Karnataka High Court
Mr Sunil Abraham vs Ms Reeth Abraham on 21 March, 2025
-1-
NC: 2025:KHC:12034-DB
MFA No. 488 of 2025
C/W MFA No. 474 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 488 OF 2025 (FC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 474 OF 2025 (FC)
In MFA No. 488/2025
Between:
Mr. Sunil Abraham
Aged about 66 years
S/o Late Brigadier T.A.Abraham,
Residing at No. 609, 6th Block,
80 Feet Road, Koramangala,
Digitally signed Bengaluru - 560095
by VEERENDRA
KUMAR K M ...Appellant
Location: HIGH (By Sri S.Srivatsa, Senior Counsel for
COURT OF Sri Nikhil K., Advocate)
KARNATAKA
And:
Ms. Reeth Abraham
Aged about 62 years,
D/o Late B.A.Devaiah,
R/at No. 609, 6th Block,
80 Feet Road, Koramangala,
Bengaluru - 560095.
...Respondent
(By Sri Suresh S. Lokre, Senior Counsel for
Sri Shravan S.Lokre, Advocate)
-2-
NC: 2025:KHC:12034-DB
MFA No. 488 of 2025
C/W MFA No. 474 of 2025
This MFA is filed u/s.19(1) of Family Court Act, praying to
set aside the judgment and decree dated 14.10.2024 passed in
O.S.No.137/2017 on the file of the II Additional Principal Judge,
Family Court, Bengaluru, dismissing the petition filed for
partition.
In MFA No. 474/2025
Between:
Mr. Sunil Abraham
Aged about 66 years
S/o Late Brigadier T.A.Abraham,
Residing at No. 609, 6th Block,
80 Feet Road, Koramangala,
Bengaluru - 560095
...Appellant
(By Sri S.Srivatsa, Senior Counsel for
Sri Nikhil K., Advocate)
And:
Ms. Reeth Devaiah
Aged about 62 years,
D/o Late B.A.Devaiah,
R/at No. 609, 6th Block,
80 Feet Road, Koramangala,
Bengaluru - 560095.
...Respondent
(By Sri Suresh S. Lokre, Senior Counsel for
Sri Shravan S.Lokre, Advocate)
This MFA is filed u/s.19(1) of Family Court Act, praying
to set aside the judgment and decree dated 14.10.2024
passed in O.S.No.220/2022 on the file of the II Additional
Principal Judge, Family Court, Bengaluru, filed for the relief
of mandatory injunction.
Date on which the appeals were
30.01.2025
reserved for judgment
Date on which the judgment was
21.03.2025
pronounced
-3-
NC: 2025:KHC:12034-DB
MFA No. 488 of 2025
C/W MFA No. 474 of 2025
These Appeals, having been heard & reserved, coming on
for pronouncement this day, judgment was delivered therein as
under:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
The common judgment in O.S.No.220/2022 and
O.S.No.137/2017, passed by II Additional Principal Judge,
Family Court, Bengaluru, has given rise to these two
appeals which are also disposed by a common judgment.
2. The parties were husband and wife till their
marriage was dissolved by a decree of divorce granted by
the Family Court, Bengaluru, in M.C.No.4325/2015,
instituted by the wife. The suits emanated after their
marriage was dissolved. The subject matter of the suits is
a house property bearing No.609, 80 Feet Road, 6th Block,
Koramangala, Bengaluru ('suit property' for short). For
better narration of facts, the parties may be referred as
NC: 2025:KHC:12034-DB
husband and wife though they do not stand in that
relationship now.
3. The husband's suit O.S.No.137/2017 is for
partition of suit property, and the wife's suit
O.S.No.220/2022 is for mandatory injunction for a
direction to the husband to remove himself from the suit
property. The undisputed facts unfold that both were
national level athletes. Because they belonged to different
religions, to the opposition of their respective families,
they got married in the year 1983 in accordance with
provisions of the Special Marriage Act. Total dimension of
the suit property is 3000 sq.ft., but, site measuring 60 x
40 ft. was allotted to the wife by the Bangalore
Development Authority (BDA). The allotment was made
by the BDA for a consideration of Rs.30,740/- in the year
1989. Contiguous to 60 x 40 ft. plot, there was extra
land measuring 15 x 40 ft., which the wife purchased from
the BDA for a consideration of Rs.28,205/-. Thus the
entire suit property measures 3000 sq.ft. Thereafter a
NC: 2025:KHC:12034-DB
house was constructed there. As the relationship between
the parties soured, their marriage ended in its dissolution,
and thereafter dispute over the suit property arose.
