R.S.A. Nos.749 & 750 of 2013

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935** **RSA.No. 749 of 2013 (E) ------------------------** **AS 255/2010 of ADDL. DISTRICT COURT (SPECIAL), KOTTAYAM OS 303/2008 of MUNSIFF COURT, VAIKOM** **-------------** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS :-** **----------------------------------------** **1. JOY JOSEPH, AGED 49 YEARS S/O.JOSEPH, RESIDING AT THULUSSERIL(HOUSE) IRAVIMANGALAM KARA, MANJOOR VILLAGE, VAIKOM-680613.** **2. SALOMI JOSEPH, AGED 46 YEARS** - **W/O.JOY JOSEPH, RESIDING AT THULUSSERIL(HOUSE) IRAVIMANGALAM KARA, MANJOOR VILLAGE, VAIKOM - 680613.** **3. JOYAL JOSEPH,(MINOR), AGED 14 YEARS** - **REPRESENTED BY NEXT FRIEND AND GUARDIAN JOY JOSEPH S/O.JOSEPH, RESIDING AT THULUSSERIL(HOUSE) IRAVIMANGALAM KARA, MANJOOR VILLAGE, VAIKOM-680613.** **FIRST APPELLANT IS APPOINTED AS THE NEXT FRIEND AND LEGAL GUARDIAN OF MINOR 3RD APPELLANT AS PER ORDER DATED 2.8.2013 IN I.A.No.1777/2013.** ## **BY ADV. SRI.B.RAMACHANDRAN** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :-** **-----------------------------------------** **1. OUSEPH,, AGED 73 YEARS S/O.OUSEPH, RESIDING AT THULUSSERIL(HOUSE) IRAVIMANGALAM KARA, MANJOOR VILLAGE, VAIKOM-680613.** **2. ALEYAMMA,, AGED 69 YEARS** - **W/O.JOSEPH, RESIDING AT THULUSSERIL(HOUSE) IRAVIMANGALAM KARA, MANJOOR VILLAGE, VAIKOM-680613.** **3. BENNY JOSEPH,, AGED 47 YEARS** - **S/O.JOSEPH, RESIDING AT ANUGRAHA, MISSION SCHOOL MARKET ROAD, THRIPUNITHURA-682301.** **R3 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) (CAVEATOR) SRI.THOMAS JAMES MUNDACKAL SRI.ARUN ANTONY SMT.SHENU K.V.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2013, ALONG WITH RSA No.750/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------R.S.A. Nos.749 & 750 of 2013 -----------------------------------------Dated this the 2[nd] day of August 2013** ## **J U D G M E N T** In O.S. 303/2008 a decree was granted directing the appellants to surrender vacant possession of the plaint schedule item No. 1 to the plaintiffs. Prohibitory injunction was also passed in that suit against the appellants restraining them from trespassing into plaint items 1 and 2 and committing any waste in the plaint schedule property and also restraining them from causing any obstruction to the plaintiffs taking usufructs from the plaint schedule property. 2. In O.S. 304/2008, a permanent prohibitory injunction was passed against the defendants therein from trespassing into the plaint schedule item Nos. 1 to 4 shown therein (excluding plaint items 5 and 6) and committing any waste in that property and also restraining the defendants from causing obstruction to the plaintiffs taking usufructs and enjoying the plaint schedule property. R.S.A. Nos.749 & 750 of 2013 -: 2 :- 3. Admittedly the plaint schedule property belongs to the father and mother, the respondents herein. It is contended that plaintiffs 1 and 2 have executed and registered a Will in respect of their properties as per which three items of properties have been bequeathed in the name of the first appellant. But dissatisfied with the property given to him he started quarreling with the parents. It was also contended that the 2[nd] appellant who is the wife of the first appellant filed M.C. No.6/2008 against the respondents (father and mother of the first appellant) before J.F.C.M-I, Vaikom alleging commission of domestic violence stating false allegations. 4. It is not in dispute that the appellants were permitted to reside in a portion of the building which is occupied by the respondents/plaintiffs. Since it was found to be not conducive or congenial to allow the appellants to reside along with the respondents due to the hostile and recalcitrant attitude of the appellants towards the respondents, permission granted to the appellants to reside in that house was terminated. Apart from the fact ## R.S.A. Nos.749 & 750 of 2013 -: 3 :- that the first appellant is the son of the respondents and that the 2[nd] appellant is the wife of the first appellant, appellants have absolutely no right over the property. The Will would come into operation only on the death of the testators. Hence, accepting the case of the plaintiffs in the two suits that the appellants have absolutely no right over the property, a decree was passed in favour of the parents/ respondents as stated above. The two appeals filed by the appellants were dismissed by the lower appellate court. 5. The following substantial question of law arises for consideration :- Has the 2[nd] appellant, the daughter-in-law, got right of residence in the house which exclusively belongs to the father or mother of the 2[nd] appellant's husband - is it a “shared household” ? 