{"id":185401,"date":"2010-02-16T00:00:00","date_gmt":"2010-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/family-court-petition-no-40-of-vs-mr-jagdish-ambalal-shah-on-16-february-2010"},"modified":"2017-04-29T04:22:56","modified_gmt":"2017-04-28T22:52:56","slug":"family-court-petition-no-40-of-vs-mr-jagdish-ambalal-shah-on-16-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/family-court-petition-no-40-of-vs-mr-jagdish-ambalal-shah-on-16-february-2010","title":{"rendered":"Family Court Petition No. 40 Of … vs Mr. Jagdish Ambalal Shah on 16 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Family Court Petition No. 40 Of … vs Mr. Jagdish Ambalal Shah on 16 February, 2010<\/div>\n
Bench: S.A. Bobde, S. J. Kathawalla<\/div>\n
                                         1\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                            \n                      FAMILY COURT APPEAL NO.  2 OF  2007\n                                               IN\n\n\n\n\n                                                    \n                    FAMILY COURT PETITION NO.  40 OF 1992.\n     Ms. Adhyaatmam Bhamini,\n     Residing at Damodar Park,\n\n\n\n\n                                                   \n     Buldg. 3E, 6th Floor, Flat 602,\n     Swagat Co-op. Housing Society,\n     Off L.B.S. Marg, Ghatkopar (West),\n     Mumbai-400 086.                                     ..Appellant\/\n\n\n\n\n                                      \n                                                           Org.Petitioner.\n           vs.         \n     Mr. Jagdish Ambalal Shah,\n     Residing at Anand Darshan, 'C' wing,\n                      \n     7th Floor, Flat 45, 13, Dr. G. \n     Deshmukh Marg, Mumbai-400 026.                     ..Respondent.\n      \n\n                                        ....\n     Ms. Adhyaatmam Bhamini, Appellant, appearing in person.\n   \n\n\n\n     Smt. Nalini S. Chagla, for Respondent No.1.\n                                     ....\n\n                          CORAM : S. A. BOBDE & \n\n\n\n\n\n                                        S. J. KATHAWALLA, JJ.\n                           RESERVED ON :  14TH DECEMBER 2009.\n                             PRONOUNCED ON : 16TH FEBRUARY 2010.\n\n\n\n\n\n      \n     JUDGMENT (Per S. J. Kathawalla, J.)\n<\/pre>\n
                  The appellant \/ original petitioner- wife has filed this <\/p>\n
     appeal from the Judgment dated 24th January 2003 passed by the <\/p>\n
     Family   Court,   Mumbai,   dismissing   the   petition   filed   by   the <\/p>\n
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\n                                            2<\/span><\/p>\n
     petitioner seeking a share in certain properties standing in the sole <\/p>\n
     name of the respondent.\n<\/p>\n
     2.           The appeallant\/original petitioner is the ex-wife of the <\/p>\n
     respondent.     The   marriage   between   the   appellant   and   the <\/p>\n
     respondent   was dissolved by a decree of divorce passed by the <\/p>\n
     Family   Court,   Mumbai,   in   June   1993.     Pending   the   divorce <\/p>\n
     petition, the appellant filed Petition No.  B-40 of 1992 before the <\/p>\n
     Family Court, Mumbai, inter-alia for the following reliefs :-\n<\/p>\n
                  (a) For declaraton that she is entitled (equal share and  <\/p>\n
                  joint ownership) to the properties being –\n<\/p><\/blockquote>\n
                 (i) Flat No.45, on the 7th  floor of Anand Darshan, ‘C’
\n                 Wing, 13, Dr. Gopalrao  Deshmukh Marg, Bombay- 400  <\/p>\n
                 026;\n<\/p><\/blockquote>\n
                 (ii) Flat No.B\/12 in the Forest Park Layout, off Nagar
\n                 Road,   Pune,   referred   also   as   :   M\/s.   Weikfield   Plots,  <\/p>\n
                 Developed by the Malhotras.\n<\/p><\/blockquote>\n
                 (iii) Plot No. (Unknown due to secrecy maintained by
\n                 the defendant and the Malhotras of Weikfield) situated  <\/p>\n
                 on   the   Mahabaleshwar-Panchgani   Road,   Panchgani,
\n                 referred also as Weikfield Plots and also as  “Silver Hills
\n                 Holiday   Resort”,   in   Panchgani,   to   hold   the   said
\n                 properties   jointly   and   equally   with   the   defendant   by
\n                 virtue   of   the   plaintiff   having   been   a   part   of   the
