HON’BLE SRI JUSTICE R. SUBHASH REDDY AND HON’BLE SRI JUSTICE A. SHANKAR NARAYANA FAMILY COURT APPEAL Nos.20 and 24 of 2008 and CROSS-OBJECTIONS (Sr.) No.28792 of 2008 in FCA No.20 of 2008 COMMON JUDGMENT: (Per Justice R. Subhash Reddy) These two Civil Miscellaneous Appeals, in F.C.A.Nos.20 and 24 of 2008, are filed under Section 19 of the Family Courts Act, 1984, aggrieved by the common order dated 08.09.2007 passed by the Family Court, Hyderabad in FCOP Nos.25 and 1032 of 2005, as such, they are heard together and disposed of by this common judgment.
2. Appellant herein is the petitioner in F.C.O.P.No.25 of 2005 on the file of the Family Court, Hyderabad. In the said O.P., petitioner claimed relief of partition and separate possession of half share in the petition schedule property.
3. It is the case of the petitioner that marriage between her and the respondent was solemnized on 10.10.1978 according to Hindu rites and customs and both are Doctors by profession. In view of differences between them, respondent approached the Family Court, seeking decree of divorce, which was ultimately granted by the Hon’ble Supreme Court, by allowing the Civil Appeal filed by the respondent. It is her case that, herself and the respondent are the joint-owners of the petition schedule property and her right to live in the petition schedule property is not only in the capacity of wife, but also as co-owner. It is pleaded that, herself and the respondent jointly obtained loan for the purpose of constructing the petition schedule house and repayments were made by both of them. After grant of decree of divorce by the Hon’ble Supreme Court, when demand is made for partition of the petition schedule property, pleading that respondent refused to accede to h e r request, she claimed that she is owner of the half share of the petition schedule property and sought for partition and separate possession.
4. Respondent filed counter-affidavit in the aforesaid O.P. While denying the various allegations made by the petitioner, it is stated that petitioner is his ex-wife and their marriage was ultimately dissolved by decree for dissolution of marriage, passed by the Hon’ble Supreme Court. It is further stated in the counter-affidavit that petitioner has no right whatsoever to continue in possession of the petition schedule property and from the date of divorce, petitioner is in illegal possession as trespasser, as such, he is entitled for mesne profits at Rs.20,000/- per month. In the counter-affidavit, it is specifically pleaded that, originally, father of the respondent was the owner and he has executed settlement deed dated 05.07.1984 conveying the plot admeasuring 230 sq. yards in his favour. It is further stated that, petitioner appears to have paid Rs.1,250/- to HDFC bank and all repayments were made and all loan amounts were repaid by the respondent. It is further averred that even if the petitioner is shown as one of the borrowers in the loan agreement, it is only nominal because entire loan amounts are paid by the respondent; as such petitioner has no right, title or interest in the petition schedule property and she cannot claim any legal rights. The respondent, while pleading that the loan was availed and repaid by him and the telephone bills, if any, will not create any title in evidence of proof of possession, sought for dismissal of the O.P., filed by the petitioner.
5. F.C.O.P.No.1032 of 2005 is filed by the respondent- husband. Mainly it is his case that the petition schedule property is his absolute property and the petitioner has no manner of right, title in the said property and the same was given to him by his father Dr. A.V. Rama Murthy, by a gift settlement deed and thereafter he has constructed a house. It is stated that even after dissolution of marriage pursuant to the orders passed by the Hon’ble Supreme Court on 02.12.2004, petitioner did not vacate the petition schedule property and on the other hand, she sought for partition of the same by making false allegations. Further, pleading that the property is situated in prime locality and the rental income is more than Rs.20/- per sq. ft., he sought eviction of the petitioner and prayed for grant of mesne profits from 01.12.2005 at the rate of Rs.20,000/-
per month.
6. Petitioner-wife has filed counter denying the allegations. While pleading that she is the co-owner in the petition schedule property, it is stated that the wish of her father-in-law was to give the said plot to both of them to construct a house and live therein. It is further pleaded that house was constructed by obtaining loan and she has contributed her savings towards construction and paid amounts towards repayment of the loan; therefore respondent-husband is not entitled for decree of delivery of possession of the petition schedule property.
7. F.C.O.P.Nos.25 of 2005 and 1032 of 2005 were clubbed together. Common enquiry was conducted in F.C.O.P.No.25 of 2005 and the evidence recorded therein is treated as evidence in F.C.O.P.No.1032 of 2005 also. The Family Court, having regard to the pleadings on record in both the F.C.O.Ps., has framed the following points for consideration:
“1. Whether the petitioner in O.P.No.25 of 2005 is co-owner of the petition schedule property along with respondent?
2. Whether the petitioner in O.P.No.25 of 2005 is having half share in the petition schedule property?
3. Whether a preliminary decree can be passed in favour of petitioner in O.P.No.25 of 2005 declaring the petitioner in O.P.No.25 of 2005 is entitled to half share in the petition schedule property?
4. Whether the petitioner in F.C.O.P.No.1032 of 2005 is entitled to recovery of possession of petition schedule property which is common in F.C.O.P.No.25 of 2005 and F.C.O.P.No.1032 of 2005?
5. Whether the petitioner in F.C.O.P.No.1032 of 2005 is entitled to mesne profits from 01.12.2005. If so to what amount till the date of delivery of possession?
