Ajit Bhagwandas Udeshi vs Smt. Kumud Ajit Udeshi
2002 Latest Caselaw 988 Bom

JUDGMENT

V.C. Daga, J.

1. This appeal is directed against the judgment and decree dated 29th February, 1996 passed by the Seventh Family Court. Mumbai at Bandra in M. J. Petition No. A-529 of 1988.

2. The factual matrix lies in narrow compass. The appellant and respondent married on 25th November, 1960. The parties to the appeal have three issues from the said wedlock. The appellant is working with Life Insurance Corporation as Development Officer.

3. It appears that the matrimonial dispute cropped up between parties sometime in the month of November, 1980 i.e. after 20 years of married life, which, ultimately, resulted in a long drawn matrimonial litigation. The appellant moved Family Court against the respondent on various grounds for seeking decree of divorce. The Family Court considering the pleadings of the parties, framed issues relevant to the pleadings of the parties and after full trial was pleased to grant decree of divorce holding that the respondent (wife) deserted appellant (husband) for a continuous period of not less than two years next before filing of the petition and was also pleased to allow permanent alimony at the rate of Rs. 1,000/- per month from 29th February, 1996. In addition to the said amount of permanent alimony, the Family Court was also pleased to grant shelter. In other words, the residential premises which the respondent was occupying at the time of initiation of matrimonial dispute and decision thereof; was allowed to be retained by her with a declaration that the respondent (wife) would be entitled to reside on the ground floor of the said premises.

4. At the outset we may point out that the decree of divorce and the order granting permanent alimony in favour of the respondent (wife) has been accepted by the respondent (wife) as she did not challenge this part of the decree, which she has suffered at the hand of the Family Court. Consequently, the decree of divorce and order of permanent alimony has become final and conclusive.

5. The appellant (husband), not being satisfied with the part of the decree; which relates to the grant of residential premises (i.e. shelter) to the wife has preferred this appeal under the provisions of the Family Courts Act ("Act" for short). Thus the issue involved in this appeal is very limited one as to whether the Family Court was justified in granting shelter to respondent (wife). The case sought to be made out by the respondent (wife) in the written statement filed before the Court below was that the block at Princess Street. Mumbai was originally occupied by her grandmother as tenant, and after her marriage, she started staying with her grandmother along with her husband, the present appellant, in the said block. Her grandmother was one Indirabai Khobragade. The block occupied by her was numbered as room No. 2 located in the Kesar Building, Princess Street. Mumbai. The grandmother of the respondent, Smt. Indirabai expired sometime prior to the year 1968. The parties to this appeal continued to reside in

the said block in spite of death of the grandmother Smt. Indirabai right up to 1968. The landlord of the block and owner of the Kesar Building had filed case against the respondent after the death of Smt. Indirabai on the ground that the present respondent committed trespass in the block and sought decree of eviction from the said room No. 2. The said suit came to be compromised at the instance of the appellant (husband) who at the relevant time appears to have negotiated on behalf of the respondent (wife). The respondent (wife) in pursuance of the negotiation vacated the said room after taking Rs. 35,000/- from the landlord by way of compensation and goodwill. The case of the respondent (wife) is that the appellant retained this amount and had agreed to purchase one residential accommodation in her name out of the said amount of Rs. 35,000/- together with the sale proceeds of certain gold ornaments weighing about 40 tolas owned by the respondent which, according to her, were received from her deceased grandmother as her legal heir. It was further pleaded by the respondent that after taking the amount of goodwill and the sale proceeds realised from the sale of gold ornaments, the appellant instead of purchasing residential accommodation kept that amount with him and started harassing her. Ultimately, the accommodation with ground floor space with one left was acquired at Parshuram Wadi, 176/A, J.S.S. Road, Bombay on rental basis in his name. The appellant and respondent had jointly occupied the said premises with their kids and stayed together for sometime. With the emergence of difference of opinion respondent wife started staying on the ground floor portion of the said block and appellant husband occupied mezzanine floor of the said block but continued to stay under one roof.

6. It appears that there was some litigation between the parties at the instance of the respondent (wife) in the City Civil Court at Mumbai with respect to the ownership of the said tenanted block which, ultimately, came to be withdrawn. In the meantime, the appellant (husband) developed some illicit relations with one Miss Rekha Shah. With the emergence of this new relationship; he started insisting for divorce which was refused by the respondent (wife). Her refusal, ultimately, resulted in initiation of matrimonial litigation in the Family Court at

Mumbai. The appellant (husband) started living separately but did not vacate mezzanine portion of the block. However, the respondent (wife) continued to occupy the ground floor of the said block at Parshuram Wadi. That is how both of them started staying separately. The ground floor accommodation in question was with the respondent (wife), which has been allowed to be retained by her as shelter by the Family Court.

7. Being aggrieved by the said limited relief granted by the Family Court in favour of the respondent (wife) the appellant (husband) has preferred this appeal.