4. The husband, in his suit for partition pleaded that
although the site was allotted by the BDA in the name of
wife, and the suit property stands in her name, actually he
funded for the consideration that was paid to the BDA.
Later on he bore the entire expenses for construction of a
house. Though being owner he can lay claim on the entire
property, he is satisfied if he is allotted a share
proportionate to his contribution for acquisition of site and
construction of house. But the wife contended in her
written statement that initially, a site measuring 60 x 40
ft. was allotted to her by the BDA in recognition of her
achievement in sports. The allotment was under 'G'
category. She paid the consideration for the allotment as
by then she was working in the Corporation Bank. She
purchased the contiguous marginal land measuring 15 x
40 ft. for a consideration. Then she raised housing loan
NC: 2025:KHC:12034-DB
from her bank and constructed a house. Husband's
contribution for the suit property was nothing, and actually
he possesses his own property at Temple street, Ejipura.
Therefore he is not entitled to claim any share.
5. The wife, in her suit stated that after the decree of
divorce, the stay of the husband with her in the suit
property is illegal as that of a trespasser. It is impossible
to tolerate his abusive behaviour and since he is no longer
her husband, he has to be driven out. She also stated
that she had earlier filed a suit for possession,
O.S.No.26139/2020 against the husband. The suit having
been dismissed as not maintainable upon an application
filed by the husband under Order VII Rule 11(a) of CPC,
she filed an appeal RFA.No.472/2022 to the High Court.
Later on she withdrew the appeal reserving liberty to file a
fresh suit, and then she brought the suit for mandatory
injunction.
6. The written statement of the husband is replica of
plaint in his suit for partition, and he contended that he
NC: 2025:KHC:12034-DB
cannot be directed to vacate as he has legitimate right in
the suit property.
7. The issues framed in the suit are not necessary to
be extracted here, but obviously the burden was on the
husband to establish the contribution made by him to be
entitled to claim partition, and likewise the wife was to
prove that co-residence of the husband in the suit
property was illegal after the dissolution of the marriage in
order that mandatory injunction could be granted.
8. Assessing the evidence, the trial court drew up
conclusions that the husband failed to prove his
contribution for acquisition of site muchless for
construction of the house. Referring to the documents
marked on behalf of the husband, the finding is that none
of them establishes the husband's contribution and on the
contrary, the evidence given by the wife shows that it was
to her that site was allotted by the BDA, and she
constructed the house from her money and therefore he
cannot claim partition. In regard to wife's suit, there is no
NC: 2025:KHC:12034-DB
elaborate discussion, but husband's possession is held to
be illegal as he failed to prove his contribution for
purchase of the site and construction of house, and in view
of dissolution of marriage.
9. We have heard the arguments of Sri. Srivatsa,
learned senior counsel who appeared on behalf of
husband's counsel, and Sri. Suresh Lokre, learned senior
counsel, who argued on behalf of wife's counsel.
10. Husband has filed an application under Order 41
Rule 27 CPC (IA.3/2025) for production of some
documents as additional evidence. Learned counsel
addressed argument on this application also.
11. Sri. Srivatsa raised the grounds that the trial
court has failed to appreciate the evidence properly in the
sense that though many documents that the husband has
produced clearly indicate major contribution made by him
at the time of allotment of the site by the BDA and later
for construction of a house, it is wrongly held that those
documents do not establish his contribution. Non
NC: 2025:KHC:12034-DB
application of mind to the documents can be demonstrated
by the very fact that there is no discussion on a very
important document marked Ex.P.86, which is a copy of
the mutual divorce petition filed by both husband and wife
and which was subsequently withdrawn by them. In
Ex.P.86, there is a clear statement that suit property was
acquired by joint contribution of both. It is a clear
admission by wife about husband's contribution. This one
admission suffices the required proof. Non consideration of
Ex.P.86 has resulted in dismissal of the suit erroneously
and therefore the suit for partition deserves to be allowed.
11.1. With respect to suit for mandatory injunction,
his argument was that no mandatory injunction could be
granted against a person who would be entitled to a share
in the suit property, and secondly that possession could
not be sought by filing a suit for mandatory injunction.
