IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 32114 of 2008(W) 1. KURUVATTE PURAYIL AZEEZ ... Petitioner 2. P.P.NAFEESA, W/O.AZEEZ, 3. P.P.SHAMSUDHEEN, Vs 1. KURUVATTE PURAYIL NAZIR ... Respondent For Petitioner :SRI.M.V.AMARESAN For Respondent : No Appearance The Hon'ble MR. Justice K.P.BALACHANDRAN Dated :18/11/2008 O R D E R K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 32114 of 2008 ------------------------------ Dated this the 18th day of November, 2008 JUDGMENT
The challenge in this petition is against Exhibit P3 order passed by the first appellate court on I.A. No.703 of 2008 in A.S. No.12 of 2004. I.A. No.703 of 2008 is an application to amend the written statement filed by the appellants/defendants 1 to 3 who are petitioners herein, by incorporating contention that the house which is situated in the plaint schedule property is a "shared house" as defined in the Protection of Women from Domestic Violence Act and hence the 2nd petitioner and her family viz petitioners 1 to 3 cannot be evicted from the said house. A.S.No.12 of 2004 arises from the decree passed against the petitioners in O.S. No.69 of 2002 on the file of Munsiff's Court, Payyannur whereby the petitioners were directed to surrender vacant possession of the house in the schedule property to the plaintiff/respondent within two months and in case of failure allowing the respondent/plaintiff to execute the decree through court and get vacant possession of the schedule building from the W.P(c) No. 32114 / 2008 2 petitioners/defendants. Petitioners filed appeal as A.S. No.12 of 2004 and it was therein that the amendment application was filed. The appellate court rejected the application and hence this writ petition.
2. Heard submissions of counsel on both sides. The facts of the case which are beyond the pale of on controversy are that the property originally belonged to the mother of the plaintiff and the first defendant and she transferred it to her husband, who is the father of the plaintiff and the first defendant namely first petitioner and the respondent herein. The father gifted the property to the respondent/plaintiff under Exhibit A1, marked before the trial court. It is claiming right on the basis of Exhibit A1, that respondent/plaintiff instituted O.S. No.69 of 2002 aforesaid and obtained a decree against his own brother, brother's wife and their son. What arises for consideration in the appeal is as to whether the gift deed relied upon by the respondent/plaintiff is valid or not, on the contentions of the petitioners/defendants. If it is found that the gift deed is valid, the respondent/plaintiff is entitled to get vacant possession of the schedule building and property from the possession of the petitioners. It is only W.P(c) No. 32114 / 2008 3 in the event of Exhibit A1 gift deed being found to be not valid, that the rights of the donor, who is the father of the first petitioner and the respondent will devolve jointly on them by intestacy and the first petitioner/first defendant will get half right over the schedule property along with the respondent/plaintiff. If at all he gets that right, no doubt his wife second petitioner and his son, the 3rd petitioner can continue in occupation of the schedule building as a co-owner along with the respondent by virtue of the rights of the first petitioner as co-owner with the respondent. Apart from that right, the second petitioner who is the wife of the first petitioner is not entitled to any right over the schedule property or building. The contention that is attempted to be raised by amending the written statement is to advance a contention that the second petitioner is entitled to continue in possession as she is having right to occupy the house being a "shared house" under the provisions of the Protection of Women from Domestic Violence Act. If at all first petitioner is found to have no right, then the second petitioner cannot claim any right claiming that the building is a "shared household". The apex court in S.R. Batra Vs.Taruna Batra W.P(c) No. 32114 / 2008 4 [2007(3) SCC 169], while dealing with contentions advanced by the daughter in law against her mother in law claiming right for occupation in the house that exclusively belonged to the mother in law contenting that it is a "shared household" as her husband also resided in the house with her and therefore, she is entitled to protection under the Protection of Women from Domestic Violence Act and is entitled to avert ejectment, observed in para 26 of the judgment as follows;
"If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be "shared households" and the wife can well insist in living in all these houses of her husband's relatives W.P(c) No. 32114 / 2008 5 merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd."
4. Further apex court also observed in Para 29 of the judgment cited as follows;
" As regards Section 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 2, mother of Amit Batra. Hence it cannot be called a " shared household"."
W.P(c) No. 32114 / 2008 6 Above observations of the apex court is an answer to repel the contentions advanced by the second petitioner to amend the written statement incorporating a claim over the schedule building as a "shared household". There is absolutely no illegality or impropriety in the order of the first appellate court refusing leave to amend the written statement as prayed for by the second petitioner. The challenge against Exhibit P3 order is unsustainable and this writ petition, in the facts and circumstances of the case deserves to be dismissed with costs which is fixed at Rs. 2,500/-.
K.P. BALACHANDRAN, JUDGE scm