IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR.JUSTICE P.B. BAJANTHRI MISCELLANEOUS FIRST APPEAL NO. 6098/2014(FC) BETWEEN:
SMT MANJUSHA VIVEK PISE @ SMT MANJUSHA GOLE D/O SRI MANOHAR SUDAM RAO GOLE AGED ABOUT 40 YEARS RESIDENT OF F-203 LUNKAD SKYLOUNGE LANE VII, KALYANINAGAR PUNE 411 006, MAHARASHTRA PRESENTLY R/AT: FLAT NO. 8-10 SUVARNA PARK, N.D.A. ROAD BAVDHAN KHURD PUNE-411 021. ..APPELLANT (BY SRI VIJAY A.M., ADVOCATE) AND:
SRI VIVEK RAGHUNATH PISE S/O SRI RAGHUNATH PISE AGED ABOUT 41 YEARS PERMANENT R/O HOUSE NO.3 MOTIDEEP BALAWADI ROAD BAER, PUNE- 411 045 MAHARASHTRA STATE PRESENTLY RESIDING AT VILLA NO. 6, ADARSH VISTA, VIBHUTIPURA VILLAGE VIGNAN NAGAR, K.R.PURAM HOBLI BANGALORE-560 075 ... RESPONDENT (BY SRI OMKARESH, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 19 (1) OF THE FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED: 05.03.2014 PASSED IN O.S. NO. 201/2009 ON THE FILE OF 6TH ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BANGALORE, DISMISSING THE SUIT OF PLAINTIFF.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 10.12.2018 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BAJANTHRI J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant has questioned the validity of the judgment and decree dated 05.03.2014 passed by the VI Addl. Prl. Judge, Family Court, Bangalore in O.S.No.201/2009 by which her claim for half share in the suit schedule property has been rejected by the VI Addl. Prl. Judge, Family Court, Bangalore.
2. Brief facts of the case are that appellant and respondent got married in terms of Hindu rites and customs on 16.01.2001 at Pune, State of Maharashtra. Out of wedlock, a daughter by name Pranjal was born on 03.07.2003. For some time, they were living in United States of America and returned to India and shifted to Bangalore in the month of February 2002. Both were working at Bangalore. On 10.11.2002, respondent made down payment of Rs.9.5 lakhs to purchase villa no.6 located in Adarsh Vista Enclave, Vibuthipura Village, K.R.Puram Hobli, Bangalore East Taluk. On 07.06.2003, sale deed was executed. While doing so, respondent registered the property jointly in his and appellant’s name while availing loan for the period from 07.07.2003 to 07.11.2027 for a period of about 24 years (Ex.P.2). Appellant had issued 6 instalments cheques totaling sum of Rs.1,06,048/- for the period from August 2003 to February 2004 (wrongly mentioned as February 2003). This amount has been repaid to the appellant by the respondent through cheque of Citibank. When things stood thus, relationship between appellant and respondent was strained which led to separation in the month of September 2005 which concluded in decree of divorce in the month of August ’10. Since, name of the appellant reflected in the sale deed in respect of suit schedule property, appellant has filed a suit claiming half of the share in the suit schedule property in O.S.No.201/2009 which was dismissed on 05.03.2014. Hence, present appeal.
3. Learned counsel for the appellant vehemently contended that suit schedule property was purchased by the appellant and respondent. Appellant had issued 6 cheques for 6 instalments. It was further contended that appellant being a co-purchaser along with respondent, therefore, she is entitled for half share in the schedule property. Trial Court has erred in not appreciating the fact that appellant is a co-sharer in the suit schedule property whereas trial Court directed the appellant to execute the relinquishment deed unconditionally. Therefore, question of executing relinquishment deed would arise only if the party executing such a deed had share or right in such property. Further, trial Court has failed to appreciate the ratio laid down by the Division Bench of the High Court of Mumbai in SMT SUNITHA SHANKAR SALVI vs SHANKAR LAKSHMAN SALVI reported in AIR 2003 Bombay 431, wherein it is held that purchase of property when one’s spouse intended to treat the other as a co-owner, both the spouses are equally entitled to shares in the property. It was also contended that trial Court has erred in holding that merely the respondent had contributed higher value of money, that does not give him right to hold the entire schedule property when the appellant had contributed certain amount which the trial Court while passing the preliminary decree declaring the shares of the parties as provided under Order XXI Rule 18(2) of CPC, it has not been appreciated. Respondent has also admitted in the course of his evidence to the effect that schedule property was purchased in the joint names due to the love and affection he had towards the appellant at the relevant point of time. Appellant’s contention that even though she has not contributed monetarily towards water, electricity charges, taxes etc., appellant is ready and willing to contribute 50% of her share towards acquisition. She has also claimed mesne profits. Respondent has not taken the contention that appellant had immovable property at Pune in his written statement. Therefore, his contention cannot be taken into consideration. Thus, there was no justification for the Family Court to consider that appellant and her mother are owning two properties at Pune with reference to Exs.D.3 and D.4 - encumberance certificate, decree of divorce read with appellant’s remarriage itself is no bar for the appellant to continue to be a co-owner of the schedule property along with respondent. Having regard to the sale deed – Ex.P.1 which stands in the name of appellant and respondent, appellant is entitled to her share. Non- compliance of Section 35(2) of the Karnataka Court Fees and Suit Valuation Act by the appellant at the time of filing the suit, the said provision is not attracted in the present case having regard to the fact that appellant being a co-owner of the schedule property and she was in joint possession.
