1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 131 of 2009 Anwar @ Arvind Ramkrishna Mudbhatkal Age 71 years, Indian Inhabitant, res. at A-702, Milton Apartments, Juhu Tara Road, Koliwada, Mumbai 400 049 .. Appellant (Original Petitioner/Plaintiff) Versus Shehnaz Sani Age 58 years, Indian Inhabitant, residing at A-702, Milton Apartments, Juhu Tara Road, Koliwada, Mumbai 400 049 ...Respondent (Original Respondent/Defendant) Ms. Neeta Karnik for Appellant. Respondent, in person. WITH FAMILY COURT APPEAL NO. 148 of 2009 Shehnaz Sani Adult, Indian Inhabitant, Aged around 56 years, Occupation: Temporary Service 2 residing at A-702, Milton Apartments, Juhu Tara Road, Koliwada, Santa Cruz (West) Mumbai 400 049 .. Appellant Versus Dr. Anwar @ Arvind Ramkrishna Mudbhatkal Adult, Indian Inhabitant, Aged around 70 years, Occupation Professional, Permanent Residence at C/o. Mr.Ajit Balse, Vijaynagari, Ghodbandar Road, Thane, District Mumbai ..Respondent Appellant in person. Ms. Neeta Karnik for Respondent. CORAM:- A.M.KHANWILKAR & R.Y.GANOO, JJ. RESERVED FOR JUDGMENT ON: 21st June. 2011 JUDGMENT PRONOUNCED ON: 16th September, 2011 JUDGMENT (PER R.Y.GANOO, J): 1. These two appeals are filed by the respective appellants so as to challenge the judgment and decree dated 1st June, 2009 passed by the learned Judge of the Family Court No.2, Mumbai, (hereinafter referred to as “Family Court”), in Petition No.B-153 of 2008. These 3 two appeals can therefore be conveniently disposed of by a common judgement. Arvind Anwar @ Arvind Ramkrishna Mudbhatkal shall hereinafter be referred to as “husband” and Shehnaz Sani shall hereinafter be referred to as “wife”. 2. The wife had filed petition for divorce and other reliefs in the Family Court at Bandra, Mumbai, being M.J.Petition No.A-1945 of 1992. The said petition was decided by the learned Judge of the Family Court by judgment and order dated 30th September, 2005. 3. Being aggrieved by the said judgment and decree dated 30th September, 2005, the wife filed Family Court Appeal No.38 of 2006 in this Court. In the course of hearing of the said Family Court Appeal No.38 of 2006, it was brought to the notice of this Court that the suit filed by the husband against the wife, being Suit No.2065 of 1995 is pending. This Court, therefore, considered the point as to whether the said suit should continue to remain on Original Side or it should be transferred to the Family Court for decision on merits. After hearing the Advocate for husband and the wife, this Court by its Order dated 16th July, 2008 came to the conclusion that the said 4 Suit No.2056 of 1995 should be transferred to the Family Court at Bandra, Mumbai and accordingly passed an order thereby transferring the said Suit No.2056 of 1995 to the Family Court, Mumbai, for disposal in accordance with the provisions of law. The said suit contains various prayers. This Court, by order dated 16th July, 2008 observed that the prayer clause (a) in the said suit has become redundant and therefore the Family Court is not required to decide the same. That order has been allowed to attain finality. This will mean that on transfer of the said suit to the Family Court, the Family Court was required to decide the prayers commencing from prayer clause (b) onwards. 4. The husband had prayed for following reliefs in the said Suit which was renumbered as Petition No.B-153 of 2008 : “(b) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049. 5 (c) that this Hon’ble Court be pleased to order and decree the deletion of the name of the Defendant from the records of the Milton Co-operative Housing Society Limited with regard to the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049, from the membership of the said society, from the shares bearing distinctive numbers 71 to 75 of Rs.50/- each issued by the said society in the Share Certificate No.15 dated 18th October, 1988 and from the Agreement for Sale dated 26th June 1985, being Exhibit “F” hereto: (d) that this Honourable Court be pleased to restrain the Defendant by a mandatory order and injunction from entering into, remaining upon, using, occupying and/or possessing the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 40 049 or any part or portion thereof: (e) that this Hon’ble Court be pleased to restrain the Defendant, her servants, agents and/or representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner dealing with, disposing of, mortgaging, transferring, assigning, selling, conveying and/or creating any third party right or interest in the said flat No.A-702, Milton 6 Apartment, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof: (f) that this Hon’ble Court be pleased to restrain the defendant, her servants, agents, and or representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner interfering with, stopping, preventing, obstructing and/or intermedling with the use, occupation, enjoyment and possession of the plaintiff of the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof: (g) that this Honourable Court be pleased to restrain the defendant, her servants, agents and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner removing and/or taking away any of the articles of furnitures, fittings electronic items like washing machine, cooking range, air- conditioners, mixtures, grinders, vacum cleaners, telephones, items of cutlery, items of crockery etc, including the items mentioned in Exhibit “G” hereto lying and being in the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049: 7 (h) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the