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, 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 2 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- 400 026; (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) situated on 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 3 acquisition of the said immovable properties and by virtue of the plaintiff also having monetary interest therein at the relevant time equally with the defendant, in addition to her being his legally wedded wife to this day.” 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 4 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 5 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 6 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 7 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 8 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 10th 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 9 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 10 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/- 11 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 12 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, 13 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 14 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 15 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 16 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. ] [ S. J. KATHAWALLA, J. ]