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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 2 OF 2007
IN
FAMILY COURT PETITION NO. 40 OF 1992.
Ms. Adhyaatmam Bhamini,
Residing at Damodar Park,
Buldg. 3E, 6th Floor, Flat 602,
Swagat Co-op. Housing Society,
Off L.B.S. Marg, Ghatkopar (West),
Mumbai-400 086. ..Appellant/
Org.Petitioner.
vs.
Mr. Jagdish Ambalal Shah,
Residing at Anand Darshan, 'C' wing,
7th Floor, Flat 45, 13, Dr. G.
Deshmukh Marg, Mumbai-400 026. ..Respondent.
....
Ms. Adhyaatmam Bhamini, Appellant, appearing in person.
Smt. Nalini S. Chagla, for Respondent No.1.
....
CORAM : S. A. BOBDE &
S. J. KATHAWALLA, JJ.
RESERVED ON : 14TH DECEMBER 2009.
PRONOUNCED ON : 16TH FEBRUARY 2010.
JUDGMENT (Per S. J. Kathawalla, J.)
The appellant / original petitioner- wife has filed this
appeal from the Judgment dated 24th January 2003 passed by the
Family Court, Mumbai, dismissing the petition filed by the
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petitioner seeking a share in certain properties standing in the sole
name of the respondent.
2. The appeallant/original petitioner is the ex-wife of the
respondent. The marriage between the appellant and the
respondent was dissolved by a decree of divorce passed by the
Family Court, Mumbai, in June 1993. Pending the divorce
petition, the appellant filed Petition No. B-40 of 1992 before the
Family Court, Mumbai, inter-alia for the following reliefs :-
(a) For declaraton that she is entitled (equal share and
joint ownership) to the properties being –
(i) Flat No.45, on the 7th floor of Anand Darshan, ‘C’
Wing, 13, Dr. Gopalrao Deshmukh Marg, Bombay- 400026;
(ii) Flat No.B/12 in the Forest Park Layout, off Nagar
Road, Pune, referred also as : M/s. Weikfield Plots,Developed by the Malhotras.
(iii) Plot No. (Unknown due to secrecy maintained by
the defendant and the Malhotras of Weikfield) situatedon the Mahabaleshwar-Panchgani Road, Panchgani,
referred also as Weikfield Plots and also as “Silver Hills
Holiday Resort”, in Panchgani, to hold the said
properties jointly and equally with the defendant by
virtue of the plaintiff having been a part of the
settlement which has been arrived at, at the time of the::: Downloaded on – 09/06/2013 15:37:11 :::
3acquisition of the said immovable properties and by
virtue of the plaintiff also having monetary interesttherein at the relevant time equally with the defendant,
in addition to her being his legally wedded wife to thisday.”
3. The appellant appeared in person and submitted
before this Court that the learned Judge of the Family has not
considered Exhibit-23. She also informed this Court that she is
not desirous of making any more submissions and the Court
should go through her written submissions which were earlier
filed by her and pass necessary orders. This Court offered the
appellant to appoint an Advocate to represent her case, but the
appellant declined the offer on the ground that in the past she
has had bad experience with Advocates. The learned Advocate for
the respondent addressed the Court briefly in rebuttal. This Court
has therefore, decided the appeal after going through the
judgment in appeal and the submissions which were earlier filed
by the parties and Exhibit-23 relied on heavily by the appellant.
4. The appellant, a Christian and the respondent a
Hindu, started seeing each other since the year 1956-57, until they
got married on 15th November 1959. According to the appellant,
she converted from Christianity to Hinduism. After marriage, her
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name was changed from Roza D’Souza to Ragini J. Shah.
According to the appellant, prior to their marriage, the appeallant
and the respondent had decided to jointly purchase flat no.14 on
the 3rd floor of Kangra House No.2, at Worli (Kangra house flat).
The consideration of the flat was about Rs.13,000/-. Since the
respondent had monetary problems, the appellant in September /
October 1959 purchased the said Kangra house flat, admeasuring
513 sq.ft. by paying Rs.13,000/- to one Ramesh Chandra
Mohanlal through the respondent. The respondent thereafter gave
the appellant a receipt issued by the said Ramesh Chandra
Mohanlal dated 10th October 1959 (Exhibit-149). According to
the appellant, the respondent had informed her that the said
receipt is issued in the name of the respondent because the
respondent was not wanting the receipt in her maiden name
which was to be changed to a Hindu name after their marriage.
On 15th November 1959, the appellant and the respondent got
married under the Hindu Law. In the year 1963, when the said
flat at Kangra house was to be transferred in the name of the
appellant, the said Ramesh Chandra Mohanlal executed a form of
transfer in which he agreed to have received the amount of Rs.
