A co-owner’s wife cannot be dispossessed before her residence rights are secured.

The appellant and his mother were allotted the suit property by the DDA and became co-owners.

The appellant claimed sole ownership under his mother’s Will and a surrender declaration executed by his brother, Aftab Ahmad.

The respondent, Aftab Ahmad’s wife, occupied one room in the property after coming to live there with him; the appellant sought possession and an injunction, including an order restraining her from occupying any other portion.

The trial court dismissed the suit, finding the Will unproved and the appellant’s exclusive ownership unestablished; the first appellate court affirmed.

In the second appeal, the High Court framed a substantial question concerning the refusal of the limited injunction against the respondent occupying portions beyond the room she already occupied.

1. Whether the appellant established exclusive ownership of the suit property through the Will and the surrender declaration, such that the respondent’s continued occupation could be treated as unauthorised

2. Whether the courts below were justified in refusing to restrain the respondent from entering or occupying portions of the property beyond the one room in her occupation

Under Section 100 CPC, a Regular Second Appeal concerns a substantial question of law; concurrent factual findings are not to be re-appreciated absent a basis to interfere.

Under Mohammedan law, a bequest to an heir requires the consent of the other heirs after the testator’s death, and a bequest exceeding one-third of the estate is not valid without the requisite consent.

Sections 17 and 49 of the Registration Act, 1908, were applied to hold that the unregistered surrender declaration could not effect a transfer of Aftab Ahmad’s share.

Section 39 of the Transfer of Property Act, 1882, protects a third person’s right to maintenance against certain transfers of immovable property, subject to the statutory conditions.

The Court also treated the respondent’s asserted right of residence as a matter to be pursued against her husband, while recognising that the property remained jointly owned and undivided.

The appellant did not prove the Will: the attesting witness’s evidence contained material inconsistencies, and a material witness who allegedly drafted it was not examined.

The Will therefore did not establish that the mother’s share had passed to the appellant; in any event, the required consent of the other heirs to a bequest exceeding one-third was not proved.

The surrender declaration was neither properly stamped nor registered and could not establish that Aftab Ahmad had relinquished his share.

The 1996 agreement showed an arrangement among the siblings regarding occupation but did not transfer ownership to Aftab Ahmad.

As to the injunction, the trial court found no evidence of a subsequent attempt by the respondent to enter or occupy other portions, and that factual finding was not shown to be perverse.

Given the unresolved co-ownership and the respondent’s occupation as Aftab Ahmad’s wife, the Court also held that the requested restraint was not warranted; the parties could seek partition or settle their respective shares.

It dismissed the Regular Second Appeal and disposed of the pending applications accordingly.