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2011 DIGILAW 725 (GUJ)

SUCHETA DILIP GHATE v. DILIP GHATE

2011-10-20

JAYANT M.PATEL, R.M.CHHAYA

body2011
JUDGMENT : R.M. CHHAYA, J. This appeal u/s 19 of the Family Courts Act, 1984 is directed against the judgment and decree dated 5.4.2004 passed by Family Court, Ahmedabad in Family Suit No. 406 of 2002, whereby the Family Court while dismissing the suit, held that as and when the respondent-original opponent disposes of the flat, he would intimate the same to the appellant-original plaintiff and pay to the appellant proportionately to her share, from the sale proceeds of the flat. The facts arising out of this appeal are that the appellant-original plaintiff married the respondent-original defendant under the provisions of the Special Marriage Act, 1954 on 27.12.1991. It reveals from the record that the appellant as well as the respondent were divorcees and the appellant had a girl child of her previous marriage. The appellant, after her marriage with the respondent, stayed with the respondent at Ahmedabad till 12.4.1998. It also reveals from the record that after marriage, the appellant as well as the respondent stayed together in a flat owned by the respondent named 'Pujan' Apartment, Nr. Dr. Jivraj Mehta Hospital at Ahmedabad. It further transpires that thereafter the respondent sold the said flat for sale consideration of Rs. 3,00,000 and purchased a new flat admeasuring 140 sq. mtrs. approx. on the ground floor of a building known as 'Indraneel', situated at Vastrapura, Ahmedabad in the joint names of the appellant as well as the respondent. It further reveals that the Chairman of the Association, who constructed the said apartments, namely Akash Deep Association issued a transfer letter dated 10.1.1996 and transferred the said flat being Flat No. 2, on Ground Floor of Indraneel Apartment, in the joint names of the appellant and the respondent. The appellant, after desertion from the respondent filed a civil suit in the Court of Civil Judge, (S.D.), Mirzapur, Ahmedabad (Rural), which came to be registered at Special Civil Suit No. 17 of 1999 and claimed partition of the said flat jointly owned by the appellant and the respondent, by disposing of the same and for further direction to divide the sale proceeds into two equal proportions between them. The appellant also filed an application for interim relief, pending hearing and disposal of the suit, for directions, directing the respondent herein to pay Rs. 2,400 p.m. towards the cost of the rent of the said flat. The appellant also filed an application for interim relief, pending hearing and disposal of the suit, for directions, directing the respondent herein to pay Rs. 2,400 p.m. towards the cost of the rent of the said flat. The said application being Exh.5 in the aforesaid suit was rejected by the Trial Court vide order dated 16.1.2001. 3. On commencement of the Family Courts Act, 1984, Special Civil Suit No. 17 of 1999 came to be transferred to Family Court, Ahmedabad, as contemplated u/s 7(1)(b) read with Explanation (c) of the said Act, it being a suit or proceeding between the parties to a marriage with respect to the property of the parties vide order 26.4.2002 passed below Exh.1 of the said suit on an application filed by the appellant at Exh.21. 4. That thereafter the aforesaid suit being transferred to Family Court, Ahmedabad, the same came to be registered Family Suit No. 406 of 2002 wherein the Family Court framed following issues at Exh.24: Whether the plaintiff proves that the suit property is joint property held by plaintiff and the defendant ? Whether the plaintiff is entitled to partition of the suit property? Whether the plaintiff is entitled to decree of disposing of the property in dispute? What order and decree? 5. The parties adduced oral as well as documentary evidence before the Family Court and after hearing the parties and on appreciation of the evidence, Family Court, Ahmedabad vide the impugned judgment and decree dated 5.4.2004 dismissed the suit of the appellant and simultaneously held that as and when the respondent disposes of the flat in question, he would intimate to the appellant and shall pay proportionately her share, from the sale proceeds. The said judgment and decree is challenged by the appellant-plaintiff against the dismissal of the suit and the respondent-original defendant has filed the cross-objections against the direction issued by the Family Court, as aforesaid. 6. We have heard Ms. Sushma S. Shah, learned Counsel for the appellant-original plaintiff and Mr. B.P. Munshi, learned Counsel for the respondent-original opponent. We have also perused the record and proceedings of the lower Court. 7. Ms. Shah, learned Counsel for the appellant-original plaintiff, has taken us through the impugned judgment and has vehemently submitted that the Family Court has erred in dismissing the suit filed by the appellant. B.P. Munshi, learned Counsel for the respondent-original opponent. We have also perused the record and proceedings of the lower Court. 