IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
CIVIL APPLICATION NO. 146 OF 2013
IN
WRIT PETITION NO. 3682 OF 2012
Mrs. Tripti Manish Sahni ...Petitioner
Vs.
Manish Gobindram Sahni ...Respondent
CORAM : MRS. ROSHAN DALVI, J.
Date of Pronouncing the Judgment: 20th March, 2013
JUDGMENT:
Rule. Made returnable forthwith.
1. The writ petition arises out of an order of the Judge,
Family Court No.7, Mumbai dated 23rd August, 2011 rejecting
the application of the petitioner wife and another application of
the respondent husband in respect of the sale of their
matrimonial home and the EMIs to be paid for the loans taken in
respect thereof.
2. The parties were married in 1997. They have two
children. There have been disputes between them resulting in
their separation and the consequent petition in respect of the
matrimonial home initially filed by the wife in Family Court,
Mumbai.
3. The matrimonial home is flat No.703 in a building called
Usha Garden. The flat was purchased in the joint names of the
husband and his mother on 6th April, 2006. After the basic
payment was made, loan from Citibank was obtained by the
purchasers. EMIs towards that loan were not paid. Citibank
threatened action under the Securitisation and Reconstruction of
Financial Asset Enformcement of Security Interest Act, 2002
(Securitisation Act).
4. The wife applied to direct the husband to pay the EMIs to
protect the flat which was their matrimonial home. The husband
by his reply applied to sell off the flat. The Court considered it
improper to allow the husband to sell off the flat. The Court
observed if that was allowed, the wife and children would have
no premises for residence and “they would come on roads”.
However the Court did not direct the husband to pay the EMIs
also. Hence both the applications came to be rejected under the
order dated 23rd August, 2011 impugned in the petition.
5. It is interesting that the application of the husband for sale
was stated to be with the consent of his mother because he was
in financial crises and the flat was the joint property of the son
and mother. The husband offered to sell the flat to payoff the
bank loan and utilise the remaining amount for purchasing a
new flat and offered to deposit that amount in the Court. It is
interesting to set out the precise words of the husband's
application in the Family Court in paragraph 10 of his affidavit
which is his assurancecumstatement.
“10. I say that upon the sale/disposal of the said flat, there
will be no change in the nature of the petitioner and my
daughters as they will continue to stay together with me now
in a temporary rented accommodation and later move into
the flat which I shall purchase out of the balance amount
from the sale proceeds. The petitioner and both daughters
shall move with me in the alternate accommodation by way
of purchase of a new flat and/or a flat taken on leave and
license whereby the petitioner will not be dispossessed of her
matrimonial home. I say that there will only be a change in
the address of our residence. I say that such action be just
and necessary when there is no other alternative left for me.
11. I say that the petitioner is deliberately portraying a
false picture about me and my mother who are the
respondents herein, merely to set her convenience and attract
sympathy of the Hon'ble Court.”
4. The learned Judge had however rejected both the
applications and hence this writ petition came to be filed.
5. The flat is now sold. The bank is paidoff. The bank has
deposited the remainder of the amount after discharge of its
liabilities in this Court. Consequently the husband's application
has been ineffect allowed by this Court.
6. Upon the sale of the flat a net amount of Rs.75 lakhs is
lying deposited in this Court. It is this amount which according
to the assurancecumstatement of the husband in paragraph 10
of his own affidavit cited above must be used for purchase of a
new flat in which the wife and the children would not be
dispossessed of their matrimonial home and would only have a
change of their address.
7. It may at once be stated that if parties have to own a house
which is their matrimonial home, both the husband and the wife
must bear the consequences of the loan. The loan must first be
repaid. From the remainder, an alternate premises, which would
be their future matrimonial home, would be allowed to be
purchased. This was the husband's application and this is what
has been ordered by the court in the above writ petition.
8. Upon seeing that indeed the bank had to be paidoff the
loan, this Court, from time to time passed directions in the writ
petition for the sale of the flat. The remainder would go for the
purchase of the new flat as per the husband's own assurance
cumstatement.
9. However the husband changed colour after he saw the
colour of money. He has put up his mother to make the above
application No. 146 of 2013 to claim the amount as her own.