5,000/- from the appellant and to transfer to the appellant his five
shares standing in his name in the books of the society in respect
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of the said Kangra house flat. The said form of transfer is
witnessed by the respondent.
5. According to the appellant, the respondent failed to
submit the documents pertaining to the transfer of the flat in the
name of the appellant, to Kangra Mitra Mandal Co-operative
Housing Society. She thereafter, took up the issue with the society
and in the year 1967 submitted the documents of transfer. The
appellant executed the necessary documents including an
indemnity and finally the flat was transferred to her name on 23rd
June 1968. According to the appellant, in the last week of July
1968, the respondent came with his friend Major Jadhav and his
wife Sashikala Jadhav, saying that they have come with a proposal
for exchange of flats. They were interested in exchanging flat no.
48 on the eight floor of the ‘C’ wing of Anand Darshan Society,
situate at 13 Peddar Road, Mumbai-400 026 belonging to their
adopted son Bal Lagad with the Kangra flat. Since the flat in
Anand Darshan Society was bigger in size by 287 sq.ft. compared
to the Kangra house flat admeasuring 513 sq.ft., apart from the
Kangra house flat, the respondent was required to pay
approximately Rs. 26,000/- to Mr. Bal Lagad which he paid.
According to the appellant, the tri-partite agreement dated 4th
August 1968 was executed by and between the appellant, the said
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Sashikala Jadhav and the respondent and was submitted to the
Anand Darshan Society but the same is now missing. However,
the appellant admits that on 4h September 1968, the second tri-
partite agreement between the same parties (Exhibit-60. Also
serial no.28 of Exhibit-23) was executed, wherein the appellant is
shown as the Assignor and described as the party of the first part,
Mrs. Shashikala K. Jadhav is shown as assignee and is described as
the party of the second part and the respondent is shown as a
confirming party and described as the party of the third part. In
the recital of the said document, it is categorically stated as
under :-
“AND WHEREAS the party of the first part is the owner
on record of flat no.14 at the Kangra Bhavan no.2,231, Dr. A.B. Road, Mumbai-400 018.
AND WHEREAS the aforesaid flat is standing in the
name of the party of the first part M/s. Ragini J. Shah
as the nominee of the party of the third part. The real
owner is Mr. Jagdish A. Shah.”
6. According to the appellant, the respondent got himself
admitted as sole and absolute owner of flat no.48 on the eight
floor of the ‘C’ wing of Anand Darshan Society on 24th June 1970
and also got himself into the Managing Committee of the Society
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on 29th June 1971. According to the appellant, in June 1976,
the front door neighbour of the appellant and the respondent Mr.
Doshi made an offer to the appellant and the respondent to shift
to flat no.45 on the seventh floor of ‘C’ wing of Anand Darshan
Society which belonged to Kavita Chetani. Apart from the fact
that the said flat of Chetani was bigger in size by 275 sq.ft., Mr.
Doshi also offered an amount of Rs.1,00,000/- to the appellant
and the respondent which offer was accepted and the appellant
and the respondent alongwith their children shifted to the said flat
no. 45 on the seventh floor of ‘C’ wing of Anand Darshan Society,
for which Mr. Doshi also paid an amount of Rs.1,00,000/- to the
appellant and the respondent which the respondent invested in
business and thereafter, purchased two plots of land in the year
1985, one at Nagar Road, Pune and another at Mahabaleshwar-
Panchgani Road, Panchgani.
7. According to the appellant, it was only in March 1989
that she discovered that the respondent had not joined her as a
joint flat owner with him which he promised to do and this caused
a rift in their relationship. According to the appellant, she
therefore, has a share in the flat situated in flat no. 45 on the
seventh floor of ‘C’ wing of Anand Darshan Society, G.B.
Deshmukh Marg, Mumbai-400 026 and also in the properties
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purchased at Pune and Panchgani from the amount of Rs.
1,00,000/- paid by Mr. Doshi to the appellant and the respondent.