7. Ms. Shah, learned Counsel for the appellant-original plaintiff, has taken us through the impugned judgment and has vehemently submitted that the Family Court has erred in dismissing the suit filed by the appellant. It was submitted that the flat in question was purchased in the joint names of the appellant and the respondent and that the transfer letter, which is the document of the title and ownership of the flat, bears the names of the appellant as well as the respondent and, therefore, the flat is jointly owned by the appellant and the respondent. It was further submitted that the respondent, though being a qualified engineer, was not engaged in any vocation and the house was run exclusively upon the salary of the appellant. It was submitted that from the evidence it is clear that even father of the appellant used to financially help the respondent. Relying upon the documentary evidence on record, more particularly entries in the pass-book, it was pointed out that the appellant had given a cheque of Rs. 31,000 towards purchase of the flat in question. It was further pointed out that receipt dated 16.1.1996 issued by the vendor of the flat (Exh.30) also bears names of the appellant and the respondent. Relying upon the document dated 9.12.1998 (Exh.31), it was pointed out that in fact the respondent had borrowed Rs. 1,50,000 from father of the appellant. It was also submitted that even the share certificate (Exh.35) of the flat in question, issued by the association is in the joint names of the appellant and the respondent. It was, therefore, submitted that the flat in question, being a joint property of the appellant and the respondent, the appellant has a right in law to pray for partition of the said property, as prayed for in the suit. Relying upon the judgment of Komalam Amma v. Kumara Pillai Raghavan Pillai & Ors. 2009 (1) G.L.H. 311, it was submitted that the lower Court has erred in dismissing the suit. Relying upon the judgment of Komalam Amma v. Kumara Pillai Raghavan Pillai & Ors. 2009 (1) G.L.H. 311, it was submitted that the lower Court has erred in dismissing the suit. It was submitted that the Family Court has wrongly appreciated the evidence on record and has erred in coming to the conclusion that the flat in question cannot be partitioned merely because the respondent resides in the said flat at present and has, therefore, erred in dismissing the suit and has merely directing the respondent to give proportionate share from the sale proceeds of the flat in question as and when it is sold by the respondent, even though the appellant is a joint owner of the flat in question having one-half share in it. It was, therefore, submitted that the appeal deserves to be allowed by decreeing the suit in favour of the appellant and the cross-objections filed by the respondent are devoid of any merits, the same deserve to be dismissed. 8. As against this, Mr. Munshi, learned Counsel appearing for the respondent-original defendant, submitted that the suit is based on wrong premises. Relying upon the extracts of the bank pass-book (Exh.38), it was submitted that the appellant has not contributed anything towards purchase of the flat in question. It was submitted that in fact the appellant has admitted in her deposition that Rs. 2,60,000 was paid by the respondent from the sale proceeds of the flat belonging to the respondent at 'Pujan' apartment. Relying upon the entry dated 10.1.1998 in the pass-book, it was submitted that as the cheque book of the respondent's account was exhausted, the respondent deposited Rs. 31,000 in cash in the S.B. account of the appellant and issued a cheque to the vendor of the flat in question i.e. Akash Deep Association on 12.1.1988 from the account of the appellant. It was submitted that thus, the total consideration of Rs. 2,60,000 was paid by the respondent to Akash Deep Association by the respondent from his own funds. It was submitted that because of the relation of husband-wife, the flat in question was purchased in the joint names of the appellant and the respondent. However, it was submitted that the respondent is the sole owner of the flat in question. It was further submitted that merely because an amount of Rs. It was submitted that because of the relation of husband-wife, the flat in question was purchased in the joint names of the appellant and the respondent. However, it was submitted that the respondent is the sole owner of the flat in question. It was further submitted that merely because an amount of Rs. 31,000 was paid from the account of the appellant, as aforesaid, that too after depositing cash, would not give any title over the flat in question in favour of the appellant. It was further submitted that letter dated 9.12.1998 (Exh.31) addressed by father of the appellant to the respondent does not take the case of the appellant any further. It was submitted that no amount was paid by father of the appellant and that no money was paid for the purchase of the flat in question by the respondent. Relying upon the entries of the pass book of the a/c. of Bank of Maharashtra in the name of the respondent, it was pointed out that in fact a sum of Rs. 50,000 was paid by the respondent to father of the appellant vide cheque No. 342463 dated 5.4.1997, Rs. 