She has made the ITO a party respondent on the premise that
there is a certain income tax attachment for payment of income
tax dues of the husband (her son). She has feigned the case of
not having any relation with her son upon he and his wife
“colluding and having nefarious designs”. In paragraph 28 of
her application she claims to have published a notice in the
newspaper in 1999 that she does not have any relation with her
son and her daughterinlaw. However she claims to have
purchased the suit property which is the matrimonial home of
the parties in 2006 along with her son (husband) and claims to
have taken a joint loan along with her son (husband) in that
year. She has stated that the husband, wife and she herself were
residing in the suit property. She consented to her son's
(husband's) application for sale of the flat in the Family Court
which was stated by the husband in his affidavit.
10. In paragraph 34 of her application she claims that she was
thrown out of the house despite being a coowner of the suit
property. She has stated that “for years she was homeless”
and is presently staying in a rented house for no fault of herself.
She has further stated that she is a senior citizen having “no
source of income” and is dependent upon the amount that “she
was likely to receive” upon this Court's orders (of sale). Hence
she has claimed 50% of the suit property being a coowner/joint
owner with the husband(her son).
11. In a further affidavit of the mother, she claims that the suit
flat is essentially only her property, that she was running a
canteen for 6 – 8 years since she was 16 years old (she is now 70
years old) to “meet daily expenses” by “shear hard work I
have been able to earn my living” and has acquired several
properties in her life time.
12. She claims that she initially acquired one flat in a MHADA
building. She was alloted that flat on 16th November, 1999. She
has not shown how she was possessed of monies to pay the
consideration for that flat and what is the consideration that she
paid.
13. It must be remembered that the parties were married in
1997. The flat is purchased 2 years after their marriage. That
was in the year she allegedly gave a public notice of disowning
her son.
14. The mother claims that she sold that flat in 20052006 to
one Rajeev Bhatnagar. She has produced an agreement for sale
dated 30th December, 2005 registered on 5th January, 2006 for
which stamp duty of Rs.1,27,300/ was paid on 30th December,
2005. She received Rs.28 lakhs by 3 DDs from Rajeev
Bhatnagar. She has shown the deposit of the DDs in her Account
No. 90 SB 400 42179 in Centurion Bank of Punjab Limited.
15. It must be appreciated that the receipt of consideration for
this property is shown to have been credited in her account at
the time of sale, but the payment of consideration for the same
property has not been shown to have been debited to her
account at the time of purchase of the property. This is the
seminal suppression of the mother of the husband.
16. The wife has claimed that the suit flat belongs to the
husband. His mother's name was added for the sake of
convenience. The husband himself made an application for sale
of his own flat. He made out a case that he had purchased it as
his matrimonial home. Due to his “financial crises” he could not
pay the loan and hence sought to sell the flat. In fact when the
wife sought to make the mother a party respondent in the Family
Court the husband has claimed that she has nothing to do with
the dispute and was needlessly sought to be joined and “roped
in”. Now the mother has claimed that she purchased this flat
along with another flat being flat No.704 in Usha Garden which
is the adjoining flat herself for the consideration of Rs.28 lakhs
which she received from the sale of the initial MHADA flat.
17. It does not matter how the amount received in 2006 in the
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account of the mother has come to be utilised unless the
purchase of the flat by her and none else is shown. At the time
of the purchase her son was married. He was expected to have
income to support his own family. At the time of the sale of that
flat the parties had disputes.
18. Several debit entires are shown for purchase of flat No.704
by her entirely and for payment of stamp duty for the suit flat
and payment of two other installments for the suit flat.
19. Her bank account makes interesting reading.
20. Rs. 28 lakhs has been received by her on 4th January, 2006.
It is invested in a FDR on 5th January, 2006. The FDR has been
closed on 19th January, 2006 upon receiving interest of
Rs.4908/. She has made payments of Rs.5 lakhs, Rs. 1 lakh, Rs.
11 lakhs etc., to her daughter soon thereafter. She has made a
transfer to herself of Rs.16 lakhs on 3rd March, 2006 by inward
clearing which shows that she has another bank account also in
the same bank.