\n                 settlement which has been arrived at, at the time of the  <\/p>\n
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\n                                              3<\/span><\/p>\n
                   acquisition   of   the   said   immovable   properties   and   by
\n                   virtue   of   the   plaintiff   also   having   monetary   interest  <\/p>\n
                   therein at the relevant time equally with the defendant,
\n                   in addition to her being his legally wedded wife to this  <\/p>\n
                   day.”\n<\/p><\/blockquote>\n
     3.            The   appellant   appeared   in   person   and   submitted <\/p>\n
     before   this  Court  that   the   learned   Judge  of   the   Family   has   not <\/p>\n
     considered Exhibit-23.   She also informed this Court that she is <\/p>\n
     not   desirous   of   making   any   more   submissions   and   the   Court <\/p>\n
     should   go   through   her   written   submissions   which   were   earlier <\/p>\n
     filed   by  her  and  pass   necessary   orders.     This   Court  offered   the <\/p>\n
     appellant to appoint an Advocate to represent her case, but the <\/p>\n
     appellant declined   the offer on the   ground that in the past she <\/p>\n
     has had bad experience with Advocates.  The learned Advocate for <\/p>\n
     the respondent addressed the Court briefly in rebuttal.  This Court <\/p>\n
     has   therefore,   decided   the   appeal   after   going   through   the <\/p>\n
     judgment in appeal and the submissions which were earlier filed <\/p>\n
     by the parties and Exhibit-23 relied on heavily by the appellant.\n<\/p>\n
     4.            The   appellant,   a   Christian   and   the   respondent   a <\/p>\n
     Hindu, started seeing each other since the year 1956-57, until they <\/p>\n
     got married on 15th November 1959.  According to the appellant, <\/p>\n
     she converted  from Christianity to Hinduism.  After marriage, her <\/p>\n
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\n                                                4<\/span><\/p>\n
     name   was   changed   from     Roza   D’Souza   to   Ragini   J.   Shah.\n<\/p>\n
     According to the appellant, prior to their marriage, the appeallant <\/p>\n
     and the respondent had decided to jointly purchase  flat no.14 on <\/p>\n
     the 3rd floor of Kangra House No.2, at Worli (Kangra house  flat).\n<\/p>\n
     The consideration of the flat was   about Rs.13,000\/-.   Since the <\/p>\n
     respondent had monetary problems, the appellant  in September \/ <\/p>\n
     October 1959 purchased the said  Kangra house flat,  admeasuring <\/p>\n
     513   sq.ft.   by     paying     Rs.13,000\/-   to   one     Ramesh   Chandra <\/p>\n
     Mohanlal through the respondent.  The respondent thereafter gave <\/p>\n
     the   appellant   a   receipt   issued   by   the   said   Ramesh   Chandra <\/p>\n
     Mohanlal   dated   10th  October   1959   (Exhibit-149).     According   to <\/p>\n
     the   appellant,   the   respondent   had   informed   her   that   the   said <\/p>\n
     receipt   is   issued   in   the   name   of   the   respondent   because   the <\/p>\n
     respondent   was   not   wanting   the   receipt   in   her   maiden     name <\/p>\n
     which was to be changed to a Hindu name after their marriage.\n<\/p>\n
     On   15th  November   1959,   the   appellant   and   the   respondent   got <\/p>\n
     married  under the Hindu Law.   In the year 1963, when the said <\/p>\n
     flat   at   Kangra   house   was   to   be   transferred   in   the   name   of   the <\/p>\n
     appellant,  the said Ramesh Chandra Mohanlal  executed a form of <\/p>\n
     transfer in which he agreed to have received the amount of Rs.\n<\/p>\n
     5,000\/- from the appellant and to transfer to the appellant his five <\/p>\n
     shares standing in his name in the books of the society in respect <\/p>\n
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\n                                                5<\/span><\/p>\n
     of   the   said   Kangra   house   flat.   The   said   form   of   transfer   is <\/p>\n
     witnessed by the respondent.\n<\/p>\n
     5.             According  to the  appellant,   the  respondent failed   to <\/p>\n
     submit the documents pertaining to the transfer of the flat in the <\/p>\n
