Bombay High Court
Mrs. Rajeshri V. Mahesh vs Mr. Mahesh Vennalakanti on 1 April, 2024
Bench: B. P. Colabawalla, M. M. Sathaye
2024:BHC-AS:15342-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 97 OF 2014
Arising out of
PETITION NO. A-480 OF 2010
Rajeev Ruia
(S/o. Mrs. Rajeshri V. Mahesh) being
an adult Indian Inhabitant of
65 years, having his address at:
702, 7th Floor, D-Wing, RNA Continental,
Subhash Nagar, Chembur (East) Mumbai-400071. .. Appellant
Versus
Mahesh Vennalakanti
Age 64 years, Indian Inhabitant of
Mumbai residing at 404, Marina
Apartment, near Palm Grove Hotel
Juhu Tara Road, Mumbai-400 049 .. Respondent
Mr. Dinesh Kumar Seth i/b. Mehul Rathod for the
Appellant.
Mr. Rohan Kadam a/w Karishma Rao i/b. Pankaj Bhatt
for the Respondent.
Mr. Rajeev Ruia, Appellant is present.
CORAM : B. P. COLABAWALLA &
M. M. SATHAYE, JJ
RESERVED ON : NOVEMBER 10, 2023
PRONOUNCED ON : APRIL 01, 2024
Page 1 of 85
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JUDGMENT:
[ B. P. COLABAWALLA, J. ]
1. The above Family Court Appeal impugns the Judgment and
Decree dated 11th March 2013 passed by the Family Court at Bandra. By
the impugned Judgment, the Family Court has:
(a) dismissed the Petition for judicial separation [under Section
10 of the Hindu Marriage Act, 1955] filed by Mrs. Rajeshri V.
Mahesh [for short the "Original Appellant"] against the
Respondent;
(b) decreed the Respondent's counterclaim for divorce under
Sections 13(1)(i-a) [on the ground of cruelty] and 13(1)(i-b)
[on the ground of desertion] of the Hindu Marriage Act,
1955; and
(c) held that the Respondent is the sole and absolute owner of
Flat No. 404, Marina Apartments CHS, Juhu Tara Road,
Mumbai -400049 [for short the "Juhu Flat"].
2. Originally, the Petition seeking judicial separation was filed
by Mrs. Rajeshri V. Mahesh [the Original Appellant] who was the wife of
the Respondent. She was previously married and has a son from her
previous marriage [the present Appellant]. The above Family Court
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Appeal was also originally filed by Mrs. Rajeshri V. Mahesh as she was
aggrieved by the impugned Judgment and Decree passed by the Family
Court on 11th March 2013. During the pendency of the above Appeal, the
said Mrs. Rajeshri V. Mahesh [the Original Appellant] passed away on
15th January 2022. Accordingly, pursuant to order dated 9th June 2023
passed in Interim Application No. 4753 of 2023, the present Appellant,
namely, the son of Mrs. Rajeshri V. Mahesh from her first marriage, was
substituted as the Appellant being her legal heir. The said Mrs. Rajeshri
V. Mahesh and the Respondent had no children from their marriage.
3. Be that as it may, in view of the death of Rajeshri V. Mahesh,
the Appeal against the impugned Judgment, in so far as it dismisses her
Petition for judicial separation and decrees the Respondent's
counterclaim for divorce, is not pressed by Mr. Seth, the learned advocate
appearing for the present Appellant. The sole issue for consideration and
which now survives in the above Family Court Appeal, is the correctness
of the Family Court's order that the Respondent is the sole and absolute
owner of the Juhu Flat.
4. To consider whether the Family Court's finding on this issue
is correct or otherwise, it would be necessary to set out some brief facts.
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In September 1970, the Respondent became an employee of one M/s.
Woolcombers of India ["Woolcombers"], a subsidiary of Duncan
Brothers. Accordingly, in October 1972, the Respondent was provided
accommodation by Woolcombers at Flat No. 123, Mehr-Naz, Cuffe
Parade, Colaba, Mumbai [for short the "Cuffe Parade Flat"].
Woolcombers were the tenants of the Cuffe Parade Flat and the landlords
were one Mr. and Mrs. Rangnekar.
5. On 27th December 1977, the Respondent married the said
Rajeshri V. Mahesh [the Original Appellant], who thereafter began
residing with him in the Cuffe Parade Flat. In the year 1979, the
Respondent left the employment of Woolcombers and joined Tata
Exports Ltd. He also claimed tenancy in relation to the Cuffe Parade Flat
and filed R.A.E Suit No. 183/262/1979 in the Small Causes Court at
Mumbai against the landlords for fixation of standard rent in respect of
the Cuffe Parade Flat. Certain other proceedings were also initiated by
the landlords for regaining possession of the Cuffe Parade Flat from the
Respondent. Be that as it may, on 4th April 1985, the landlords [namely,
Mr and Mrs. Rangnekar] and the Respondent entered into consent terms
in Arbitration Case No.512 of 1981 for settling all their inter-se litigation.
The terms of this settlement inter-alia recorded that the landlords agreed
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to pay a sum of Rs. 4,40,000/- to the Respondent by Demand Draft and
the Respondent agreed to vacate the Cuffe Parade Flat on or before 30th
May 1985. In the said settlement, the landlords also declared that they
would not make any claim for rent, compensation and/or arrears against
the Respondent. Because of this settlement, all parties agreed to
withdraw all proceedings filed against each other.
6. While all this was going on, in 1985, the Respondent
searched and finalized the purchase of the Juhu Flat from the developer,
namely, one Marina Corporation. For paying the sale consideration of the
said Juhu Flat, the employer of the Respondent, namely, Tata Exports
Ltd. sanctioned a PF loan of Rs. 81,000/- and directly issued a cheque
dated 10th April 1985 in the name of Marina Corporation. In fact, Marina
Corporation also issued a receipt of Rs. 81,000/- in the name of the
Respondent and the Original Appellant. This was because the Juhu Flat
was to be purchased in the joint names of the Respondent and the
Original Appellant [Rajeshri V. Mahesh].
7. Since the Respondent was able to finalize the purchase of the
Juhu Flat, on 7th May 1985, the Respondent's Advocate wrote to the
landlords of the Cuffe Parade Flat informing them that they were able to
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find alternate accommodation and requesting them to take possession of
the Cuffe Parade Flat against payment of Rs. 4,40,000/- [by Demand
Draft].
8. On 20th May 1985, for the Juhu Flat, Marina Corporation
executed an Agreement for Sale in the joint names of the Respondent and
the Original Appellant for a consideration of Rs. 4,86,000/-. Thereafter,
the Respondent handed over possession of the Cuffe Parade Flat to their
landlords and against the said handing over, the Respondent received a
Demand Draft of Rs. 4,40,000/- which was deposited in his Saraswat
Bank Savings Account. On 25th May 1985, the Respondent paid Marina
Corporation a sum of Rs. 4,40,000/- by way of Demand Draft No. 80374.
In turn, Marina Corporation issued six receipts for a total sum of Rs.
4,39,545/- in the name of the Respondent and the Original Appellant. In
other words, on 25th May 1985, the developer, namely, Marina
Corporation issued seven receipts totaling to Rs. 5,20,525/- which not
only included the purchase price of the Juhu Flat but also certain monies
paid towards stamp duty, electricity deposit and the sinking fund deposit.
The Respondent and the Original Appellant accordingly moved into and
started occupying the Juhu Flat.
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9. Thereafter, on 6th November 1985, a Leave and License
Agreement was executed between the Original Appellant and the
Respondent's employer - Tata Exports Ltd. This Leave and License
Agreement was in relation to the Juhu Flat. According to the Respondent
he had approached Tata Exports Ltd. at the time of purchasing the Juhu
Flat who advised him to add the Original Appellant's name in order to
take advantage of a higher rental allowance that would be paid under his
service terms and conditions. It is important to note that Tata Exports
itself gave a PF loan to the Respondent for purchasing the Juhu Flat.
10. The Respondent and the Original Appellant thereafter
continued to reside in the Juhu Flat until disputes arose between them,
and the Original Appellant filed Petition No. A/480 of 2010 in the Family
Court at Bandra, seeking judicial separation under Section 10 of the
Hindu Marriage Act, 1955. To this Petition, the Respondent filed his
written statement contesting the Original Appellant's claim for judicial
separation. He also filed a counterclaim seeking a divorce under Section
13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. On 22nd
September 2011, the Family Court framed issues qua the judicial
separation and the divorce.
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11. Thereafter, the Original Appellant amended her Petition to
insert a new cause of action qua the Juhu Flat. She amended her Petition
for incorporation of averments in support of and for seeking a relief that
the Juhu Flat be sold and the sale proceeds be divided between the
Respondent and the Original Appellant. To this amendment, the
Respondent filed his additional written statement contesting the Original
Appellant's new claim qua the Juhu Flat and her case that she was the
50% owner of the said Flat as she had contributed 50% of the purchase
money. The Family Court on the basis of the new claim pressed by the
Original Appellant framed two additional issues, namely, (i) does the
Respondent prove that he had paid the entire consideration for the Juhu
Flat and that he is sole owner thereof; and (ii) Whether the Original
Appellant was entitled to get a decree to direct the Respondent to sell the
Juhu Flat and entitled to 50% of the sale consideration.
12. Thereafter, the parties filed their respective evidence before
the Family Court and the Family Court heard the arguments canvassed
by both sides. After all this, on the basis of the pleadings as well as the
evidence led by the parties, the Family Court passed the impugned
Judgment dated 11th March 2013 and dismissed the Original Appellant's
Petition for judicial separation and decreed the Respondent's
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counterclaim for divorce. The Family Court, in the impugned Judgment,
also gave a finding that the Original Appellant failed to prove that she is
the joint owner of the Juhu Flat because she was not able to establish that
she has paid any consideration for the same. The Family Court also came
to the conclusion that the entire consideration for the Juhu Flat was paid
by the Respondent-Husband. In these circumstances, the Family Court
gave a finding that the Respondent-Husband is the absolute owner of the
Juhu Flat and the Original Appellant is not entitled to get a decree/order
to direct the Respondent to sell the Juhu Flat or get a share in the sale
proceeds thereof. As stated earlier, being aggrieved by the Family Court
Judgment, the present Appeal is filed.
13. In this factual backdrop, Mr. Seth, the learned Counsel
appearing for the Appellant, submitted that the present Family Court
Appeal is pressed against the findings given by the Family Court in so far
as it relates to the refusal of dividing the Juhu Flat in which the Original
Appellant [and now the current Appellant being the son of the Original
Appellant] has a 50% share. He submitted that the claim of the 50% share
of the Juhu Flat has been set out in grounds of Appeal. According to Mr.
Seth, the Original Appellant is entitled to this 50% share not only by
invoking the provisions of the Benami Transaction (Prohibition) Act,
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1988, but also by virtue of Section 14 of the Hindu Succession Act, 1956.
He also attacked the impugned order by contending that it is contrary to
the provisions of the Limitation Act, 1963. He, however, fairly pointed out
that neither in the Family Court Petition nor in the present Family Court
Appeal there is any reference to (a) The Benami Transaction
(Prohibition) Act, 1988; (b) Section 14 of the Hindu Succession Act, 1956;
or (c) the Limitation Act, 1963. He submitted that despite this, under
Section 7 of the Family Court's Act, 1984, and more particularly under
Section 7(1)(a) thereof, the Family Court is a District Court and therefore
had full power to decide the issue of the 50% share of the Juhu Flat by
looking into the provisions of (a) the Benami Transaction (Prohibition)
Act, 1988; (b) Section 14 of the Hindu Succession Act, 1956; as well as (c)
the Limitation Act, 1963. He submitted that the Family Court ought to
have considered these provisions notwithstanding the fact that no issue
regarding the same was ever raised before it. He submitted that the
Family Court ought not to have decided the issue of the 50% ownership
of the Juhu Flat only as per Section 45 of the Transfer of Property Act,
1882. He, therefore, submitted that notwithstanding the fact that these
points were not raised either before the Family Court, or even in the
Memo of Appeal before this Court, we ought to take these provisions into
consideration for deciding whether the impugned Judgment [holding
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that the Original Appellant is not entitled to any share in the Juhu Flat],
is correct or otherwise. In support of this proposition, Mr. Seth relied on
a decision of the Hon'ble Supreme Court in the case of N. Mani Vs.
Sangeetha Threatre and Ors. [(2004) 12 SCC 278].
APPLICABILITY OF THE BENAMI TRANSACTIONS (PROHIBITION)
ACT, 1988
14. Mr. Seth took us through the impugned Judgment as well as
the evidence led by the parties before the Family Court and impugned the
Family Court's Judgment [on the issue that the Original Appellant was
entitled a 50% share in the Juhu Flat], to contend that the test laid down
under the provisions of the Benami Transactions (Prohibition) Act, 1988
were not met by the Respondent and therefore, notwithstanding the fact
that the Respondent had paid the entire consideration for purchase of the
Juhu Flat, it would not entitle him to be declared as the absolute owner
thereof. In this regard, Mr. Seth relied upon Section 3(2) of the Benami
Transactions (Prohibition) Act, 1988 as it stood prior to its amendment
in the year 2016. Mr. Seth submitted that by virtue of Section 3 of the
Benami Transactions (Prohibition) Act, 1988 [as it stood prior to its
amendment], the Respondent can claim full ownership of the Juhu Flat
only if he can prove that the said Flat was not purchased for the benefit
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of the Original Appellant [the wife]. This is notwithstanding the fact that
the entire consideration for purchase of the Juhu Flat was paid by him.
In support of this proposition, Mr. Seth relied upon the Judgment of the
Hon'ble Supreme Court in the case of Nand Kishore Mehra Vs.