air-conditioned motor car of Maruti make bearing Registration Nos.BLN 5165: (i) that this Hon’ble Court be pleased to order and direct the defendant to deposit in this Hon’ble Court all the papers pertaining to and connected with the air-conditioned Maruti car bearing Registration No.BLN 5165 along with the transfer papers duly signed by the defendant for transfer of the said car in the name of plaintiff and to handover possession of said car to the plaintiff. (j) that this Hon’ble Court be pleased to restrain the defendant, her servants, agents, representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner dealing with, disposing of, hypothecating, parting with possession of, selling, transferring and/or assigning the said air- conditioned Maruti car bearing Registration No.BLN 5165 except in favour of the plaintiff. (k) that the defendant be ordered and directed by this Hon’ble Court to disclose full and complete particulars of all the dealings made by the Defendant from the amounts withdrawn by the Defendant from the Saving Bank 8 Account No.5040 with the Bazaar Branch of the Syndicate Bank at Matunga and/or the NRE Account No.253 with the Main Branch at Matunga of Syndicate Bank and/or the NRE Account No.6684 with the Juhu Tara Road Branch of the Union Bank of India and be further pleased to order and direct the defendant to render true, complete and faithful accounts in that behalf and such accounts be made and taken upon the basis of wilful default committed by the Defendant and after ascertaining what is due to the Plaintiff, a decree for payment of such amount be passed in favour of the Plaintiff with interest thereon at the rate of 18% per centum per annum from the date of the suit till payment and/or realisation: (l) that the defendant be ordered to disclose all items of jewellery, gold and costly articles purchased by the Defendant from and out of the amounts belonging to the Plaintiff and hand the same over to the plaintiff: (m) that the defendant be ordered and decreed to render true, complete and faithful account of her investments made from out of the amounts of the plaintiff including the investment of US Dollars 27,000/- in the Motel business of the sister/brother-in-law of the Defendant in the United States of America, the Cable Television business run in the name or names by herself and/or with the said Bobby Shah 9 and/or any other person or persons and be further ordered and decreed to pay over to the plaintiff the profits made/interest earned therefrom: (n) for the purpose aforesaid all necessary enquiries be made, orders be passed, directions be given and accounts be taken as may be necessary. (o) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives and/or any peson or persons claiming under or through her be restrained by an order and injunction of this Hon’ble Court from in any manner dealing with, disposing of, mortgaging, transferring, assigning, selling, conveying, letting and/or creating any third party right or interest in the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049: (p) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives, and/or any person or persons claiming under or through her be restrained by an order and injunction of this Honourable Court from in any manner dealing with, transferring, assigning, selling, and/or creating any third party right or interest in the said air- 10 conditioned motor car of Maruti make bearing Registration No.BLN 5165: (q) that pending the hearing and final disposal of the suit the defendant by herself, her agents, servants, representatives and/or any person or persons claiming under or through her be restrained by an order and injunction of this Hon’ble Court from in any manner dealing with, disposing of, pawning, transferring, assigning, selling and/or creating any third party right or interest in the items of jewellery, gold and costly articles in the custody of the defendant: (r) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives and/or any person or persons claiming under or through her be restrained by an order and injunction of this Hon’b;e Court from in any manner dealing with, disposing of, hypothecating, parting with possession of, selling, transferring , removing and/or creating any third party right or interest in the articles being and lying in the said Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 including the items mentioned in Exhibit “G” annexed hereto: 11 (s) that pending the hearing and final disposal of the suit the Defendant by herself, her agents, servants, representatives and/or any person or persons claiming under or through her be restrained by an order and injunction of this Hon’ble Court from in any manner interfering with, stopping, preventing, obstructing and/or intermedling with the use, occupation, enjoyment and possession of the plaintiff of the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 and any part or portion thereof with the articles including those listed in Exhibit “G” annexed hereto: (t) that pending the hearing and final disposal of the suit the Defendant be ordered and directed by the Hon’ble Court to disclose full and complete particulars of and to render true complete and faithful account of all the dealings made by the Defendant from the amounts withdrawn by the Defendant from the Savings Bank Account No.5040 with the Bazaar Branch of the Syndicate Bank at Matunga (C.R.) the NRE Account No.253 of the Main Branch of the Syndicate Bank at Matunga (C.RE.) and the NRE Account No.6684 with the Juhu Tara Road Branch of the Union Bank of