     name   of   the   appellant,   to   Kangra   Mitra   Mandal   Co-operative <\/p>\n
     Housing Society.  She thereafter, took up the issue with the society <\/p>\n
     and in the year 1967 submitted the documents of transfer.   The <\/p>\n
     appellant   executed   the   necessary   documents   including   an <\/p>\n
     indemnity and finally the flat was transferred to her name on 23rd <\/p>\n
     June 1968. According to the appellant, in the last week of July <\/p>\n
     1968, the respondent came with his friend Major Jadhav and his <\/p>\n
     wife Sashikala Jadhav, saying that they have come with a proposal <\/p>\n
     for exchange of flats.  They were interested in exchanging flat no.\n<\/p>\n
     48 on the eight floor of the ‘C’ wing of Anand Darshan Society, <\/p>\n
     situate at 13 Peddar  Road,   Mumbai-400  026  belonging  to  their <\/p>\n
     adopted   son   Bal   Lagad   with   the   Kangra   flat.     Since   the   flat   in <\/p>\n
     Anand Darshan Society was bigger in size by 287 sq.ft. compared <\/p>\n
     to the Kangra house flat admeasuring 513 sq.ft., apart from the <\/p>\n
     Kangra   house   flat,   the   respondent   was   required   to   pay <\/p>\n
     approximately   Rs.   26,000\/-   to   Mr.   Bal   Lagad   which   he   paid.\n<\/p>\n
     According   to   the   appellant,     the   tri-partite   agreement   dated   4th <\/p>\n
     August 1968 was executed by and between the appellant, the said <\/p>\n
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\n                                                 6<\/span><\/p>\n
     Sashikala Jadhav and the respondent and was submitted to the <\/p>\n
     Anand Darshan Society but the same is now missing.   However, <\/p>\n
     the appellant admits that on 4h September 1968, the second tri-\n<\/p>\n
     partite   agreement   between   the   same   parties   (Exhibit-60.   Also <\/p>\n
     serial no.28 of Exhibit-23) was executed, wherein the appellant is <\/p>\n
     shown as the Assignor and described as the party of the first part, <\/p>\n
     Mrs. Shashikala K. Jadhav is shown as assignee and is described as <\/p>\n
     the party of the  second  part  and  the  respondent  is shown  as  a <\/p>\n
     confirming party and described as the party of the third part.   In <\/p>\n
     the   recital     of   the   said   document,   it     is   categorically   stated   as <\/p>\n
     under :-\n<\/p>\n
                    “AND WHEREAS  the party of the first part is the owner
\n                    on record     of   flat   no.14   at  the   Kangra   Bhavan   no.2,  <\/p>\n
                    231, Dr. A.B. Road,  Mumbai-400 018.\n<\/p><\/blockquote>\n
                    AND   WHEREAS   the   aforesaid   flat   is   standing   in   the  <\/p>\n
                    name of the party of the first part M\/s. Ragini J. Shah
\n                    as the nominee of the party of the third part. The real
\n                    owner is Mr. Jagdish A. Shah.”\n<\/p><\/blockquote>\n
     6.             According to the appellant, the respondent got himself <\/p>\n
     admitted as sole and  absolute  owner of flat  no.48 on  the eight <\/p>\n
     floor of the ‘C’ wing of Anand Darshan Society on 24th June 1970 <\/p>\n
     and also got himself into the Managing Committee of the Society <\/p>\n
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\n                                              7<\/span><\/p>\n
     on 29th  June 1971.       According to the appellant,   in June 1976, <\/p>\n
     the front door neighbour of the appellant and the respondent Mr. <\/p>\n
     Doshi made an offer to the appellant and the respondent to shift <\/p>\n
     to flat no.45 on the seventh floor of ‘C’ wing of Anand Darshan <\/p>\n
     Society which  belonged  to  Kavita  Chetani.    Apart   from  the  fact <\/p>\n
     that the said flat of Chetani was bigger in size by 275 sq.ft., Mr. <\/p>\n
     Doshi also offered   an  amount  of  Rs.1,00,000\/-  to  the  appellant <\/p>\n
     and the respondent which offer was   accepted and the appellant <\/p>\n
     and the respondent alongwith their children shifted to the said flat <\/p>\n
     no. 45 on the seventh floor of ‘C’ wing of Anand Darshan Society, <\/p>\n
     for which Mr. Doshi also paid an amount of Rs.1,00,000\/-  to the <\/p>\n
     appellant and the respondent   which the respondent invested in <\/p>\n
     business and thereafter, purchased two plots of land in the year <\/p>\n