6. The learned counsel for the appellants has vehemently argued that there was a compromise agreement entered into between the appellants and the respondents before Kerala Women's Commission but that fact was suppressed by the respondents. It was also stated that an R.S.A. Nos.749 & 750 of 2013 -: 4 :- agreement was also entered into in the Adalath conducted by the Legal Services Authority. There is no case for the appellants that any award was passed in any Lokh Adalath. The so called suggestion made by the Kerala Women's Commission cannot decide the issue as to whether the respondents are entitled to get a decree for injunction against the appellant and also whether the appellants are entitled to get a decree for eviction of the appellants from the suit house where the parents are residing, the respondents contend. The third appellant in one of the appeals is the grandson of appellants 1 and 2. 7. Learned counsel for the appellants would submit that the 2[nd] appellant (wife of the first appellant) cannot be asked to vacate the matrimonial house which is her “shared household” if her husband is unable due to any reason to provide a residence for the wife. It is also argued that it is the duty of the relatives of the husband to provide suitable residence to the daughter-in-law. It is further contended that the courts below should have taken note of the provisions contained in Sec. 26 of the Protection of ## R.S.A. Nos.749 & 750 of 2013 -: 5 :- Women from Domestic Violence Act, 2005 while determining the rights of the married woman to occupy a house in a civil dispute. 8. The learned counsel for the appellants has relied upon the decision in **Agnes Alias Kunjumol v. Rageena Thomas – 2011 (1) KLT 588** in support of his submission that, a woman who is either incapacitated due to any reason or is no more, should not be asked to vacate the matrimonial house or that she should be rendered homeless. The facts dealt with therein are entirely different, the learned counsel for the respondents submits. That was a case where the appellants had no other place to reside except the plaint schedule premises. It was also contended in that case that as per an understanding in the family, the plaint schedule property was given to appellant's husband and that the sum of Rs. 1,00,000/- given by her family at the time of her marriage was utilized for the maintenance of the said residence. Her suit was dismissed by the two courts. That was a case where the first plaintiff's husband; namely Sebastian became mentally sick and the R.S.A. Nos.749 & 750 of 2013 -: 6 :- sickness aggravated to such a stage that he caused the death of one of their children and so he was prosecuted for the offence under Sec. 302 I.P.C. but was given the benefit of Sec. 84 of I.P.C. At the time of the suit and the appeal the husband was undergoing treatment in a mental hospital. Therefore, the daughter-in-law was not having any other place to reside except the plaint schedule premises. It was in that context, it was held that when the husband of a woman is either incapacitated or due to any other reason and when the wife is not having any other place of residence she should not be asked to vacate the matrimonial house and be rendered homeless. That was a case where, if she was to be evicted from the plaint schedule house, she would be rendered homeless. It was considering the peculiar circumstances of that case, it was held by this Court that the she should not be ordered to be evicted. But the fact situation in this case is entirely different, the learned Senior Counsel for the respondents submits. 9. The decision of the Supreme Court in **Sandhya** R.S.A. Nos.749 & 750 of 2013 -: 7 :- ## **Manoj Wankhade v. Manoj Bhimrao Wankhade –** **2011 (1) KLT 609 (SC)** has also been referred to in this case. That was a case where the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “PWDV Act”) was considered. There the appellant was married to the first respondent and after the marriage she was residing with the first respondent husband and her sister-in-law in the very same house. The appellant was stated to have been assaulted by her husband. Hence, she filed complaints against the husband, mother-in-law and sister-in-law under various provisions of the PWDV Act. The Magistrate passed an order restraining the respondents from dispossessing the appellant from her matrimonial home. The appeal and the revision were dismissed. Thereafter the second respondent filed an application for modification of the earlier order seeking direction to the appellant to leave the house. That petition was found unsustainable. When the matter reached the Hon'ble Supreme Court it was held that the Legislature never intended to exclude female R.S.A. Nos.749 & 750 of 2013 -: 8 :- relatives of husband or male partner from the ambit of a complaint that can be made under the provisions of the PWDV Act. 10. The facts dealt with in this case are entirely different. The learned Sr .Counsel points out that it is the consistent case of the respondents that they had executed a Will as per which three plots were bequeathed in favour of the first appellant. That is actually a rubber estate which would