8. The respondent has denied and disputed the case of
the appellant. According to the respondent, the appellant has not
contributed any amount towards the sale price of the Kangra
house flat or any other flat in Anand Darshan Co-operative
Housing Society. According to him, the financial condition of the
appellant prior to their marriage was very weak and it was he
who was providing the appellant and her family members, plastic
tubbings to seal it for preparing bags. According to him, the
appellant was only teaching dance at a dance class, for which she
was paid Rs. 5/- per session. According to the respondent, the
entire sale consideration of Rs.13,000/- for Kangra house flat was
paid by him. He has pointed out that the receipt dated 10 th
October 1959 (Exhibit-149) was issued in his favour by the said
Ramesh Chandra Mohanlal. He has pointed out that he has faced
certain problems qua the transfer of the flat in his name because
he was in the high income category, whereas the society was for
the low income group. According to him, there was no tri-partite
agreement dated 4th August 1968 as alleged by the appellant and
the only tri-partite agreement was of 4th September 1968, to
which the appellant is a party and in the said agreement, it is
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categorically stated in the recital itself that the real owner of the
Kangra house flat is the respondent and the appellant is only the
nominee. According to the respondent, the appellant’s case that
she came to know only in the year 1989 that the flats in the Anand
Darshan Society stood only in the name of the respondent and the
appellant’s name was not included, is incorrect. According to the
respondent, the sale of the said flat no.38/8 in ‘C’ wing of Anand
Darshan Society to Mr. Doshi was an independent transaction
between him and Mr. Doshi and had nothing to do with the
purchase of flat no.45 on the seventh floor of ‘C’ wing of the
Anand Darshan from Mrs. Chetani which again was an
independent transaction. There was no offer from Mr. Doshi to
the respondent to shift into the flat of Mrs. Chetani and except for
Mr. Doshi paying an amount of Rs.1,27,000/- to the respondent
towards the sale price of flat no.48 on the eight floor of Anand
Darshan Society (including purchase of furniture), the said Mr.
Doshi has not paid any additional amount of Rs.1,00,000/- or any
sum whatsoever to the respondent as alleged by the appellant.
The respondent has submitted that the question, therefore, of the
respondent purchasing the alleged Pune or Panchgani property
from the said amount of Rs.1,00,000/-, does not arise. The Pune
property was purchased by the respondent from his own funds
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and there is no property of the respondent at Mahabaleshwar-
Panchgani Road at Panchgani, as alleged by the appellant. It is
therefore, submitted that the appellant is not entitled to any reliefs
as sought and the judgment in appeal cannot be faulted in any
manner and the appeal deserves to be dismissed. It is submitted
that because of the dissolution of marriage between the appellant
and the respondent, the respondent has provided a ownership flat
to the appellant at Ghatkopar where she is currently residing.
9.
The appellant in support of her allegation that Mr.
Doshi had paid an amount of Rs.1,00,000/- to the appellant and
the respondent, which amount was invested in business and
thereafter, in the year 1985, two plots of land were purchased by
the respondent in Pune and Panchgani, examined two witnesses
namely, Mr. Doshi and Mrs. Chetani. However, Mr. Doshi has in
his evidence deposed that he has purchased flat no.48 on the
eighth floor of Anand Darshan Society from the respondent for a
consideration of Rs.1,27,000/- out of which Rs. 27,000/- were
towards purchase of furniture. Mr. Doshi has denied that he has
paid any sum whatsoever over and above the said amount of Rs.
1,27,000/- to the respondent. Mr. Doshi has also confirmed that
it was not a exchange transaction. Similarly, Mrs. Chetani has
deposed that she sold her flat to the respondent for Rs.1,55,000/-
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by cheque and the said flat was transferred in the name of the
respondent on 9th June 1976. Thus, the appellant’s witness have
not supported the case of the appellant that Mr. Doshi had offered
the appellant and the respondent to shift to the flat of Mrs.
Chetani for which Mr. Doshi had paid the appellant and the
respondent an additional amount over and above the sale
consideration of Rs.1,27,000/- paid for flat no.48 on the eighth
floor of ‘C’ wing of Anand Darshan Society. Since the appellant
has failed to establish her case that Mr. Doshi paid an additional
amount of Rs.1,00,000/- as alleged, the question of proving that
the said Rs. 1,00,000/- was invested by the respondent in his
business and in the year 1985 from the said amount plus profits
made thereon, two plots were purchased by the respondent in
Pune and at Panchgani, does not arise.
10. The learned Judge of the Family Court is therefore,
correct in coming to the conclusion that the appellant is not
entitled to claim any share in the plots allegedly purchased by the
respondent and in rejecting the prayers sought by the appellant
against the respondent pertaining to the said plots.