Sushila Mehra [(1995) 4 SCC 572]. Mr. Seth submitted that in the
facts of the present case, the Family Court erred in not considering that
the Respondent had made binding admissions in his written statement
and counterclaim that he had added the name of the Original Appellant
in the Juhu Flat purchase deed, out of love and affection, and for her
security. Mr. Seth submitted that once this was the admission, the
Respondent could not be allowed to resile from this binding admission
made in the first instance, by subsequently changing his pleadings in his
additional written statement that the Respondent had put the Appellant's
name only for the sake of convenience. He submitted that since the
Original Appellant's name was included in the purchase deed of the Juhu
Flat out of love and affection, and for her security, the Family Court erred
in not considering that it would make no difference if the Respondent
paid the entire consideration, or otherwise. He submitted that if the
purchase of the Juhu Flat was to provide the wife with security, it is a
fundamental feature that must be kept in mind while determining the
nature of a sale/purchase transaction in determining whether the Juhu
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Flat was purchased Benami. In support of this proposition, Mr. Seth
relied upon the decision of the Hon'ble Supreme Court in the case of Om
Prakash Sharma Alias O.P. Joshi Vs. Rajendra Prasad
Shewda & Ors. [(2015) 15 SCC 556].
15. Mr. Seth then submitted that the tests for reclaiming
ownership of properties under Benami Transactions, before the
enactment of the Benami Transactions (Prohibition) Act, 1988, can be
found in the Judgments of the Hon'ble Supreme Court in the Case of
Jaydayal Poddar (Deceased) Through L.Rs. & Anr. Vs. Mst.
Bibi Hazra & Ors. [(1974 1SCC 3]; and Thakur Bhim Singh Vs.
Thakur Kan Singh [(1980) 3 SCC 72]. He submitted that the test
laid down in the case of Jaydayal Poddar (supra) is that the Court
has to examine (i) the source from which the purchase money came; (ii)
The nature and possession of the property after the purchase; (iii) motive,
if any, for giving the transaction a Benami colour; (iv) the position of the
parties and the relationship, if any, between the claimant and the alleged
Benamidar; (v) the custody of the title deeds after the sale; and (vi) the
conduct of the parties concerned in dealing with the property after the
sale. He submitted that the ratio in the case of Jaydayal Poddar
(supra) has been followed in subsequent judgments wherein the same
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tests are applied for determining the nature of the benami property.
However, post the Benami Transactions (Prohibition) Act, 1988, the
additional tests prescribed by the Hon'ble Supreme Court in the case of
Nand Kishore Mehra (supra) is also applied, namely, that the
husband has to prove that the properties concerned have not been
purchased for the benefit of the wife, even if he succeeds in showing that
the consideration for the purchase of those properties had been paid by
him. He submitted that if these tests were to be applied to the transaction
in question, it is clear that the Respondent has been unable to prove that
the Juhu Flat was not purchased for the benefit of the Original Appellant-
wife, and therefore, could not have claimed full ownership of the Juhu
Flat. He submitted that this is notwithstanding the fact as per the
evidence of the parties, it is proved that the Respondent paid 100% of the
consideration for the Juhu Flat. Even otherwise, he submitted that out of
the tests laid down by the Hon'ble Supreme Court [referred to by us
earlier, and which were to be applied before the enactment of the Benami
Transaction (Prohibition) Act, 1988 was brought into force], barring one,
none of the other tests have been fulfilled. Once this is the case, then, the
Respondent could not have claimed 100% of the ownership of the Juhu
Flat as the same was clearly barred not only by the Judgments of the
Hon'ble Supreme Court prior to the enactment of the Benami
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Transactions (Prohibition) Act, 1988 but even after its enactment [by
virtue of Section 3(2) thereof].
16. In answer to the aforesaid arguments, Mr. Kadam, the
learned Counsel appearing for the Respondent, submitted that the
Original Appellant had initially filed a claim before the Family Court only
seeking judicial separation under Section 10 of the Hindu Marriage Act,
1955. Thereafter, on 18th February 2012, the Original Appellant amended
her Petition to seek reliefs for sale of the Juhu Flat and for directions to
distribute 50% of the sale proceeds to her. He submitted that this relief
was sought on the specific ground that she was the owner of the 50%
share in the Juhu Flat by virtue of having contributed equally towards its
purchase. He submitted that this is clear not only from the pleadings but
also from the evidence led by the Original Appellant before the Family
Court. In this regard, he took us through the pleadings filed before the
Family Court. He, thereafter, submitted that after this plea was taken and
the issue of ownership of the Juhu Flat became a live issue, the
Respondent filed an additional written statement on 1st March 2012. He
took us through the additional written statement and pointed out that the
Respondent categorically denied that the Original Appellant had
contributed anything towards the purchase of the Juhu Flat and
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reiterated and asserted that the entire consideration emanated from him,
and that it was only purchased jointly in her name for the sake of
convenience. Mr. Kadam submitted that it was not the case of the Original
Appellant either before the Family Court or even in the present Memo of
Appeal that the 50% share of the Juhu Flat was either gifted to her or was
purchased for her benefit. No evidence in support of this contention was
ever led by the Original Appellant and no issues in relation to the same
were either framed. He submitted that in fact she came with a positive
case that she is a 50% owner of the Juhu Flat by virtue of the fact that she
has contributed equally to purchase the same. If this is the positive case
with which she approached the Family Court, she cannot be heard to say
that the Juhu Flat was bought for her benefit. The two cases would be
mutually destructive of each other. He submitted that once this was not a
case put up before the Family Court, then, it would be highly improper to
entertain this argument in this Court for the simple reason that whether
the Juhu Flat was bought for her benefit or otherwise would be a question
of fact for which evidence would have to be led and the opposite party
would have to be given an opportunity to meet that case. This is
completely absent in the facts of the present case. He submitted that in
the absence of proper pleadings as well as evidence regarding the
applicability of the Benami Transactions (Prohibition) Act, 1988, such
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arguments can never be canvassed, and no cognizance of the same can be
taken by this Court. He submitted that only in exceptional cases can the
Court assess a case not specifically pleaded, but even then, the pleadings
in substance should contain the necessary averments to make out a
particular claim, the issues framed should also generally cover the
question involved, and the parties proceed on the basis of the said issue,
to lead evidence accordingly. In this regard, Mr. Kadam relied upon a
decision of the Hon'ble Supreme Court in the case of Bacchaj Nahar
Vs. Nilima Mandal [(2008) 17 SCC 491]. He, therefore, submitted
that the aforesaid argument ought not to be taken into consideration at
all for deciding whether the Family Court had erred in giving a finding
/declaration that the Respondent is the sole owner of the Juhu Flat
because he has paid the entire consideration for purchase of the said Flat.
17. Be that as it may, and without prejudice to his forgoing
argument, Mr. Kadam also addressed us on whether the Benami
Transactions (Prohibition) Act, 1988 would apply to the facts of the
present case. He submitted that the said Act does not prohibit and/or
preclude the Respondent from asserting his ownership rights for the
Juhu Flat. He submitted that Section 3(2) of the said Act [prior to its
amendment in 2016] excluded properties purchased in the name of the
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wife or unmarried daughter from the prohibition imposed on Benami
Transactions but was subject to a presumption that the said property had
been purchased for the benefit of the wife or unmarried daughter. In
other words, the presumption was a rebuttable one, upon proof being
shown to the contrary. He submitted that in the present case, this
presumption was duly rebutted by the following :-
a. By the Original Appellant herself pleading a case and
attempting to lead evidence claiming that she was the owner
of 50% share in the Juhu Flat by virtue of contributing her
own funds. Such a case was in itself destructive of and
militates against pleas that the Juhu Flat was gifted to her,
transferred in lieu of a right of maintenance, or that it was
purchased for her benefit.
b. The presumption was rebutted by the Respondent as well
who pleaded a case and successfully proved that the Original
Appellant's name was only added for convenience (such as
the Tata Exports Leave & License Agreement referred to
earlier).
c. Even when cross-examining the Respondent, the Original
Appellant only confronted him and suggested to him her
case of having equally contributed to purchase the Juhu Flat.
No questions were put nor was it suggested to the
Respondent that the Juhu Flat was purchased in her name
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for her benefit and/or gifted to her.
d. Confronting the Respondent with alternate cases of
ownership of the Juhu Flat being gifted and/or it being
purchased in the Original Appellant's name for her benefit,
was a matter of substance and mandatory. Having not done
so, it was not open to the Original Appellant or to her son
[the present Appellant] to propound these cases today.
18. Thus, according to Mr. Kadam, the presumption under
Section 3(2) of the unamended Benami Transactions (Prohibition) Act,
1988 stood duly rebutted by pleadings and proof.
19. As far as the so-called admission made by the Respondent is
concerned, Mr. Kadam submitted that no admission was ever made by
the Respondent that the Juhu Flat was purchased in the Original
Appellant's name for her benefit. He submitted that an admission must
be clear, unambiguous and unimpeachable. In other words, such an
admission should capture a clear, unambiguous and unimpeachable
intent on the Respondent's part that the Juhu Flat was purchased in the
name of the Original Appellant for her benefit. He submitted that the
Respondent's statement in his first written statement is hardly an
admission since he has clearly averred that he added the name of the
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Original Appellant to the Agreement and Share Certificate after being
emotionally blackmailed and being unaware of the legal implications of
the same. This does not point to a clear, unambiguous, voluntary, and
informed intent with knowledge that the addition of her name was for her
benefit. Indeed, the Original Appellant herself did not think it was an
admission since :-
a. The Respondent's pleading was in his Written Statement to
her Petition for judicial separation as originally filed on 15th
July 2010. There was no controversy and/or relief claimed at
that time by the Appellant qua the Juhu Flat.
b. The Original Appellant thereafter amended her petition to
seek reliefs in respect of the Juhu Flat on 18th February 2012.
Though fully cognizant of the Respondent's pleading (as it
stood then), the claim nevertheless proceeded on the plea
that she was an owner of the 50% share of the Juhu Flat by
having equally contributed towards the said Flat's Purchase.
c. When title to the Juhu Flat became a live controversy in
issue [pursuant to the amendment], the Respondent filed his
additional written statement deposing to paying the full
consideration and joining the Original Appellant's name
solely for the sake of convenience.
d. Thus, the Original Appellant's case all along was of acquiring
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50% ownership in the Juhu Flat on her own steam through
contribution. Having failed in that case, it is now not open
for her to argue that the Juhu Flat was purchased by the
Respondent for her benefit.
20. In the alternative, Mr. Kadam submitted that even assuming
for the sake of argument that the Respondent's pleading was an
admission, it was akin to a previous statement having been made prior to
the amended Petition which introduced a new claim and/or cause of
action specifically making title to the Juhu Flat a live issue only in 2012.
In these circumstances, to rely on such an admission, it was incumbent
upon the Original Appellant to confront the Respondent with this
statement in order for him to tender an explanation and clear up the
issues in detail. A mere proof of admission, after the person whose
admission it is alleged to be, has concluded his evidence, will be of no
avail and cannot be utilised against him. In support of this proposition,
Mr. Kadam, relied upon the Judgments of the Hon'ble Supreme Court in
the case of (i) Sita Ram Bhau Patil Vs. Ramchandra Nago Patil
(Dead) By L. Rs. & Anr. [(1977) 2 SCC 49]; (ii) Raveen Kumar
Vs. State of Himachal Pradesh [(2021) 12 SCC 557]; and (iii)
Udham Singh Vs. Ram Singh and Anr. [(2007) 15 SCC 529]. Mr.
Kadam submitted that since the Respondent was not confronted during
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the cross-examination regarding the alleged admission [if it can be taken
as an admission at all], it is not open for the present Appellant to latch on
to the said statement and misconstrue a stray pleading and claim it to be
an admission, and that too after the Respondent closed his evidence. In
any event, Mr. Kadam submitted that admissions are not conclusive
proof, and the entirety of the evidence and pleadings have to be
examined, and if that is done, it is evident that the live issue was really as
to who paid for the Juhu Flat. Both parties went to trial knowing fully well
that title to the Juhu Flat would be established by proof of who supplied
the funds. Once this was the case before the Trial Court, the so-called
admission that the Juhu Flat was bought for the Original Appellant's
benefit or for her security, is wholly irrelevant. Even otherwise, Mr.
Kadam submitted that the Respondent has satisfied all the legal tests. He
submitted that this is not strictly a vanilla case of benami since the Juhu
Flat is held jointly in the name of the Respondent and the Original
Appellant. Though a title deed/document carries an initial presumption
that the name of the persons therein as owners, are indeed the true
owners, this presumption is displaced once it is shown that consideration
flows only from one of the parties. He submitted that where it is asserted
that an assignment in the name of one person is in reality for the benefit
of another, the real test is the source of the consideration and also who
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has been in enjoyment of the benefits of the transaction. He submitted
that certain tests have been laid down by the Hon'ble Supreme Court in
the case of Jaydayal Poddar (supra). These are not hard and fast
rules that are uniformly applicable to determine whether a particular
property was held benami. The guiding principles were laid down in the
said Judgment. Pertinently at paragraph (7) thereof, the Court has
expressly clarified that these indicia were not exhaustive, and their
efficacy varied according to each case. Mr. Kadam submitted that in fact
at paragraph (7), the Supreme Court in the case of Jaydayal Poddar
(supra), expressly emphasized that the source of the purchase money is
by far the most important test for determining whether the property
standing in the name of one person is in reality for the benefit of another.