50,000 by way of cheque No. 342464 dated 5.4.1997 and Rs. 25,000 by cheque No. 9845 dated 9.3.1998. It was submitted that the flat in question was purchased by the respondent after sale of the flat i.e. in 'Pujan' Apartment belonging to the respondent in the year 1998 and, therefore, the contents of the letter (Exh.31) are rightly not believed by the Family Court. It was further submitted that the appellant and the respondent have married under the provisions of the Special Marriage Act, 1954 and hence, the judgment relied upon by the appellant has no application to the facts of the present case. It was further submitted that in fact the Family Court has erred in coming to the conclusion that as and when the respondent disposes of the flat in question, he should intimate the said fact to the appellant and pay her proportionate share from the sale proceeds. It was submitted that the Family Court has exceeded its jurisdiction while passing the impugned judgment and without there being any finding to the effect that the flat in question is a joint property, the Family Court has wrongly given such a direction. It was submitted that the Family Court has exceeded its jurisdiction while passing the impugned judgment and without there being any finding to the effect that the flat in question is a joint property, the Family Court has wrongly given such a direction. It was, therefore, submitted that the appeal is devoid of any merits and deserves to be dismissed and the cross-objections filed by the respondent deserve to be allowed. 9. Upon appreciating the evidence on record and upon considering the judgment impugned in the present appeal, we find that the same is self-contradictory. The Family Court has not given any specific finding to the effect that the flat in question is a joint property of the appellant and the respondent. We find that the Family Court has not properly appreciated the evidence on record and has not examined the matter in its true perspective. We also find that there is no appreciation of the evidence to the effect that, even if it is construed that the flat in question is a joint property of the appellant and the respondent, what would be the share of the appellant under the provisions of the Transfer of Property Act, 1882. The Family Court has also not discussed the evidence led by the parties and on one hand dismissed the suit and on the other hand has come to the conclusion at the respondent is liable to pay proportionate share of the appellant herein from the sale proceeds of the flat in question as and when the same is disposed of. 10. Similarly, we find that the case of Komalam Amma (supra), relied upon by the learned Counsel Ms. Shah for the appellant would not be applicable to the case under consideration. In the said case the Apex Court recognized the right of a wife for maintenance and the suit was for recovery of possession of the property where the wife was residing and for mesne profits therefrom, whereas in the present case the appellant-original applicant has prayed for partition of the flat in question purchased in the joint names. 11. In the said case the Apex Court recognized the right of a wife for maintenance and the suit was for recovery of possession of the property where the wife was residing and for mesne profits therefrom, whereas in the present case the appellant-original applicant has prayed for partition of the flat in question purchased in the joint names. 11. It is also worthwhile to note that even if it is presumed that the flat in question was purchased from the consideration paid out of the funds belonging to the appellant and the respondent in absence of the contract to the contrary they would be entitled to the interest in the said flat in proportion to the shares of the consideration which they have advanced. On the basis of the evidence on record this vital and important aspect is totally absent in the impugned judgment and hence, we find that the evidence on record requires to be re-appreciated by the Family Court, Further if any share of the appellant is found by the Family Court in the property, it was required for the Family Court to consider the matter to pass preliminary decree, etc. as per the provisions of the CPC. 12. We, therefore, deem it fit to quash and set aside the judgment and decree impugned in the present appeal and remand the matter for its re-trial. 13. Resultantly, the impugned judgment and decree dated 5.4.2004 passed by Family Court, Ahmedabad in Family Suit No. 406 of 2002 is hereby quashed and set aside and the matter is remanded to Family Court, Ahmedabad for its re-trial. Family Suit No. 406 of 2002 stands restored to its file before Family Court, Ahmedabad. The appeal as well as Cross-objection are disposed of accordingly. There shall be no order to costs. Considering the fact that the controversy involved in the matter is pending since 1999, the Family Court is directed to hear and dispose of the suit as expeditiously as possible, but not later than 3 (three) months from the date of the receipt of copy of this judgment. Registry is directed to send back the record and proceedings to Family Court, Ahmedabad forthwith.