11. As regards the appellant’s claim that she had
purchased the Kangra house flat after paying full consideration of
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Rs.13,000/-, the appellant produced a certificate purportedly
issued by her mother dated 28th July 1990 in Konkani language
which is witnessed by two individuals. The office translation of
the said certificate is found on record. According to the office
translation, in the said certificate, the mother of the appellant has
stated that sometime in June-July, 1959, she had handed over to
the appellant Rs.3,300/- saved by her for the marriage of the
appellant and Rs.2,000/- given by her brother on account of the
appellant’s marriage. It is stated that after the appellant took the
money, she informed her mother that the money is not required
as marriage expenses but for the purchase of the flat in Worli
alongwith the respondent. The mother of the appellant could not
be examined, since she had expired when the evidence was
recorded. The appellant has not examined the witnesses to the
said certificate, but has only deposed that the said certificate is in
the hand-writing of her mother and she has signed the same,
which the appellant identifies. The said certificate is therefore, of
no consequence and certainly does not establish that the mother
of the appellant had in fact paid Rs.5,300/- to the appellant or
that the appellant had paid the said amount towards the sale
consideration of the flat at Kangra house to the respondent. The
appellant has also led evidence of another witness Shri Parekh,
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who had deposed that in the year 1957-58, the appellant was
working with Calico and Dyeing and Printing Mills when Mr.
Parekh was the Director of the Company. During the said period,
she was taking the tutions of his children. She left Calico after the
year and half and she was drawing the salary of around Rs.
150-175/- per month. She has deposited the tution fees with him
while she taught his children for two and half years. The appellant
withdrew an amount of Rs. 1,700/- collected and saved with him
over the years just a few months prior to her marriage. According
to the learned Family Court Judge, the evidence of Mr. Parekh is
belied by the first answer given by the appellant in her cross-
examination namely, “When I met the respondent before my
marriage, I was not working.” However, it is difficult to believe
the evidence of Mr. Parekh that the appellant was saving moneys
for a long period with Mr. Parekh and foregoing interest (Rs.
1,700/- was a substantial amount in the 1950’s) when she
admittedly had a bank account where she deposited her savings.
In any event, though the appellant has deposed that she had paid
the said amount aggregating Rs.7,000/- to the respondent
(received from her mother and Mr. Parekh) in three installments,
between August and September of 1959, she has not made a
whisper about the fact that only an amount of Rs.5,000/- is
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mentioned in the receipt issued by the seller of Kangra house
dated 10th October 1959 as well as in the form of transfer dated
2nd July 1963. Again, no particulars are produced to show that the
appellant had withdrawn any amounts from Bank of China for
payment towards the sale consideration of Kangra house flat, as
alleged by the appellant. Apart from the fact that the appellant
herself initially produced the receipt issued by Ramesh Chandra
Mohanlal where the said Ramesh Chandra Mohanlal has admitted
having received Rs.5,000/- from the respondent and the
respondent having agreed to pay his Government loan of Rs.
8,000/-, the appellant herself has executed a tri-partite agreement
dated 4th September 1968 inter-alia recording that the real owner
of the Kangra house flat is the respondent and that she is only a
nominee. The appellant has not been successful in establishing
that there was an earlier tri-partite agreement dated 4th August
1968 which did not have the said clause contained in the
agreement dated 4th September 1968. The story of the appellant
that a kaccha receipt issued by Ramesh Chandra Mohanlal in the
year 1963 also cannot be accepted since the said document itself
shows that it is not a receipt but a transfer form signed by the said
Ramesh Chandra Mohanlal because it was decided by that time
that the flat would be transferred in the name of the appellant and
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not the respondent. Though a list of the original occupiers of
Kangra house shows that one of the members was a doctor and
several members were into business, the Manager of the society
(PW-3) has admitted in his cross-examination that initially the
society was formed by Kangra community and most of them were
taxi owners and taxi drivers. The society was initially for low
income group, and the Government had granted a loan to the
society since it was for low income group. The appellant is also
not correct in her contention that the Family Court has not
considered Exhibit-23. Exhibit-23 contains the tri-partite agreement
dated 4th September 1968 produced by the appellant herself ,
wherein it is recorded that the appellant is only a nominee in
respect of the said flat and the respondent is the real owner. The
said document is admittedly signed/executed by the appellant.
12. Under the circumstances, the appellant has failed to
establish that she had paid the entire consideration or any part
thereof towards the sale consideration of Kangra house flat.
Instead, the tri-partite agreement dated 4th September 1968 signed
by her, belies her contention that she was the owner of the
Kangra house flat since she herself admits in the said document
that she is only a nominee and the respondent is the real owner.
In view thereof, the Family Court has rightly rejected the prayers
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sought by the appellant as regards flat no. 45/7 of the seventh
floor of ‘C’ wing of Anand Darshan Society. In view thereof, the
appeal filed by the appellant is hereby dismissed. However,
there will be no order as to costs.
[ S. A. BOBDE, J. ]
ig [ S. J. KATHAWALLA, J. ]
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