6. To what relief?”
8. Before the Family Court, petitioner-wife was examined as P.W.1 and bank official was examined as P.W.2 and Exs.P.1 and P.2 were marked. On behalf of the respondent-husband, he was examined as R.W.1 and on his behalf Exs.R.1 to R.8 were marked. The Family Court, having considered the oral and documentary evidence on record, has held that marital relationship between the petitioner and respondent has come to an end on 02.12.2004 in view of the decree for grant of divorce granted by the Hon’ble Supreme Court. Having regard to the oral and documentary evidence, it was ultimately held that petitioner – P.W.1 has failed to prove that she has become the co-owner of the petition schedule property along with the respondent, to claim half share and while ordering eviction it was held that respondent-husband is entitled to recover possession of the petition schedule property. It was also held that subsequent to 02.12.2004, petitioner-wife is not entitled to reside in the petition schedule property as she ceased to be the wife of the respondent. Further, in view o f pendency of application filed by her, i.e. I.A.No.664 of 2006, the Family Court permitted the petitioner to continue in possession till such application is disposed of.
9. Heard Sri D. Prakash Reddy, learned senior counsel, assisted by Smt. S. Vani, learned counsel on record, for the appellant-wife and Sri M.R. Harsha, learned counsel for the respondent-husband.
10. Mainly it is contended by the learned senior counsel for the appellant-wife that though the petition schedule property was gifted by the father-in-law of the appellant to the respondent-husband, but, his intention was to allow both of them to construct a house for their benefit. It is submitted that even the petition schedule property was constructed by investing the savings of the petitioner and bank loan was obtained jointly and the appellant also repaid the loan amounts, as such, she is entitled for decree of partition and the respondent is not entitled to seek delivery of possession of the said property.
11. On the other hand, it is submitted by the learned counsel for the respondent-husband that, undisputedly, the property was owned by the father of the respondent, which he has gifted to the respondent by executing a gift settlement deed under Ex.R.1. It is submitted that the property was assessed in the name of the respondent under Ex.R.5 and the documentary evidence under Exs.R.5 to R.8 clearly discloses that respondent is the owner of the property. It is further submitted that as there is also no evidence to show that loan amounts were repaid by the appellant herein and, further, in view of the decree of divorce granted by the Hon’ble Supreme Court, there is no basis for claiming partition by the appellant herein and the respondent is entitled to recover possession of the petition schedule property.
12. Having heard the learned counsel for the parties, we have perused the material on record.
13. At the outset, it is to be noted that relationship of the appellant and the respondent has come to an end in view of the decree of divorce granted by the Hon’ble Supreme Court in Civil Appeal Nos.7763 and 7764 of 2004 on 02.12.2004. It is alleged by the appellant that though gift settlement deed has been executed in favour of the respondent-husband, intention of the father of the respondent-husband, who was her father-in-law, was that both of them should take the said plot of land, construct house thereon and lead family life in the said house itself, which is vehemently denied by the respondent. The respondent-husband pleads that his father gifted the property to him and the same is evident from the documentary evidence under Exs.R.1 to R.3. Except the self-serving statement of the appellant, there is no other material to show that though such gift is made in favour of the respondent-husband, the intention of the father of the respondent was to give benefit to both. As the title to the property is in the name of the respondent-husband and in the absence of any other evidence on record, it is not possible to accept the claim of the appellant that the property was gifted by her father-in-law for the benefit of both of them. Though certain documentary evidence was produced to show that appellant made contribution towards repayment of the loan obtained for construction, on a close scrutiny of the evidence, nowhere it can be seen that appellant has repaid the loan obtained from the bank. It is true that appellant is a co-applicant/borrower for the loan obtained for construction of the house, but, evidence on record shows that repayment of the loan is made by the respondent- husband alone and certain small amounts were paid by the appellant to the bank, before disbursement of the loan. In the cross-examination of the appellant herein, as P.W.1, in categorical terms, she has admitted that entire documents filed by her show that a sum of Rs.1,250/- only is paid by her in the bank. Merely because she is a co- applicant in the loan and in the absence of payment of any amounts by her towards repayment of the loan and further having regard to the undisputed fact that the site in question is in the name of the respondent, who claims the same by virtue of the gift settlement deed executed in his favour by his father, we are of the considered view that appellant herein has not made out any case either for partition or to resist eviction in the F.C.O.P., filed by the respondent-husband. At the same time, in the absence of any counter-claim, we do not find any merit in the cross- objections filed by the respondent-husband also.
14. For the aforesaid reasons, F.C.A.Nos.20 and 24 of 2008 as well as cross-objections (Sr.) No.28792 of 2008 in F.C.A.No.20 of 2008 are dismissed. The appellant herein is granted four months’ time to deliver possession of the petition schedule property in F.C.O.P.No.1032 of 2005 to the respondent, subject to condition of her filing an undertaking before the Registry of this Court, within two weeks from today, to the effect that she will vacate the premises within four months from today. A copy of such undertaking shall be served on the learned counsel for the respondent, before the same is filed in the Registry. It is made clear that if no undertaking is filed within the time stipulated above, it is open to the respondent, to execute the decree for eviction against the appellant herein without waiting for the period of four months. As a sequel, miscellaneous petitions if any pending stand closed. No order as to costs.
R. SUBHASH REDDY, J A. SHANKAR NARAYANA, J 5th September, 2014 MRR