Ghanshyam Bhawarlal Joshi vs Sau. Nirmala W/O Ghanshyam Joshi ...
2021 Latest Caselaw 15000 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR

                                   Second Appeal No.198 of 2021

                                 Ghanshyam Bhawarlal Joshi
                                            vs.
                         Sau. Nirmala w/o Ghanshyam Joshi & others
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              Shri J.B. Gandhi, Advocate for the Appellant.


                             CORAM            : S.M. MODAK, J.

                             DATE             : 13th OCTOBER, 2021.

                             Heard       learned     Advocate      Shri     J.B.    Gandhi       for    the
              appellant/plaintiff No.1.


              02]            Respondent No.1/defendant was the wife of plaintiff No.1.
              Plaintiff No.2-Ganesh is their son.                Though plaintiff No.1 and the
              defendant        married        with   each     other,    subsequently         after     long

cohabitation, their marriage was dissolved by mutual consent.

03] During subsistence of their marriage, plaintiff No.1 purchased certain immovable properties consisting of a flat and two plots in the name of the defendant. So also, he purchased a two wheeler in her name. After the dispute arose, plaintiff No.1 along with his son i.e. plaintiff No.2, filed the suit for declaration that in fact he is a owner and the property was purchased Benami. Defendant-wife contested the suit. Plaintiff No.1 examined five witnesses apart from him, whereas, the defendant-wife examined herself. On appreciation of evidence, the trial Court concluded that bar under Section 4 of the Prohibition of Benami Property Transactions Act, 1988 will not be

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applicable and as such the suit was held maintainable. However, the trial Court found that the evidence adduced by the plaintiffs was not sufficient to grant declaration, as a result, the suit came to be dismissed.

04] When both the plaintiffs filed the first appeal, they could not convince the appellate Court. Even the appellate Court confirmed the findings of the trial Court about insufficient evidence.

05] That is how, plaintiff No.1 has filed the present appeal. Plaintiff No.2 is joined as respondent No.2, whereas the wife is respondent No.1. The learned Advocate has taken me through the findings given by both the Courts below. There is a concurrent finding that the suit is maintainable and bar under the Act of 1988 is not applicable. The only issue, which is agitated is the appreciation done by both the Courts below. For that purpose, the observation of the trial Court about the testimonies of these witnesses need to be looked into.

06] The learned Advocate for the appellant invited my attention to the judgment of the Hon'ble Supreme Court passed in the case of Valliammal (deceased by L.Rs.) vs. Subramaniam & others - 2004(5) ALL MR (S.C.) 1041. The learned Advocate is at liberty to point out six circumstances laid down by the Hon'ble Supreme Court in paragraph 13 of the judgment, in addition to any other circumstance.

07] Hence, the matter is adjourned to 25 th of October, 2021 for hearing on that aspect.

JUDGE *sandesh