MANJUSHA VIVEK PISE Vs. VIVEK RAGHUNATH PISE

JUDGEMENT

(1.) The appellant has questioned the validity of the judgment and decree dated 05.03.2014 passed by the VI Addl. Prl. Judge, Family Court, Bangalore in O.S.No.201/2009 by which her claim for half share in the suit schedule property has been rejected by the VI Addl. Prl. Judge, Family Court, Bangalore.

(2.) Brief facts of the case are that appellant and respondent got married in terms of Hindu rites and customs on 16.01.2001 at Pune, State of Maharashtra. Out of wedlock, a daughter by name Pranjal was born on 03.07.2003. For some time, they were living in United States of America and returned to India and shifted to Bangalore in the month of February 2002. Both were working at Bangalore. On 10.11.2002, respondent made down payment of Rs.9.5 lakhs to purchase villa no.6 located in Adarsh Vista Enclave, Vibuthipura Village, K.R.Puram Hobli, Bangalore East Taluk. On 07.06.2003, sale deed was executed. While doing so, respondent registered the property jointly in his and appellant's name while availing loan for the period from 07.07.2003 to 07.11.2027 for a period of about 24 years (Ex.P.2). Appellant had issued 6 instalments cheques totaling sum of Rs.1,06,048/- for the period from August 2003 to February 2004 (wrongly mentioned as February 2003). This amount has been repaid to the appellant by the respondent through cheque of Citibank. When things stood thus, relationship between appellant and respondent was strained which led to separation in the month of September 2005 which concluded in decree of divorce in the month of August '10. Since, name of the appellant reflected in the sale deed in respect of suit schedule property, appellant has filed a suit claiming half of the share in the suit schedule property in O.S.No.201/2009 which was dismissed on 05.03.2014. Hence, present appeal.

(3.) Learned counsel for the appellant vehemently contended that suit schedule property was purchased by the appellant and respondent. Appellant had issued 6 cheques for 6 instalments. It was further contended that appellant being a co-purchaser along with respondent, therefore, she is entitled for half share in the schedule property. Trial Court has erred in not appreciating the fact that appellant is a co-sharer in the suit schedule property whereas trial Court directed the appellant to execute the relinquishment deed unconditionally. Therefore, question of executing relinquishment deed would arise only if the party executing such a deed had share or right in such property. Further, trial Court has failed to appreciate the ratio laid down by the Division Bench of the High Court of Mumbai in SMT SUNITHA SHANKAR SALVI vs SHANKAR LAKSHMAN SALVI reported in, 2003 AIR(Bom) 431, wherein it is held that purchase of property when one's spouse intended to treat the other as a co-owner, both the spouses are equally entitled to shares in the property. It was also contended that trial Court has erred in holding that merely the respondent had contributed higher value of money, that does not give him right to hold the entire schedule property when the appellant had contributed certain amount which the trial Court while passing the preliminary decree declaring the shares of the parties as provided under Order supraI Rule 18(2) of CPC, it has not been appreciated. Respondent has also admitted in the course of his evidence to the effect that schedule property was purchased in the joint names due to the love and affection he had towards the appellant at the relevant point of time. Appellant's contention that even though she has not contributed monetarily towards water, electricity charges, taxes etc., appellant is ready and willing to contribute 50% of her share towards acquisition. She has also claimed mesne profits. Respondent has not taken the contention that appellant had immovable property at Pune in his written statement. Therefore, his contention cannot be taken into consideration. Thus, there was no justification for the Family Court to consider that appellant and her mother are owning two properties at Pune with reference to Exs.D.3 and D.4 - encumberance certificate, decree of divorce read with appellant's remarriage itself is no bar for the appellant to continue to be a co-owner of the schedule property along with respondent. Having regard to the sale deed Ex.P.1 which stands in the name of appellant and respondent, appellant is entitled to her share. Noncompliance of Section 35(2) of the Karnataka Court Fees and Suit Valuation Act by the appellant at the time of filing the suit, the said provision is not attracted in the present case having regard to the fact that appellant being a co-owner of the schedule property and she was in joint possession.