21. Thereafter she has commenced the transaction for
purchase of two flats. It would be apt to see the dates of two
purchases and then revert to her bank account.
22. The first purchase is on 6th April, 2006 of flat No.704. That
flat is adjoining the matrimonial home of the parties. She has
paid stamp duty of Rs.92500/ on 4th April, 2006. She has
registered the flat on 7th April, 2006. She has made the initial
payment of Rs.2 lakhs to the builder Jain Associates on 7th April,
2006 by cheque dated 4th April, 2006. Thereafter she has made
payment of further Rs.2 lakhs, Rs.5 lakhs, Rs. 1 lakh and Rs.4
lakhs on 14th April, 2006, 24th April, 2006, 2nd May, 2006 and
19th May, 2006. The first three entries of 14th April, 2006, 24th
April, 2006 and 2nd May, 2006 are reflected in her bank
statement. The last payment of Rs. 4 lakhs of 19th May, 2006 is
made from another account in her name in Lord Krishna Bank
by a cheque drawn on that bank bearing No.034728. The total
payments made by her for flat No.704 shown by her from her
bank account is Rs.11 lakhs. She claims full ownership rights
over that flat. She claims to have utilised the sale price of the
MHADA flat of Rs. 28 lakhs for purchase of flat Nos. 703 and
704 in Usha Garden.
23. We must now see what she paid for the suit flat No. 703
which is the matrimonial home of the husband and wife (her son
and daughterinlaw). The transaction for the suit flat must,
therefore, be seen. Her son and she have purchased the suit flat
on 1st June, 2006. The flat stands in the joint names of the son
as the first primary holder; her name is joined with him. She
has paid Rs.1.28 lakhs as stamp duty from the aforesaid account
on 19th May, 2006. The agreement is registered on 2nd June,
2006. The initial payment of Rs. 1 lakh is reflected in the
agreement showing the said amount paid by cheque No. 034726
drawn on Lord Krishna Bank which is her other bank account.
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24. It is stated that both the joint owners took a loan from
Citibank in respect of flat No.703. Counsel on behalf of the wife
rightly argued that Citibank would require the security of
business or an assured salaried income to be able to disburse the
loan. The Citibank, in fact, disbursed the loan to the husband
who is an income tax assessee and in fact an income tax
defaulter running up his arrears to Rs.30 lakhs by way of default
in payment of income tax as claimed by the income tax authority
who is the respondent in the mother's application and who,
accordingly, has been heard. In fact it is mentioned to Court by
th ITO who is present on behalf of respondent No.2 in the
application of the mother that the mother is NOT an income tax
assessee at all !
25. Indeed the husband's name is the first name as the holder
of the flat. The flat indeed belongs to the husband. Hence the
husband filed an application without his mother in the Family
Court to sell the flat. He offered to purchase a new flat which
would be the alternate matrimonial home of the parties and in
which his wife and children would reside peaceably. That offer
was not a genuine offer. The act of the mother has shown the
intention of the husband. Despite the skill and labour of Mr.
Cama that has gone into his arguments in showing the bank
account of the mother to prove that the suit flat belongs to her,
his effort has come to nothing as such are the facts of the case
demonstrated by the documents of the parties.
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26. Though the mother has claimed, as aforesaid, in her
application that she has been homeless for years and has no
source of income except what she would receive from this
application for which she made her application, she has made a
further affidavit in a bid to show how she has been a successful
business woman having a tremendous income from which she
has purchased several properties including the suit flat. She has
titled herself a “self made woman” and shown how she has
purchased a shop, MHADA tenement, the aforesaid two flats
from the sale of that tenement etc.
27. To substantiate her sturdy financial position she has
produced the statement of another bank account.
28. That also makes interesting reading and deserves a good
look. Assuming that that is for the relevant period to show her
financial acumen from her catering business which she
commenced 54 years ago, and carried on for 6 – 8 years, the
bank statements are enough to show her complete lack of bona
fides.