4. Trial Court proceeded to hold that appellant has not sought for declaration of title. Appellant is not required to seek for declaration of title as she is a co-purchaser along with the respondent in respect of schedule property. Further, burden is on the appellant to prove her monetary contribution and the finding in this regard arrived by the trial Court is erroneous, having regard to the status of the appellant that she is a co-purchaser.
5. In view of these facts and circumstances, the Appellant prayed for setting aside the judgment and decree passed in O.S.No.201/2009 dated 05.03.2014. Learned counsel for the Appellant relied on two decisions:-
1. SMT SUNITHA SHANKAR SALVI vs SHANKAR LAKSHMAN SALVI reported in AIR 2003 Bombay 431.
2. NAND KISHORE MEHRA vs SUSHILA MEHRA reported in (1995)4 SCC 572.
6. Further, decision of the Hon’ble Supreme Court in NAND KISHORE MEHRA vs SUSHILA MEHRA reported in (1995)4 SCC 572 wherein Hon’ble Supreme Court has interpreted Sub-section (2) of Section 3 of the Benami Transactions (Prohibition) Act, 1988 wherein paras. 6, 7 and 8 are extracted hereunder:
“6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any benami transaction. Sub- section (3) of Section 3, as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in sub- section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under sub- section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3(2) would become redundant. What we have said of the person and the property concerned in sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non application of the provisions of sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the selfsame reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contained in sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the Statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a Statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by sub-sections (1) and (2) of Section 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit.
7. Therefore, our answer to the question under consideration is that neither the filing of a suit nor taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of Section 4 of the Act.
8. Coming to the facts of the case on hand, the plaintiff had filed the suit in the High Court seeking relief in respect of properties alleged to have been purchased benami in the name of the defendant-his wife. A learned single Judge rejected the application filed by the defendant in that suit seeking rejection of the plaint on the ground that the suit was barred under Section 4 of the Act. The order of rejection of that application was appealed against by the defendant in a First Appeal filed in the same court.
A Division Bench of the High Court reversed the order of the learned Single Judge and granted the application of the defendant made in the suit seeking rejection of the plaint. It is that order which is now questioned by the plaintiff- husband in this appeal. Since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier, he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in sub-section (2) of section 3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him”.
7. Per contra, learned counsel for the respondent supported the judgment and decree passed by the Family Court. It was vehemently contended that it is true that with love and affection, respondent had registered the schedule property in the joint names of respondent and appellant. It was submitted that appellant was not aware that he had initially invested sum of Rs.9.5 lakh on 10.11.2002 to purchase the schedule property. It was made known to the appellant only in the year 2003 during the course of registration of schedule property on 07.06.2003. Respondent did not have sufficient cheque leaves. Therefore, he had requested appellant to issue 6 installment cheques for a sum of Rs.1,06,048/- for the period commencing August 03 to February ’04. It was also contended that it was a temporary measure as is evident from the fact that respondent had repaid to the plaintiff through Citi Bank, Bengaluru vide Cheque nos. 210755 dated 10.10.2003, 210760 dated 06.11.2003, 210765 dated 04.12.2003, 210769 dated 06.01.2004 and 8942911 dated 09.02.2004 respectively. After refund of the said amount, it is clear that appellant has not made any payments through ICICI Bank towards housing loan. Thus, there is no monetary contribution on behalf of the appellant towards purchase of schedule property. Merely, appellant’s name is entered in the sale deed and its registration, she cannot have any share in the property. Question of partition or claiming half share of the schedule property is impermissible since, Section 54 of the Transfer of Property Act require that proportionate contribution must be there and on the strength of it share of the parties have to be decided. It is also evident that appellant has made her intention clear that she is prepared to share 50% of the EMI and other expenditure meted out by the respondent like the property tax, water, electricity etc. so as to claim half of the share in the schedule property. Moreover, appellant was never in possession of the schedule property since as on the date of taking possession of the schedule property, relationship between the appellant and respondent had already strained. In other words, appellant had not enjoyed the schedule property at any given point of time. Appellant after having separated from respondent, she had purchased two properties at Pune along with her mother which was not disclosed to the respondent. If the intention of the appellant was that she needs property, she could have insisted the respondent in the month of September 2005 at the relevant point of time i.e., at the time of separation or on the date of decree and divorce in the month of August 2010. In the absence of any monetary contribution on behalf of the appellant, there is no legal provision so as to claim half of the share in the property by merely showing appellant’s name in the sale deed and registration as a joint property. The cited decisions are not relevant for the purpose of present case, since factual aspects of the case are entirely different.