yield sufficient income for their livelihood but the first appellant was not prepared to go to that property or to manage the same or to take income therefrom. It is further contended that there would be no difficulty for the appellants to construct a house in any of the three items and to reside there instead of causing unnecessary harassment to the appellants. The learned Sr. counsel has pointed out the copies of certain complaints given by the 2[nd] appellant (the daughter-in-law) against the father-inlaw and mother-in-law and also against the brother of the first appellant who is staying several kilometers away in a different house. The learned Sr. counsel points out that R.S.A. Nos.749 & 750 of 2013 -: 9 :- those letters contain imputations made by the second appellant, using filthy and obscene words against the respondents and the brother of the first appellant. 11. A Writ Petition was filed by the appellants herein as W.P.C. 28064/2010 against the respondents herein and against the State of Kerala, National Women's Commission and Kerala Women's Commission etc. It is contended by the appellants that when a complaint was given to the Women's Commission the matter was discussed and ultimately a decision was rendered by the Women's Commission to the effect that property would be given to the first appellant for the purpose of constructing a house and also for taking income. That was to be done within three months from the date of the agreement entered into before the Women's Commission. It is stated that the said agreement was entered in August 2003. The learned Sr. counsel would submit that even before that a Will was executed by the parents in favour of the first appellant. In that Will three items were bequeathed in favour of the appellants and those items are capable of yielding income for their ## R.S.A. Nos.749 & 750 of 2013 -: 10 :- livelihood. It is also submitted by the learned Sr. counsel for the respondents that in fact a settlement deed was executed in favour of the other son, since he was ready to get the document prepared and executed and to bear the expense for the same. But the first appellant was not prepared to have the settlement deed executed in his name. That was the reason why the Will had happened to be executed. Therefore, it is always open to the first appellant to approach the parents to get the document executed in his name as settlement deed/gift deed in respect of the property mentioned earlier but only with one condition that those items should not be alienated during the life time of the respondents. So that there would be no difficulty for the first appellant to put up a residential house in any of those items. It would appear from the submission made by the learned Sr. Counsel that, though maximum harassment was caused to the respondents by appellants 1 and 2 still because of their love and affection towards the first appellant, they are prepared to give those three items. If the first appellant shows some love, affection and mercy R.S.A. Nos.749 & 750 of 2013 -: 11 :- towards the aged parents, certainly, it would be better for them to get something more from the parents. It is submitted by the learned counsel that even at this old age they are being driven to the court as respondents in MC 6/2008 filed by the second appellant before JFCM, Vaikom, making wanton and reckless allegations against them. It is not disputed that the second respondent is a cancer patient undergoing treatment at RCC, Thiruvananthapuram. 12. The only other question that remains for consideration is whether the house belonging to the mother-in-law is the shared household so as to enable the second appellant to have a right of residence in that house. It is not a case where the husband had any fractional right in the property. That is not the joint family property of her husband. The first appellant has absolutely no right over the said house . In fact the respondents had offered to give properties to first appellant. There would be no difficulty for the appellants to have a house constructed in that property. Even now the respondents standby that promise and they are even ready to execute a settlement ## R.S.A. Nos.749 & 750 of 2013 -: 12 :- deed or gift deed in favour of the first appellant, provided he bears the expense. But it seems that the appellants are not ready to have that document executed. Whether there should be an equal partition of the entire property or not is not something to be dictated by the second appellant or by the first appellant, since that would depend upon the will and pleasure of the parents. 