Domestic Violence Act,2005. 9. On the other hand Shri Sanjeev Sindhwani, learned counsel for the respondents, while not disputing the fact that the plaintiffs alongwith their two sons, two daughters-in-law and two grand- children were living in the suit property as a joint family when there were no disputes between the defendant and their son Anil Gambhir but simply for that reason it could not be inferred that the suit property was a joint family property. It was submitted that there was no presumption that if members of a joint Hindu family reside together in some property which stands in the name of one of the family members would automatically become the joint family property of each member of the joint family. Mr. Sindhwani also RFA 179/2008 Page 10 of 40 submitted that the plaintiff no.1 had sufficient funds of his own to acquire the plot and for raising the construction also he had used his own money and that although some loan was also taken by him from his employer but that was repaid from his salary. Learned counsel also contended that the burden to prove that the suit property was joint family property lay on the defendant which she had failed to discharge. It was also submitted that in order to shift the burden to the plaintiffs to show that the suit property was their self acquired property the defendant had to show that there was some joint family nucleus with the aid of which the plot of land in question could be purchased or construction thereon could be raised with that nucleus but the defendant had miserably failed to establish that. Learned counsel also submitted that the provisions of The Protection of Women from Domestic Violence Act, 2005 could not be invoked in the present proceedings since no such case was pleaded by the appellant in her written statement and nor could she have done that since at the time she had filed her written statement this Act had not even been promulgated. It was also contended that if at all the RFA 179/2008 Page 11 of 40 defendant wanted the Court to take notice of that legislation as a subsequent development taking place after the filing of the written statement by her and before the disposal of the suit that could be done only if there was necessary foundation laid in the written statement by alleging facts therein which, according to her, entitled her to get some benefit available under the said Act of 2005 but shes did not lay any foundation in her written statement by seeking necessary amendment in the written statement and so she cannot be allowed to make any submissions based on the provisions of the said Act. In support of this contention Mr. Sindhwani cited one judgment of the Supreme Court in “ Om Parkash Gupta vs Rambir B.Goyal”, (2002)2 SCC 256. In any event, Mr. Sindhwani also contended, the respondents’ suit for possession of the suit property could not be resisted by the defendant and rejected by the trial Court by invoking any provision of the said Act since it has already been decided by the Supreme Court in “S.R. Batra & Anr. vs. Smt. Taruna Batra”, AIR 2007 SC 1118 that a wife cannot claim any right of occupation in the property owned by her in-laws as a “shared household” as defined in RFA 179/2008 Page 12 of 40 Section 2(s) of this Act of 2005 entitling her to live there as a matter of right. 10. I have examined and analysed the evidence on the point of ownership of the suit property and in my view the findings of the learned trial Court to the effect that the plaintiffs have been able to show that the suit property was their self-acquired property and that the defendant has failed to show that it was a joint family property cannot be sustained. As has been noticed already, it is not in dispute that the plaintiffs and their two sons constituted a joint Hindu family and that the suit property is registered in the joint names of the two plaintiffs as lessees. In these circumstances it was rightly submitted by the learned counsel for the plaintiffs that the burden rested on the shoulders of the defendant to show to the contrary that despite the perpetual lease deed being in the names of the plaintiffs the suit property in fact belonged to the joint family of the plaintiffs and their two sons. That is the legal position settled way back in the year 1947 by the Privy Council in “Appalaswami vs Suryanarayanamurti and RFA 179/2008 Page 13 of 40 others”, AIR 1947(34) Privy Council 189 which decision was thereafter followed by the Supreme Court in many of its judgment on the concept of Hindu Undivided Family and Joint Family Property amongst Hindus. Those decisions of the Apex Court are reported as AIR 1954 SC 379, AIR 1966 SC 411, AIR 1969 SC 1076 and AIR 1972 SC 2531. This is what the Privy Council in “Appalaswami v. Suryanarayanamurti”(supra) had held:- "The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property………………….." 11. And as to the nature of evidence expected from the person claiming some property to be joint family property the Supreme Court in “ Shrinivas Krishanarao Kango vs Narayan Devji Kango”, AIR 1954 SC 379 observed as under:- RFA 179/2008 Page 14 of 40 “11. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case………………………..” (emphasis laid) 12. It is thus clear that in a case where some member of a joint family holds any property in his own name it is shown by some other member that when that particular property was acquired there was some joint family nucleus out of which further acquisitions could be made then the burden shifts to that member in whose name the property in question stands and who claims the same to be his self- acquired property to establish that it was his self acquisition. 