Wife of Co-Owner Cannot Be Treated as Trespasser or Evicted by Brother-in-Law: Delhi High Court

The Court upheld the concurrent findings of the courts below that the appellant had not proved the Will by which his mother allegedly bequeathed her share to him. It also held that an unstamped and unregistered “Declaration of Surrender” by his brother could not establish his exclusive ownership. With the property still joint and undivided, the Court held that the parties’ remedy lay in partition or settlement, and not in dispossessing the respondent through a civil suit.

The judgment was reserved on 10 September 2026 and pronounced on 13 October 2026. The appellant was represented by Ms. Shobhana Takiar, and the respondent by Mr. Javed Ahmad and Ms. Aakriti Aditya.

Background of the Dispute

The appellant, Sheikh Firozuddin, sued Farida, the estranged wife of his brother Aftab Ahmad, in CS No. 4/2011. His case was as follows:

• He and his mother, Smt. Saeedan Nisa (also referred to as Mst. Saidul Nisa), were allotted Plot No. G-45-B, East of Kailash, by the DDA, and possession was handed over on 09.10.1989. They later constructed the building after getting a plan sanctioned.
• His mother died on 15.07.2008, leaving a Will in his favour, through which he claimed absolute ownership.
• His brother Aftab Ahmad had divorced Farida under Shariat law on 17.10.2008, after which she and her relatives allegedly harassed the family.
• In June 2010, Farida allegedly forcibly entered one room on the First Floor with the help of associates.
• Since Aftab Ahmad had no right or interest in the property, it was not her matrimonial home, and the appellant had no obligation to house her.

He sought possession of that room, a bar on her use of the common latrine, bathroom and kitchen, damages of Rs.10,000 per month, and a permanent injunction restraining her from parting with possession or trespassing into any other portion of the property.

The Respondent’s Defence

Farida opposed the suit on these grounds:

• The plaintiff was not the owner and had no locus standi.
• Her husband was the real owner, or at least a co-sharer. She relied on a family arrangement dated 23.04.1996 (Mark-A), under which he was said to hold the First and Second Floors.
• The Will was false and fabricated.
• The suit was a counterblast to her own proceedings against her husband and his family, including a maintenance petition under Section 125 Cr.P.C. (Section 144 of BNSS), a complaint under Section 12 of the Domestic Violence Act, an FIR under Sections 498A/406/34 IPC [Sections 85, 316(2) and 3(5) of BNS] and contempt petitions.
• Aftab Ahmad was a necessary party and had deliberately not been impleaded.
• The alleged divorce was denied.

Decisions of the Courts Below

The Trial Court framed six issues, including locus standi, valuation and jurisdiction, entitlement to possession, mesne profits and permanent injunction. It dismissed the suit on 16.01.2013 for the following reasons:

• The Will was not proved in accordance with law.
• The parties being Muslims, the mother could not bequeath more than one-third of her share without the consent of her other legal heirs.
• The Declaration of Surrender was not proved.
• Farida had come to live in the property with her husband after marriage and had a right to continue there.

The Additional District Judge, in RCA 65/2013, re-appreciated the evidence and upheld the dismissal on 27.02.2015.

Arguments in the Second Appeal

The appellant contended that:

• Farida was a divorced wife with no claim against him, and the property was not her matrimonial home.
• The Trial Court could not decide questions of probate, so the Will’s execution was irrelevant, especially as the other legal heirs had no objection.
• Even if the Will failed, he was admittedly a 50% shareholder and so had locus standi.
• The 1996 Agreement conferred no title on Aftab Ahmad, who himself had stated that he had no right in the property.
• The Declaration of Surrender had been wrongly rejected, and Section 39 of the Transfer of Property Act had been wrongly applied because the Declaration was executed before the divorce.

The Substantial Question of Law

The High Court framed a narrow question on 07.12.2015. It asked whether the courts below were justified in refusing the “limited relief” of restraining the respondent from entering or occupying any portion of the property beyond the one room in her occupation. The question was framed in light of the Trial Court’s finding that no evidence of attempted entry into other portions had been led.

A small discrepancy appears in the judgment: the framed question gives the Trial Court’s judgment date as 16.01.2014, while the rest of the judgment records it as 16.01.2013.

Findings and Reasoning

1. The Will was not proved, a finding of fact

The Court noted the weaknesses in the evidence on the Will:

• The attesting witness (PW-5) did not state that he had accompanied the plaintiff to Tis Hazari to get the Will typed, or that all the sons were present at execution.
• He deposed that other persons, including an advocate, were present at execution, which sat uneasily with the plaintiff’s account.
• He could not name the person who had called him to attend as a witness.
• The advocate said to have drafted the Will was a material witness and was not examined, and the second attesting witness was also not examined.

The Court held that the Will’s non-proof was a concurrent finding of fact that cannot be re-appreciated in a Regular Second Appeal. Without the Will, the plaintiff could not claim to have acquired his mother’s 50% share, and so could not assert exclusive ownership.

2. Muslim law limits a bequest to an heir

Separately from the proof of the Will, the Court agreed with the courts below on the personal law. Since the parties were Mohammedans, the mother could not bequeath her entire share to one heir without the consent of the other legal heirs, and without such consent the bequest could be valid only up to one-third. No such consent was proved. The Will therefore could not have conferred exclusive ownership on the plaintiff even apart from the evidentiary defects.

