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2003 Supreme(Del) 716
High Court Of Delhi
SHEELA RANI (DECEASED) THROUGH LRS - Appellant
Versus
JAGDISH CHANDER SHARMA - Respondent
Regular Second Appeal 115 of 2002
Decided On : 08/08/2003
A.S.MATHUR, S.P.JHA, Vikrant Arora
Headnote:Property - Inheritable Right — Determination — Suit for recovery of possession — Right of residence of wife of the appellant/defendant No. 1 (since deceased) claimed by her at the most can be said to be a personal right, the same ended due to the death of her husband — Appeal filed by her, thereforee, has become infructuous on account of her death — Right of residence ceased with the deceased and the appellate court was right in returning its findings — No ground to interfere in the Regular Second Appeal.
Held:
During the course of the appeal, Smt. Sheela Rani died. The question that arose was whether the right of residence of the wife was also inheritable? The learned appellate court while dealing with this issue found that :
"In the present case, the right of residence of wife of the initial appellant/defendant No. 1 (since deceased) claimed by her at the most can be said to be a personal right to her. So, the same ended due to the death of the appellant/defendant No. 1. The appeal filed by her, thereforee, has become infructuous on account of her death. Yallawwa case (supra) is distinguishable on facts as in that case, the right of inheritance/proprietary rights and the status of the wife as divorcee or legally wedded wife of deceased/husband was in question, so the right to sue survived to her but in the present case keeping in view the relief claimed by the respondent/plaintiff in the suit, the right of residence claimed by initial appellant/defendant No. 1 did not survive. There is no proprietary right or status involved in the present suit like in Yallawwas case (supra). Thus, Yallawwas case (supra) is not applicable to the present appeal."
The learned appellate court ultimately dismissed the appeal finding no merit in the same.
The appellant argued that the legal representatives of Smt. Sheela Rani have vested interest in the matter and could continue with the appeal. He also submitted that the right vested in the deceased-appellant was not a personal right but was inheritable.
The right of residence ceased with the deceased and the appellate court was right in returning its findings, there is no ground to interfere in the Regular Second Appeal.
( 1 ) R. S. A. 115 of 2002 is directed against the judgment and order dated 23. 7. 2002 of the learned Additional District Judge in R. C. A. No. 11/1997, arising out of judgment and decree dated 26. 2. 1997 of the learned Civil Judge, Delhi in Suit No. 124/1986. The learned Appellate Court vide judgment dated 23. 7. 2002 dismissed the appeal while concurring with findings of the trial court.
2. BRIEF facts of the case, as noted by the trial court, are :- " That the plaintiff is the absolute licensee of land underneath and owner of the super-structure of property No. A/2-A/226, Janakpuri, New Delhi, which was purchased by him from Delhi Development Authority under its Cash Down Scheme, in the year 1971 on execution of document of title in favour of the plaintiff. The defendant No. 1 is the wife of the plaintiff, defendant No. 2 is the son, defendant No. 4 is his daughter and defendant No. 3 is the wife of defendant No. 2. The said property was in the tenancy of a tenant who surrendered the peaceful possession of the house in suit on 4. 2. 1979 to the plaintiff. The plaintiff has strained relation with defendant No. 1 who has been living and residing separately along with other defendants for the last fourteen years. There had been strained relation with defendant No. 1 who has been living and residing separately along with other defendants for the last fourteen years. There had been litigations between the plaintiff and defendant No. 1 regarding the matrimonial relations. The defendants have been residing in Kingsway Camp for last fourteen years and there is no reconciliation between the parties. It is alleged that on 18. 3. 1979 when the plaintiff went to his property in suit along with the prospective tenant, he found the lock of the property and the defendant stealthily entered in the said house by trespassers and breaking open the lock of the house in suit. It is alleged that the defendants illegally, wrongfully and unauthorisedly broke open the lock and trespassed in the property in suit. Sometime between 4. 2. 1979 and 18. 3. 1979 in the absence of plaintiff without his consent and against his wishes. The plaintiff reported the matter to the police but no action was taken by police as they were in connivance with the defendants. The defendants are in illegal and unauthorised possession of the property in suit and despite repeated demand of the plaintiff they have failed to deliver the possession of the property in dispute to the plaintiff. The defendants are also liable to pay damages for the use and occupation of the property at least w. e. f. 18. 3. 1979 till the plaintiff came about the trespass. The property in dispute had been let out at Rs. 225. 00 per month and the defendants are liable to pay the damages at the said rate. The amount of damages for the period from 18. 3. 1979 to 17. 7. 1979 comes to Rs. 1,100. 00. The plaintiff also claimed future damages at the said rate till the defendants delivered the possession of the suit property to the plaintiff and he undertakes to pay further court fees at the future damages. It is averred that if the defendants could be said to be licensees in the suit property, their possession was permissive and that stands canceled. Hence, this suit for a decree of possession of the suit property in favour of the plaintiff and against the defendants along with a decree for damages for Rs. 1,100. 00 and also for future damages.
( 2 ) THE defendants were served. However, defendants No. 2 to 4 did not appear in court and were proceeded ex parte vide order dated 10. 10. 1979. The defendant No. 1 has contested the suit and has filed her written statement. In the written statement, it is alleged that the plot was purchased from the Hindu Undivided Family of which plaintiff and defendant No. 1 along with the father of the plaintiff, and a brother of plaintiff are members. The defendants also have a share in the super structure of the disputed property. It is also stated that H