In fact, even in the case of Thakur Bhim Singh (supra), the Supreme
Court further cautioned [at paragraph 27], that a person who spent
money on the property with the knowledge of the actual state of affairs
would not in law confer on that party a proprietary interest therein. In
other words, even assuming for the sake of argument that the Original
Appellant had paid any maintenance charges as alleged by her, and
though not proved, the same would not give her any proprietary interest
in the Juhu Flat. In the facts of the present case, Mr. Kadam submitted
that the Original Appellant came to Court with an express case that she
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paid 50% of the funds for purchase of the Juhu Flat and therefore was the
50% owner thereof. Having confined her case to this, it was not open for
her to plead a destructive and an inconsistent case that the Juhu Flat was
bought for her benefit, gifted to her and/or transferred in lieu of
maintenance. He submitted that in the facts of the present case, the
Respondent has undoubtedly satisfied the most important test laid down
in the case of Jaydayal Poddar (supra) of having paid full
consideration for the Juhu Flat. This is undisputed. He was also in
possession and was residing there. He has also successfully deposed to
the motive of adding her name, namely that it was added for the sake of
convenience [such as higher salary benefits accruing due to the Tata
Exports Leave and License]. The title deeds of the said Juhu Flat were
also in the Flat itself and the Original Appellant herself has admitted that
the Respondent had paid maintenance charges many times. This is apart
from the fact that the current Appellant's contention that the Original
Appellant was paying maintenance charges is unbelievable since her
deposition to that effect was wholly uncorroborated. The only documents
shown to this effect was a receipt that was issued in the year 2011 [i.e.
after filing of the Petition for judicial separation]. Once this is the case,
then, even the tests laid down in the case of Jaydayal Poddar (supra)
are fully met, was the submission of Mr. Kadam.
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21. The last argument canvassed on this issue by Mr. Kadam was
that while the present Appeal is pending, the Benami Transactions
(Prohibition), Act, 1988 is amended in the year 2016. By virtue of the
2016 amendment, the presumption under Section 3(2) is no longer
available in view of its deletion under the 2016 amendment. He submitted
that now by virtue of the provisions of Section 2(9)(A)(b)(iii) of the said
Act, the Respondent has to prove that though the property was bought in
the name of spouse or in the name of any child of such person, the
consideration for such property has been provided or paid out of the
known sources of such individual. In other words, the presumption that
was there in Section 3(2) has been removed. He submitted that, in fact,
the Act itself provides in Section 1(3) that the provisions of Section 3, 5
and 8 shall come into force at once, and the remaining provisions of this
Act shall be deemed to have come into force on 19th May 1988. In other
words, the provisions of Section 2(9)(A)(b)(iii) are retrospective and
therefore, we ought to apply the law as contemplated by the 2016
amendment. If this be the case, then, the entire case of the Original
Appellant based on the provisions of the Benami Transactions
(Prohibition) Act, 1988 fails because it is an admitted fact that the entire
sale consideration of the Juhu Flat was paid by the Respondent and no
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contribution for the same was made by the Original Appellant. He,
therefore, submitted that there was absolutely no merit in the arguments
canvassed by Mr. Seth on the applicability of the Benami Transactions
(Prohibition) Act, 1988 to negate the findings given by the Family Court
regarding the fact that the Respondent was the 100% owner of the Juhu
Flat.
FINDINGS AND CONCLUSIONS ON THE APPLICABILITY OF THE
BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988
22. We have heard the learned Counsel appearing for the parties
at quite some length on the aforesaid contentions. We have also perused
the papers and proceedings in the above Family Court Appeal. We find
considerable substance in the arguments canvassed by Mr. Kadam. The
facts before us are clearly undisputed. The facts would clearly reveal that
the Original Appellant approached the Family Court in the year 2010,
seeking judicial separation under Section 10 of the Hindu Marriage Act,
1955. Thereafter, on 18th February 2012, the Original Appellant amended
her Petition to seek reliefs for sale of the Juhu Flat and for a direction to
distribute 50% of the sale proceeds to her. This relief was sought on the
ground that she had equally contributed towards the purchase of the
Juhu Flat. These pleadings can be found at paragraph 22A and 22B of the
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amended Petition. For the sake of convenience, the same are reproduced
as under:
"22A: The Petitioner states that at the time of the marriage she
was a divorcee aged about 38 years and the Respondent was a
bachelor aged about 31 years of age. The Petitioner state that after
my marriage we started residing as husband and wife at the
Respondent's address at Meher Naz Bldg. at Cuffe Parade. We lived
in the said apartment till 1985. The Petitioner states that the said
apartment was a tenanted apartment and the rent was being paid
by the Respondent's then employers Duncan Brothers. The
Petitioner states that the landlords wanted us to vacate the
premises as we were not the direct tenants. Finally we arrived at
an agreement with the landlord who paid us money (said amount)
to vacate the premises. The said amount was utilized by us to
purchase the current apartment where we are residing at our
address mentioned in the cause title of the Petition. The Petitioner
states that in addition to the above the Owners/Builders Marina
Apartments, were to be paid some consideration in Cash. The
Respondent did not have any cash at that point of time and hence
he asked me to pawn my jewellery and get cash or arrange for the
cash if were to get the possession. The Petitioner State that I
arranged for the funds in cash from my relatives. Finally on the
payment of the cash component the possession of our apartment
at Marina Apts. was handed over to us. The Petitioner states that
the Respondent has now inducted his sister and brother-in-law in
the said house and in collusion with them he is making the
Petitioner's life in the matrimonial home extremely miserable. In
addition to the above at the age of 71 she fears for the safety of
her life and also filed several complaints to the concerned police
station for help. The Petitioner further states that in addition to the
above the Respondent has created 3rd party rights in an assets that
is the matrimonial home which has been brought from the joint
funds of the Petitioner and the Respondent and the share
certificate clearly depicts her name as the first name along with
that of the Respondent. The Petitioner states that it is imperative
that to ensure both the Petitioner and the Respondent in their
twilight of their life have their own independent place to lead their
lives peacefully.
22B. The Petitioner states that it would be in fitness of things and
more particularly considering the facts that both of them are
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senior citizens that the Hon'ble court direct the parties to sell the
matrimonial home situated at 404, Marina Apartment near Palm
Grove Hotel, Juhu Tara Road, Mumbai 400049 at the current
market value, and the sale proceeds of the same be shared equally
between them."
(emphasis supplied)
23. On perusing the pleadings before the Family Court,
including the evidence that was led by the Original Appellant, we find that
nowhere it was her case that the Juhu Flat was purchased by the
Respondent for her benefit or that she was gifted a share in the property
by the Respondent. When the Respondent put up his case [in his
additional written statement] that the name of the Original Appellant was
added in the Juhu Flat only for the sake of convenience, the Original
Appellant-wife continued with her case that she is entitled to 50%
ownership of the Juhu Flat on the basis that she has contributed equally
for purchase of the said Juhu Flat. It was never her case that the 50%
share of the Juhu Flat was bought by the Respondent in her name for her
benefit. This case, in fact, has been put up before us only in the
arguments. This was never the case either in the Family Court or even in
the Memo of Appeal filed before us. We must, in a lighter way, state that
this is nothing but the ingenuity of Counsel. Whether any particular
property is bought for the benefit of another is a question of fact. It has to
be first pleaded and thereafter proved. If we were to entertain this
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argument today, it would in fact do grave injustice to the Respondent
because in appeal, without any pleading or evidence, the Respondent
would have to meet an entirely new case. This itself, to our mind at least,
would amount to a complete violation of the principles of natural justice.
In an adversarial litigation, it is extremely important that a party who
comes to court with a particular case has to be held to that case. This is
for the simple reason that the opposite party then knows exactly what
case it has to meet. The case that the Juhu Flat was bought for the benefit
of the Original Appellant could have been pleaded and proved by her
before the Family Court. If the Original Appellant had put up such a case,
then, under Section 3(2) of the Benami Transaction (Prohibition) Act,
1988, there could have been a case of presumption in her favour and the
Respondent would have to rebut the said presumption. Without having
pleaded that case, it would be impossible for the Respondent to
adequately rebut that presumption. We, therefore, find considerable
force in the argument canvassed by Mr. Kadam that the case of the
Original Appellant that the Juhu Flat was bought by the Respondent for
the benefit of the Original Appellant cannot be taken cognizance of us at
this late stage and that too without any evidence or pleadings in that
regard. This is more so when one takes into consideration that the
Original Appellant, during her lifetime, never stated anywhere that the
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50% share in the Juhu Flat was bought by the Respondent for her benefit.
This argument is being canvassed across the bar, and that too for and on
behalf of the present Appellant, who is the son of the Original Appellant
from her first marriage. In this regard, it would be apposite to refer to the
observations of the Hon'ble Supreme Court in the case of Bachhaj
Nahar Vs. Nilima Mandal & Anr. (supra). The relevant portion of
this decision read thus:
"11. The Civil Procedure Code is an elaborate codification of
the principles of natural justice to be applied to civil litigation.
The provisions are so elaborate that many a time, fulfilment
of the procedural requirements of the Code may itself
contribute to delay. But any anxiety to cut the delay or further
litigation should not be a ground to flout the settled
fundamental rules of civil procedure. Be that as it may. We will
briefly set out the reasons for the aforesaid conclusions.
12. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues
clearly defined and to prevent cases being expanded or
grounds being shifted during trial. Its object is also to
ensure that each side is fully alive to the questions that
are likely to be raised or considered so that they may have
an opportunity of placing the relevant evidence
appropriate to the issues before the court for its
consideration. This Court has repeatedly held that the
pleadings are meant to give to each side intimation of the
case of the other so that it may be met, to enable courts
to determine what is really at issue between the parties,
and to prevent any deviation from the course which
litigation on particular causes must take.
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13. The object of issues is to identify from the pleadings the
questions or points required to be decided by the courts so as
to enable parties to let in evidence thereon. When the facts
necessary to make out a particular claim, or to seek a
particular relief, are not found in the plaint, the court
cannot focus the attention of the parties, or its own
attention on that claim or relief, by framing an
appropriate issue. As a result the defendant does not get
an opportunity to place the facts and contentions
necessary to repudiate or challenge such a claim or relief.
Therefore, the court cannot, on finding that the plaintiff has
not made out the case put forth by him, grant some other
relief. The question before a court is not whether there is
some material on the basis of which some relief can be
granted. The question is whether any relief can be granted,
when the defendant had no opportunity to show that the
relief proposed by the court could not be granted. When there
is no prayer for a particular relief and no pleadings to support
such a relief, and when the defendant has no opportunity to
resist or oppose such a relief, if the court considers and grants
such a relief, it will lead to miscarriage of justice. Thus it is
said that no amount of evidence, on a plea that is not put
forward in the pleadings, can be looked into to grant any
relief.
14. The High Court has ignored the aforesaid principles
relating to the object and necessity of pleadings. Even though
right of easement was not pleaded or claimed by the plaintiffs,
and even though parties were at issue only in regard to title
and possession, it made out for the first time in second
appeal, a case of easement and granted relief based on an
easementary right. For this purpose, it relied upon the
following observations of this Court in Nedunuri
Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] : (AIR
p. 886, para 6)
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"6. ... No doubt, no issue was framed, and the one,
which was framed, could have been more elaborate;
but since the parties went to trial fully knowing the
rival case and led all the evidence not only in
support of their contentions but in refutation of
those of the other side, it cannot be said that the
absence of an issue was fatal to the case, or that
there was that mistrial which vitiates proceedings.
We are, therefore, of opinion that the suit could not
be dismissed on this narrow ground, and also that
there is no need for a remit, as the evidence which
has been led in the case is sufficient to reach the
right conclusion."
But the said observations were made in the context of
absence of an issue, and not absence of pleadings.
15. The relevant principle relating to circumstances in which
the deficiency in, or absence of, pleadings could be ignored,
was stated by a Constitution Bench of this Court in Bhagwati
Prasad v. Chandramaul [AIR 1966 SC 735] : (AIR p. 738, para 10)
"10. ... If a plea is not specifically made and yet it is
covered by an issue by implication, and the parties
knew that the said plea was involved in the trial, then
the mere fact that the plea was not expressly taken
in the pleadings would not necessarily disentitle a
party from relying upon it if it is satisfactorily proved
by evidence. The general rule no doubt is that the
relief should be founded on pleadings made by the
parties. But where the substantial matters relating
to the title of both parties to the suit are touched,
though indirectly or even obscurely, in the issues,
and evidence has been led about them, then the
argument that a particular matter was not expressly
taken in the pleadings would be purely formal and
technical and cannot succeed in every case. What
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the Court has to consider in dealing with such an
objection is : did the parties know that the matter in
question was involved in the trial, and did they lead
evidence about it? If it appears that the parties did
not know that the matter was in issue at the trial and
one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be
a different matter. To allow one party to rely upon a
matter in respect of which the other party did not lead
evidence and has had no opportunity to lead evidence,
would introduce considerations of prejudice, and in
doing justice to one party, the Court cannot do injustice
to another."
(emphasis supplied)
16. The principle was reiterated by this Court in Ram Sarup
Gupta v. Bishun Narain Inter College [(1987) 2 SCC 555 : AIR
1987 SC 1242] : (SCC pp. 562-63, para 6)
"6. ... It is well settled that in the absence of pleading,
evidence, if any, produced by the parties cannot be
considered. It is also equally settled that no party
should be permitted to travel beyond its pleading and
that all necessary and material facts should be pleaded
by the party in support of the case set up by it. The
object and purpose of pleading is to enable the
adversary party to know the case it has to meet. In
order to have a fair trial it is imperative that the party
should settle the essential material facts so that other
party may not be taken by surprise. The pleadings
however should receive a liberal construction; no
pedantic approach should be adopted to defeat
justice on hair-splitting technicalities. Sometimes,
pleadings are expressed in words which may not
expressly make out a case in accordance with strict
interpretation of law. In such a case it is the duty of
the court to ascertain the substance of the pleadings
to determine the question. It is not desirable to
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place undue emphasis on form, instead the
substance of the pleadings should be considered.
