1 appl401.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO. 401 OF 2011 Mrs. Alice Thomas Ne Alice Gheevarghese. .. Appellant. vs Mr. Charivupurayidathil Mathai Thomas & Anr. .. Respondents Mr. Jay Savla with Mr. Amol Doijode i/b. Ms. Manjula Rao advocate for appellant. Mr. Anand Grover with Mr. Sandeep Bhimekar and Ms. Pallavi Smriti i/b. M/s. Wadia Ghandy & co. for respondents. CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J 4 July 2011 P.C. Heard learned counsel for the parties. This appeal is directed against the order dated 9 June 2011 of the learned trial Judge of this Court disposing of the Notice of Motion No. 897 of 2011 in the following terms - “(i) The First Plaintiff is permitted to occupy one bedroom (with an attached bathroom) which is presently in his occupation in the flat at Golden Arch, pending the hearing and final disposal of the suit; (ii) The First Plaintiff shall be allowed access to the common kitchen for the purpose of cooking the meals and for other essential requirements, between 7.00 a.m. and 8 a.m., 11.00 a.m. and 12 noon and 7 p.m. and 8.00 p.m.; (iii) The directions contained in clauses (i) and (ii) above shall be subject to the First Plaintiff filing an undertaking 2 appl401.11 before this Court within a period of two weeks from today not to obstruct the Defendant in the peaceful use and occupation of the flat and further undertaking not to consume any liquor in the premises. The First Plaintiff shall further undertake not to obstruct such visitors of the Defendant whom the Defendant may wish to meet in the flat. Subject to the aforesaid, there shall be an interim order in terms of prayer clause (c) of the Notice of Motion, save and except for the words “dealing with”.” 2. The Plaintiff No. 1 aged about 73 years and the Defendant aged about 70 years are fighting this litigation over two flats, one in Meenakshi Apartment and other in Golden Arch. As far as the flat in Meenakshi Apartment is concerned, it is under redevelopment and the defendant wife is getting by way of license fee a sum of Rs. 30,000/- per month for temporary accommodation. As far as the flat in Golden Arch is concerned, it has 3 bed rooms and one kitchen. One bed room is in occupation of the respondent- husband and the second bed room is in occupation of the appellant wife. As far as the third bed room is concerned, neither of the spouses is staying in the said bed room. 45 years old daughter of the parties i.e. the plaintiff No. 2 is residing in USA. 3. Learned counsel for the appellant wife has sought to contend in this appeal that the flat in Golden Arch is in her name and the 3 appl401.11 respondent/plaintiff has no right to occupy even one bed room or to have access to the common kitchen. Reliance is placed on the provisions of Benami Transactions (Prohibition) Act 1988, particularly section 4(1) thereof, contending that in view of the above provisions the suit filed by the respondent-husband claiming ownership and possession of the suit flat in question is not maintainable. 4. Learned counsel for the respondent-husband submits that sub-section 2(a) of section 3 of the Act specifically provides that nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and that in any case it is open to the husband to the prove to the contrary. Even if it is presumed, unless the contrary is proved, that the property had been purchased for the benefit of the wife or unmarried daughter; it is submitted that the husband has to place on record the evidence in support of this case that both the flats were purchased from his funds and that the appellant wife has no income of her own. 5. We are not inclined to go into merits of the contentions raised about the provisions of Benami Transactions ( Prohibition) Act, 4 appl401.11 1988 at this stage as it is a matter of examination at the trial. Having regard to the fact that the appellant wife gets monthly licence fee of Rs. 30,000/- for the redevelopment of the flat in Meenakshi Apartment and the respondent husband has been allowed to occupy only one bed room out of the three bed rooms in Golden Arch Flat and that he is allowed access to the common kitchen for the purpose of cooking his meals and for other essential requirements only for total 3 hours in the entire day; we do not find any error having been committed by the learned trial Judge. Appeal is dismissed. 6. Even while dismissing the appeal, we are of the view that the parties ought to have made efforts for amicable settlement. For this purpose the learned counsel for the parties state that the parties will appear before the High Court Mediation Center on 12 July 2011 at 4.30 p.m. It is clarified that we may not be treated to have expressed opinion on the merits of the controversy between the parties. All contentions are kept open. CHIEF JUSTICE GIRISH GODBOLE, J 5 appl401.11