8. Shri S. G. Deshmukh, learned counsel appearing for the appellant contended that the trial Court committed serious error in accepting the case sought to be made out by the respondent (wife) to the effect that the appellant had retained the amount of Rs. 35,000/- paid by the landlord of the premises located at Kesar Building, Princess Street, Mumbai along with the said proceeds of the gold ornaments. He further contended that ample evidence is on record to show that the premises in Parshuram Wadi was taken on rent by the present appellant from his own sources and that is how the tenancy stands in the name of the appellant (husband). Based on this submission he contended that by way of shelter the said premises could not have been given by the Family Court to the present respondent.

9. Per contra, Mrs. Gokhale, learned counsel appearing for the respondent (wife) contends that the case sought to be made out by the appellant cannot be accepted as the evidence of the appellant on record is contrary to the submission advanced by the learned counsel for the appellant. She further contended that since the date of marriage, the appellant (husband) was residing with the respondent (wife), who at the relevant time was staying with her grandmother Smt. Indirabai Khobragade in accommodation located in the Kesar Building standing on the Princess Street, Mumbai. Smt. Indirabai left for heavenly abode sometime prior to the year 1968. The appellant (husband) continued to reside in the said accommodation right up to the year 1968 i.e. even after to the death of Smt. Indirabai, the grandmother of the respondent (wife). The landlord of the Kesar Building then filed eviction suit against the respondent (wife).

On the allegations that she committed trespass in the said premises. The said litigation was, ultimately, compromised with the intervention of the appellant (husband). He had negotiated with the landlord of the Kesar Building on behalf of respondent (wife), and ultimately, she vacated the said block after taking Rs. 35,000/- from the landlord by way of compensation and/or goodwill.

10. The learned counsel for the respondent (wife) further argued that this amount of Rs. 35,000/- and some gold ornaments were taken by the appellant (husband) from the respondent (wife) on the assurance that he would purchase another tenanted residential accommodation in her name out of the said amount. He. however, failed to abide by his promise. Ultimately, the premises which is presently allotted by the Family Court by way of shelter to the respondent (wife) was taken on rent after paying some amount of Pagadi, though in the name of the appellant (husband) but out of the amount paid by the respondent (wife). In this view of the matter, the learned counsel for the respondent (wife) contended that the Family Court was justified in allotting this premises (ground floor) as shelter to her and allowing her to continue to occupy the said premises by way of permanent shelter. She further submitted that the consideration for acquiring the present premises has been paid by her out of the amount of compensation received by her from the landlord of the earlier premises while vacating the accommodation, which was held by Smt. Indirabai, her grandmother, as such, the respondent (wife) has a Interest in the said block allotted to her as shelter. Consequently, in her submission, no fault can be found with the findings recorded and relief granted by the Court below in favour of the respondent (wife).

11. Having heard rival contentions and having examined the evidence brought on record, the case sought to be made out by the appellant (husband) cannot be accepted. It is clear from the evidence on record that the amount received by the respondent (wife) from the landlord of the Kesar Building was taken by the appellant (husband) along with gold ornaments. He immediately did not purchase any premises. It appears that after sometime the premises was taken on rent at Parshuram Wadi Girgaon, Mumbai by paying some Pagadi and thereafter the said premises was occupied by both of them for sometime. There is evidence on record to support the case of the respondent (wife) that she paid Rs. 14,000/- to her husband for being paid to the landlord of Girgaon premises. It further appears that prior to this payment amount of Rs. 8,000/- was paid to the appellant (husband) landlord of Girgaon premises at the instance of the respondent (wife). It is no doubt true that some amount appears to have been paid by both to acquire the Girgaon premises on rent but the substantial amount of Pagadi appears to have been paid by the respondent (wife) out of the amount received by her from the landlord of the Kesar Building. Under these circumstances, the findings recorded by the Family Court and the shelter awarded to the respondent (wife) cannot be faulted with. The appellant (husband) is not occupying the said accommodation though he has maintained his possession over the mezzanine floor of the said block. He is not staying in the said premises. He is presently staying in and occupying some other accommodation. Under these circumstances, he is not in need of the said accommodation. The respondent (wife) has no alternate accommodation. She cannot be without shelter. As such, relief granted by the Court below in favour of the respondent (wife) cannot be said to be perverse or unjustified.

12. It is needless to mention that the entire findings of the Court below are based on appreciation of evidence. Basically, the oral evidence coming from both the sides was taken into account by the Court below while granting relief in favour of the parties to the present appeal. The Apex Court in the case of Madhusudan Das v. Narayani Bai. has observed as under at Page 116; of AIR :

".......At this stage, it would be right to refer to the general principle that, in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that

the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. . . . ."

Keeping in view the aforesaid principles of appreciation of evidence laid down by the Apex Court, we do not think that the impugned judgment and decree needs to be interfered with. As such, appeal has no merit.

In the result, appeal is dismissed with no order as to costs.