Whenever the question about lack of pleading is
raised the enquiry should not be so much about the
form of the pleadings; instead the court must find
out whether in substance the parties knew the case
and the issues upon which they went to trial. Once it
is found that in spite of deficiency in the pleadings
parties knew the case and they proceeded to trial on
those issues by producing evidence, in that event it
would not be open to a party to raise the question of
absence of pleadings in appeal."
(emphasis supplied)
17. It is thus clear that a case not specifically pleaded can be
considered by the court only where the pleadings in
substance, though not in specific terms, contain the necessary
averments to make out a particular case and the issues
framed also generally cover the question involved and the
parties proceed on the basis that such case was at issue and
had led evidence thereon. As the very requirements indicate,
this should be only in exceptional cases where the court is
fully satisfied that the pleadings and issues generally cover the
case subsequently put forward and that the parties being
conscious of the issue, had led evidence on such issue. But
where the court is not satisfied that such case was at
issue, the question of resorting to the exception to the
general rule does not arise. The principles laid down
in Bhagwati Prasad [AIR 1966 SC 735] and Ram Sarup
Gupta [(1987) 2 SCC 555 : AIR 1987 SC 1242] referred to
above and several other decisions of this Court following
the same cannot be construed as diluting the well-settled
principle that without pleadings and issues, evidence
cannot be considered to make out a new case which is not
pleaded. Another aspect to be noticed, is that the court can
consider such a case not specifically pleaded, only when one
of the parties raises the same at the stage of arguments by
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contending that the pleadings and issues are sufficient to
make out a particular case and that the parties proceeded on
that basis and had led evidence on that case. Where neither
party puts forth such a contention, the court cannot obviously
make out such a case not pleaded, suo motu.
*************
23. It is fundamental that in a civil suit, relief to be granted can
be only with reference to the prayers made in the pleadings.
That apart, in civil suits, grant of relief is circumscribed by
various factors like court fee, limitation, parties to the suits, as
also grounds barring relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of action or parties, etc.,
which require pleading and proof. Therefore, it would be
hazardous to hold that in a civil suit whatever be the
relief that is prayed, the court can on examination of facts
grant any relief as it thinks fit. In a suit for recovery of
rupees one lakh, the court cannot grant a decree for
rupees ten lakhs. In a suit for recovery possession of
property 'A', court cannot grant possession of property 'B'. In
a suit praying for permanent injunction, court cannot grant a
relief of declaration or possession. The jurisdiction to grant
relief in a civil suit necessarily depends on the pleadings,
prayer, court fee paid, evidence let in, etc."
(emphasis supplied)
24. As held in the aforesaid Judgment of the Supreme Court,
only in exceptional cases can the Court assess the case not specifically
pleaded. Even then, (i) the pleadings in substance should contain the
necessary averments to make out a particular claim; (ii) the issues framed
should also generally cover the question involved; and (iii) the parties
proceed on the basis of the said issue to lead evidence accordingly. In the
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facts of the present case, the issue regarding the applicability of the
Benami Transactions (Prohibition) Act, 1988 and/or the presumption
that is set out in Section 3(2) of the said Act [prior to its amendment] was
never in contemplation of the parties either when they approached the
Family Court or in fact even in the Appeal filed before us. This is an
argument developed only by the Counsel at the time we were hearing the
above Appeal. This being the case, we are afraid that such a contention
cannot be allowed to be raised at this late stage.
25. To get over this problem, Mr. Seth relied upon the so-called
admission made by the Respondent in his written statement dated 15th
July 2010 to contend that this was very much a live issue before the Court.
To understand this argument, it would be necessary to set out the said
alleged admission and which can be found at paragraph 12 of the written
statement filed by the Respondent dated 15th July 2010.
"12. The Respondent states that sometime in 1985 he received a
lumpsum payment in settlement from his Landlord in Cuffe
Parade for vacating the house. He supplemented the said amount
by withdrawing his Provident Fund borrowed the cash
component from his sister Uma and her husband Jagdish and
purchased the flat where the Petitioner and Respondent
presently live completely from the said funds with no
contribution whatsoever from the Petitioner. The original
agreement was made by the builder Rahejas in the name of the
Respondent alone, as can be seen from the original agreement
and that of the garage. However at the very last moment the
Petitioner emotionally black mailed him into putting her name
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as the first purchaser by saying that she had no financial
security. The Respondent in the goodness of his heart, his love
for her, his naivete, and not knowing the full implications of the
law agreed to do so. The Respondent states that he has all the
documents to prove that he has paid fully for the Flat in which he
presently resides. He craves leaves of this Honourable Court to
refer to and rely upon the bank statements etc. when produced."
(emphasis supplied)
26. We fail to understand how this is an unequivocal admission
to establish the case of the Original Appellant that the Juhu Flat was
bought for her benefit. In fact, we do not read this as an admission at all.
From a plain reading of paragraph 12, it is clear that the Respondent has
stated that since he was blackmailed by the Original Appellant by saying
that she had no financial security, the Respondent from the goodness of
his heart, his love for her, his naivete, and not knowing the full
implications of the law, agreed to do so. In the said paragraph, it is again
reiterated that the Respondent has all the documents to prove that he has
fully paid for the Juhu Flat in which he presently resides. After the
judicial separation Petition filed by the Original Appellant-wife was
amended [claiming 50% of the Juhu Flat], the Respondent filed an
additional written statement dated 1st March 2012. In the additional
written statement, after the Juhu Flat was put in issue before the Family
Court, the Respondent categorically put up a case that he is the sole and
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exclusive owner of the Juhu Flat and that the Original Appellant - wife
has made no contribution towards the same and that her name was
incorporated as a joint holder only for the sake of convenience. Paragraph
1 of the additional written statement of the Respondent reads as under:
"1. At the outset, the Respondent submits that he is the sole
exclusive and absolute owner of the Flat no. 404, Marina
Apartment, Juhu Tara Road, Mumbai 400049. Hereafter for
brevity's sake referred as "the said suit flat". The said Petitioner
has made no contribution towards paying the purchase price
or the expenses relating to the purchase of the said suit flat.
Being Respondent's wife, her name was joined as a joint
holder for the sake of convenience only, and as such she has
no right title or interest in the said suit flat."
(emphasis supplied)
27. Despite these pleadings, the Original Appellant continued
with her case that she is entitled to 50% ownership of the Juhu Flat
because she has equally contributed for purchase of the same. She never
put up a case that the Juhu Flat, though purchased entirely by the
Respondent, was for her benefit. This so-called admission is of no avail
to the Original Appellant because a mere proof of admission, after the
person whose admission it is alleged to be, has concluded his evidence,
will be of no avail and cannot be utilized against him. This proposition
has been succinctly set out by the Hon'ble Supreme Court in the case of
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Udham Singh (supra). The relevant portion of this decision reads
thus:
"9. The above averments made in the plaint, as indicated
earlier has been taken as admission of the plaintiff, however,
this question needs to be looked into. First of all, we find that
the averment made in the previous plaint does not lead to a
conclusion that the defendants were admitted as tenants
though no doubt the word "theka" has been used. But the
expression theka can be used in many ways e.g. it may be
"theka" for labour. It required to be explained or elaborated.
We also find that the earlier suit was dismissed in default. No
written statement was filed, nor were issues framed. Hence,
obviously no trial took place. No doubt admission is the best
evidence against the person who is said to have made it, but
it can always be explained. One whose previous statement
is to be treated as an admission or it is sought to be used,
he has to be confronted with such a statement. We find
that though the document, namely, the plaint in the earlier
suit, has been brought on record but no request seems to
have been made for summoning the plaintiff. Learned
counsel for the appellant has placed reliance on the decision
of this Court in Sita Ram Bhau Patil v. Ramchandra Nago
Patil [(1977) 2 SCC 49]. Our attention has been drawn to the
observations made in paragraph 17 of the Report to the effect
that the admission has to be clear, unambiguous and proved
conclusively. It is a question which needs to be considered as
to what weight is to be attached to an admission and for that
purpose it is necessary to find out as to whether it is clear,
unambiguous and a relevant piece of evidence, and further it
is proved in accordance with the provisions of the Evidence
Act. It would be appropriate that an opportunity is given to the
person under cross-examination to tender his explanation
and clear the point on the question of admission. In our view,
the High Court was again wrong in attaching much weight to
the averments made in the earlier plaint and coming to the
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conclusion that the defendants were admitted to be the
tenants by the plaintiff on the land in question."
(emphasis supplied)
In the case of Sita Ram Bhau Patil Vs. Ramchandra Nago Patil
(through Lrs.) & Anr. (supra) the Hon'ble Supreme Court observed
as under:-
"14. The second infirmity against this admission being
used against the respondent is that as long as the
respondent was under cross-examination, it was not
brought to his notice. It is said by counsel for the appellant
relying on the decision of this Court in Bharat
Singh v. Bhagirathi [(1966) 1 SCR 606 : AIR 1966 SC 405 : (1966)
2 SCJ 53] that this admission was proved by the appellant and
this admission on the ruling of the decision of this Court is
substantive evidence and is therefore admissible against the
respondent.
15. The decision of this Court in Bharat Singh case [(1966) 1
SCR 606 : AIR 1966 SC 405 : (1966) 2 SCJ 53] is that:
"Admissions have to be clear if they are to be used
against the person making them. Admissions are
substantive evidence by themselves, in view of
Sections 17 and 21 of the Indian Evidence Act,
though they are not conclusive proof of the matters
admitted."
Admissions proved are said in the decision to be:
"admissible evidence irrespective of whether the
party making them appeared in the witness box or
not and whether the party when appearing as
witness was confronted with those statements in
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case it made a statement contrary to those
admissions".
16. Counsel for the appellant submitted that the respondent
even though not confronted with the admission would be
bound by his admissions and the appellant would be entitled
to rely on the admissions as admissible. There is the
observation in the very next sentence in the aforesaid
decision of this Court that "the purpose of contradicting the
witness under Section 145 of the Evidence Act is very much
different from the purpose of proving the admission". It,
therefore, follows that admission is relevant and it has to be
proved before it becomes evidence.
17. If admission is proved and if it is thereafter to be used
against the party who has made it the question comes within
the provisions of Section 145 of the Evidence Act. The
provisions in the Indian Evidence Act that "admission is not
conclusive proof" are to be considered in regard to two
features of evidence. First, what weight is to be attached to an
admission? In order to attach weight it has to be found out
whether the admission is clear, unambiguous and is a relevant
piece of evidence. Second, even if the admission is proved in
accordance with the provisions of the Evidence Act and if it is
to be used against the party who has made it, "it is sound that
if a witness is under cross-examination on oath, he should be
given an opportunity, if the documents are to be used against
him, to tender his explanation and to clear up the point of
ambiguity or dispute. This is a general salutary and intelligible
rule" (see Bal Gangadhar Tilak v. Shrinivas Pandit [42 IA 135,
147] ). The Judicial Committee in that case said, "it has to be
observed with regret and with surprise that the general
principle and the specific statutory provisions have not been
followed". The general principle is that before any person is to
be faced with any statement he should be given an
opportunity to see that statement and to answer the same.
The specific statutory provision is contained in Section 145 of
the Indian Evidence Act that "A witness may be cross-
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examined as to previous statements made by him in writing
or reduced into writing, and relevant to matters in question,
without such writing being shown to him, or being proved; but
if it is intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him." Therefore, a mere proof of admission,
after the person whose admission it is alleged to be has
concluded his evidence, will be of no avail and cannot be
utilised against him."
(emphasis supplied)
28. This has again been reiterated in the case of Raveen
Kumar Vs. State of Himachal Pradesh (supra). The relevant
portion of this decision reads thus:
"16. The learned counsel for the appellant could not fairly
dispute the distinction between "replies" submitted to the
Court in some pending proceedings, as compared to the
statements recorded by the police under Section 161CrPC.
Nevertheless, a court should be overcautious to place
reliance on a piece of evidence with which the witness
concerned has not been confronted despite an
opportunity to do so. Although there is no need to separately
prove the court records emanating during trial but no legal
presumption can be extended to the veracity of the contents
of such documents. The reply filed in court proceedings, at
best, can be treated as an admission; which as held by this
Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil [Sita
Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49] ,
must not only be proved, but also the opposite party must
be confronted with it at the stage of cross-examination. It
would be apposite to extract the cited judgment to the
following effect : (SCC p. 53, para 17)
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"17. If admission is proved and if it is thereafter to
be used against the party who has made it the
question comes within the provisions of Section 145
of the Evidence Act. The provisions in the Evidence
Act that "admission is not conclusive proof" are to be
considered in regard to two features of evidence.
First, what weight is to be attached to an admission?
In order to attach weight it has to be found out
whether the admission is clear, unambiguous and is
a relevant piece of evidence. Second, even if the
admission is proved in accordance with the provisions
of the Evidence Act and if it is to be used against the
party who has made it, 'it is sound that if a witness is
under cross-examination on oath, he should be given
an opportunity, if the documents are to be used against
him, to tender his explanation and to clear up the point
of ambiguity or dispute. This is a general salutary and
intelligible rule' ... Therefore, a mere proof of
admission, after the person whose admission it is
alleged to be has concluded his evidence, will be of no
avail and cannot be utilised against him."
(emphasis supplied)
29. In the facts of the present case, the Original Appellant-wife
did not confront the Respondent during the trial with the so-called
admission made in the written statement filed on 1st July 2010 nor gave
him an opportunity to explain under what circumstances in the
additional written statement he had stated that the Juhu Flat was bought
entirely out of his funds but the name of the Original Appellant was added
only for the sake of convenience. In fact, when the entirety of the evidence
and pleadings is perused, it is evident that the live issue before the Family
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Court was really as to who paid for the Juhu Flat. Both parties went to
trial knowing fully well that the title of the Juhu Flat would be decided on
the basis of who paid the sale consideration for the same. Once this is the
case with which the parties proceeded before the Trial Court, we are
clearly of the opinion that this entire argument, on the basis of certain
provisions of the Benami Transactions (Prohibition) Act, 1988, can be of
no avail to the Original Appellant, or the current Appellant who is the son
of the Original Appellant.
