A brother surrendered his share in the family house, and the one room his divorced wife lives in stayed where it was

Justice Neena Bansal Krishna dismissed a second appeal, holding the declaration of surrender was made to defeat the defendant's right of maintenance and could not defeat her right of residence under Section 39.

The dispute is over one room on the first floor of a house at East of Kailash in New Delhi. The plaintiff sued for a declaration that he is its sole and exclusive owner and for a permanent injunction against his former sister-in-law. A civil judge dismissed the suit in January 2013, an Additional District Judge dismissed the first appeal in February 2015, and on 13 October 2026 the Delhi High Court dismissed the second appeal.

The plaintiff's case

On his pleading, the plot was allotted by the Delhi Development Authority to him and his mother, and possession was handed over to them in October 1989. They had it constructed on a sanctioned plan. His mother died in July 2008 leaving a will in his favour, by which he says he acquired absolute ownership, and his other brothers have no concern with the property.

One of those brothers married the defendant — his second marriage and her third — and divorced her under Shariat law in October 2008. On the plaintiff's account she and her relatives then began threatening her former husband and the rest of the family, complaints were made to the Commissioner of Police and others, and she moved out to an address in Ballimaran. He pleaded an attempt to trespass into the property later that month, a written complaint to the police on which no action was taken, and continued harassment whose sole intention was to extort money.

In June 2010, he said, she forcibly entered and trespassed into one room on the first floor. He served a legal notice in October 2010 asking her to vacate and claiming ₹10,000 a month for unauthorised use and occupation. She did not comply, and the suit followed.

What the courts below found

The civil judge held in January 2013 that the plaintiff could not claim exclusive ownership, and that the defendant, being the wife of his brother even though divorced, was entitled to protection under Section 39 of the Transfer of Property Act. The suit was dismissed. The Additional District Judge re-appreciated the entire evidence and reached the same conclusion.

Section 39 is the provision that makes a transfer vulnerable where a third person has a right to receive maintenance from the profits of immovable property: if the property is transferred with the intention of defeating that right, the right may be enforced against the transferee, though not against a transferee for consideration and without notice.

The surrender

The document the plaintiff relied on to establish exclusive ownership was a declaration of surrender, exhibited at trial. The finding against him on it is the heart of the case.

It was held that the surrender had been executed purely to defeat and deprive the defendant of her right of maintenance. On that finding the document could not defeat her right to residence in the property. A transfer made for that purpose is exactly what Section 39 is addressed to, and the brother's withdrawal from his share in the house did not take with it the right she had against that share.

The injunction, and why it could not be granted

The relief sought was limited: the plaintiff asked only to restrain the defendant from entering or occupying any portion of the property beyond the one room found to be in her occupation. He failed on that too, for two independent reasons.

The first is evidentiary. The civil judge had specifically held that the plaintiff led no evidence to establish that the defendant was attempting to trespass into or occupy any other portion in his possession. Notwithstanding the allegations of earlier attempts, no subsequent attempt or breach of the interim order of May 2011 was established. That is a finding of fact, and it was not shown to be perverse or contrary to the evidence on record. In the absence of evidence establishing a threatened entry into any other portion, the limited relief of injunction was rightly declined by both courts below.

The second is structural. Even otherwise, the Court held, once it is held that the defendant was occupying the property as the wife of a man who was a co-owner, no such injunction could be granted. The only option available to the parties is to seek partition and have their respective shares demarcated, or to arrive at a settlement. Until such demarcation is made or ownership is settled by executing documents in accordance with law, the defendant cannot be restrained in the manner claimed.

That is the practical point for anyone in the same position. An injunction confining a co-owner's occupant to a particular room presupposes that somebody is entitled to allot rooms, and in an undivided property nobody is. The plaintiff also failed to establish his exclusive ownership, the property remaining joint and undivided among the co-owners.

The order

The Court held that the evidence had been rightly appreciated and that there was no merit in the regular second appeal, which was dismissed with the pending applications disposed of. The judgment had been reserved on 10 September 2026.

Ms Shobhana Takiar appeared for the appellant; Mr Javed Ahmad and Ms Aakriti Aditya for the respondent.