Telangana High Court
Smt.Harsha Kothari , Roopa Kothari vs Sri Jitesh Pravin Kothari And Anr on 7 June, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
FAMILY COURT APPEAL No.157 OF 2011
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Smt. Manjiri S. Ganu, learned counsel for the
appellant/wife and Sri P.Pandu Ranga Rao, learned counsel appearing
for the respondent No.1/husband.
2. According to the appellant, respondent No.2 is not necessary
party to this appeal. The said fact was mentioned in the cause title of
the present appeal.
3. Feeling aggrieved and dissatisfied with the order dated
25.04.2011 passed in O.P.No.1111 of 2007 by the Judge, Additional
Family Court, Hyderabad, the appellant/wife preferred the present
appeal.
FACTS:-
4. The respondent/husband filed a petition vide O.P.No.1111 of
2007 under Section 13 (1) (ia) (ib) of the Hindu Marriage Act seeking
dissolution of his marriage dated 28.05.1991 with the appellant herein
on the grounds of desertion and cruelty contending as follows:-
i. His marriage was performed with 1st respondent on 28.05.1991
as per Hindu rites and customs.
ii. It is an arranged marriage.
iii. After one week of marriage, he shifted his business to
Hyderabad and as such he shifted his family consisting of his
mother, brother Piyush P. Kothari and his wife Rupa Kothari
and his wife to Hyderabad.
iv. The respondent/husband and his brother set up partnership
business under name and style of "Swastik Paints"
v. In the year 1993 due to family disputes, respondent No.1 and
his brother were staying separately.
vi. They were blessed with two children, one male child Raunaq J.
Kothari, born on 05.08.1992 and now aged about 32 years and
female child Shreya Kothari, born on 13.02.1994 and presently
aged 29 years.
vii. His wife habituated to lead her life lavishly by ignoring
household duties and taking care of the children.
viii. She used to roam with male friends. When he objected her act,
she did not care and she used to pick up quarrels with his
mother and pester him with silly complaints about his mother.
ix. Due to pre-occupation of the business, he used to go out for
business at around 9:30am and return home at around 8.30pm
and all this time, she used to go out of the house on pleasure
trips and she never used to take care of children.
x. She did not prepare food. His mother used to do.
xi. She had affair with her friend by name Prem in the year 1996.
She was caught red-handedly by him.
xii. She also having affairs with one Harish Naidu and he used to
come to his house behind his back.
xiii. Once he observed his wife and said Harish Naidu travelling in a
car to Secunderabad and when he stopped the car and
questioned her, she replied that he is a mechanic and he was test
driving the car.
xiv. On his enquiry, he came to know that she used to meet Harish
Naidu at Malathi Naik Plaza, Hanuman Tekdi, Hyderabad.
xv. The said person used to run a gaming business under name and
style "Billiards Point".
xvi. Whenever, his wife used to visit her father's house in Pune, she
used to take Harish Naidu with her, stay in Santosh Hotel near
to her father's house.
xvii. The 1st respondent/husband unable to bear the humiliation with
the visits of Harshit Naidu to his house, he purchased one flat at
Lingampally, Hyderabad in his name and his wife's name
jointly by investing all the funds from his business
xviii. She did not contribute anything for purchase of the said flat.
xix. He along with his family members shifted to the above said flat
in the year 2001. Parents of his wife also stayed with him from
2001 to 2005 due to their financial problems.
xx. There also, his wife came close with one Shiva Reddy who was
running a business under name and style of "Biryani Point"
where he used to sell Biryani and other food items.
xxi. Once he found Shiva Reddy in his apartment along with his
wife and the said Shiva Reddy used to come to his apartment in
his absence.
xxii. He also came to know that his wife sold her Jewellery and
helped Shiva Reddy financially in his business.
xxiii. On 26.09.2007, she eloped with Shiva Reddy and did not return.