30. So far as the reliance placed by Mr. Seth on the Judgment of
the Hon'ble Supreme Court in the case of Jaydayal Poddar Vs. Mst.
Bibi Hazra (supra) is concerned, we find the same to be wholly
misplaced. This Judgment was passed prior the Benami Transactions
(Prohibition) Act, 1988 being brought into force. It is true that when the
said Act was initially brought into effect, Section 3(2) thereof
contemplated that nothing in Sub-section (1) of Section 3 would apply to
the purchase of property by any person in the name of his wife or
unmarried daughter and it shall be presumed, unless the contrary is
proved, that the said property had been purchased for the benefit of the
wife or the unmarried daughter. The unamended provisions of the
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Benami Transactions (Prohibition) Act, 1988, [as it stood prior to the
2016 amendment] read as under:
"3. Prohibition of benami transactions-
(1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to the purchase of
property by any person in the name of his wife or unmarried
daughter and it shall be presumed, unless the contrary is
proved, that the said property had been purchased for the
benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transaction shall be
punishable with imprisonment for a term which may extend to
three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2of 1974), an offence under this section shall
be non-cognizable and bailable."
31. As mentioned earlier, the Original Appellant never came to
Court with a case that the Juhu Flat was purchased for her benefit so that
the presumption could be raised in her favour. She came to Court with
the case that she had contributed 50% of the proceeds for purchase of the
Juhu Flat and therefore she be declared a 50% owner. This case would be
directly contrary to a case that the Juhu Flat was bought for her benefit.
If she has contributed 50% of the proceeds for purchase of the Juhu Flat,
then she should claim a 50% ownership of the Juhu Flat in her own right
and not because it was bought for her benefit. In other words, these two
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cases would be mutually destructive of each other. We, therefore, find
that the reliance placed on Section 3(2) is wholly misplaced. This is apart
from the fact that from the pleadings and evidence on record, the
Respondent has clearly established he has entirely paid for purchase of
the Juhu Flat and the name of the Original Appellant was added only for
the sake of convenience. This evidence of the Respondent has not been
shaken in cross-examination.
32. There is one more important issue regarding the
applicability of the Benami Transactions (Prohibition) Act, 1988, and
which was amended in the year 2016. The presumption that was there in
favour of the wife or unmarried daughter [as set out in Section 3(2)] was
done away with by the 2016 amendment of the said Act. In fact, there
were substantial amendments and Section 2(9) now defined what a
benami transaction meant. For the sake of convenience, the relevant
portion Section 2(9) of the said Act reads thus:
"2(9) "benami transaction" means,-
(A) a transaction or an arrangement-
(a) where a property is transferred to, or is held by, a person, and
the consideration for such property has been provided or paid by,
another person; and
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(b) the property is held for the immediate or future benefit, direct
or indirect, of the person who has provided the consideration,
except when the property is held by-
(i) a Karta, or a member of a Hindu undivided family, as the case
may be, and the property is held for his benefit or benefit of other
members in the family and the consideration for such property
has been provided or paid out of the known sources of the Hindu
undivided family;
(ii) A person standing in a fiduciary capacity for the benefit of
another person towards whom he stands in such capacity and
includes a trustee, executor, partner, director of a company, a
depository or a participant as an agent of a depository under the
Depositories Act, 1996 (22 of 1996) and any other person as may
be notified by the Central Government for this purpose.
(iii) any person being an individual in the name of his spouse or
in the name of any child of such individual and the
consideration for such property has been provided or paid out
of the known sources of the individual;
(iv) ..................
(B)....................
(C)....................
(D)...................."
` (emphasis supplied)
33. As can be seen from this provision, the Benami Transactions
(Prohibition) Act, 1988 [renamed as The Prohibition of Benami Property
Transactions Act, 1988 by the 2016 amendment], do not apply to any
person being an individual who purchases a property, or enters into a
transaction or arrangement, in the name of his spouse or in the name of
any child of such individual and the consideration for such property has
been provided or paid out of the known sources of the said individual. In
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other words, the presumption in Section 3(2) prior to amendment [that
it will be presumed that the property was bought for the benefit of the
wife or the unmarried daughter], has been done away with by virtue of
the 2016 amendment. This is not in dispute even before us, and Mr. Seth
fairly submitted that after the 2016 amendment, the presumption is no
longer available to the Original Appellant. He, however, submitted that
since the Act was not amended when the Family Court decided the
matter, or in fact even when the present Appeal was filed, we still must
apply the provisions of Section 3(2), namely, the unamended provisions
of the Benami Transactions (Prohibition) Act, 1988. We are unable to
agree with this submission for more than one reason. Firstly, Section 1(3)
of the Benami Transactions (Prohibition) Act, 1988 categorically
stipulates that the provisions of Section 3, 5 and 8 shall come into force
at once and the remaining provisions of the Act shall be deemed to have
come into force on 19th May 1988. In other words, the provisions of
Section 2(9) have been brought into effect from 19th May 1988. Once this
is the case, when we are deciding the Appeal today, we have to apply the
provisions of Section 2(9) and not the provisions of Section 3(2) as they
stood prior to the amendment of the Act in 2016. We say this because the
hearing of this Appeal is a re-hearing and/or a continuation of the
Petition filed before the Family Court. The Appeal Court exercises seisin
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of the whole case once again and in moulding the relief, if any, must take
into account changes in law that have taken place even after the decree.
The Hon'ble Supreme Court in the case of Vineeta Sharma Vs.
Rakesh Sharma (supra) has clearly laid down the aforesaid
proposition. The relevant portion of this decision reads thus:
"101. In Lakshmi Narayan Guin v. Niranjan Modak [Lakshmi
Narayan Guin v. Niranjan Modak, (1985) 1 SCC 270] , it was laid
down that change in law during the pendency of the appeal
has to be taken into consideration thus: (SCC pp. 274-75, para
9)
"9. That a change in the law during the pendency of
an appeal has to be taken into account and will
govern the rights of the parties was laid down by this
Court in Ram Sarup v. Munshi [Ram Sarup v. Munshi,
AIR 1963 SC 553] which was followed by this Court
in Mula v. Godhu [Mula v. Godhu, (1969) 2 SCC 653] .
We may point out that
in Dayawati v. Inderjit [Dayawati v. Inderjit, AIR 1966
SC 1423] this Court observed: (AIR p. 1426, para 10)
'10. ... If the new law speaks in language,
which, expressly or by clear intendment,
takes in even pending matters, the court
of trial as well as the court of appeal must
have regard to an intention so expressed,
and the court of appeal may give effect to
such a law even after the judgment of the
court of first instance.'
Reference may also be made to the decision of this
Court in Amarjit Kaur v. Pritam Singh [Amarjit
Kaur v. Pritam Singh, (1974) 2 SCC 363] where effect was
given to a change in the law during the pendency of an
appeal, relying on the proposition formulated as long
ago as Kristnama Chariar v. Mangammal [Kristnama
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Chariar v. Mangammal, 1902 SCC OnLine Mad 30 : ILR
(1903) 26 Mad 91] by Bhashyam Ayyangar, J., that the
hearing of an appeal was, under the processual law of
this country, in the nature of a re-hearing of the suit.
In Amarjit Kaur [Amarjit Kaur v. Pritam Singh, (1974) 2
SCC 363] this Court referred also to Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri [Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 SCC
OnLine FC 10 : AIR 1941 FC 5] in which the Federal Court
had laid down that once a decree passed by a court had
been appealed against, the matter became sub judice
again and thereafter the appellate court acquired seisin
of the whole case, except that for certain purposes, for
example, execution, the decree was regarded as final
and the court below retained jurisdiction."
102. In United Bank of India v. Abhijit Tea Co. (P) Ltd. [United
Bank of India v. Abhijit Tea Co. (P) Ltd., (2000) 7 SCC 357 : AIR
2000 SC 2957] , with respect to change in law during the
pendency of proceedings, it was observed: (SCC p. 365, para
20)
"20. Now, it is well settled that it is the duty of a
court, whether it is trying original proceedings or
hearing an appeal, to take notice of the change in
law affecting pending actions and to give effect to
the same. (See G.P. Singh: Interpretation of Statutes,
7th Edn., p. 406.) If, while a suit is pending, a law like
the 1993 Act that the civil court shall not decide the
suit, is passed, the civil court is bound to take judicial
notice of the statute and hold that the suit--even
after its remand--cannot be disposed of by it."
(emphasis supplied)
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34. This proposition is also laid down by the Hon'ble Supreme
court in the case of Amarjit Kaur Vs. Pritam Singh & Ors. [(1974)
2 SCC 363]. The relevant portion of this decision reads thus:
2. We will take up for consideration Civil Appeal No. 941(N) of
1973. The appellant challenges the correctness of a decree
passed by the High Court dismissing a suit for pre-emption.
The plaint property belonged to Defendant 4. He sold the
same to Defendants 1 to 3 by a sale deed dated July 29, 1965
and registered on October 14, 1965. The appellant who is the
daughter of Defendant 4, claiming that she has a right to pre-
empt, instituted the suit through her guardian. The trial court
decreed the suit. Against the decree, an appeal was preferred
by the vendees. That appeal was dismissed on July 17, 1971.
An appeal was preferred to the High Court against this decree.
The Punjab Pre-emption (Repeal) Act, 1973 (Act 11 of 1973)
received the assent of the Governor of Punjab on April 6, 1973
and was published in the Punjab Gazette on April 9, 1973. The
High Court allowed the appeal and dismissed the suit holding
that the provision of Section 3 of the above Act should govern
the decision. The plaintiff-appellant then applied for leave to
file letters patent appeal. That was dismissed.
3. Section 3 of the Punjab Pre-emption (Repeal) Act, 1973,
provides:
"Bar to pass decree in suit for pre-emption.--On and
from the date of commencement of the Punjab Pre-
emption (Repeal) Act, 1973, no court shall pass a
decree in any suit for pre-emption."
The section, in effect, says that no court shall decree a suit for
pre-emption after the coming into force of the Act. The
question is, whether the appellate court, when it passes a
decree, confirming the decree for pre-emption passed by the
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trial court or the lower appellate court, is passing a decree for
pre-emption.
4. In Lachweshwar Prasad Shukul v. Keshwar Lal
Chaudhuri [1940 FCR 84] it was held that once the decree
passed by a court had been appealed against, the matter
became sub-judice again and thereafter the appellate court
has seisin of the whole case, though for certain purposes, e.g.,
execution, the decree was regarded as final and the courts
below retained jurisdiction. The Court further said that it has
been a principle of legislation in British India at least from
1861 that a court of appeal shall have the same powers and
shall perform as nearly as may be the same duties as are
conferred and imposed by the Civil Procedure Code on courts
of original jurisdiction, that even before the enactment of that
Code, the position was explained by Bhashyam Iyengar, J.
in Kristnama Chariar v. Mangammal [ILR (1903) 26 Mad 91,
at p. 95-96.] in language which makes it clear that the
hearing of an appeal is under the processual law of this
country in the nature of a re-hearing, and that it is on the
theory of an appeal being in the nature of a re-hearing
that the courts in this country have in numerous cases
recognized that in moulding the relief to be granted in a
case on appeal, the court of appeal is entitled to take into
account even facts and events which have come into
existence after the decree appealed against.
5. As an appeal is a re-hearing, it would follow that if the High
Court were to dismiss the appeal, it would be passing a decree
in a suit for pre-emption. Therefore, the only course open to
the High Court was to allow the appeal and that is what the
High Court has done. In other words, if the High Court were to
confirm the decree allowing the suit for pre-emption, it would
be passing a decree in a suit for pre-emption, for, when the
appellate court confirms a decree, it passes a decree of its
own, and therefore, the High Court was right in allowing the
appeal."
(emphasis supplied)
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35. The aforesaid proposition will apply with even greater force
when one takes into consideration that the presumption under Section
3(2) was a rebuttable presumption [and which presumption does not find
place in Section 2(9) after amendments to the said Act], and a rule of
evidence which defines the manner and procedure by which a Court must
try a particular fact. In other words, a rebuttable presumption being an
evidentiary rule, falls in the realm of procedural law. It is now well settled
that the rule against retrospectivity does not apply to procedural law. A
presumption is a matter of evidentiary procedure and is presumed to be
retrospective. Therefore, if the presumption is taken away by a statutory
amendment, then the Original Appellant cannot rely upon the
unamended provision [which contained the presumption] because if the
presumption is deleted by a statutory amendment, it too would be
presumed to be retrospective. In this regard, the reliance placed by Mr.
Kadam on the Judgment of the Supreme Court in the case of
Gurbachan Singh Vs. Satyapal Singh [(1990) 1 SCC 445] is
apposite. The relevant portion of this decision reads thus:
"34. It is also convenient to refer in this connection to the
provisions of Section 113-A of Indian Evidence Act, 1872 which
provide that:
"113-A. Presumption as to abetment of suicide by a
married woman.--When the question is whether the
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commission of suicide by a woman had been
abetted by her husband or any relative of her
husband and it is shown that she had committed
suicide within a period of seven years from the date
of her marriage and that her husband or such
relative of her husband had subjected her to cruelty,
the court may presume, having regard to all the
other circumstances of the case, that such suicide
had been abetted by her husband or by such
relative of her husband."