     1985, one at Nagar Road, Pune and another at Mahabaleshwar-\n<\/p>\n
     Panchgani Road, Panchgani.\n<\/p>\n
     7.            According to the appellant, it was only in March 1989 <\/p>\n
     that she discovered that the respondent had not joined her as a <\/p>\n
     joint flat owner with him which he promised to do and this caused <\/p>\n
     a   rift   in   their   relationship.     According   to   the   appellant,   she <\/p>\n
     therefore, has a share  in  the   flat   situated   in  flat   no.   45  on  the <\/p>\n
     seventh   floor   of   ‘C’   wing     of   Anand   Darshan   Society,   G.B.\n<\/p>\n
     Deshmukh   Marg,   Mumbai-400   026   and   also   in   the   properties <\/p>\n
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\n                                                 8<\/span><\/p>\n
     purchased   at   Pune   and   Panchgani   from   the   amount   of   Rs.\n<\/p>\n
     1,00,000\/- paid by Mr. Doshi to the appellant and the respondent.\n<\/p>\n
     8.             The respondent has denied and disputed the case of <\/p>\n
     the appellant.  According to the respondent, the appellant has not <\/p>\n
     contributed   any   amount   towards   the   sale   price   of   the   Kangra <\/p>\n
     house   flat   or   any   other   flat   in   Anand   Darshan   Co-operative <\/p>\n
     Housing Society.  According to him, the financial condition of the <\/p>\n
     appellant  prior   to   their   marriage   was   very   weak   and   it   was   he <\/p>\n
     who was  providing the appellant and her family members, plastic <\/p>\n
     tubbings   to   seal   it   for   preparing   bags.     According   to   him,   the <\/p>\n
     appellant was only teaching dance at a dance class, for which she <\/p>\n
     was   paid   Rs.   5\/-   per   session.   According   to   the   respondent,   the <\/p>\n
     entire sale consideration of Rs.13,000\/- for Kangra house flat  was <\/p>\n
     paid   by   him.     He   has   pointed   out   that   the   receipt   dated   10 th <\/p>\n
     October 1959 (Exhibit-149) was issued in his favour by the said <\/p>\n
     Ramesh Chandra Mohanlal.  He has pointed out that he has faced <\/p>\n
     certain problems qua the transfer of the flat in his name because <\/p>\n
     he was in the high income category, whereas the society was for <\/p>\n
     the low income group.  According to him, there was no tri-partite <\/p>\n
     agreement dated 4th August 1968 as alleged by the appellant and <\/p>\n
     the   only   tri-partite   agreement   was   of   4th  September   1968,     to <\/p>\n
     which   the   appellant   is   a   party   and   in   the   said   agreement,   it   is <\/p>\n
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\n                                                9<\/span><\/p>\n
     categorically stated in the recital itself that the real owner of the <\/p>\n
     Kangra house flat is the respondent and the appellant is only the <\/p>\n
     nominee.   According to the respondent, the appellant’s case that <\/p>\n
     she came to know only in the year 1989 that the flats in the Anand <\/p>\n
     Darshan Society stood only in the name of the respondent and the <\/p>\n
     appellant’s name was not included, is incorrect.  According to the <\/p>\n
     respondent, the sale of the said flat no.38\/8 in ‘C’ wing of Anand <\/p>\n
     Darshan   Society   to   Mr.   Doshi   was   an   independent   transaction <\/p>\n
     between   him   and   Mr.   Doshi   and   had   nothing   to   do   with   the <\/p>\n
     purchase   of   flat   no.45   on   the   seventh   floor   of   ‘C’   wing   of   the <\/p>\n
     Anand   Darshan   from   Mrs.   Chetani   which   again   was   an <\/p>\n
     independent transaction.   There was no offer from Mr. Doshi to <\/p>\n
     the respondent to shift into the flat of Mrs. Chetani and except for <\/p>\n
     Mr. Doshi paying an amount of Rs.1,27,000\/- to the respondent <\/p>\n
     towards the sale price of flat no.48 on the eight floor   of Anand <\/p>\n
     Darshan   Society   (including   purchase   of   furniture),   the   said   Mr. <\/p>\n
     Doshi has not paid any additional amount of Rs.1,00,000\/- or any <\/p>\n
     sum whatsoever to the respondent   as alleged by the appellant.\n<\/p>\n
     The respondent has submitted that the question, therefore, of the <\/p>\n