13. Arguments were vehemently addressed by the learned counsel for the appellants that the other son has influenced the respondents to execute a settlement deed and the Will giving major portion of the property to the share of the other son, whereas under his influence only the property mentioned earlier was agreed to be allotted, even if it is going to be allotted. It is further submitted that the property agreed to be given is not worth that much, whereas the property allotted to the other son is a very valuable property which would fetch several lakhs of rupees. In that way, the appellants attack the will or the disposition or the bequest made by the respondents. But it may be remembered that the appellants have no right by ## R.S.A. Nos.749 & 750 of 2013 -: 13 :- birth or existing right over the property so as to claim partition or allotment of any of the items. It is left to the will of the father and mother who are having title to the property. Therefore, as stated earlier, the appellants cannot insist that the first appellant's parents should execute a document allotting or bequesting such and such property in the name of the first appellant. 14. In this connection, the decision of the Honourable Supreme Court in **S.R.Batra and Another** v. **Smt.Taruna Batra** [AIR 2007 SC 1118] can also be referred to here. That was a case where the house in question belonged to the mother-in-law. It did not belong to the son (husband of the respondent therein). Therefore, it was held that Smt.Taruna Batra, the respondent therein (daughter-in-law) cannot claim any right to live in the house belonging to the mother-in-law. The mother-in-law contended that it is not a joint family property. In that context it was held by the Supreme Court that it is quite possible that the husband and wife may have lived together in dozens of places, for example; with the husband's father, husband's paternal ## R.S.A. Nos.749 & 750 of 2013 -: 14 :- grand parents, his maternal parents etc. In that case it was held by the Supreme court that the 2[nd] floor of the property in question was the matrimonial home of Smt.Taruna Batra. It was further held that even if her husband Amit Batra has shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt.Taruna Batra. It was held that the rights which may be available under any law can only be as against the husband or not against the father-in-law or the mother-in-law. In that case the house in question belonged to mother-in-law of Smt.Taruna Batra and it did not belong to her husband Amit Batra and so, Smt.Taruna Batra cannot claim any right to live in the said house. It was held by the Honourable Supreme Court : “As regards S.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 R.S.A. Nos.749 & 750 of 2013 -: 15 :- Batra. Hence, it cannot be called a 'shared household'.” Applying the same principle it has to be held that the house where the respondents/parents are residing now cannot be called a “shared household”. Unlike in **Agnes Alias Kunjumol** v. **Regeena Thomas** cited supra, here the first appellant is not a person incapacitated. It was stated that he was well employed earlier. But only because he did not join the office as directed by the management after he was transferred, he was removed from the service. That apart, in view of the definite stand taken by the parents that they are still ready to execute document, but with a condition that the appellants should not transfer the property during the life time of the parents, in respect of three items of land mentioned earlier, which is mentioned in the Will it is actually up to the appellants to approach the respondents (parents) to get a gift deed or settlement deed executed in the name of the first appellant. 15. The courts below have thoroughly scanned the pleadings and evidence and found that the plaintiffs/ respondents are entitled to get a decree for injunction and ## R.S.A. Nos.749 & 750 of 2013 -: 16 :- eviction as sought for. I find no legal infirmity in the decree and judgment passed by the courts below. Since the appellants are now residing in a portion of the plaint schedule house, they should be given sufficient time to find an alternate accommodation for vacating the plaint schedule house. 16. It is submitted by the learned Senior Counsel appearing for the respondents that as per the registered Will dated 27.11.2007, 'A' schedule property shown therein is kept apart to be given to the first appellant. That schedule takes in 46.5 cents in R.S.No.316/7 in Block No.33; 36 cents in R.S.No.316/12 in Block No.33 and another 1 Acre 3½ cents in 160/1 in Block No.33. It is submitted that the first appellant can get a settlement deed executed and registered by the father and mother provided the first appellant meets the expenses for the same and with the condition as has been done by the other son. Learned Senior Counsel further submits that even if the document is not executed, the appellants can enter the aforesaid property and take yield therefrom. The said submission is R.S.A. Nos.749 & 750 of 2013 -: 17 :- recorded. Points are answered against the appellants. These RSAs are hence, dismissed. The appellants are granted three months time to vacate the plaint schedule house. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. To Judge Ani/Jvt