29. The statement is of Account No. 034 0001 00000 5614.
The name of the bank is not shown in the photocopy of the
statement that is produced showing her customer details on the
top followed by the bank entries, but appears to be the
statement of account in her name in Lord Krishna Bank. That
account begins from 3rd April, 2006 and is for entries up to 31st
January, 2008 which she calls the relevant period. The very first
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entry shows the credit balance of Rs.7,52,414/. It is not known
and now shown how that credit came to be. The withdrawal of
Rs.4 lakhs under cheque No. 034728 is shown from that account
after certain other withdrawals. If the credits in the account are
not explained the debits cannot be accepted. She must first
show how she had Rs.4 lakhs in her account to pay the builder
therefrom.
30. She claims to show other payments made to the builder for
flat No.703 for which there are no corroborating receipts issued
by the builder. These payments are sought to be reflected in the
bank account No. 034 0001 00000 5614. Rs. 1 lakh is paid on
8
th May, 2006 when the account had a balance of Rs. 7 lakhs and
odd which is not explained.
31. There are two other interesting credits of Rs.6.22 lakhs
and Rs. 3 lakhs which are not explained. Rs. 2 lakhs is stated to
be paid to the builder on 29th January, 2007 when the account
had Rs.7.77 lakhs credit after the aforesaid two payments were
deposited. Thereafter there is a complete void between 1st April
2007 and 3rd September 2007. Hence how the account
continued to be maintained is not shown.
32. The payments made thereafter are even more interesting.
Rs.50,000/, Rs.10,000/ and Rs.40,000/ are deposited on 4th
September, 2007. This was when the credit balance in the
account was rock bottom. After deposit of Rs.50,000/ the
balance is only Rs.50293.15. There is a credit balance of
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Rs.1,00,293.15 on 4th September, 2007 by the aforesaid three
cheques. On the same day a cheque for Rs.1 lakh is shown to be
issued to Jain Associates and stated to be for flat No.703. There
is no receipt of the builder for that payment.
33. Similarly on three other dates in September 2007
Rs.20000/, Rs. 60,000/, Rs. 10,000/ and Rs.10,000/ are
deposited again making a credit balance of Rs.100293.15 on 28th
September, 2007. The builder is paid Rs.1 lakh on that day itself
ostensibly for flat No.703, but which is not corroborated by any
receipt of the builder for that flat.
34. Similarly in the next month on 3rd October, 2007, 4th
October, 2007 and 6th October, 2007 Rs.25000/, Rs.25000/ and
Rs.50,000/ are deposited in the account and on 6th October,
2007 itself Rs.75000/ and Rs.26450/ are paid to Jain
Associates again allegedly for flat No.703, but which is not
corroborated by any receipt for that flat.
35. Immediately thereafter on 9th October, 2007 Rs.42,300/ is
deposited in the account and on 10th October, 2007 Rs.42240/
is paid to the builder. Before each of these payments the balance
was in the region of Rs.200/ to Rs.300/. After the debit entry
for payment to the builder similar is the balance being less than
Rs.500/. The minimum balance charge of Rs.28/ has been
levied on 30th November, 2007, 31st December, 2007 and 31st
January, 2008 !
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36. Such is the wealthy woman who acquired enormous
immovable properties including her son's matrimonial home in
which she by her grace allowed her son to live with his family
peaceably and happily, though she was so tormated that she had
issued a public notice disowning her son.
37. It is unmistakably clear that the applicant mother has no
source of income. She is indeed a homeless person having no
source of income as claimed by her in paragraph 34 of her initial
application. She is used and propped up by her son to make a
false show of having a separate property.
38. The son, an income tax assessee is shown to be the
defaulter. The son having taken the bank loan has been shown
to be a defaulter. The son obviously tried to hoodwink the
income tax authorities initially into not showing at least some of
his acquired wealth from his earned income. The son thereafter
played foul with his wife and children. He has thrown his hands
up and neglected to support and maintain them constraining his
wife to file an application for maintenance in which she has
been granted maintenance by the court. The son thereafter
claimed to dishouse and dispossess his wife and children on the
ostensible ground of sale of her matrimonial home. He gave a
false assurance to the court to rehouse his wife and children in
what he called their alternative matrimonial home and when the
time for rehousing came he again put up his mother. Since this
Court would not believe her false claim she has been constrained
to show her bank accounts. The bank accounts only exposed her
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dishonesty as much as her son's defaults.