On 28.09.2007 he lodged a complaint with the police
Narayanaguda Police Station stating that his wife was missing
and he has suspicion that she might have eloped with Shiva
Reddy. She had taken away Rs. 3,00,000/- cash, some money
from his cousin sister and 50 Tulas gold jewellery. She has also
taken the keys of locker maintained with Bank of India,
Kachiguda Branch.
xxiv. The police, during investigation, received a letter from her from
New Delhi, requesting the police not to search for her as she
had left the house on her own accord due to differences with
him.
xxv. His wife is in habit of changing boyfriends. Therefore, his wife
deserted him.
xxvi. He has lodged another complaint with regard to missing
articles and the same is registered as Cr.No.373 of 2007. The
Police investigation, revealed that his wife eloped with Shiva
Reddy.
xxvii. His wife caused lot of mental agony to him by having extra
marital affairs and eloping with Shiva Reddy.
Therefore, respondent/husband had filed the said OP seeking
dissolution of marriage.
5. Opposing the said petition, appellant/wife had filed counter
contending as follows:-
i. At the time of marriage, her parents gave him dowry of
Rs.2.5lakhs, 25 tulas of gold, other silver items and household
articles.
ii. He used to harass her demanding additional dowry.
iii. He used to suspect her on every thing and behaved like psycho.
He used to abuse her in front of children.
iv. His brother Piyush Kothari always used to demand her to have
sexual intercourse with him and also sexually abused her. He
tried to misbehave with her in the absence of her husband.
When she complained the same with her husband, he did not
bother about the same. Due to which her health condition was
deteriorated.
v. He is trying to alienate the properties which are in the joint
ownership with forged signatures. His brother supported him of
his illegal acts.
vi. He subjected her to physical and mental cruelty. When she went
to Chennai to her own sister's house, he lodged a false
complaint with the Police, Hyderabad stating that she was
kidnapped but she was never kidnapped by any person.
With the said contentions, she sought to dismiss the said OP.
6. On consideration of the evidence on record both oral and
documentary, vide impugned order dated 25.04.2011, the learned
Family Court allowed O.P.No.1111 of 2007 granting decree of
divorce by dissolving the marriage dated 28.05.1991 of the appellant
with respondent No.1. Learned Family Court declared in respect of
'A' and 'B' schedule properties and granted perpetual injunction in
respect of said properties/petition schedule properties as prayed for.
7. Aggrieved by the said order 25.04.2011, the appellant/wife
preferred the present appeal on the following grounds:-
i. The Family Court erred in not considering the evidence of
P.W.2-maid of the house and in finding that she caused mental
cruelty to her husband.
ii. P.W.2 is not educated. The Family Court erred in not observing
the fact that P.W.2 in her cross-examination specifically stated
that she does not know the language of the appellant/wife or the
respondent/husband. She does not know the private affairs of
them.
iii. The Family Court ought not to have presumed that the
appellant/wife discussed with P.W.2 that she was going to elope
with 2nd respondent.
iv. The Family Court erred in concluding that Exs.P.5, P.7 and
P.13 were voluntarily written by the appellant/wife when she
specifically contended that she was forced to write them and
that she did not write them on her own accord.
v. The Family Court erred in granting reliefs of declaration in
respect of the A and B petition schedule properties.
vi. It is settled law that in a suit for declaration of title, the plaintiff
has to prove his own case without depending on the weakness
of the defendant.
vii. Schedule 'A' property is flat which is in joint names of herself
and her husband and when such is the case, without there being
any proof as to the consideration paid for the said properties, the
Family Court granted declaration of the property in favour of
the husband. The contention that the respondent No.1 that he
has purchased benami in the name of his wife is false.
viii. Without considering the said aspects, vide impugned order and
decree, learned Family Court allowed the O.P.No.1111 of 2011
erroneously.
8. Whereas, Sri P.Pandu Ranga Rao, learned counsel appearing
for 1st respondent would contend that learned Family Court considered
the entire evidence both oral and documentary and allowed the OP
filed by the 1st respondent. It is a reasoned order. There is no error in
it.
