Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
B. P. Colabawalla and M. M. Sathaye, JJ.
Rajeev Ruia – Appellant
versus
Mahesh Vennalakanti – Respondent
Family Court Appeal No.97 of 2014,
Arising out of Petition No.A-480 of 2010
Decided on 1.4.2024

Advocates:
Counsel for the Parties:
For the Appellant: Mr. Dinesh Kumar Seth i/b. Mehul Rathod
For the Appellant: Mr. Rajeev Ruia, Appellant is present
For the Respondent: Mr. Rohan Kadam a/w Karishma Rao i/b. Pankaj Bhatt

IMPORTANT POINTS
(1) Pleadings – Only in exceptional cases can Court assess case not specifically pleaded.
(2) Any property possessed by a female Hindu, whether acquired before or after commencement of Hindu Succession Act 1956, shall be held by her as a full owner thereof and not as a limited owner – Section 14 does not confer on a female Hindu title to property, where she had none to begin with.
(3) Limitation Act does not bar a defence being taken to a claim made by plaintiff.
(4) Plea of independent title is mutually inconsistent with plea of adverse possession.

Headnote:
(A) Hindu Marriage Act, 1955 – Sections 13(1)(i-a) and 13(1)(i-b) – Divorce – Cruelty and desertion by Husband – Sole issue for consideration is correctness of Family Court’s order that Respondent is sole and absolute owner of Juhu Flat – Limitation Act cannot be attracted to defeat defence taken by Respondent that Original Appellant is not owner of Juhu Flat because she has not contributed towards purchase of the same – Respondent has always been in possession of Flat and plea of limitation is wholly frivolous – Entire purchase money has been paid by Respondent and it is in this light that Family Court had declined reliefs sought for by Original Appellant qua Juhu Flat – Impugned Judgment and decree of Family Court requires no interference – It is a perfectly well reasoned order after examining all evidence on record. (Paras 53, 55 and 56)
(B) Civil Procedure Code, 1908 – Order VI Rule 1 – Benami Transactions (Prohibition) Act, 1988 – Section 3(2) – Pleadings – Only in exceptional cases can Court assess case not specifically pleaded – Even then, (i) pleadings in substance should contain necessary averments to make out a particular claim; (ii) issues framed should also generally cover question involved; and (iii) parties proceed on the basis of said issue to lead evidence accordingly – In facts of present case, issue regarding applicability of Benami Transactions (Prohibition) Act, 1988 and/or presumption that is set out in Section 3(2) of Act [prior to its amendment] was never in contemplation of parties either when they approached Family Court or in fact even in Appeal – Such contention cannot be allowed to be raised at this late stage. (Para 24)
(C) Hindu Succession Act, 1956 – Section 14 – Female Hindu succession – Any property possessed by a female Hindu, whether acquired before or after commencement of Hindu Succession Act 1956, shall be held by her as a full owner thereof and not as a limited owner – What Section 14(1) contemplates is that limited ownership of any property possessed by a female Hindu, whether acquired before or after commencement of Hindu Succession Act, 1956, converts itself into full ownership – Section 14(1) does not validate illegal possession of a female Hindu and it does not confer any title on mere trespasser – Section 14 does not confer on a female Hindu title to property, where she had none to begin with. (Paras 42, 43 and 48)
(D) Limitation Act, 1963 – Section 3 – Bar of limitation – Every suit instituted, appeal preferred and application made after prescribed period shall be dismissed, although limitation has not been set up as a defence – Limitation Act does not bar a defence being taken to a claim made by plaintiff. (Para 54)
(E) Adverse Possession – [Limitation Act, 1963 – Article 65] – Plea of adverse possession inherently proceeds on footing that someone else is owner of property – Plea of independent title is mutually inconsistent with plea of adverse possession – In present case, it is Original Appellant’s case of having acquired 50% ownership in Juhu Flat independently and in her own stead – She did not accept that Respondent was 100% owner of Juhu Flat – Possession never became adverse to trigger limitation under Article 65. (Para 53)
Result: Appeal dismissed.

JUDGMENT

B.P. Colabawalla, J.—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 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. 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 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