3. The Declaration of Surrender: an unregistered relinquishment

The appellant relied on a Declaration of Surrender dated 15.09.2008 (Ex.PW-1/I) by his brother Aftab Ahmad. The Court rejected it on three grounds:

• It was not consent to the Will. Under Mohammedan law, the other heirs’ consent to a bequest in favour of an heir must be given after the testator’s death, and a declaration by one heir cannot represent the consent of all. This Declaration was also made after the Will was executed.
• It was a relinquishment deed requiring formalities. The Court treated it as a subsequent deed of surrender, which needed registration and payment of the requisite stamp duty.
• It was hit by the Registration Act. Being neither properly stamped nor registered, it fell foul of Section 17 read with Section 49 of the Registration Act, 1908, and was not a valid document for relinquishing Aftab Ahmad’s share.

4. The 1996 Agreement: no title, but proof of residence

The Court was also unwilling to accept that Aftab Ahmad was the exclusive owner under the 1996 arrangement:

• It was an agreement among six sons and three daughters, to which their mother was not a party.
• The respondent had produced only a copy and had not proved it in accordance with law.
• It was an arrangement for occupation of respective portions and did not transfer ownership. No steps were ever taken to have the portions mutated or transferred in the siblings’ names.

The Court nonetheless held that the Agreement showed that Aftab Ahmad had been living in the property and that Farida had come to live there with him and their children. Neither side established exclusive title. The plaintiff, importantly, had not shown that Aftab Ahmad had no share in the property.

5. Divorce not proved; right of residence as a wife

The appellant’s case leaned heavily on the alleged divorce of 17.10.2008. The Court noted that Aftab Ahmad had himself filed a suit seeking a declaration about the Talaq, which Farida was contesting and which was still pending. No Talaq-nama had been produced in the present proceedings.

The Court therefore held that the divorce was not proved and that Farida had come to reside in the property as Aftab Ahmad’s wife. As a wife, she had a right of residence in the premises. The Court added that her claim was essentially against her husband, for which she had already initiated multiple proceedings, and it regretted that he had not been impleaded as a party in this suit. It observed that in litigation of this kind the husband should be impleaded so that a deserted wife is not left without protection.

6. Section 39 of the Transfer of Property Act

The Court reproduced Section 39 of the Transfer of Property Act, 1882, which deals with transfers where a third person is entitled to maintenance from the profits of immovable property. Such a right can be enforced against a transferee who has notice of it or who receives the property gratuitously.

Applying it, the Court held that Aftab Ahmad could not have transferred his share to his brother while matrimonial litigation was pending, if the transfer was meant to defeat his wife’s right to maintenance. The Declaration of Surrender therefore could not defeat Farida’s right of residence in the property.

The appellant had argued that the Declaration pre-dated the divorce. The Court’s reasoning did not turn on the date of the divorce. It rested on the pending matrimonial litigation and on the fact that the divorce itself was unproved.

7. Protection against dispossession

On dispossession, the Court acknowledged that the right to claim possession belongs to the rightful owner. It held, however, that the respondent’s right to continue in the property was subject to securing her right of maintenance against her husband under the Domestic Violence Act. Until that right is crystallised in the other proceedings, she cannot be dispossessed from a property in which her husband has a share through his mother, who was a half-owner.

The protection thus rested on two findings: the husband’s share had not been shown to be extinguished, and the plaintiff had not proved exclusive title.

8. Why the “limited” injunction was refused

On the question of law actually framed, the Court gave two reasons for refusing to restrain the respondent from entering other portions of the property:

• No evidence of threatened entry. The Trial Court had found that the plaintiff led no evidence of any attempt by the defendant to enter or occupy any other portion in his possession, and no later attempt or breach of the interim order of 12.05.2011 was established. This was a finding of fact that had not been shown to be perverse or contrary to the evidence.
• No injunction between co-owners. Once the defendant was held to occupy the property as the wife of a co-owner, an injunction of this kind could not be granted. The parties’ only option was to seek partition and demarcation of shares, or to arrive at a settlement. Until ownership was demarcated or settled by documents executed in accordance with law, she could not be restrained as the plaintiff sought.

Final Decision

The Court held that the plaintiff had failed to establish exclusive ownership and that the property remained joint and undivided among the co-owners. It found that the evidence had been rightly appreciated and dismissed the Regular Second Appeal, disposing of pending applications accordingly.

What the Ruling Decides, and What It Does Not

Case-specific findings:

• The Will was not proved on the evidence, a concurrent finding of fact.
• The Declaration of Surrender was unstamped and unregistered, and so not a valid relinquishment.
• The divorce was not proved on the record.
• No evidence was led of any attempted entry beyond the one room.

Legal propositions the Court applied:

• Under Muslim law, a bequest to an heir beyond one-third needs the consent of the other heirs, given after the testator’s death.
• A relinquishment of an interest in immovable property needs registration and stamp duty.
• Section 39 of the Transfer of Property Act can stop a transfer made during matrimonial litigation from defeating a wife’s right to maintenance and residence.
• Where the occupant is the wife of a co-owner, the remedy among co-owners is partition or settlement, not an injunction or eviction.

Two limits should be noted. First, the Court described the respondent’s claim as essentially one against her husband, and tied her protection to the resolution of her other proceedings. The judgment does not hold that a wife acquires a permanent, free-standing right against every relative of her husband. Second, the husband was not impleaded, and the Court’s observations show why joining him matters in disputes of this kind.

Click Here to Read the Official Judgment

Conclusion

The ruling shows how a failure to prove exclusive title can defeat a suit to evict an occupant. The appellant’s case rested on a Will that could not be proved, a bequest that Muslim law restricted in any event, and an unregistered relinquishment deed. With neither exclusive ownership nor the divorce established, the Court treated the respondent as the wife of a co-owner and refused to treat her as a trespasser. Its message to the family is that the route forward is partition or settlement, not a suit for her dispossession.