Under Section 39 of the Specific Relief Act, no direction
can be issued to vacate and handover possession. The
- 10 -
NC: 2025:KHC:12034-DB
trial court has lost sight of the scope of Section 39 of the
Specific Relief Act and therefore decree is to be set aside.
11.2. Sri. Srivatsa referred to I.A.3/2025 filed under
Order 41 Rule 27 CPC and argued that the documents
produced with the application are to be received as they
substantiate his claim for partition. They are all bank
documents relating to years 1992 and 1993 and provide
proof for his contribution to purchase a site and construct
a house. These documents could not be produced earlier
as the concerned banks declined to provide the records to
the husband for the reason that they pertained to twenty
year old transactions, and that he also faced many
problems from the wife in accessing and organizing those
documents. Sri. Srivatsa submitted that the documents
are also necessary to pronounce judgment effectively.
12. Sri. Suresh Lokre argued that the judgments in
both the suits do not suffer from infirmity in as much as
the documents that the husband has produced in proof of
his contribution actually do not pertain to suit property.
- 11 -
NC: 2025:KHC:12034-DB
Some of the documents do not even contain the name in
whose name they were issued, and some appear to be in
relation to his own property situate at temple street. The
impugned judgment shows every document of the
husband being considered and discussed. So far as
Ex.P.86 is concerned, it was a joint petition for consent
divorce, and it was withdrawn by them. Any statement
made in a petition which was withdrawn cannot have
effect of admission as well. Finding of the trial court that
suit property absolutely belongs to wife is based on
meticulous examination of both documentary and oral
evidence and therefore the judgment in partition suit
cannot be set aside.
12.1. As regards the suit for mandatory injunction,
Sri. Suresh Lokre argued that in view of dissolution of
marriage between them, the husband cannot claim right of
cohabitation. In fact the wife had filed a suit for
possession and it was dismissed as not maintainable.
When the wife filed a suit for mandatory injunction, the
- 12 -
NC: 2025:KHC:12034-DB
husband would again contend about its maintainability,
which kind of argument cannot be entertained at all. The
husband is a trespasser, and to drive him out of the suit
property, suit for mandatory injunction is the only remedy
available. For this reason, the decree in this suit cannot
be set aside.
12.2. Sri. Suresh Lokre refuted the application for
additional evidence by submitting that even if they are
received, they do not improve the husband's case. Many
of the documents are applications made under Right to
Information Act, and from some other documents nothing
can be gathered in support of husband's case about
contribution to acquire property. Hence the application
cannot be allowed.
13. From the arguments of the learned counsel the
points that arise for discussion are:
(i) Are there grounds to receive additional
evidence as sought by the husband in his
- 13 -
NC: 2025:KHC:12034-DB
application under Order 41 Rule 27 of CPC as
per I.A.3/2025?
(ii) Has the trial court erred in holding that the
husband has failed to prove his contribution
to acquire the site and for construction of
house in order to claim partition?
(iii) Can the wife drive out husband from the suit
property by obtaining mandatory injunction
against him?
POINTS (i) AND (ii):
14. These two points can be discussed together. It is
needless to say that burden is on the husband to prove his
contribution firstly for purchase of site from the BDA, and
for construction of house later on. In his plaint, the
husband has stated that wife did not have financial
resources for purchase of site from the BDA and therefore
he paid entire sale consideration of Rs.30,740/-, although
the plot was registered in wife's name. He has stated to
have paid consideration to purchase the adjacent land. In
paragraphs 6 and 7 of the plaint, he has stated to have
- 14 -
NC: 2025:KHC:12034-DB
spent more than Rs.20,00,000/- for construction of a
house and additional structures, and for interiors, besides
giving breakup figures of his resources. And in para 8, he
has stated that though the wife availed housing loan of
Rs.2,00,000/-and demand loan of Rs.30,000/- she spent
that entire money for her personal use. That means
according to him, he alone bore all the money required for
purchasing the site and constructing a house, and there
was no contribution from the wife at all. If this is his case,
it is not understandable as to why he wants a share in the
suit property, he could have sought eviction of wife
instead of claiming a share.