35. In the instant case the deceased Ravinder Kaur was
married to the accused, Satpal Singh in November 1982 and
she committed suicide on June 25, 1983. It has also been
found on a consideration of the circumstantial evidence that
she was compelled to take the extreme step of committing
suicide as the accused persons had subjected her to cruelty
by constant taunts, maltreatment and also by alleging that she
has been carrying an illegitimate child. The suicide having
been committed within a period of seven years from the date
of her marriage in accordance with the provisions of this
section, the court may presume having regard to all the other
circumstances of the case which we have set out earlier that
such suicide had been abetted by the husband and his
relations. Therefore, the findings arrived at by the Additional
Sessions Judge are quite in accordance with the provisions of
this section and the finding of the High Court that the accused
persons could not be held to have instigated or abetted the
commission of offence, is not sustainable in law.
36. It has been contended on behalf of the accused-
respondents that Section 113-A of the Indian Evidence Act
was inserted in the statute book by Act 46 of 1983
whereas the offence under Section 306, IPC was
committed on June 23, 1983 i.e. prior to the insertion of
the said provision in the Indian Evidence Act. It has,
therefore, been submitted by the learned counsel for the
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respondents that the provisions of this section cannot be
taken recourse to while coming to a finding regarding the
presumption as to abetment of suicide committed by a
married woman, against the accused persons.
37. The provisions of the said section do not create any
new offence and as such it does not create any
substantial right but it is merely a matter of procedure of
evidence and as such it is retrospective and will be
applicable to this case. It is profitable to refer in this
connection to Halsbury's Laws of England, Fourth Edition,
Volume 44 page 570 wherein it has been stated that:
"The general rule is that all statutes, other than
those which are merely declaratory or which relate
only to matters of procedure or of evidence, are
prima facie prospective, and retrospective effect is
not to be given to them unless, by express words or
necessary implication, it appears that this was the
intention of the legislature...."
38. It has also been stated in the said volume of Halsbury's
Laws of England at page 574 that:
"The presumption against retrospection does
not apply to legislation concerned merely with
matters of procedure or of evidence; on the
contrary, provisions of that nature are to be
construed as retrospective unless there is a
clear indication that such was not the intention
of Parliament."
39. In Blyth v. Blyth [1966 AC 643 : (1965) 2 All ER 817] the wife
left the husband in 1954 and lived with the co-respondent
until August 1955, when she broke off the association. In 1958
the husband and wife met by chance and sexual intercourse
took place. In December 1962, the husband sought a divorce
on the ground of his wife's adultery. During the pendency of
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the application Section 1 of the Matrimonial Causes Act, 1963
came into force on July 31, 1963 which provided that any
presumption of condonation which arises from the
continuance or resumption of marital intercourse may be
rebutted on the part of a husband, as well as on the part of a
wife, by evidence sufficient to negative the necessary intent.
The question arose whether this provision which came into
force on July 31, 1963 can be applied in the instant case. It was
held that the husband's evidence was admissible in that
Section 1 of the Act of 1963 only altered the law as to the
admissibility of evidence and the effect which the courts are
to give to evidence, so that the rule against giving
retrospective effect to Acts of Parliament did not apply.
40. In Herridge v. Herridge [(1966) 1 All ER 93] similar question
arose. It was held that Section 2(1) of the Act of 1963 was a
procedural provision, for it dealt with the adducing of
evidence in relation to an allegation of condonation in any trial
after July 31, 1963; accordingly the sub-section was applicable,
even though the evidence related to events before that date,
and the resumption of cohabitation in the present case did
not amount, by reason of Section 2(1), to condonation.
41. On a conspectus of these decisions, this argument on
behalf of the appellant fails and as such the presumption
arising under Section 113-A of the Evidence Act has been
rightly taken into consideration by the trial court."
(emphasis supplied)
36. In view of the foregoing discussion, we are of the opinion
that there is no merit in the argument canvassed by Mr. Seth that the
finding of the Family Court regarding the Juhu Flat ought to be interfered
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with by us on the basis of applying the provisions of the Benami
Transactions (Prohibition) Act, 1988.
APPLICABILITY OF SECTION 14 OF THE HINDU SUCCESSION ACT,
1956:-
37. The next argument canvassed by Mr. Seth was that by virtue
of Section 14 of the Hindu succession Act, 1956, the Original Appellant
has become the absolute owner of 50% of the Juhu Flat notwithstanding
the fact that she had not contributed any amount towards the purchase
of the said Flat. In this regard, Mr. Seth brought to our attention the
provisions of Section 14 and submitted that any property possessed by a
female Hindu, whether acquired before or after the commencement of
the Hindu Succession Act, 1956, shall be held by her as a full owner
thereof and not a limited owner. Mr. Seth submitted that the explanation
to Section 14(1) clearly states that the property possessed by a Female
Hindu includes both movable and immovable property acquired by her
by way of inheritance or devise, or at a partition, or in lieu of maintenance
or arrears of maintenance, or by gift from any person, whether a relative
or not, before, at or after her marriage, or by her own skill or exertion, or
by purchase or by prescription, or in any other manner whatsoever, and
also any such property held by her as Stridhana immediately before the
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commencement of the Hindu Succession Act, 1956. Mr. Seth submitted
that sub-section (2) of Section 14 stipulates that nothing contained in
sub-section (1) shall apply to any property acquired by way of a gift, or
under a will or any other instrument, or under a decree or order of a civil
court or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribed a restricted estate in
such property. Mr. Seth submitted that in the facts of the present case,
neither the purchase deed of the Juhu Flat nor the share certificate issued
in relation thereto imposed any restriction on the right of the Original
Appellant's 50% joint ownership of the Juhu Flat. Once this is the case,
then, Section 14(2) of the Hindu Succession Act, 1956 has no application,
and by virtue of Section 14(1), the Original Appellant has become the full
owner of her 50% share in the Juhu Flat. In support of this submission,
though many judgments were tendered to the Court, reliance was placed
only on the following three judgments of the Hon'ble Supreme Court:
(i) Gangamma & Ors. Vs. G. Nagarathnamma & Ors.
[(2009) 15 SCC 756];
(ii) V. Tulasamma & Ors. Vs. Sesha Reddy (Dead) By
Lrs. [(1977) 3 SCC 99];
(iii) Seth Badri Prasad Vs. Srimati Kanso Devi
[(1969) 2 SCC 586].
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38. On the other hand, Mr. Kadam, the learned Advocate
appearing for the Respondent, firstly submitted that the plea of
ownership having vested in the Original Appellant under Section 14 of the
Hindu Succession Act, 1956 in lieu of right to maintenance, cannot be
taken in the absence of a pleaded case. This apart, he submitted that in
the facts of the present case, Section 14 would not be attracted at all.
Relying upon the said provision, he submitted that on a plain reading of
Section 14(1), it is clear that for the said Section to come into operation
(a) the property must be possessed by a Hindu woman; (b) mere
possession is not enough but must be acquired; and (c) such property
must first be held as a 'limited owner'. This is because the words 'not as
limited owner' evinces the Parliament's intention that but for this
provision, the property would have otherwise vested in the Hindu woman
as a limited owner. He submitted that it is only when these requirements
are satisfied that the Section 14(1) comes into operation and converts a
limited ownership and/or ownership of a limited estate, into a full
ownership by a deeming fiction and by operation of law. He submitted
that the original Appellant has never claimed limited ownership in her
alleged 50% share in the Juhu Flat. Once this is the case, the reliance
placed on Section 14 is wholly misconceived, was the submission.
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39. Mr. Kadam thereafter submitted that the object of Section 14
was to do away with the 'widow's estate' or 'limited estate' in Hindu law
and to make a Hindu woman who, in the absence of the Section, would
have only been a limited owner. By virtue of Section 14, a Hindu woman
now, instead of having limited ownership, becomes a full owner with all
powers of disposition and with the property being heritable by her heirs
and not the heirs of her deceased husband. He submitted that this is now
well settled as set out in the cases decided by the Hon'ble Supreme Court
in (i) Eramma Vs. Veerupanna & Ors. [AIR 1966 SC 1879]; (ii)
Kalawatibai Vs. Soiryabai & Ors. [(1991) 3 SCC 410]; and (iii)
Jogi Ram Vs. Suresh Kumar [(2022) 4 SCC 273]. In other words,
he submitted that for the Hindu woman to get full ownership of a
particular property by virtue of Section 14, she first has to have limited
ownership. Section 14 does not by itself confer full ownership of a
property to the Hindu woman, especially where in fact there is none.
When in law, title and interest does not in any way whatsoever vest in a
Hindu woman, this Section does not operate to act as a fresh source of
title. It only converts the limited title to a full title to the said property.
But for that too, the sin qua non is that initially the Hindu woman has to
have a limited ownership/title to the said property. He submitted that in
the facts of the present case it is not even the case of the Original
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Appellant that she had limited ownership of her 50% share of the Juhu
Flat, and which by virtue of Section 14, has now become a full ownership
of that very share. He submitted that in fact the case of the Appellant was
quite the opposite. It was the case of the Original Appellant that she is the
absolute owner of 50% share of the Juhu Flat because she has contributed
50% of the proceeds to purchase the said Juhu Flat. Never was a case ever
set up that she was a limited owner of the Juhu Flat. He submitted that
this is not even a case canvassed before us, either in a Memo of Appeal or
even in the arguments. In the arguments all that is canvassed is that since
the Original Appellant is a Hindu woman and her name appears in the
purchase deed and the share certificate, she has become full owner of her
50% share, notwithstanding the fact that no consideration was paid by
her. Mr. Kadam submitted that since this is the specific case with which
the Original Appellant had not only approached the Family Court but also
this Court, the reliance placed on Section 14 is wholly misplaced. He
submitted that Section 14 does not have the effect of over-riding and/or
negating the provisions of the Transfer of Property Act, 1882. It was his
submission that Section 14 does not stipulate and/or lay down the
requirements of the substance and form for a transfer and/or acquisition
to be legally recognized and valid. For this, one has to look at the Transfer
of Property Act, 1882. He submitted that the Transfer of Property Act,
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1882 is the general law which defines the various modes in which a
transfer can be affected. It further prescribes the conditions, substance,
and form for that transfer to be legally effective and recognized. For
example, he submitted that a gift of immovable property to be effective
and valid must fulfil the conditions, substance, and form prescribed
under Sections 122 to 129 of the Transfer of Property Act, 1882 to be
effective and recognized. If a gift is invalid by virtue of the provisions of
the Transfer of Property Act, 1882, the same cannot be made valid by
taking recourse to Section 14(1) of the Hindu Succession Act, 1956. To put
it differently, Section 14 does not legalize an otherwise illegal transaction,
was the submission. When one reads Section 14 in this light, along with
Section 45 of Transfer of Property Act, 1882, there is no conflict as the
same can be read harmoniously and Section 14 would not override the
provisions of Section 45 of the Transfer of Property Act, 1882.
40. Mr. Kadam then submitted that an ostensible interest in a
property does not in any manner trigger Section 14 of the Hindu
Succession Act, 1956. An ostensible interest is not a limited interest
and/or a limited ownership that would trigger the fiction under Section
14 of the Hindu Succession Act, 1956. In this regard, Mr. Kadam relied
upon the decision of the Hon'ble Supreme Court in the case of
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Controller of Estate Duty, Lucknow Vs. Aloke Mitra [(1981) 2
SCC 121]. He, therefore, submitted that even assuming that this Court
wants to entertain the aforesaid argument based on Section 14, though it
was not even their case before the Family Court or before this Court in
the above Memo of Appeal, the same has to be rejected in light of the
submissions recorded by us above.
FINDINGS AND CONCLUSIONS ON THE APPLICABILITY OF
SECTION 14 OF THE HINDU SUCCESSION ACT, 1956:-
41. We have heard the learned Counsel on the
issue/applicability of Section 14 of the Hindu Marriage Act, 1956 at quite
some length. It is true that the plea of Section 14 was never raised before
either the Family Court or in the Memo of Appeal before this Court. We,
therefore, would be fully justified in not entertaining this argument at all,
especially since this argument/contention is being canvassed for the first
time before us to assail the impugned judgement of the Family Court.
However, since Section 14 is a beneficial legislation and has been enacted
for the benefit of a Hindu woman, we have entertained this argument to
see if the facts of the present case would fall within the parameters of the
said Section. To understand this controversy, it would be apposite to
reproduce the provisions of Section 14:
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"14. Property of a female Hindu to be her absolute property.-
(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her
as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, "property" includes both movable
and immovable property acquired by a female Hindu by
inheritance or devise, or at a partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any person, whether a
relative or not, before, at or after the marriage, or by her own skill
or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civl Court or under an
award where the terms of the gift, will or other instrument or the
decree, order or award prescribe a restricted estate in such
property."
(emphasis supplied)
42. On a plain reading of Section 14, it is clear that any property
possessed by a female Hindu, whether acquired before or after
commencement of the Hindu Succession Act 1956, shall be held by her as
a full owner thereof and not as a limited owner. The Explanation to
Section 14(1) explains the word 'property' and includes movable and
immovable property acquired by a female Hindu by any of the methods
or modes mentioned in the said Explanation. Sub-section (2) of Section
14 carves out an exception and stipulates that nothing contained in
Section 14(1) shall apply to any property acquired by way of gift or under
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a will or any other instrument or under a decree or order of a civil court
or under an award where the terms of the gift, will or other instrument or
the decree, order or award prescribe a restricted estate in such property.
What can be discerned from Section 14 is that for Section 14(1) to be
triggered, the female Hindu who possessed any property, whether
acquired before or commencement of the Hindu Succession Act, 1956,
must initially have a limited ownership in the said property. If she is not
the owner of the property at all, then the question of getting full
ownership by virtue of Section 14(1) does not arise. What Section 14(1)
contemplates is that limited ownership of any property possessed by a
female Hindu, whether acquired before or after commencement of the
Hindu Succession Act, 1956, converts itself into a full ownership. In the
view that we take, we are supported by several decisions of the Hon'ble
Supreme Court. The first decision is in the case of Eramma Vs.