     respondent   purchasing   the   alleged   Pune   or   Panchgani   property <\/p>\n
     from the said amount of Rs.1,00,000\/-, does not arise.  The Pune <\/p>\n
     property   was   purchased   by   the   respondent   from   his   own   funds <\/p>\n
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\n                                             10<\/span><\/p>\n
     and   there   is   no   property   of   the   respondent   at   Mahabaleshwar-\n<\/p>\n
     Panchgani Road at  Panchgani, as alleged by the appellant.   It is <\/p>\n
     therefore, submitted that the appellant is not entitled to any reliefs <\/p>\n
     as sought and the judgment in appeal cannot be faulted in any <\/p>\n
     manner and the appeal deserves to be dismissed.  It is submitted <\/p>\n
     that because of the dissolution of marriage between the appellant <\/p>\n
     and the respondent, the respondent has provided a ownership flat <\/p>\n
     to the appellant at Ghatkopar where she is currently residing.\n<\/p>\n
     9.<\/p>\n
                    The   appellant   in   support   of   her   allegation   that   Mr. <\/p>\n
     Doshi had paid an amount of Rs.1,00,000\/- to the appellant and <\/p>\n
     the   respondent,   which   amount   was   invested   in   business   and <\/p>\n
     thereafter, in the year 1985, two plots of land were purchased by <\/p>\n
     the respondent  in Pune and Panchgani, examined two witnesses <\/p>\n
     namely, Mr. Doshi and Mrs. Chetani.    However, Mr. Doshi has in <\/p>\n
     his   evidence     deposed   that   he   has   purchased   flat   no.48   on   the <\/p>\n
     eighth floor of Anand Darshan Society from the respondent for a <\/p>\n
     consideration of   Rs.1,27,000\/- out of which  Rs.  27,000\/- were <\/p>\n
     towards purchase of furniture.  Mr. Doshi has denied that he has <\/p>\n
     paid any sum whatsoever over and above the said amount of Rs.\n<\/p>\n
     1,27,000\/- to the respondent.  Mr. Doshi has also confirmed  that <\/p>\n
     it was  not a exchange   transaction.     Similarly,   Mrs.   Chetani   has <\/p>\n
     deposed that she sold her flat to the respondent for Rs.1,55,000\/-\n<\/p>\n
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\n                                              11<\/span><\/p>\n
     by cheque and the said flat was transferred in the name of the <\/p>\n
     respondent  on 9th June 1976.  Thus, the appellant’s witness have <\/p>\n
     not supported the case of the appellant that Mr. Doshi had offered <\/p>\n
     the   appellant   and   the   respondent   to   shift   to   the   flat   of   Mrs. <\/p>\n
     Chetani   for   which   Mr.   Doshi   had   paid   the   appellant   and   the <\/p>\n
     respondent   an   additional   amount   over   and   above   the   sale <\/p>\n
     consideration of Rs.1,27,000\/- paid for flat no.48 on the eighth <\/p>\n
     floor of ‘C’ wing of Anand Darshan Society.     Since the appellant <\/p>\n
     has failed to establish her case that Mr. Doshi paid an additional <\/p>\n
     amount of Rs.1,00,000\/- as alleged,  the question of proving that <\/p>\n
     the   said   Rs.   1,00,000\/-   was   invested   by   the   respondent   in   his <\/p>\n
     business and in the year 1985 from the said amount plus profits <\/p>\n
     made   thereon,   two   plots   were   purchased   by   the   respondent   in <\/p>\n
     Pune and at Panchgani, does not arise.\n<\/p>\n
     10.            The learned  Judge  of the  Family Court is  therefore, <\/p>\n
     correct   in   coming   to   the   conclusion     that   the   appellant   is   not <\/p>\n
     entitled to claim any share in the plots allegedly purchased by the <\/p>\n
     respondent and in rejecting the prayers sought by the appellant <\/p>\n
     against the respondent pertaining to the said plots.\n<\/p>\n
     11.            As   regards   the   appellant’s   claim   that   she   had <\/p>\n
     purchased the Kangra house flat after paying full consideration of <\/p>\n
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\n                                              12<\/span><\/p>\n
     Rs.13,000\/-,   the   appellant   produced   a   certificate   purportedly <\/p>\n
     issued by her mother dated 28th  July 1990 in  Konkani  language <\/p>\n
     which is witnessed by two individuals.   The office translation of <\/p>\n
     the  said  certificate   is   found   on  record.     According  to  the   office <\/p>\n