39. The bank accounts show only Rs.28 lakhs deposited
without the corresponding entry of showing the purchase price
of the MHADA tenement. Similarly the bank account only shows
the stamp duty paid for flat No.703 and no other amounts.
Other amounts shown to be paid to Jain Associates, the builder
may well be for flat No.704 for which the receipts are
mischievously suppressed to falsely contend that they were paid
for flat No.703. Further the bank account shows that amounts
are deposited on a single day, a single week or a single month
(4/9/2007, September, 2007 and the first week of October,
2007) which are immediately paid out to make a show of the
payment for the suit flat from the account shown to be the name
of the mother.
40. It is impossible for the applicant mother to earn these
amounts in a single day or week and leaving her bank account
bereft of funds and wholly dry thereafter. Even excepting that
the credit entries are for flat No.703 only, it is clear that the
amounts are deposited in the account of the mother all by cash
deposits between September and November, 2007 by none other
than the son in whose name the flat stood for payment for the
suit flat.
41. It must be remembered that for the other flat from Rs.28
lakhs received by her she has shown only Rs.11 lakhs spent from
her account. If that is her own flat, the other debit entries from
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Lord Krishna Bank would also be made for that flat only as there
is no other source of funds for that flat. No other bank loan is
claimed to be taken for that flat.
42. Nevertheless an explanation was sought by the Court
about these numerous inexplicable credit entries in both her
accounts. Mr. Cama, on behalf of the mother, upon taking
instructions, explained that there are entries of receipt of rents
by the mother from the shop that she owns and which she has
tenanted.
43. When she purchased the shop is not shown in the
statement like the MHADA tenement. It is stated to be
purchased long back in 1984. The source of that purchase has
not been shown. The dates of the receipt of the rent of the shop
would be important to note. They are as follows:
Sr.No. Amount Date
1 10,000 7/3/2005
2 5000 30/3/2005
3 10000 23/4/2005
4 8750 3/4/2006
5 10000 18/4/2006
6 10000 15/5/2006
7 50000 4/9/2007
8 10000 4/9/2007
9 40000 4/9/2007
10 20000 14/9/2007
11 60000 27/9/2007
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44. It is impossible to accept this incredible explanation. Rent
income would be receivable each month. If the tenant defaults
in the payment of rent it would be receivable after certain
months in a lumpsum or otherwise. There are 3 deposit entries
in March, 2005 and April, 2005 of Rs.10000/, Rs.5000/ and
Rs.10,000/. Thereafter from May 2005 to 2nd March, 2007
there is no rent entry shown at all in Account No. 90 SB 400
42179. Similarly the cash deposit entries are in the other
account of the applicant mother being account No. 034 0001
00000 5614. The cash deposit entries are two entries of Rs.
8750/ and Rs.10,000/ in April, 2006, Rs.10,000/ in May,
2006 followed by no such entires from June, 2006 to March,
2007. Again the cash deposit entries are in September, 2007
and October, 2007 as stated above leaving almost a zero
balance.
45. These accounts only show the user for making various
cross entries. And that is by the mother who pays no income tax
having a son who is a defaulter assessee.
46. Besides these, in the other bank account there are 3 entries
of Rs.5 lakhs, Rs. 1 lakh and Rs. 11 lakhs showing payment
made to Gunita Malhotra who is stated to be her daughter.
These payments are made soon after the receipt of Rs.28 lakhs
was credited to the applicant's account from the sale of the
MHADA tenement. Hence it is seen that from Rs. 28 lakhs Rs.17
lakhs are paid by the applicant to her daughter.
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47. Similarly there is one transfer entry of Rs.16 lakhs by
inward clearing showing another account of the applicant in the
same bank. One cheque payment was made to the builder of Rs.
5 lakhs which is later stated to be returned. There is a credit
entry of Rs. 10 lakhs which is not explained. By these payments
of Rs.17 lakhs to the daughter, Rs.16 lakhs as a transfer to
herself and Rs. 5 lakhs to the builder, Rs.28 lakhs received from
the sale of MHADA tenement and Rs. 10 lakhs also received is
shown to be entirely defrayed. The balance of Rs.28000 and
odd which was in the account prior to the deposit of the sale
proceeds of the MHADA tenement came back to Rs.28000 and
odd after these entries !