13. In the present case, despite the fact that in a civil trial burden of proof of any fact in dispute which any party wants the court to accept in his favour is not as heavy as is in a criminal trial upon the RFA 179/2008 Page 15 of 40 prosecution, it was really very difficult for the defendant in the present case to have adduced evidence to establish the joint family nucleus in the family of Gambhirs since everybody in that family had become inimical towards her and it is her case that they wanted her to lead the life of a destitute. She had entered the Gambhir family only in the year 1995. So, it must have been difficult for the defendant to know the existing family situation and background of Gambhirs before that. However, I am of the view that despite all odds she had been able to extract a very vital piece of information from her father-in-law during his cross-examination and that fact admitted by him is sufficient to discharge her of the initial burden which rested on her for showing that the suit property could have been acquired and constructed with the aid of some joint family nucleus. 14. In cross-examination of plaintiff no.1, who is the only witness from the side of the plaintiffs, it could be extracted from him that before the construction of the suit property he was residing in a house in Gurgaon which belonged to his father and he also stated RFA 179/2008 Page 16 of 40 that that was the only house which his father had left. He further stated that he and his brothers and sisters had given that house to the widow of one of their brothers. These facts emerging out in the cross-examination of the plaintiff show that when the suit plot was acquired the plaintiff no.1 was in possession of some property which was ancestral in his hands as well as in the hands of his brothers and sisters. So, existence of that ancestral property in the facts of this case did constitute the joint family nucleus which in my view was sufficient to shift the burden to the plaintiffs to show by adducing sufficient evidence, which could be only in their special knowledge, that the suit property was purchased and constructed with the personal money of plaintiff no.1, Hari Chand Gambhir. As noticed already it is the plaintiffs’ own case that the suit property was in fact acquired by plaintiff no.1 with his own funds and his wife’s name was only got written in the perpetual lease deed out of love and as a measure of security for her in future in case of any need. She was a house wife having no income of her own. Plaintiff no.1 has claimed in his evidence that he had constructed the suit property, which is a RFA 179/2008 Page 17 of 40 three storeyed house, in the year 1990, after having acquired the land from DDA in December,1989. Section 106 of the Indian Evidence Act also, in the facts of this case, comes to the aid of the defendant. However, there is no evidence adduced by the plaintiffs, except the ipse dixit of plaintiff no.1 that he had acquired the suit land and constructed the suit property with his own money, to discharge the burden which stood shifted on their shoulders because of the admission of existence of an ancestral property in which the plaintiff no.1 had a share. According to plaintiff no.1 he had sought pre- mature retirement from Indian Air Force in 1984 and his salary was only about Rs.2000/- p.m. and he used to save about Rs.500/- to Rs.600/- p.m. from his salary. The lease consideration paid to DDA was Rs.7200/-. For constructing three storeyed house he must have spent lacs of rupees but he has not come out with the exact amount spent on construction. Although he claimed to have obtained loan of Rs.1,47,250/- from The New India Assurance Company Ltd. for the construction of his house but no one from that Company has been examined by him to establish that fact. Although he had placed on RFA 179/2008 Page 18 of 40 record one document purporting to be a certificate issued by the said Company in 2004(Ex.PW1/3) to the effect that he had been given loan of Rs.1,47,250/- in the year 1990 but its contents cannot be said to have been established in the absence of anybody from this Company coming to the Court to prove its correctness and to be cross-examined by the defendant. 15. As far as the ancestral property of the plaintiff no.1 in Gurgaon is concerned no evidence has been led by him to show as to under what arrangement he had given up his claim in that property. All the relevant facts in that regard were within his special knowledge but he has not divulged any information in that regard. In these circumstances it can be safely presumed that he must have relinquished his interest in that ancestral house, which he claims to have done, after taking money in lieu of his share and that money might have been utilised by him to acquire and build the three storyed house in Rohini, Delhi as the Head of his own joint family. Unfortunately the learned trial Judge did not do the job expected of RFA 179/2008 Page 19 of 40 him while deciding the valuable rights of the litigants before him. If only he had taken the trouble of going through the cross-examination of plaintiff no.1 the fate of the suit might have been different. The trial Judge does not appear to have known the importance of cross- examination of a witness which is as much a part of evidence in the suit as the examination-in-chief is. No decision should be given without examining the entire evidence including the cross- examination of witnesses. It is possible that the counsel of some party also may not point out some part of the evidence which goes in favour of his client like in the present case as appears to have happened not only during the trial but even in this appeal the learned counsel for the appellant-defendant did not draw my attention towards the cross-examination of plaintiff no.1 Hari Chand during the course of arguments. But that does not absolve the Court of its duty to carefully consider and analyse the entire evidence which is adduced by the parties to a suit. The learned trial Judge has also observed while deciding issues no. 1 and 2 against the defendant that she had failed to show that her husband had contributed anything RFA 179/2008 Page 20 of 40 towards the purchase of the suit property. That view taken by the learned Judge appears to have been taken in ignorance of the legal concept of a joint family property which the superior courts have been laying down in various judgments some of which I have noticed in the earlier paras. Contribution by each member of a joint family towards the acquisition