Veerupanna & Ors. (supra). The relevant portion of this decision
reads thus:
"6. It was next contended by the appellant that she was
admittedly in possession of half the properties of her husband
Eran Gowda after he died in 1341-F and by virtue of Section
14 of the Hindu Succession Act she became the full owner of
the properties and Respondents 1 and 2 cannot, therefore,
proceed with the execution case. We are unable to accept this
argument as correct. At the time of Eran Gowda's death the
Hindu Women's Right to Property Act, 1937 (Act 18 of 1937)
had not come into force. It is admitted by Mr Sinha that the
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Act was extended to Hyderabad State with effect from
February 7, 1953. It is manifest that at the time of
promulgation of Hindu Succession Act, 1956 the appellant had
no manner of title to properties of Eran Gowda. Section 14(1)
of the Hindu Succession Act states:
"14. (1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of
this Act, shall be held by her as full owner thereof and
not as a limited owner.
Explanation.-- In this sub-section, 'property' includes
both movable and immovable property acquired by a
female Hindu by inheritance or devise, or at a partition,
or in lieu of maintenance or arrears of maintenance, or
by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or
exertion, or by purchase or by prescription, or in any
other manner whatsoever, and also any such property
held by her as stridhana immediately before the
commencement of this Act."
7. It is true that the appellant was in possession of Eran
Gowda's properties but that fact alone is not sufficient to
attract the operation of Section 14. The property possessed
by a female Hindu, as contemplated in the section, is
clearly property to which she has acquired some kind of
title whether before or after the commencement of the
Act. It may be noticed that the Explanation to Section 14(1)
sets out the various modes of acquisition of the property by a
female Hindu and indicates that the section applies only
to property to which the female Hindu has acquired some
kind of title, however restricted the nature of her interest
may be. The words "as full owner thereof and not as a
limited owner" as given in the last portion of sub-section
(1) of Section 14 clearly suggest that the legislature
intended that the limited ownership of a Hindu female
should be changed into full ownership. In other words,
Section 14(1) of the Act contemplates that a Hindu female
who, in the absence of this provision, would have been
limited owner of the property, will now become full
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owner of the same by virtue of this section. The object of
the section is to extinguish the estate called limited estate or
"widow's estate" in Hindu law and to make a Hindu woman,
who under the old law would have been only a limited owner,
a full owner of the property with all powers of disposition and
to make the estate heritable by her own heirs and not
revertible to the heirs of the last male holder. The Explanation
to sub-section (1) of Section 14 defines the word "property" as
including "both movable and immovable property acquired by
a female Hindu by inheritance or devise ...". Sub-section (2) of
Section 14 also refers to acquisition of property. It is true that
the Explanation has not given any exhaustive
connotation of the word "property" but the word
"acquired" used in the Explanation and also in sub-section
(2) of Section 14 clearly indicates that the object of the
section is to make a Hindu female a full owner of the
property which she has already acquired or which she
acquires after the enforcement of the Act. It does not in
any way confer a title on the female Hindu where she did
not in fact possess any vestige of title. It follows,
therefore, that the section cannot be interpreted so as to
validate the illegal possession of female Hindu and it does
not confer any title on a mere trespasser. In other words,
the provision of Section 14(1) of the Act cannot be attracted in
the case of a Hindu female who is in possession of the
property of the last male holder on the date of the
commencement of the Act when she is only a trespasser
without any right to property."
(emphasis supplied)
43. As set out in the aforesaid decision, it is clear that Section
14(1) does not confer a title on a female Hindu where she did not in fact
possess any vestige of title. In other words, Section 14(1) does not validate
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the illegal possession of a female Hindu and it does not confer any title
on mere trespasser.
44. The aforesaid view has also been reiterated by the Hon'ble
Supreme Court in the case of Kalawatibai Vs. Soiryabai & Ors.
(supra). The relevant portion of this decision reads thus:-
"7. Property acquired by a female Hindu before the Act came
into force comprised, broadly, of inherited property or
stridhana property acquired by her from a male or female.
Nature of her right in either class of property, unlike males,
depended on the school by which she was governed as well
as whether it came to her by devolution or transfer from a
male or female. This invidious discrimination was done away
with after coming into force of 1956 Act and the concept of
Hindu widows' estate or limited estate or stridhana ceased to
exist by operation of Section 14 read with Section 4 of the Act
which has an overriding effect. A female Hindu who but for
the Act would have been a limited owner became full owner.
But the section being retrospective in operation the meaning
of female Hindu prior to 1956 has to be understood in the light
of Hindu law as it prevailed then. The section enlarged the
estate of those female Hindus who otherwise would have
been limited owners. This result follows by reading the first
part with the last which uses the expression, 'held by her as
full owner thereof and not as a limited owner'. To put it
differently a limited owner became a full owner provided she
was a female Hindu who was possessed of any property
acquired before the commencement of the Act. Therefore,
mere being female Hindu was not sufficient. She should have
been of that class of female Hindus who could on existence of
other circumstances were capable of becoming full owners.
Further the Act being applicable by virtue of Section 2 to not
only Hindus by religion but also to Buddhists, Jains or Sikhs
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and to any person who was not a Muslim, Christian, Parsi or
Jew it was but necessary to use an expression of such wide
connotation as female Hindu because by virtue of sub-section
(3) of the section the word 'Hindu' in any portion of the Act,
which includes Section 14, the word had to be understood as
including not only a person who was Hindu by religion but
even others. However, the objective being to remove disparity
and injustice to which females were subjected under Hindu
law the section limits its operation to such female Hindus who
were limited owners. Reference to the explanation by the
learned counsel was also not very apposite. It was appended
to widen the meaning of property by adding to it the inherited
property, and the property which came to be possessed by a
female Hindu in manner mentioned in it. Its effect was that a
female Hindu became absolute owner not only in respect of
inherited property but even of property received by way of gift
or on partition or in lieu of maintenance etc. provided she
was a limited owner. And not that it enlarged the estate
of even those who were not limited owner. Any other
construction would militate against the otherwise clear
meaning of sub-section (1).
8. Although this section has come up for interpretation, by this
Court, on various occasions in different context but in none of
these cases the court had occasion to examine the ambit of
expression female Hindu and whether it extended to females
other than limited owner. Since in every case whether it was
decided for or against it was the widow who was alive on the
date the Act came into force and she being a limited owner
the decision turned on if she was 'possessed' of the
property so as to become full owner. For instance
in Gummalapura Taggina Matada Kotturuswami v. Setra
Veeravva [1959 Supp 1 SCR 968 : AIR 1959 SC 577] the widow
was held to have acquired rights as the adoption made by her
having been found to be invalid she was deemed to be in
constructive possession and thus 'possessed' of the property
on the date the Act came into force. Mangal Singh v. Smt
Rattno [AIR 1967 SC 1786 : (1967) 3 SCR 454] was another case
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where widow's constructive possession enured to her benefit
as she having been dispossessed by her collaterals in 1954
and filed a suit for recovery of possession before the Act came
into force was held to be 'possessed' of the property so as to
entitle her to become full owner. R.B.B.S. Munnalal v. S.S.
Rajkumar [AIR 1962 SC 1493 : 1962 Supp 3 SCR 418] was a case
where the share of the widow was declared in preliminary
decree. No actual division of share had taken place, yet the
court held that it was property 'possessed' by her on the date
the Act came into force. In Sukhram v. Gauri Shankar [(1968) 1
SCR 476 : AIR 1968 SC 365] , it was held that a widow was full
owner in joint Hindu family property as she became entitled
to the interest which her husband had by virtue of Hindu
Women Right to Property Act. The court ruled that even
though a male was subject to restrictions qua alienation on
his interest in joint Hindu family property, but a widow
acquiring an interest by virtue of the Act did not suffer such
restriction. V. Tulsamma v. Shesha Reddy [(1977) 3 SCC 99]
and Bai Vajia v. Thakorbhai Chelabhai [(1979) 3 SCC 300] , were
cases where the widow was 'possessed' of the property in lieu
of maintenance, and therefore, she was held to be full owner.
In all these cases since the widow was in possession, actual or
constructive, on the date the Act came into force she was held
to be a female Hindu 'possessed' of the property, and
consequently, her limited ownership stood converted into full
ownership by operation of law. Even
in Eramma v. Verupanna [(1966) 2 SCR 626 : AIR 1966 SC
1879] and Kuldeep Singh v. Surain Singh [(1968) 2 Andh LT
224 : 1968 SCD 881 : 1968 Punj LR 30] , where the benefit
was denied under Section 14 the female Hindus were
widows but they were not held to be 'possessed' of the
property because their possession was not backed by
even the remotest vestige of title. In Eramma case [(1966) 2
SCR 626 : AIR 1966 SC 1879] the benefit was denied as Hindu
Women's Right to Property Act being not applicable on the
date the succession opened she could not be held to be
possessed of the property. And in Kuldeep Singh case [(1968) 2
Andh LT 224 : 1968 SCD 881 : 1968 Punj LR 30] she had been
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divested of her interest as a result of transfer made by her.
Contest in all these cases was between reversioner and the
widow herself or the person claiming through her. Review of
these decisions indicates that this Court has consistently
taken the view as stated in Bai Vajia v. Thakorbhai
Chelabhai [(1979) 3 SCC 300] : (SCC p. 313, para 17)
"For the applicability of sub-section (1), two
conditions must co-exist, namely:
(i) the concerned female Hindu must be
possessed of property, and
(ii) such property must be possessed by her as a
limited owner."
9. Mention is necessary to be made in this connection about
observation in Gulwant Kaur v. Mohinder Singh [(1987) 3 SCC
674 : (1989) 10 ATC 599] , that the court in Bai Vajia case [(1979)
3 SCC 300] did not purport to lay down that, "what was
enlarged by sub-section (1) of Section 14 into a full estate was
the Hindu woman's estate known to Hindu law. When the
court uses the words 'limited estate', the words are used to
connote a right in the property to which possession of the
female Hindu may be legitimately traced, but which is not a
full right of ownership". Gulwant Kaur case [(1987) 3 SCC 674 :
(1989) 10 ATC 599] was concerned with acquisition of right by
wife, on entrustment of property in lieu of maintenance, after
1956, when the concept of widows' estate or limited estate or
even stridhana had ceased to exist. Therefore, what was
necessary was being possessed of property, actual or
constructive, by female Hindu under some right or title.
Whereas Bai Vajia case [(1979) 3 SCC 300] was concerned with
acquisition of right in property held in lieu of maintenance
before 1956. Therefore a female Hindu could become
absolute owner only if she was limited owner. Sub-section (1)
of Section 14 deals with rights of female Hindus both before
and after the Act came into force. Female Hindu could
become absolute owner of property possessed by her on
the date the Act came into force only if she was a limited
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owner whereas she would become absolute owner after
1956 of the property of which she would otherwise have
been a limited owner."
(emphasis supplied)
45. When we apply this law to the facts of the present case, we
find that there is absolutely no case put up by the Original Appellant that
she was a limited owner of her 50% share in the Juhu Flat and by virtue
of Section 14 (1), has now become full owner. In fact, as correctly
submitted by Mr. Kadam, the case of the Original Appellant has always
been quite the opposite. The case of the Original Appellant has been that
she is the absolute and full owner of her 50% share of the Juhu Flat
because she had equally contributed for purchase of the same. Once this
is the case with which the Original Appellant has approached this Court,
it necessarily digresses from the case that she is a limited owner of the
50% share in the Juhu Flat. She has admittedly not contributed a farthing
for purchase of the Juhu Flat. This in fact has now been admitted before
us. Once this is the case, then she cannot claim any ownership rights in
the Juhu Flat if there are no ownership rights existing in favour of the
Original Appellant. The question of Section 14 coming to her rescue
cannot and does not arise for the simple reason that for Section 14(1) to
be attracted, the female Hindu has to first have a limited ownership right
in the property before the same can be converted into full ownership.
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Section 14(1) does not in any way give title to a property to a female Hindu
where she had none. Once this is the position in law [as interpreted by
the Hon'ble Supreme Court], we are of the view that the findings of the
Family Court regarding the Respondent being the full owner of the Juhu
Flat, do not call for any interference.
46. Before parting on this issue, we may mention that the three
Judgments relied upon by Mr. Seth have no application to the facts and
circumstances of the present case. In the case of Gangamma & Ors.
Vs. G. Nagarathnamma & Ors.(supra), it was a clear case where
certain properties were standing in the name of the mother. The Plaintiff
was the wife of the deceased son and she alleged that these properties
stood benami in the mother's name. The Plaintiff claimed that these
properties were purchased from the funds supplied by the son and from
the income generated from agricultural lands which were joint family
properties. It is on this basis that the Plaintiff alleged that the properties
standing in the name of mother were also joint family properties. The
Supreme Court held that from the evidence before the Trial Court,
nothing appeared on record to evidence the income of the son, [the
Plaintiff's husband]. On this basis it held that the High Court fell into an
error in holding that the properties standing in the name of the mother
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were joint family properties. In other words, the Supreme Court opined
that the High Court's findings were found to be without any evidence. In
fact, the Supreme Court next held that in the absence of evidence to the
contrary in this case, the factum of the properties being held in the name
of mother would cloth her with title under Section 14 of the Hindu
Succession Act, 1956. In other words, the Supreme Court recognized that
the result would have otherwise been different had there been any
evidence led by the parties to show that her husband had income which
was used to purchase the properties in the mother's name. We fail to see
how this decision can be of any assistance to the case of the Original
Appellant. In fact, in the facts of the present case, there is ample evidence
to show that the entire sale consideration for purchase of the Juhu Flat
was provided by the Respondent and the Original Appellant contributed
absolutely nothing towards the same. Once this is the case, we find that
the reliance placed on the decision of the Supreme Court in the case of
Gangamma & Ors. Vs. G. Nagarathnamma & Ors.(supra) is
wholly misplaced.