44. Several amounts which have been credited to the account
are withdrawn immediately and invested in FDRs (at the
opportune time.) Nothing has been invested in the suit flat.
Instead a loan has been taken by the husband (her son).
45. The account also shows certain receipts from G.M.
Educational Institute. It is not the mother's case that she has
dabbled into business of the educational institute at all. In her
affidavit showing the assets of her husband, filed in the Family
Court the wife has shown that her husband is trustee of G.M.
International School at Goregaon. The bank account which is
ostensibly of the mother shows 3 credit entries of Rs. 3 lakhs,
Rs.1 lakh and Rs.4.25 lakhs credited to her account on 7th April,
2006, 21st July, 2006 and 11th December, 2006 from that
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institute being receipts of amounts from G.M. Educational
Institute. Similarly the wife, in the said affidavit has shown her
husband's business in Shri Ram Auto. The mother's account
shows payments of Rs.45000 and Rs.45000 made therefrom to
Shri Ram Auto.
46. The accounts stated to be of the mother are, therefore, a
camouflage for the accounts showing the income of the son.
The property purchased by the son showing his mother's name
as the joint holder is obviously with the same ugly intent. At
best, the mother is a joint owner for the sake of convenience.
She has neither earned the amount to pay for the suit property
nor actually paid for it from her own separate individual genuine
bank account.
47. The entries in the Bank accounts show the handiwork of a
shrewd, tax evasive businessman. It is not the product of the
applicant/mother who claims to be having no source of income.
48. From the evidence produced by the mother herself it is
made crystal clear that the son has deposited amounts in her
account which she has withdrawn to show payments made for
the suit flat. The suit flat is not purchased by the mother out of
her own known source of income being her catering business or
even otherwise.
49. The wife has shown several properties of the husband in
her application filed in the Family Court which is annexed as
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ExhibitN to the above writ petition. These are “(a) flat
No.1103, CTS No.7, Survey No.41, in Satellite Highets at Anand
Nagar, Lokhandwala Extention Road, opp: Oshiwara Bus Depot,
Andheri(W), Mumbai 400 012. (b) Shastri Nagar Surya Mukhi
CHS Ltd., Shop No.2, Bldg. No.26, Shastri Nagar, Goregaon(W),
Mumbai400 014 (sold last month for approx. Rs. 1 Crore). ( c )
Shop No.6/7 Pimpri Pada, Gokhul Dham, Goregaon(East), sold
in the year 200910”.
50. She has also shown the husband's business at (Head
Office) Shri Ram Auto Showroom, 3 Wheelers, A4, Anand
Nagar, B.M. Colony, Behind Oshiwara Police Station,
Jogeshwari(W), Mumbai400 012 and branch office at Budha
Nagar, Marve Cross Road, Near Tata Powers House, Malwani,
Malad(W), Mumbai95.
51. The mother is not even an income tax assessee. She has
wholly sought to be out of the income tax dragnet. A woman
with means to purchase a shop and two flats must have income
which would be assessable to tax. She must file her returns and
show how she is not assessable to tax. She has not done that.
Her son has filed his income tax returns and defaulted in
payment of tax by not showing the correct income so that the
income tax authorities have sought to levy penalty and interest
upon his declared income and sought to attach his properties.
52. The assessment order dated 21st December, 2011 passed
against the husband shows a turnover of Rs.69.14 lakhs claiming
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expenses of Rs.65.76 lakhs and showing a net profit of Rs.3.36
lakhs which has been disbelieved and rejected and 50% of the
expenses are disallowed in the absence of genuineness of
expenses. His total income is rounded to Rs.64.36 lakhs on
which he has been assessed to income tax. The income tax
assessment is produced by the mother in her further affidavit.
Upon the Income Tax Office being made respondent No.2, the
Income Tax Officer has produced the total liability towards
income tax dues of the husband of Rs.27.66 lakhs with further
interest of Rs.3.30 lakhs. Hence the total income tax liability as
on the date of the hearing of the above applications and petition
is Rs.30.96 lakhs. The same rises each day.
