1 fa554-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 554 OF 2011 ALONGWITH CIVIL APPLICATION NO. 318 OF 2009 Pandurang Gajanan Joshi .. Appellant V/s. Madhuri Pandurang Joshi .. Respondent ..... Ms. Deepali Patil for the appellant. Mr. Dinesh T. Mota for respondent. ..... CORAM : A.S.OKA, J. DATE : JULY 6, 2011. ORAL JUDGMENT: Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. The appellant is the husband and respondent is the wife. The marriage between the parties was solemnized on 21st February, 1994. A petition was filed by the respondent-wife seeking a decree of judicial separation. There was a counter claim filed by the husband seeking a decree of divorce. By the impugned judgment and decree, the prayer for judicial separation was rejected. However, the counter claim was decreed and the marriage between the parties was dissolved. The trial Judge passed a decree directing the appellant to pay the respondent-wife 2 fa554-11 permanent alimony at the rate of Rs.5000/- per month from the date of the Judgment. 2. The learned counsel appearing for the appellant has filed on record a compilation containing notes of evidence and other documents filed on record of the trial Court. The learned counsel appearing for the appellant states that the challenge in this Appeal is confined only to the decree of permanent alimony. The first submission of the learned counsel appearing for the appellant is that while the respondent-wife obtained a divorce by mutual consent from her first husband, she had relinquished her right to maintenance as she was in position to maintain herself. In view of the admission in the compromise pursis, the respondent is not entitled to claim any maintenance. It is submitted that the appellant has a meagre income of Rs.2000/- to Rs.2500/- per month from her business as estate agent. It is submitted that there is no evidence on record to show that the income of the appellant is Rs.8,000/- or more. The learned counsel submitted that the share of the appellant in the joint family property is very negligible. The learned counsel pointed out the Memorandum of Understanding (MOU) dated 15th July, 1992 entered into between the appellant and M/s. Jayesh Construction Company Ltd., in respect of a flat which was to be 3 fa554-11 provided to the appellant in lieu of commission of Rs.1 lakh which was payable by M/s Jayesh Construction Co. Ltd. to him. The learned counsel submitted that the finding of the learned trial Judge that the said flat was purchased by the appellant is erroneous. The learned counsel submitted that no reasons have been recorded by the trial Court for coming to the conclusion that the income of the appellant was Rs.8,000/- per month. 3. I have carefully considered the submissions. I have perused the pleadings and notes of evidence and other documents placed on record of the trial Court. The appellant filed an affidavit in lieu of examination-in-chief. In the said affidavit in lieu of examination-in-chief, as regards his income, he stated thus: “I receive commission on the finalisation of transaction between the parties. As there is the slack in the development & construction market, my business has virtually come to standstill. My monthly income is not fixed & assured. But on an average I get Rs.2,000/- to 2,500/- p.m. I do not have any self acquired land property, except the said flat in Navnath Shraddha Apt. The ancestral property of our joint family is very meager & it is the joint family property. I do not own 68 acres of land. In fact my great grandfather, late Ganpat Joshi, held the land to the extent of 3 acres. My great grandfather Ganpat Joshi had two sons, namely, Kalya Ganpat & Manglya Ganpat. The said Kalya Ganpat was the elder of the two. Therefore, the said land property was in the name of said Kalya Ganpat alone. Thus, out of the total land property of about 3 acres, half of the share goes to the heirs to the Manglya Ganpat & remaining 4 fa554-11 half goes to the share of Kalya Ganpat. The said Kalya Ganpat had four sons & two daughters, namely, Kundlik Kalya, Gajanan Kalya (my father), Ananta Kalya, Motiram Kalya, Tarabai Dwarkanath Mhatre & Anusaya Waman Jadhav. Thus out of the 1.5 acres of land, which come to the share of Kalya Ganpat (i.e. My grant father) is to be divided into 6 shares. Thus, the land coming to the share of my father Gajanan is 10 gunthas only. My father is dead & thus my two brothers, three sisters & mother, who are the claimants over the said property of 10 gunthas. Thus, the maximum property I may get is fractionally over 1 guntha of land.” In the subsequent paragraph, the appellant states thus: “ I further say that I am living a beggarly life. My standard of living is very low due to the poor financial condition. My brothers are also in the financially embarrassed situation. They also do not have any fixed source of income. I have to look after my old, sick & infirm mother. I further say that the payment of the amount of Rs.2,500/- p.m. towards the interim maintenance has also become very difficult & ext to impossible for me. ” 4. However, in the cross-examination, the appellant admitted that his mother was residing with his brothers. He admitted that his brothers Sunil and Prakash are separately residing in Prakash Joshi Building. He admitted that the said Prakash Joshi building is consisting of ground plus four floors. He admitted that till the year 1991, he was residing with his brothers in Gajanan Joshi building consisting of ground plus two floors and the said building has been given the name of his father. He admitted that his brother Prakash is having a flour mill near Prakash Joshi 5 fa554-11 building. 5. As far as Memorandum of Understanding (MOU) at Exhibit-63 is concerned, the case of the appellant is that agreement for sale of a flat was executed in November 1993 by M/s Jayesh Construction Co. Ltd., in his favour as the said company was liable to pay him a sum of Rs.1,00,000/- as commission. Reliance is placed on MOU on 15th July, 1993 allegedly executed by and between the appellant and the Jayesh Construction Co. Ltd. which records that the said Jayesh Construction Co. is liable to pay Rs.1,00,000/- by way of commission to the appellant. In the agreement for sale of the flat, there is no reference to the earlier MOU. The MOU shows that way back in the year 1992, the appellant was already in profession of Estate Agent and was having a reasonable good business as a sum of Rs.1,00,000/- was payable only from one builder. There is no documentary evidence produced on record to show that the income of the appellant is only Rs.2,000/- or 2,500/- per month. Apart from the admitted position that the appellant has undivided share in the joint family property, it is also an admitted position that the appellant contested the Municipal Election. That is the reason why after considering the aforesaid aspects, a finding has been recorded that the income of 6 fa554-11 the appellant from his business must be at least Rs.8000/- per month and he must be getting additional income of Rs.2,000/- per month from agricultural operations on the joint family land. Considering admissions given by the appellant, estimate of income of the appellant arrived at by the trial Court is a conservative estimate. There is more than sufficient justification for fixing the permanent alimony of Rs.5,000/- per month. Reliance was placed on compromise pursis by and between the respondent and her first husband. The said compromise pursis was filed in a petition filed in the year 1992. Thereafter, the parties married on 21st February, 1994. What is stated in the compromise pursis is an agreement between the respondent and her first husband. Now the alimony has been made payable from 15th February, 2006 and, therefore, the said compromise has no bearing on the issue. 6. Hence, no case for interference is made out. The Appeal is dismissed with no order as to costs. 7. Civil Application No. 318 of 2009 does not survive and the same is disposed of. (A.S.OKA, J.)