15. As he has claimed a share proportionate to his
contribution he must clearly state the extent of his
contribution so that the court can evaluate the evidence to
find out whether his claim is tenable or not. He cannot
leave his claim in vagueness. Now if the documents that
he has produced are seen, it is not possible to take a view
different from what the trial court has taken. While their
- 15 -
NC: 2025:KHC:12034-DB
relationship had not yet soured, he might have contacted
engineers and architects as would get disclosed from
Ex.P3, Ex.P4 and Ex.P4(a), but the other documents do
not indicate his name at all, instead some bills, Exs.P13 to
P16, P18, P25, P38, P39 etc., in regard to purchase of
construction materials were issued in the name of wife; It
is true that Ex.P22 contains the name of the husband in
connection with purchase of some steel items, but the
address written there is No.796, IX Main, Koramangala
which is not suit property. With reference to Ex.P22 it is
possible to argue that they were living in another house
while the house was being constructed, but with the aid of
a lone document no inference can be drawn that it would
establish his contribution. In Exs.P26 to 31, ExP.33, P34,
P35, P37, P40, P52, P55, P56, P58, P62 to P70, P72 to
P74, no body's name is mentioned. The documents
Ex.P55 onwards relate to the year 2010, but the house
construction work was completed in the year 1992-1993.
Therefore these documents do not help the husband. The
trial court has given meticulous finding on every
- 16 -
NC: 2025:KHC:12034-DB
document, but as has been argued by Sri. Srivatsa, the
trial court has just referred to Ex.P86, there is no
discussion on it. Therefore Ex.P86 is now considered.
16. Ex.P86 is the certified copy of petition presented
by both the parties under Section 28 of the Special
Marriage Act for dissolution of their marriage, but it was
not pursued and as it is not in dispute that the petition
was withdrawn. In para 10 of this consent petition for
divorce, it is stated, "The petitioners purchased the
residential site bearing No.609 situated at 80 feet road 6th
Block, Koramangala, Bangalore - 560 095, in the name of
petitioner No.1 under a registered Sale Deed dated 30th
November, 1992 was executed in her favour by the
Bangalore Development Authority. The house comprising
a ground and first floor on the said site ('the said property'
for short) was constructed by both the petitioners from the
funds contributed jointly by them".
17. It is with reference to the above paragraph, Sri.
Srivatsa argued that it was an admission by the wife about
- 17 -
NC: 2025:KHC:12034-DB
husband's contribution and this document alone is enough
to accept his case. He has referred to decided cases in
support of his argument. Contra argument by Sri. Suresh
Lokre was that as the petition for consent divorce was
withdrawn, husband cannot rely upon any part of
withdrawn petition.
18. In regard to this line of argument, it has to be
stated that, admission no doubt binds its maker, and the
admission found in pleadings has a greater evidentiary
value. At the same time, admission can be explained
away by its maker. Admission is not a conclusive proof, it
is only corroborative to other evidence. In Biswanath
Prasad and Others Vs. Dwarka Prasad and Others
(AIR 1974 SC 117), the Hon'ble Supreme Court has held
that the admissions usually tell against its maker unless
reasonably explained and no acceptable ground to
extricate the appellants from the effect of their own earlier
statement has been made out. The argument of
Sri.Suresh Lokre that once a petition is withdrawn, any
- 18 -
NC: 2025:KHC:12034-DB
admission found therein loses its binding nature, is difficult
to be accepted for the party making a statement is still
bound by it; withdrawal of a suit or a petition only affects
its further continuance in the court. Sri. Srivatsa has
relied on a decision of the Calcutta High Court in
Chandrakanto Goswami Vs. Ram Mohini Debi and
Others (AIR 1956 Cal.577) where it is held that
withdrawal of a suit does not destroy the effect of an
admission made therein. Therefore mere withdrawal of a
suit or any other petition does not have the effect of
effacing its contents, but whether to act upon an
admission found therein depends on other evidence
brought on record, and incidental and other related
circumstances.
19. Now if the cross examination of DW1 i.e., the
wife is seen, her attention was drawn to Ex.P86 and she
admitted the contents of the entire petition, and she gave
a voluntary answer that she had to put her signature with
a lot of stress. This answer indicates that probably she did
- 19 -
NC: 2025:KHC:12034-DB
not sign the petition for consent divorce with a free mind.
There is no further elucidation of the stressful
circumstances, but it can be said that she suffered stress
as she was reluctant to go for divorce. Definitely she was
not against obtaining divorce, in fact she herself filed a
petition for divorce on various grounds after withdrawing
the mutual consent petition for divorce, this is not
disputed. If she spoke about stress, probably as the
attending circumstances in regard to acquisition of
property indicate, she might have been compelled to admit
certain things. Because she spoke about stress in the
context of a question relating to contents of the petition,
the possible inference is that she might have reluctantly
signed the petition. In this view, Ex.P86 cannot be taken
as an unequivocal admission of a fact.