53. The son has sought to dispose his properties to evade the
attachment. The mother has sought to use up the matrimonial
home to clear the tax dues of the son. Hence it is seen why she
has sought to make the ITO a party respondent in her own
application. She would rather have her son's property attached
by Income Tax Authorty than allow her daughterinlaw to reside
there. Her son would rather have his matrimonial home cleared
to tax evasion and save his other illgotten properties.
54. Nevertheless the income tax authority is stated to have
attached the shop of the son and his matrimonial home being
flat No.704. The attachment order is not produced. Only an
assessment order dated 21st December, 2011 is produced by the
mother. The Income Tax Authority might do well to consider the
attachment of the other flat for the mother's claimed income as
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well.
55. The Income Tax Authority has not made its own
application at all. It is only respondent No.2 in the mother's
application.
56. The application of the wife for the purchase of the
alternative residential flat in lieu of her matrimonial home which
came to be sold upon the pretense of her husband to pay off
rightful dues of Citibank is required to be thus viewed. In fact
she has applied for withdrawal of Rs.75 lakhs for a matrimonial
home and in the alternative withdrawal of 50% of the amount
for alternative residential accommodation for herself and her
two minor daughters and in the alternative she has fairly applied
for withdrawal of Rs.26.66 lakhs after deduction of the then
income tax dues of Rs.21.66 lakhs therefrom.
57. It would now have to be seen how the applications of the
wife, the income tax authority or the mother should be allowed.
This leaves the question whether the wife's claim could be
entertained or sacrificed in view of the alleged attachment or a
sound discretion for securing both these worthy claims be
exercised.
58. The right of a wife to be protected in her matrimonial
home came to be considered by Courts in England under the
common law, the law of justice, equity and good conscience and
later under the Matrimonial Homes Act, 1967. It cannot be
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gainsaid that wives who are equal partners in matrimony would
have equal rights in their matrimonial home with their
husbands.
59. In the case of Rimmer vs. Rimmer, (1953) 1 QB 63, the
husband and the wife purchased the home, in which they lived,
for diverse amounts paid by both of them. The husband had, of
course, paid a larger share. Upon the desertion of the wife by
the husband, he sold the house. The wife applied under Section
17 of the Married Women’s Property Act, 1882 for a share of the
sum realised on the same. It was held that it would be fair and
just that the sum realised on the house, which was so largely a
windfall, should be divided between the husband and wife
equally. (Jones vs. Maynard (1951) Chancery 572 approved).
60. In the case of Falconer vs. Falconer, (1970) 3 All
England Report 449 C.A. = (1970) (1) W.L.R. 1333, the
concept of trust inferred from the conduct and surrounding
circumstances of the spouses who owned or lived in a home
which was their matrimonial home came to be considered. In
that case the house was purchased in the name of the wife. She
mortgaged the house. The husband stood surety. The husband
paid certain amounts for “extras” for the house as well as
housekeeping money to the wife. He also paid half of the
mortgage instalments and rates. Thereafter he left the house
alleging desertion by the wife.
61. It was held by Lord Denning that where one spouse makes
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a substantial financial contribution to a matrimonial home in the
name of the other, a trust may be inferred from their conduct
and the surrounding circumstances. Referring to the judgments
in Gissing vs. Gissing as well as Pettitt vs. Pettitt it was
observed thus:
“..... the principles on which a matrimonial home which
stands in the name of husband or wife alone, is
nevertheless held to belong to them both jointly (in
equal or unequal shares). It is done, not so much by
virtue of an agreement, express or implied, but rather
by virtue of a trust which is imposed by law. The law
imputes to husband and wife an intention to create a
trust, the one for the other. It does so by way of an
inference from their conduct and the surrounding
circumstances, even though the parties themselves made
no agreement upon it. This inference of a trust, the one
for the other, is readily drawn when each has made a
financial contribution to the purchase price or to the
mortgage instalments. The financial contribution may
be direct, as where it is actually stated to be a
contribution towards the price or the instalments. It
may be indirect, as where both go out to work, and one
pays the housekeeping and the other the mortgage
instalments. It does not matter which way round it is.