India at Juhu with particular reference to the items of jewellery, gold and other costly things purchased by the Defendant from out of the amounts 12 given by the Plaintiff and/or caused to be used by then Defendant: (u) that pending the hearing and final disposal of the suit the defendant be restrained by a mandatory order and injunction of this Hon’ble Court from entering into, remaining upon, using, occupying and/or possessing the said flat being Flat No.A-702, Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof: (v) that pending the hearing and final disposal of the suit the Court Receiver, High Court, Bombay or any other fit or proper person be appointed as the Receiver of the said Air Conditioned Motor Car of Maruti make bearing Registration No.BLN 5165 with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 with directions to such Receiver to appoint th Plaintiff as his agent and handover the said Maruti car to the plaintiff without any security and/or premium and/or royalty and/or on such terms and conditions as this Honourable Court may deem fit and proper: (w) that pending the hearing and final disposal of the suit this Honourable Court be pleased to stay the hearing of M.J.Petition No.A-1945 of 1992 and all interlocutary 13 applications taken out therein pending before the Hon’ble Family Court at Bandra, Bombay: (x) that ad-interim reliefs in terms of prayer clauses (o), (p), (q), (r), (s), (t), (u), (v) and (w) be granted: (y) that cost of the Suit be provided for:” 5. As per the directions given by this Court, the learned Judge of the Family Court decided the suit on merits and passed the following order : “The petition is partly allowed with costs. The petitioner is declared as absolute owner of flat No.A-702, Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Mumbai 400 049 . So far as prayer of mandatory injunction is concerned, it is rejected. The decree be drawn accordingly.” 6. As indicated earlier, being aggrieved by this Order, the husband and wife have respectively filed the aforesaid two appeals. 7. The husband has filed present Appeal No.131 of 2009. It is noticed on the basis of the appeal memo that the challenge to the aforesaid 14 order is with reference to that part of the order by which the prayer for mandatory injunction is rejected. So far as the wife is concerned, the wife is aggrieved by the aforesaid judgment on the ground that the claim of the wife that she has 88% of the share in the aforesaid flat is negatived. The wife is also aggrieved as the learned Judge has declined to grant reliefs claimed by her, which were set out in her counter claim. Said reliefs are mentioned at the end portion of the written statement. It is to be noted that the husband has in his examination in chief at paragraph 15 specifically stated that he is pressing prayer clause (b) which reads as under: “(b) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 009.” 8. In paragraph 16 he has further stated that he is pressing for prayer clauses (f), (g), (i), (m) and (y). A reading of paragraph 16 clearly goes to show that the rest of the prayers have been given up by him and his evidence is restricted in regard to the prayers as mentioned 15 aforesaid. A look to the aforesaid prayer clauses i.e. prayer clauses (b), (f), (g), (i) , (m) and (y) would go to show that the husband had given up his mandatory prayer as regards restraining the wife from entering into, remaining upon, using, occupying and or possessing the said flat or any part or portion thereof. A reading of other prayers which have been given up by the husband would clearly go to show that he had given up his various mandatory prayers. It is noticed that the learned Judge of the Family Court did not take into consideration the contents of the written statement as regards the prayers made in the written statement in paragraph 95. The learned Judge framed following issues : (1) Does the petitioner prove that he is the absolute owner of flat No.A-702 Milton Apartments, Juhu Tara Road, Koliwada, Mumbai? (1A) Whether he is entitled for mandatory injunction restraining her from entering into or using or occupying or possessing Flat No.A-702, Milton Apartments, Juhu Tara Road, Koliwada, Mumbai. (2) What Order and decree? 16 9. We have perused the grounds of appeal put up in Family Court Appeal No.131 of 2009 filed by the husband and it is noticed that the grounds of appeal relate to the prayer clause (d) only. The husband has not made any grievance as regards prayers (f), (g), (i), (m) and (y) of the Petition. In Family Court Appeal No.148 of 2009, the wife has made grievance as regards prayers set out in the written statement. 10.With the aforesaid discussion, it would now be convenient to state the case put up by the respective parties. The husband has stated that he came in contact with the wife prior to November 1975 and wife got converted to Hindu religion in 1975 and thereafter they got married on 9.11.1975 as per the Hindu Vedic Rites. There are some averments in the petition whereby the husband has claimed that at the later point of time the husband adopted Islam Religion, and a Nikah was performed between husband and wife. In view of the order dated 16.7.2008 passed by this Court, in Family Court Appeal No.38 of 2006, by which it is observed that relief in terms of prayer clause (a) has become redundant, there is no need for this court to dwell 17 upon the said stand of husband about remarriage with wife. The husband was working as Medical Officer in Central Railway from 1966 to 1983. In the year 1983, the husband