     translation, in the said certificate, the mother of the appellant has <\/p>\n
     stated that sometime in June-July, 1959, she had handed over to <\/p>\n
     the   appellant   Rs.3,300\/-   saved   by   her   for   the   marriage   of   the <\/p>\n
     appellant and Rs.2,000\/- given by her brother on account of the <\/p>\n
     appellant’s marriage.  It is stated that after the appellant took the <\/p>\n
     money, she informed her mother that the money  is not required <\/p>\n
     as   marriage   expenses   but   for   the   purchase   of   the   flat   in   Worli <\/p>\n
     alongwith the respondent.  The mother of the appellant could not <\/p>\n
     be   examined,   since   she   had     expired   when   the   evidence   was <\/p>\n
     recorded.   The appellant has not examined   the witnesses to the <\/p>\n
     said certificate, but has only deposed that the said certificate is in <\/p>\n
     the   hand-writing   of   her   mother   and   she   has   signed   the   same, <\/p>\n
     which the appellant identifies.  The said certificate is therefore, of <\/p>\n
     no consequence and certainly  does not establish that the mother <\/p>\n
     of the appellant had in fact paid Rs.5,300\/- to the appellant or <\/p>\n
     that   the   appellant   had   paid   the   said   amount     towards   the   sale <\/p>\n
     consideration of the flat at Kangra house to the respondent.  The <\/p>\n
     appellant  has also led  evidence of  another witness Shri Parekh, <\/p>\n
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\n                                               13<\/span><\/p>\n
     who   had   deposed   that   in   the   year   1957-58,   the   appellant   was <\/p>\n
     working   with   Calico   and   Dyeing   and   Printing   Mills   when   Mr. <\/p>\n
     Parekh was the Director of the Company. During the said period, <\/p>\n
     she was taking the tutions of his children. She left Calico after the <\/p>\n
     year   and   half   and   she   was   drawing   the   salary   of   around   Rs.\n<\/p>\n
     150-175\/- per month. She has deposited the tution fees with him <\/p>\n
     while she taught his children for two and half years. The appellant <\/p>\n
     withdrew an amount of Rs. 1,700\/- collected and saved with him <\/p>\n
     over the years just a few months prior to her marriage.  According <\/p>\n
     to the learned Family Court Judge, the evidence of Mr. Parekh is <\/p>\n
     belied   by   the   first   answer   given   by   the   appellant   in   her   cross-\n<\/p>\n
     examination   namely,   “When   I   met   the   respondent   before   my  <\/p>\n
     marriage, I was not working.”     However, it is difficult to believe <\/p>\n
     the evidence of Mr. Parekh that the appellant was saving moneys <\/p>\n
     for   a   long   period   with   Mr.   Parekh   and   foregoing   interest   (Rs.\n<\/p>\n
     1,700\/-   was   a   substantial   amount   in   the   1950’s)   when   she <\/p>\n
     admittedly had a bank account where she deposited her savings.\n<\/p>\n
     In any event, though the appellant has deposed that she had  paid <\/p>\n
     the   said   amount   aggregating   Rs.7,000\/-   to   the   respondent <\/p>\n
     (received from her mother and Mr. Parekh) in three installments, <\/p>\n
     between   August   and   September   of   1959,   she   has   not   made   a <\/p>\n
     whisper   about   the   fact   that   only   an   amount   of   Rs.5,000\/-   is <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:37:11 :::<\/span>
\n                                             14<\/span><\/p>\n
     mentioned   in   the   receipt   issued   by   the   seller   of   Kangra   house <\/p>\n
     dated 10th October 1959 as well as in the form  of transfer dated <\/p>\n
     2nd July 1963.  Again, no particulars are produced to show that the <\/p>\n
     appellant   had   withdrawn   any   amounts   from   Bank   of   China   for <\/p>\n
     payment towards the sale consideration of Kangra house flat, as <\/p>\n
     alleged by the appellant.   Apart from the fact that the appellant <\/p>\n
     herself initially produced the receipt issued by Ramesh Chandra <\/p>\n
     Mohanlal where the said Ramesh Chandra Mohanlal has admitted <\/p>\n
     having   received   Rs.5,000\/-   from   the   respondent   and   the <\/p>\n
     respondent   having   agreed   to   pay   his   Government   loan   of   Rs.\n<\/p>\n
