The Delhi High Court has held that a woman living in a jointly owned family house as the wife of a co-owner cannot be treated as a trespasser or evicted by her brother-in-law. The brother-in-law had failed to prove that he was the exclusive owner of the property.
Justice Neena Bansal Krishna dismissed a Regular Second Appeal filed by Sheikh Firozuddin. Two lower courts had already dismissed his suit seeking possession of a room occupied by his brother’s wife, Farida, in a house at East of Kailash, New Delhi.
Background of the Property Dispute
According to the suit, the Delhi Development Authority (DDA) allotted the plot at G-45-B, East of Kailash to the appellant and his mother, Smt. Saeedan Nisa @ Mst. Saidul Nisa. Possession was handed over on 09.10.1989. The appellant claimed that his mother died on 15.07.2008 and left a Will dated 05.03.2008 in his favour, which he said made him the absolute owner.
His brother, Aftab Ahmad, had married the respondent. The appellant claimed that Aftab Ahmad divorced her under Shariat law on 17.10.2008, and that in June 2010 she forcibly entered a room on the First Floor. He sued for possession of the room, an order stopping her use of the common facilities, damages of ₹10,000 per month, and a permanent injunction.
The respondent denied that he was the owner. She said her husband owned the premises under an Agreement dated 23.04.1996, and she called the Will false and fabricated. She also pointed to the litigation she had started, including an FIR under Sections 498A/406/34 IPC, a petition under Section 125 Cr.P.C. and a complaint under Section 12 of the DV Act.
The Civil Judge dismissed the suit on 16.01.2013. The Additional District Judge upheld that decision on 27.02.2015 in RCA 65/2013.
Appellant’s Arguments
Advocate Shobhana Takiar appeared for the appellant and argued that the respondent was the divorced wife of his brother, with no domestic relationship with him. On this argument, the property was not her matrimonial home, and Aftab Ahmad had no right, title or interest in it.
Counsel contended that the trial court was not competent to decide the issue of probate. Even if the Will was not proved, counsel argued, the appellant remained an admitted 50% shareholder in his own right. Counsel also said that the Declaration of Surrender dated 15.09.2008, executed by Aftab Ahmad in his favour, had been wrongly rejected.
Advocates Javed Ahmad and Aakriti Aditya appeared for the respondent.
Delhi High Court’s Findings on Trespass and Right of Residence
The High Court said that both courts had found the Will not proved in accordance with law. It held that this is a finding of fact which cannot be re-appreciated in a second appeal. It added that, the parties being Mohammedans, the mother’s bequest could be valid only up to one-third of her share without the consent of the other legal heirs.
On the Declaration of Surrender, the Court held that under Mohammedan law, consent to a bequest must be given after the testator’s death, and a declaration by one heir alone cannot be the consent of all. The Court found that the document was neither properly stamped nor registered, and was hit by Section 17 read with Section 49 of the Registration Act, 1908.
The Court noted that the divorce had not been proved, since no Talaq-nama was produced and Aftab Ahmad’s suit for a declaration on the Talaq was still pending. The Court observed:
“It is settled law that as the wife of Aftab Ahmad, she has a right of residence in the suit premises, but her claim is essentially against her husband, Aftab Ahmad”
Holding that she could not be dispossessed for now, the Court said:
“Till such time as her right is crystallized in the other litigation, she cannot be dispossessed, from the suit property, in which her husband is shown to have some share in that of the mother, who was half owner of the suit property.”
Justice Krishna further observed:
“The Defendant, who was the wife of the Plaintiff’s brother Mr. Aftab Ahmad, cannot be considered as a trespasser in the suit property, especially in the absence of proof that Mr. Aftab Ahmad (her husband) had relinquished his share of the suit property in favour of the Plaintiff (his brother).”
Relying on Section 39 of the Transfer of Property Act, the Court held that Aftab Ahmad could not have transferred his share to his brother during pending matrimonial litigation in order to defeat his wife’s right of maintenance.
On the limited injunction to restrain her from occupying other portions, the Court noted that the Plaintiff had led no evidence of any threatened entry. It added that no such injunction could be granted against the wife of a co-owner, and said:
“The only option with the parties is to seek partition and get their respective shares demarcated or to arrive at a Settlement.”
Outcome
The Court held that the property remains joint and undivided amongst the co-owners. Finding that the evidence had been rightly appreciated, it dismissed the second appeal.
Case Title: Sheikh Firozuddin v. Farida
Case No.: RSA 316/2015
Bench: Justice Neena Bansal Krishna
Date: October 13, 2026