9. It is relevant to note that both the appellant as well as 1st
respondent filed written synopsis. In paragraph No.6 of the said
written synopsis, the appellant contended that after passing the
impugned decree by the learned Family Court dissolving the marriage,
1st respondent got married and he has children from the second
marriage. In fact, in view of the harassment meted out by the
appellant, she is not in a position to live with the 1st respondent and
that too, after living apart for the past 16 years on which ground itself
the learned Family Court dissolved the marriage.
10. During the course of hearing, learned counsel for the
appellant reiterated the said contentions. Thus, even the appellant is
also not aggrieved by the decree of divorce granted by the learned
Family Court vide impugned order. Though she preferred the present
appeal challenging the impugned order, in the present appeal, she
confined to the extent of declaration granted by learned Family Court
declaring respondent No.1 as owner of schedule -A and B properties
and also granting perpetual injunction as prayed for by the 1st
respondent.
11. In the light of the aforesaid discussion, it is relevant to note
that schedule-A property is Flat No.504, 5th Floor, admeasuring 1111
sq.fts., at Nath Vaibhav Apartments, along with undivided share of 38
sq.yards constructed in the property bearing No.3-4-357/1 and 358
situated Lingampally, Hyderabad. Schedule-B property is Plot bearing
No. 316 in Sy.No.59, 60 admeasuring 178 sq.yards, Ward No.2, Block
No.1 situated at Fathulaguda Village, Uppal Revenue Mandal, Ranga
Reddy District.
12. According to 1st respondent, he has purchased schedule-A
property with his hard earned money from his business and he is
presently residing along with family in the said flat. He has also
obtained bank loan in the joint name of the appellant and respondent
No.1 as it was not possible to procure bank loan of Rs.5 lakhs as on
the date of purchase of the said Flat. However, he has made the
payment to the bank. Even otherwise, the husband can purchase
property in the name of his wife and Flat was purchased not for
benefit of the wife. At the time of purchase of the said property, the
appellant was unemployee, she was not doing any business and she
was not having any source of income. He has purchased the said
properties with his own funds. The sale deed is in the custody of 1st
respondent and he is in actual possession of the same.
13. He has pleaded the said aspects in paragraph No.14 of
O.P.No.1111 of 2007 filed under Section 13 of the Hindu Marriage
Act, 1955 (for short, 'the Act').
14. Whereas, it is the case of the appellant that she was
employee and she used to get salary. She used to do tailoring and she
has also started business with her partner. She used to earn amount of
Rs.4000/- to 5000/- per month. Schedule-A property was purchased
with the money given by her parents. schedule-B was purchased with
her own income. Without considering the said aspects, learned Family
Court declared that 1st respondent is the absolute owner and possessor
of the schedule -A and B properties and granted perpetual injunction.
15. In the light of the aforesaid contentions, it is relevant to note
that schedule-A property was purchased in the year 2001 under a
registered sale deed. Schedule -B property was purchased in the year
2004. In the cross-examination, the appellant herein (R.W.1)
categorically admitted that she started business in the year 2006.
Though she contended that she has obtained money from her brother
Mr. Anand Khara, she has not examined her brother as a witness to
prove the same. Though she contended that schedule-A property was
purchased in the name of the appellant and 1st respondent jointly and
the money was given by her parents, she has not examined any of her
parents.
16. It is also relevant to note that the appellant has taken
contradictory versions. At one place, she has stated that schedule-A
property was purchased with the money given by her brother i.e. Mr.
Anand Khara and at other place she has stated that the said property
was purchased with the loan obtained from the Bank. Thus, there are
contradictory versions in the evidence of the appellant with regard to
purchase of schedule -A property.
17. It is also relevant to note that during cross-examination, she
has categorically admitted that she does not know from which bank
the said loan was obtained. She does not know the quantum of loan
obtained. Though she contended that her family is rich, she has not
examined any of her family members including brother and parents. In
fact, she has admitted that her parents were staying with her and 1st
respondent from 2001 to 2005 which shows that they were not in a
position to survive and support themselves.