     8,000\/-,  the appellant herself has executed a tri-partite agreement <\/p>\n
     dated 4th September 1968 inter-alia recording that the real owner <\/p>\n
     of the Kangra house flat is the respondent and that she is only a <\/p>\n
     nominee.   The appellant has not been successful in establishing <\/p>\n
     that  there was an  earlier  tri-partite   agreement   dated   4th  August <\/p>\n
     1968   which   did   not   have   the   said   clause   contained   in   the <\/p>\n
     agreement dated 4th  September 1968.   The story of the appellant <\/p>\n
     that a kaccha  receipt issued by Ramesh Chandra Mohanlal in the <\/p>\n
     year 1963 also cannot  be accepted since the said document itself <\/p>\n
     shows that it is not a receipt  but a transfer form signed by the said <\/p>\n
     Ramesh Chandra Mohanlal because it was decided by that time <\/p>\n
     that the flat would be transferred in the name of the appellant and <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:37:11 :::<\/span>
\n                                               15<\/span><\/p>\n
     not   the   respondent.   Though   a   list   of   the   original   occupiers   of <\/p>\n
     Kangra house shows that   one of the members was a doctor and <\/p>\n
     several members were into business, the Manager of the society <\/p>\n
     (PW-3) has admitted  in his cross-examination  that initially   the <\/p>\n
     society was formed by Kangra community  and most of them were <\/p>\n
     taxi   owners   and   taxi   drivers.     The   society   was   initially   for   low <\/p>\n
     income group, and the Government had   granted a loan to the <\/p>\n
     society since it was for low income group.   The appellant is also <\/p>\n
     not   correct   in   her   contention   that   the   Family   Court   has   not <\/p>\n
     considered Exhibit-23. Exhibit-23 contains the tri-partite agreement <\/p>\n
     dated   4th  September   1968   produced   by   the   appellant   herself   , <\/p>\n
     wherein   it   is   recorded   that   the   appellant   is   only   a   nominee   in <\/p>\n
     respect of the said flat and the respondent is the real owner.  The <\/p>\n
     said document is admittedly  signed\/executed by the appellant.\n<\/p>\n
     12.            Under the circumstances, the appellant has failed to <\/p>\n
     establish that she had paid the entire consideration or any part <\/p>\n
     thereof   towards   the   sale   consideration   of   Kangra   house   flat.\n<\/p>\n
     Instead, the tri-partite agreement dated 4th September 1968 signed <\/p>\n
     by     her,   belies     her   contention   that   she   was   the   owner   of   the <\/p>\n
     Kangra house flat since she herself admits in the said document <\/p>\n
     that she is only a nominee  and the respondent is the real owner.\n<\/p>\n
     In view thereof, the Family Court has rightly rejected the prayers <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:37:11 :::<\/span>
\n                                           16<\/span><\/p>\n
     sought by the appellant as regards flat no. 45\/7 of the seventh <\/p>\n
     floor of ‘C’ wing of Anand Darshan Society.   In view thereof, the <\/p>\n
     appeal   filed   by   the   appellant   is   hereby   dismissed.     However, <\/p>\n
     there will be no order as to costs.<\/p>\n
\n\n\n\n\n                                                    \n                                               [ S. A. BOBDE, J. ]\n\n\n\n\n                                       \n                         ig                    [ S. J. KATHAWALLA, J. ]\n                       \n      \n   \n\n\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 15:37:11 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Family Court Petition No. 40 Of … vs Mr. Jagdish Ambalal Shah on 16 February, 2010 Bench: S.A. Bobde, S. J. Kathawalla 1 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-185401","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nFamily Court Petition No. 40 Of ... vs Mr. Jagdish Ambalal Shah on 16 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/family-court-petition-no-40-of-vs-mr-jagdish-ambalal-shah-on-16-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Family Court Petition No. 40 Of ... vs Mr. Jagdish Ambalal Shah on 16 February, 2010 - 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