47. Even the Judgment in the case of V. Tulasamma & Ors.
Vs. Sesha Reddy (supra) is wholly inapplicable to the facts of the
present case. The issue before the Supreme Court in this case was (i)
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whether the instrument of compromise under which the property was
given to the Appellant before the 1956 Act in lieu of maintenance, falls
within Section 14(1) or is covered by Section 14(2) of the Hindu
Succession Act, 1956; and (ii) Whether a Hindu widow has a right to
property in lieu of maintenance, and if such a right is conferred to her
subsequently by way of maintenance, whether it would amount to mere
recognition of a pre-existing right or a conferment of a new title so as to
fall squarely within Section 14(2) of the 1956 Act. In fact, in the case of V.
Tulasamma & Ors. Vs. Sesha Reddy (supra) the Supreme Court
considered the Judgment of Eramma Vs. Veerupanna & Ors.
(supra) relied upon by us earlier. After referring to several Judgments,
the Supreme Court in paragraph 31 laid down the following principles:
"(1) that the provisions of Section 14 of the 1956 Act must
be liberally construed in order to advance the object of the
Act which is to enlarge the limited interest possessed by
a Hindu widow which was in consonance with the
changing temper of the times.
(2) it is manifestly clear that sub-section (2) of Section 14
does not refer to any transfer which merely recognises a pre-
existing right without creating or conferring a new title on
the widow. This was clearly held by this Court in Badri
Pershad's case (supra).
(3) that the Act of 1956 has made revolutionary and far-
reaching changes in the Hindu society and every attempt
should be made to carry out the spirit of the Act which has
undoubtedly supplied a long felt need and tried to do away
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with the invidious distinction between a Hindu male and
female in matters of intestate succession;
(4) that sub-section (2) of Section 14 is merely a proviso
to sub-section (1) of Section 14 and has to be interpreted as
a proviso and not in a manner so as to destroy the effect of
the main provision."
(emphasis supplied)
48. Even from this decision, it is clear that though Section 14 of
the 1956 Act must be construed liberally in order to advance the object of
the Act, i.e. to enlarge the limited interest possessed by a Hindu widow
and changing it into a full ownership. As stated by us earlier, Section 14
does not confer on a female Hindu title to property, where she had none
to begin with.
49. Even the case of the Seth Badri Prasad Vs. Srimati
Kanso Devi (supra) relied upon by Mr. Seth is wholly inapplicable to
the facts of the present case. Here also, the female Hindu had a limited
estate and was thereafter converted into full ownership by virtue of
Section 14(1) of the Hindu Succession Act. This was not a case where the
female Hindu had no right or interest in the property to begin with. This
is clear from the facts of the said case which are set out in paragraph 1 of
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that Judgment. We, therefore, find that the reliance placed on this
Judgment also is of no assistance to the Original Appellant.
50. In view of the foregoing discussion, we find that the reliance
placed on Section 14 of the Hindu Succession Act, 1956 to claim 50%
ownership of the Juhu Flat is wholly misplaced and is therefore rejected.
APPLICABILITY OF THE LIMITATION ACT, 1963
51. The last argument canvassed by Mr. Seth was on the issue of
limitation. He submitted that under Section 3 of the Limitation Act, a
litigant is allowed to set up a defense of limitation, although the same has
not been set up in either a suit or an appeal. He submitted that the claim
of the Respondent was decided by the Family Court which was subject to
Articles 58 and 59 of the Limitation Act, 1963, namely, for a declaration
that the Respondent was 100% owner of the Juhu Flat and consequently,
the implied relief for cancellation of a purchase deed of the Juhu Flat, in
so far as the Appellant's 50% share is concerned [though this
consequential implied relief is not specifically prayed for, but is bound to
form part of the decree to give it full legal effect]. In this regard, Mr. Seth
submitted that the Respondent in his written statement and in his
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counterclaim pleaded that in the year 1989, the Appellant refused to co-
habit with the Respondent, and it became obvious to the Respondent that
the Original Appellant had waited for the flat to be in her joint name to
show her true colours. He submitted that the Respondent has deposed in
his affidavit of evidence that the Original Appellant was guilty of
deserting the Respondent since 1989, till the date of filing of the affidavit
of evidence. Mr. Seth submitted that the start of the limitation for the
Respondent to apply for either seeking a declaration of his full ownership
of the Flat [under Article 58 of the Limitation Act], or for cancellation of
the 50% ownership of the Appellant [under Article 59 of the Limitation
Act] started on the date sometime in 1989, when as per the pleadings and
deposition of the Respondent, he realized that he had been misled and
cheated by the Original Appellant into adding her name on the purchase
deed/share certificate of the Juhu Flat and thereafter the Original
Appellant had deserted the Respondent in 1989. He, therefore submitted
that the remedy allowed by the Family Court was barred by limitation
especially since the Respondent had put up his case in the nature that the
said Flat was purchased by him [as a benami Flat] in the name of the
Original Appellant - wife.
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52. On the other hand, Mr. Kadam, the learned Counsel
appearing for the Respondent submitted that the aforesaid argument is
completely devoid of merits. He submitted that the Respondent's plea of
ownership vesting in him was taken in defence of the Original Appellant's
claim of ownership having vested in her. He submitted that it is now too
well settled that limitation does not bar a defence. In this regard Mr.
Kadam relied upon the decisions of the Hon'ble Supreme Court in the
cases of (i) Shrimant Shamrao V. Pralhad [(2002) 3 SCC 676];
and (ii) Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia
& Ors. [(2004) 5 SCC 272].
53. Mr. Kadam next submitted that even assuming that the
Respondent was obligated to file a Suit against the Original Appellant,
such a suit would be for recovery of possession from her and for
declaration of title to the remaining 50% of the Juhu Flat. Such a suit even
if seeking a declaration of title, is treated under law to be a suit for
recovery of possession liable to limitation under Article 65 of the
Limitation Act. Article 65 of the Limitation Act begins to run when the
defendant's possession becomes adverse to the plaintiff. In other words,
a plea of adverse possession inherently proceeds on the footing that
someone else is the owner of the property. A plea of independent title is
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mutually inconsistent with a plea of adverse possession. In the present
case, it is the Original Appellant's case of having acquired 50% ownership
in the Juhu Flat independently and in her own stead. She did not accept
that the Respondent was the 100% owner of the Juhu Flat. Thus,
possession never became adverse to trigger limitation under Article 65.
That apart, the Respondent has always been in possession of the Flat and
therefore the plea of limitation is wholly frivolous.
FINDINGS ON THE APPLICABILITY OF THE LIMITATION ACT, 1963
54. We have heard the learned Counsel appearing for the parties
on the issue of limitation. We find considerable force in the argument
canvassed by Mr. Kadam. In the facts of the present case, what has been
set up to refute the 50% ownership of the Original Appellant is by way of
a defence. The Limitation Act applies to suits, appeal and applications.
This is clear from Section 3 of the Limitation Act which stipulates that
subject to the provisions of Section 4 to 24 [inclusive], every suit
instituted, appeal preferred and application made after the prescribed
period shall be dismissed, although limitation has not been set up as a
defence. The Limitation Act does not bar a defence being taken to a claim
made by the plaintiff. In this regard, we find that the reliance placed by
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Mr. Kadam on the Judgments of the Hon'ble Supreme Court in the case
of Shrimant Shamrao V. Pralhad [(2002) 3 SCC 676] and
Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia & Ors.
[(2004) 5 SCC 272] is well founded. In the case of Shrimant
Shamrao V. Pralhad (supra), the Supreme Court in paragraph 20
held as under:
"20. It is, therefore, manifest that the Limitation Act does not
extinguish a defence, but only bars the remedy. Since the
period of limitation bars a suit for specific performance of a
contract, if brought after the period of limitation, it is open
to a defendant in a suit for recovery of possession brought
by a transferor to take a plea in defence of part performance
of the contract to protect his possession, though he may not
able to enforce that right through a suit or action."
Similarly, in the case of Bajranglal Shivchandrai Ruia Vs.
Shashikant N. Ruia & Ors. (supra), the Hon'ble Supreme Court in
paragraph 70 and 71 opined as under:
"70. The Division Bench came to the conclusion that the
withdrawal of Suit OS No. 218 of 1973 and the rejection of the
application moved by Bajranglal for transposition as the
plaintiff, which was upheld by the Division Bench, and the
summary dismissal of the special leave petition thereagainst,
conclusively precluded the contention urged by the appellant
in this regard. The Division Bench held, "the result of rejection
of application for transposition is that the cause of action
against the corporation and the auction-purchaser came to an
end" and based its finding upon the fact that, on the date
when Bajranglal made the application for transposition as
plaintiff (10-9-1985), Bajranglal had lost the right to file a suit
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for avoiding the auction-sale, as it was barred by time. This led
the Division Bench to hold:
"the result of withdrawal of the suit and the rejection of
application for transposition is that the auction-sale in
favour of the plaintiff had become final and Bajranglal
cannot raise any objection in the present suit and avoid
the auction-sale".
71. In our view, this reasoning of the Division Bench is
erroneous. Although the period of limitation prescribed in the
Limitation Act, 1963 precludes a plaintiff bringing a suit which
is barred by limitation, as far as any defence is concerned,
there is no such limitation. In reply to the plaintiff's suit that
she had derived title to the suit property by virtue of the
auction-sale and the certificate of sale issued by BMC, it was
perfectly open to the defendants, including Bajranglal, to
contend to the contrary. The burden of proving the facts
alleged in the plaint was squarely upon the plaintiff. After
recording evidence on both sides, if the evidence showed that
the auction-sale held by BMC was contrary to the provisions
of the BMC Act and the Regulations made thereunder, the
defendants were entitled to urge upon the learned Single
Judge to come to the conclusion recorded by the learned
Single Judge.
72. The respondents, however, contend that the sale
proceedings could be challenged only by way of substantive
suit. Inasmuch as the suit had become time-barred on the
date of the application for transposition, there was no scope
for the sale of Hari Niwas to the plaintiff being challenged by
a suit. They urged that the Division Bench is right in
characterising the challenge to the suit by Bajranglal as a
"back-door method".
73. It appears to us that the contention of the respondent is
misplaced. If the title claimed by the plaintiff was a nullity and
wholly void, there was no need for any of the defendants
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including Bajranglal to challenge it by way of a substantive
suit. They could always set up a nullity of title as a defence in
any proceeding taken against them based upon such title. If,
in fact, the sale was a nullity, it was non est in the eye of the
law and all that the defendant had to do was point this out.
(See in this connection: Ajudh Raj v. Moti[(1991) 3 SCC 136] and
the opinion of the Full Bench of the Bombay High Court
in Abdullamiyan v. Govt. of Bombay [(1942) 44 Bom LR 577 : AIR
1942 Bom 257] .)"
55. In light of the aforesaid decisions of the Hon'ble Supreme
Court, we fail to understand how the Limitation Act can be attracted to
defeat the defence taken by the Respondent that the Original Appellant is
not the owner of the Juhu Flat because she has not contributed towards
the purchase of the same. Even otherwise, we find that this argument is
of no avail to the Original Appellant. It is only on 18th February 2012 that
the Original Appellant amended her Petition and inserted a new cause of
action qua the Juhu Flat and claimed 50% ownership of the same. In
other words, for the first time, the Original Appellant claimed 50%
ownership of the Juhu Flat on 18th February 2012. It is in reply to this
case that the Respondent filed his additional written statement
contending that the Original Appellant was not entitled to any ownership
rights in the Juhu Flat as she had not contributed anything for the
purchase thereof, and her name was added only for the sake of
convenience. This plea was taken on 1st March 2012 itself. We, therefore,
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fail to see how limitation can in any event be the answer to over-turn the
findings given by the Family Court regarding the ownership of the Juhu
Flat. The issue of ownership was raised for the first time by the Original
Appellant-wife only in the year 2012. This being the case, we find even
the argument canvassed by Mr. Seth on the issue of limitation have no
merit and the same is hereby rejected.
56. For all the aforesaid reasons, we find that the impugned
Judgment and decree of the Family Court requires no interference. We
find that it is a perfectly well reasoned order after examining all the
evidence on record. It is not disputed that the entire purchase money has
been paid by the Respondent and it is in this light that the Family Court
had declined the reliefs sought for by the Original Appellant qua the Juhu
Flat. We, therefore, have no hesitation in dismissing the above Appeal as
we find no merit in the same. However, in the facts and circumstances of
the present case, there shall be no order as to costs.
57. Before concluding, we must acknowledge and appreciate the
efforts put in, and the assistance given to the Court, by Mr. Seth as well
as Mr. Kadam, in the above Appeal.
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58. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this order.
[ M. M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
59. At this stage, Mr. Seth, the learned Counsel appearing for the
Appellant, submitted that this Court, by its order dated 15th September
2014, had restrained the Respondent from creating any third party rights
in favour of any person, in any manner whatsoever, in relation to the Juhu
Flat, and which has continued till date. He, therefore, requested that this
interim order be continued for a period of four weeks to enable the
Appellant to test our judgment before the Hon'ble Supreme Court.
60. Considering that the above restraint has been operating
against the Respondent from 15th September 2014, we find that the
request made by Mr. Seth to be a fair and reasonable one. In these
circumstances, we direct that for a period of four weeks from today, the
Respondent shall not create any third-party rights in favour any person,
in any manner whatsoever, in relation to the Juhu Flat.
[ M. M. SATHAYE, J.] [ B. P. COLABAWALLA, J.]
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