18. During cross-examination, she has also stated that loan is
being repaid from the account of M/s Swastik Paints owned by
respondent No.1. Though she claims that she is an income tax
assessee, she has not filed any document. Whereas, respondent No.1
has filed income tax returns i.e. Ex.P.40, 52 to 58. He has also filed
Ex.P.45 to 49 bank statements and Ex.P.44 certificate from the State
Bank of Travancore.
19. Perusal of the counter filed by the appellant in the aforesaid
OP and her evidence including cross-examination would reveal that,
she does not know how much consideration she has paid in respect of
the schedule property. She does not know the details of the said sale
including date, consideration, boundaries, plot number, area etc. She
has admitted the said facts in her cross-examination. In fact, the
original sale deed in respect of schedule -B property is with
respondent No.1. In respect of Schedule-A property, he has been
paying loan to the bank which is evident from the record.
20. It is also relevant to note that during cross-examination,
appellant admitted that she has entered into agreement of sale with
regard to the schedule-B property on 07.09.2007. She has taken an
amount of Rs.1,00,000/- as advance from one Gnaneshwar Goud.
Ex.P.13 is the receipt in proof of the same. It bears her signature and
writing. But according to her, the same is obtained by force. She has
not lodged any complaint against respondent No.1. The said facts
would reveal the attitude of the appellant herein.
21. With regard to Ex.P.13, she has taken contradictory stand
i.e. the same was obtained by force and the other is her signature was
forged on it. The same is evident from her cross-examination. She
tried to blame her advocate i.e. Mr. Chandresh. During the cross-
examination, she admitted that according to her she used the word
'forged' in her chief affidavit dated 28.03.2011. She was compelled to
write Ex.P.13. Thus, she tried to throw blame on her Advocate.
22. During the cross-examination, she admitted that she does
not know how much amount was taken. She left the house on
28.09.2007 on her own accord. She has also admitted that she left the
house on 28.09.2007, met his friend, the said friend is male person and
his name is Rajeev. Thus, she left the company of respondent No.1
and her children on 28.09.2007. According to the 1st respondent, she
eloped with 2nd respondent and she used to maintain illegal relations
with him.
23. Perusal of the record would also reveal that the appellant did
not make any attempt to see her children. She has not filed any
petition seeking custody including interim custody of the children and
visitation rights. She left respondent No.1 and her children abruptly on
28.09.2007. Therefore, she cannot claim that the aforesaid two
properties were purchased in the name of appellant and respondent
No.1 jointly and she has contributed funds for purchase of the same.
On consideration of the said facts only, learned Family Court allowed
the said OP and declared respondent No.1 as owner of Schedule -A
and B properties and granted perpetual injunction. It is a reasoned and
well founded order. There is no error in it.
24. Learned counsel for the appellant place reliance on the
principle laid down by the Apex Court in Nand Kishore Mehra vs.
Sushila Mehra 1 wherein the Apex Court discussed the provisions of
Benami Transactions (Prohibition) Act, 1998 ( for short, 'the Act')
and held as under:-
1995 AIR (SC) 2145
A person permitted to purchase a property in the name
of his wife or unmarried daughter under sub-section (2) of
Section 3 notwithstanding the prohibition to enter into a
benami transaction contained in sub-section (1) of Section 3
cannot enforce his rights arising therefrom, for to hold so
would amount to holding that the Statute which allows
creation of rights by a benami transaction also prohibits the
enforcement of such rights, a contradiction which can never
be attributed to a Statute. If that be so, there can be no valid
reason to deny to a person, enforcement of his rights validly
acquired even in the cast by purchase of property in the name
of his wife or unmarried daughter, by making applicable the
prohibition contained in respect of filing of suits or taking up
of defences imposed in respect of benami transactions in
general by sub-sections (1) and (2) of Section 4 of the Act.
