1 WP-2254-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2254 OF 2011 Sandip Sankarlal Kedia ..Petitioner vs. Pooja Sandip Kedia ..Respondent Mr. Pradeep Sancheti Sr. Counsel a/w Mr. Siddharth Murarkar for the Petitioner Mr. R. T. Lalwani for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 2nd August, 2011 P.C. : 1. Rule. Returnable forthwith. 2. The parties are husband and wife. The parties have purchased two flats being flat Nos.1603 and 1604 in Valencia Co-op Housing Society. Both the flats have been joined as one flat. The agreements in respect of the flats show two separate flats. It is admitted that the wife purchased one flat out of her own funds. It is claimed by the husband that he has returned the amount of the consideration paid by her in certain installments. In this Court the husband showed two specific installments. Prima facie those installments do not show the amount returned to the wife on account of purchase value of the flats. Mr. Lalwani appearing for the husband has shown TDS deducted therefrom and contended that if the husband was to repay the wife the amount paid by her to purchase the flats, there was no necessity to deduct TDS. Hence prima facie husband has not shown any amount returned. Hence the aspect that the wife has purchased 2 WP-2254-11 one of the two flats is prima facie seen. 3. The wife in the Trial Court claimed reliefs in her capacity as a wife for a matrimonial home as also in her capacity as owner of the flat being one of the two flats. The position of the wife is, therefore, higher than the position of a wife who claims only matrimonial rights in a matrimonial home. 4. In this case the wife desires to let out the flat as it is of her ownership. Upon her prima facie case being made out she cannot be disallowed from doing so. She has claimed the relief of partition of flat as also payment of compensation in respect of the use and occupation of her flat by her husband. 5. The husband, of course, offers that the wife may come and reside in the flat. That offer cannot disentitle the wife to relief because the relations between the parties are strained. The custody of the child has also been considered. The wife has been residing in Dubai. It is, therefore, an empty formality to state that the wife can come into matrimonial home. She can not. The rights of the wife shall have to be decided upon the position that the wife does not reside in the suit flats though she is the owner of the one of the two flats which have been converted into one. 6. The wife would be entitled to have a temporary partition put in the suit flats and to enjoy the benefits of her ownership. These would include putting the flat to best use to obtain income therefrom. The Court cannot prevent the wife from making the best use of her own property. However, the wife has applied for monetary reliefs by 3 WP-2254-11 valuing the flat. She claim Rs.75,000/- per month as an amount payable for by way of compensation for the flat she owns. A person in a flat is entitled to put it to whatever use he or she can. The property is, therefore, capable of monetary evaluation. The wife has evaluated the monetary worth and once that is done pending the suit and pending the actual delivery of possession to her, the wife must be compensated to that extent. Of course, if the extent of compensation claimed by her is exorbitant, a reasonable amount of compensation only can be granted. 7. It has not been the husband’s case that the compensation is exorbitant. The husband has not shown the market value of the property, if licensed by the wife. Consequently, until that is done and if the value placed by the wife is seen to be exorbitant, the husband must compensate the wife to that extent for the use and occupation of her flat to her exclusion. 8. Although the order of the Trial Court granting a temporary partition, cannot be otherwise be faulted, in view of the evaluation by the wife of the monetary worth of the flat, the partition need not be carried out pending the suit if the wife is compensated. Of course, the wife would be entitled to have two flats partitioned and separated at the final hearing, if her claim of ownership otherwise admitted is not shown to have been otherwise terminated by return of monies as claimed by the husband. 9. The husband shall put up a temporary partition as shown in the plan in red kept on record of this Court within four weeks from today, 4 WP-2254-11 failing which, the husband shall pay the wife compensation for the flat, which stood in her name and which could have generated funds upon licence, in a sum of of Rs.75,000/- per month commencing from this month. 10.The husband shall be entitled to value the suit flat for the licence amounts that the suit flat can generate depending upon the market value and take out any further applications for reducing the amount of compensation payable to the wife, pending the petition in the Family Court. 11.Of course, the wife shall be entitled to defend that application to show the market rent as claimed by her. 12.It is seen that the petition is essentially for declaration of the ownership rights of the wife in flat No.1604 of the above society. The other incidental reliefs are for deletion of the name of the husband from that flat, for recovery of possession, for partition and for compensation. 13.The title of the Petitioner is admitted. The husband’s case is that he has returned consideration amount paid by the wife. Therefore, the husband shall have right to begin the evidence. It will be for the husband to prove that the consideration amount paid by the wife has been returned by the husband to her. The husband alone shall have to give evidence in that behalf. The husband has filed his written statement. The Learned Judge will frame the necessary issues and proceed with the trial upon the premise, the husband has right to 5 WP-2254-11 begin. The evidence would have to be taken in the suit accordingly. 14.It is clarified that the claim of the wife for compensation for the use and occupation of the flat alone by the husband shall be considered in the Trial Court for the entire period claimed by the wife when the other reliefs are considered. 15.Pending the trial in the family court, the original Agreement for sale of Flat No.1604 in the above society and the share certificate in respect of the above flat shall be kept in the safe custody of the Registrar Judicial-I of this Court, as per earlier order in this Writ Petition itself. 16.Rule is granted to be above extent. The Writ Petition is disposed of accordingly. (SMT. ROSHAN DALVI, J.)