20. Along with I.A.3/2025, eighteen documents are
produced to be received as additional evidence.
Documents at Sl.Nos.3 to 10 are all correspondences
under Right to Information Act. Probably the husband
- 20 -
NC: 2025:KHC:12034-DB
wanted to procure information about wife's financial
resources, but no information was provided to him. From
these documents, nothing helpful to him could be made
out. The certificates under Form No.16 at Sl.Nos.13 to 17
appear to have been produced to show that husband had
taxable income, but by mere production of these
certificates, he cannot prove his contribution to acquire
suit property. Then documents at Sl.Nos.11 and 12
appear to be having some relevancy, but they too do not
help the husband in as much as the document at Sl.No. 11
is computation of wife's income for the assessment year
1994-1995, in which she disclosed her sources for
construction of the house. She obtained housing loan and
demand loan from the bank, and her parents'-in-law gifted
money to her. She disclosed interest free loan of
Rs.90,000/- taken from her mother-in-law, and
contribution of Rs.2,00,000/- from the husband. Perhaps
for the reasons of gifts made by his parents and payment
of Rs.2,00,000/- by him, he might have produced this
document. So far as gifts are concerned, husband cannot
- 21 -
NC: 2025:KHC:12034-DB
claim any right over it. And payment of Rs.2,00,000/- by
him, cannot also be considered for the simple reason that
his actual plea in the plaint is that he paid the entire
consideration to purchase the site and bore all
construction expenses, which plea does not get
established by mere payment of Rs.2,00,000/-. Therefore
if the application is allowed, it serves no purpose and it
deserves to be dismissed.
21. It is not necessary to delve into all the
documents produced by wife. She too was a national level
athlete, employed at the Corporation Bank. Her
documents show allotment of site exclusively to her by the
BDA; payment of consideration by her; and also
construction of a house from her resources. Therefore the
husband cannot claim partition in the suit property and for
this reason, the findings of the trial court to dismiss the
suit for partition cannot be disturbed. Points (i) and (ii)
are thus answered.
- 22 -
NC: 2025:KHC:12034-DB
POINT No. (iii):
22. The relationship between the parties as husband
and wife no longer exists after the dissolution of their
marriage in M.C.No.4325/2015. The wife states that
husband's continued residence with her in the suit
property which belongs to her amounts to trespass. As
the evidence on record shows that suit property belongs to
wife, and the husband is not entitled to seek partition in it,
he cannot claim right of co-residence after dissolution of
marriage. Sri. Srivatsa's argument that suit for mandatory
injunction is not maintainable, and instead suit for
possession should have been filed, cannot be accepted. It
appears that this point was not raised before the trial
court. Anyway, this is a question of law. A simple
analysis answers the argument. Suit for possession can
be filed either under Section 5 or Section 6 of the Specific
Relief Act, according to the scope of each Section
respectively, when a person loses possession of
immovable property. Here the wife has not lost
- 23 -
NC: 2025:KHC:12034-DB
possession. Her grievance is that after divorce, husband
cannot reside with her and he must be driven out. To this
kind of a situation appropriate relief that can be granted
by the court is mandatory injunction only. Section 39 of
the Specific Relief Act states:
"39. Mandatory injunctions.--
When, to prevent the breach of an obligation,
it is necessary to compel the performance of certain
acts which the court is capable of enforcing, the
court may in its discretion grant an injunction to
prevent the breach complained of, and also to
compel performance of the requisite acts."
23. It becomes clear from Section 39 that mandatory
injunction can be granted by court to prevent the breach
of obligation and to compel performance of required act.
Here, she had earlier filed O.S.No.26139/2020 for
recovery of possession and damages, and it was dismissed
as not maintainable. And then she filed an appeal before
this court which she withdrew later on with a liberty to file
fresh suit. Therefore it is clear that suit for possession
was held not maintainable.
- 24 -
NC: 2025:KHC:12034-DB
24. Factual position being so, it is quite strange that
argument is advanced that suit for mandatory injunction is
not maintainable. As the husband's possession in the suit
property with wife after divorce is illegal, to drive him out
of it, mandatory injunction can be granted. The trial court
has rightly decreed the suit filed by wife. Therefore point
No. (iii) is answered in affirmative.
25. Therefore from the discussion on points Nos.(i) to
(iii), both the appeals are dismissed with costs.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
SD/CKL