8. In the case of SMT.SUNITA SHANKAR SALVI cited supra, factual aspects are that both husband and wife were in rented house. In order to demolish entire property, joint developer has agreed to give accommodation to all of those tenants or owners. Thus, in the case of SMT.SUNITA SHANKAR SALVI cited supra, husband and wife enjoyed the property as a tenant as well as on ownership whereas in the present case, appellant did not possess the schedule property at any point of time so also she was not in possession as well as enjoyed the property. The other citation viz., NAND KISHORE MEHRA’s case cited supra relating to interpretation of Benami Transactions (Prohibition) Act, 1988 is also not attracted in the present case having regard to the factual aspects. As regard the respondent’s intention of purchasing the schedule property in joint name, insofar as purchasing in the name of wife also is not a benami transaction for the reason that respondent had not paid any cash, all transactions were through bank, that too through his account except 6 instalments towards loan cheques which were issued by the appellant and later on the amount paid by the appellant was returned to her which is evident from the Citi Bank cheques issued from 10.10.2013 to 09.12.2014. Therefore, question of any interpretation of Benami Transaction (Prohibition) Act, 1988 do not assist appellant’s case. Thus, appellant has not made out a case.
9. Heard learned counsel for the parties.
10. Arising out of the above facts and circumstances:
(i) Whether appellant has made out a case so as to claim half share of the schedule property or not?
(ii) Further, whether suit is to be rejected on the score that stamp valuation is not in accordance with Section 35 of the Karnataka Court-Fees and Suit Valuation Act, 1958? Undisputed facts are that appellant and respondent were married on 16.01.2001. While investing a sum of Rs.9.5 lakhs as down payment on 10.11.2002, on 07.06.2003 sale deed was executed (Ex.P.1). Out of love and affection respondent intended to register the schedule property in the joint names. Thus, appellant’s name was entered along with the name of the respondent at the time of registration. Appellant has not contributed any money towards purchase of schedule property except issuance of 6 cheques for 6 instalments, that too which has been repaid by the respondent as is evident from Citi Bank cheques during the period from 10.10.2003 to 09.02.2004. Appellant has not produced any material to demonstrate that she had contributed any money towards purchase of schedule property in joint names. In the absence of production of any material to show that she had contributed money sufficiently to claim half of the share of the schedule property, appellant has not made out a case. Section 54 of the Transfer of Property Act has been taken note of by the Family Court to the extent that proportionate contribution must be there and on the strength of it, share of the parties to be decided. It is also evident that one of her contention is that she is prepared to bare 50% of the invested money by the respondent so also towards other expenses like property tax, water, electricity etc. In the absence of any piece of evidence that appellant had contributed towards purchase of schedule property, she has no claim over the schedule property merely on the score that her name is reflected in the sale deed and registration document.
11. Suit was held to be not maintainable for want of non-compliance of Section 35(1) of the Karnataka Court-Fees and Suit Valuation Act, 1958. Issue no.2 decided by the Family Court while interpreting Section 24(A) and 35(1) of the Karnataka Court Fee and Suits Valuation Act, 1958, since the respondent had denied the title of the appellant and also the fact that appellant is not in possession of the schedule property. Appellant is neither entitled for partition nor for mesne profits since, there is no contribution by the appellant towards EMI or other property expenditure meted out by the respondent herein.
12. Learned counsel for the appellant relied on the aforesaid citations in the case of – SMT SUNITA SHANKAR SALVI’s case it is evident that facts of the case are entirely different. In that case, couples had enjoyed the possession of the property, both as a tenant as well as owner in terms of the agreement entered into between the joint developer whereas in the present case, appellant did not enjoy the possession. Therefore, cited decision is distinguishable with reference to the factual aspect of the present case.
13. The other citation relied is on interpretation of Benami transaction is concerned, it is to be noted that respondent did not make any benami transaction. All transactions were made through bank and there is no cash transaction. That apart, appellant’s name was incorporated for the purpose of purchasing schedule property in joint names only out of love and affection. Therefore, provisions of Benami Transaction Act is not attracted. Hence, we pass the following:
ORDER Appeal is dismissed as the appellant has not made out a case so as to interfere with the judgment dated 05.03.2014 passed by the VI Addl. Principal Judge, Family Court, Bangalore in O.S.No.201/2009.
Sd/-
JUDGE Sd/- JUDGE brn