But, it has to be made clear that when a suit is filed or defence
is taken in respect of such benami transaction involving
purchase of property by any person in the name of his wife or
unmarried daughter, he cannot succeed in such suit or defence
unless he proves that the property although purchased in the
name of his wife or unmarried daughter, the same had not
been purchased for the benefit of either the wife or the
unmarried daughter, as the case may be, because of the
statutory presumption contained in sub-section (2) of Section
3 that unless a contrary is proved that the purchase of property
by the person in the name of his wife or his unmarried
daughter, as the case may be, was for her benefit.
25. In Yogita Dasgupta vs. Kaustav Dasgupta 2, the Delhi
High Court, on examination of the facts therein, held that the suit
property therein was purchased with the husband's money in the
wife's name, husband secured bank loan for the purchase of the
property and this would mean that property is mortgaged to the bank.
The husband continues to be liable for the loan and making repayment
towards instalments. The suit property became the family home as
long as parties were married. Wife left the home and never returned.
The marriage of the parties later dissolved by mutual consent. The two
children live with the husband in the suit property. Though the wife
stated that she was repaying the loan, she was unable to prove that
allegation. The husband, in the cross-examination, stated that since
stamp duty payable was at a lower rate if the Vendees were women,
he decided to purchase stamp paper in the wife's name, and complete
the transaction. It was clearly held that the plaintiff discharged the
onus which lay upon him to prove that the property was purchased not
for the wife's benefit, but for that of the family as a whole. With the
said observations, the Delhi High Court dismissed the appeal filed by
wife. But the facts in the present case are altogether different.
CDJ 2016 DHC 1319
26. Section 3 of the Act deals with prohibition of benami
transactions and the same is extracted below:-
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, an offence under this section shall be non-
cognizable and bailable.
27. Section 5 of the Act deals with the property of benami liable
to acquisition and the same is also extracted below:-
5. Property of benami liable to acquisition-
(1) All properties held benami shall be subject to acquisition by such
authority, in such manner and after following such procedure as may be
prescribed.
(2) For the removal of doubts, it is hereby declared that no amount shall be
payable for the acquisition of any property under sub-section (1)
28. It is the specific case of respondent No.1 that he has
obtained loan of Rs.5,00,000/- to purchase schedule-A property. To
obtain the said loan, it became compulsory for him to obtain loan in
the name of the appellant as well as respondent No.1 jointly. It is his
specific contention that he has purchased the said property in the joint
name of appellant and respondent No.1 not for benefit of his wife.
Therefore, the facts in the aforesaid cases are altogether different to
the facts of the present case.
29. In the present case, though the respondent No.1 specifically
pleaded that schedule -A property was purchased jointly in the name
of appellant as well as respondent No.1, he has discharged his onus
that the same was not purchased for the welfare of his wife. The
appellant failed to elicit anything contra from him during cross-
examination. She failed to prove anything contra to the same. On
consideration of the said aspects only, learned Family Court allowed
the said OP declaring respondent No.1 as owner of schedule -A
property and granted permanent injunction.
30. As discussed supra, at the cost of repetition with regard to
schedule -B property, she admitted during cross-examination that she
does not know the details of the said plot, i.e. plot number, extent,
boundaries and area of the plot. According to her, she has started
business in the year 2006. The aforesaid schedule properties were
purchased in the year 2001 and 2004 respectively. Though she has
stated that she has obtained money from her brother and taken loan,
She has not produced any evidence. Though she has contended that
schedule-A property was purchased from the money given by her
parents but she has not examined any of her parents. On consideration
of the said aspects only, learned Family Court allowed the aforesaid
OP. It is a reasoned order and well-founded. There is no error in it.
The appellant herein failed to make out any case to interfere with the
impugned order. Therefore, the appeal is liable to be dismissed.
31. In the result, the Appeal is dismissed.
Consequently, pending miscellaneous petitions if any, shall
stand closed.
________________________
JUSTICE K. LAKSHMAN
________________________
JUSTICE K.SUJANA
Date:07.06.2024
Vvr