could secure a job in the Ministry of Health at Saudi Arabia as Medical Officer. He was posted as Medical officer at Gizan. It is admitted by both the sides that the wife gave birth to a daughter on 9th December, 1976 who was named as Sonia. It is admitted that second daughter was born to the couple on 5th October, 1980. The said daughter was named as Shahzia. Considering the relevant dates Sonia attained majority on 9th February, 1994 whereas Shahzia attained the age of majority on 5th October, 1998. It is admitted by both the sides that husband’s father was a tenant in respect of a flat at Vasudev Sadan, 1/3730 Telang Cross Road No.3. Matunga, Mumbai (hereinafter referred to as “Tenanted Flat”). After the marriage the husband and wife started residing at Railway Quarters. The husband’s brother Anand was staying in the said flat upto 1980. Thereafter the husband, wife and daughters shifted to said flat in January 1980. 11.The husband had a Saving Bank Account with Syndicate Bank at Matunga, Mumbai, being Account No.5040. As the husband joined 18 the service at Gizan, a non resident NRE Account was opened by the husband at Syndicate Bank, Matunga, Mumbai, being Account No. 253. In the year 1986 another NRE Account was opened with Union Bank of India, Juhu, Mumbai, being Account No.6684. According to the husband , in the year 1984 the husband decided to purchase a flat at Juhu and accordingly M/s. Veena Beena Developers were contacted for the purchase of the said flat. The husband had given due authority to wife to represent him with the Developer. According to the husband, it was decided that Flat No.A-702, Milton Apartments, 7th Floor, Juhu-Tara Road, Koliwada, Bombay – 400 049, (hereinafter referred to as “said flat”), should be purchased. According to the husband, an amount of Rs.3,85,000/- was to be given to the developer in connection with the said flat and it was decided that said amount would be paid to the builder as loan in the first instance and at the time of actual transaction, the consideration would be paid. As per this arrangement, a sum of Rs.3,85,000/- was paid to the said developer as loan from and out of the NRE Account No.253 with Syndicate Bank, Matunga Branch, Mumbai, as follows: Amount Date Rs. 2,00,000/- 11.12.1984 19 Rs.1,00,000/- 31.01.1985 Rs.50,000/- 20.02.1985 Rs.35,000/- 19.03.1985 The receipts have been issued in regard to the aforesaid payments and those receipts are at Exhibits 169, 335, 336 and 169A, respectively. According to the husband, the sum of Rs.,3,23,375/- were to be paid by cheque and a sum of Rs.3,38,000/- were to be paid in cash (not to be accounted) towards consideration for the said flat. The stamp duty payable was in the vicinity of Rs.19,500/- i.e. total cost of the flat was Rs.6,89,175/-. According to the husband, on 22.6.1985, the Developer returned the sum of Rs.3,85,000/- by way of cheque in the name of husband and the wife managed to deposit the said cheque in her Account No.24387 Syndicate Bank, Matunga, Mumbai, by adding the name of the husband in the said account. This was done by taking the help of the Branch Manager Mr.Kamat. That is how the sum of Rs.3,85,000/- was credited to the said account. According to the husband a pay order in the sum of Rs. 3,23,375/- was obtained from the said account and the said sum was paid over to the Developer as consideration for the said flat. According to the husband, a sum of Rs.3,37,000 (not to be accounted 20 for) was raised by surrendering the tenanted flat at King Circle. According to the husband, the aforesaid sum of Rs.3,37,000/- so received was utilized for paying the amount to the Developer. The wife had no right in respect of the said tenanted flat and hence the total consideration payable in respect of the said flat came from the husband and that is how the husband claims that he is the absolute owner of the said flat and that the wife has no right whatsoever in the said flat. 12.According to the husband, as the husband had to leave India before the actual possession could be taken in respect of the said flat, the Developer had given him one agreement to be duly signed by the husband and to be kept with the wife so that at the time of actual execution, the Developer could sign and fill in the blanks. According to the husband, at the time of execution of the said agreement the wife had added her name in the said agreement, however it is noticed that in letter dated 7th March, 1989, Exhibit 90, the wife came out with the stand that her name was added by the Developer. 13.According to the husband, wife addressed letter dated 29th June, 1985 21 at Exhibit 73 to him and sent the said letter to Gizan. According to the husband, in the said letter at Exhibit 73 dated 29th June, 1985 full details as to how the transaction regarding surrendering possession of the tenanted flat and taking possession of the said flat took place was mentioned. According to the husband, little before surrendering possession in respect of the tenanted flat, Mr. Anand, brother of the husband had executed affidavit whereby he had expressed his desire to surrender the tenancy right in respect of the tenanted flat. 14.Looking to the points raised in the Family Court Appeal No.131 of 2009 as also Family Court Appeal No.148 of 2009, it is not necessary to refer to various averments. Those averments relate to : (1) car being purchased by the wife from and out of the funds of the husband. (2) Investment made by the wife in U.S.A. by utilizing the funds of the husband. (3) After 1989 the husband finding a change in the wife and