It does not matter who pays what. So long as there is a
substantial financial contribution towards the family
expenses, it raises the inference of a trust. But where it
is insubstantial no such inference can be drawn; see the
cases collected in the dissenting judgment of Edmund
Davies L.J. In the Court of Appeal [1969] 2 Ch. 85, 97,
which was upheld by the House. The House did,
however, sound a note of warning about proportions. It
is not in every case that the parties hold in equal shares.
Regard must be had to their respective contributions.
This confirms the practice of this court. In quite a few
cases we have not given halfandhalf but something
different.“
The Royal Commission in 1936 which observed :
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“If on marriage she gives up her paid work in order to
devote herself to caring for her husband and children, it
is an unwarrantable hardship when in consequence she
finds herself in the end with nothing she can call her
own”.
The Law Society had considered :
“In the generality of marriage, the wife bears the
children and minds the house. She thereby frees the
husband for his economic activities. Since it is her
performance of her function which enables the husband
to perform his, she is in justice entitled to share in its
fruits and the Courts which ‘have never been able to do
justice to her’.”
62. This led to the enactment of the Matrimonial Proceedings
and Property Act, 1970. Under Section 5(1)(f) of the Act, the
contribution made by each of the parties to the welfare of the
family including the contributions made by looking after the
home or carrying for the family were to be considered. The Law
Commission showed the importance of Section 5(1)(f) in the
contributions for the welfare of the family not only including
contributions in money or money’s worth but also in looking
after the home and the family for example by domestic chores
thereby relieving their husbands for financial employment as a
factor to have been considered.
63. Consequently, it was observed in Watchal Vs. Watchal
(1973) EWCA Civil 10 which inter alia dealt with the concept of
the deserted wife's equitable interest thus:
“.... we may take it that Parliament recognised that the
wife who looks after the home and family contributes as
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much to the family assets as the wife who goes out to
work. The one contributes in kind. The other in money
or money’s worth. If the Court comes to the conclusion
that the home has been acquired and maintained by the
joint efforts of both, then, when the marriage breaks
down, it should be regarded as the joint property of both
of them, no matter in whose name it stands. Just as the
wife who makes substantial money contributions usually
gets a share, so should the wife who looks after the home
and cares for the family for twenty years or more.”
64. In the case of Williams & Glyn’s Bank Ltd. vs. Boland &
anr. (1979) 2 W.L.R. 550, the husband was the sole registered
proprietor of the matrimonial home. The wife contributed to the
purchase of the house. The husband charged the property to the
Bank. The Bank claimed for possession. Section 1 of the
Matrimonial Homes Act, 1967 was considered. It dealt with the
spouse who had an equitable interest in a dwelling house or in
the proceeds of sale. The interest of such spouse was to be
considered for the right of occupation only. It was held that
because the wife had contributed to the purchase of the
matrimonial home she was an equitable tenantincommon of
the property under trust for sale and the estate remained vested
in the husband as sole trustee. The wife, who was in actual
possession of the land, would have an overriding interest to
which the Bank’s charge was subject and was entitled to
protection of her occupation of the matrimonial home. It was
held by Lord Denning that the bank was not entitled to throw
her “out into the street – simply to get the last penny of the
husband’s debt”.
65. The history of precedents with regard to the deserted
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wife’s equity was set out by Lord Denning thus:
“I would put on one side cases from 1949 onwards about
deserted wives. In those cases the wife had no share
whatever in the matrimonial home. She was a “bare”
wife as I pointed out in Gurasz vs. Gurasz [1970] P. 11,
17. In this court we gave her the protection which she
rightly deserved. But the House of Lords stripped her of
it. It held that she had no protection against a lender
who took security on the matrimonial home : see
National Provincial Bank Ltd. v. Hastings Car Mart Ltd.
[1965] A.C. 1175. This was immediately rectified to
some extent by the Matrimonial Homes Act 1967. It
gave her a charge on the house : but it was subject to this
severe restriction : it had to be registered as a Class F
charge, and not all of the deserted wives had sufficient
knowledge or advice to do this. That Act (as it was
passed in 1967) did not apply to a wife who was entitled
to a share in the house. Her position was remedied to a
slight extent in 1970 by section 38 of the Matrimonial
proceedings and Property Act 1970. It enables a wife,
who has a share to register a Class F charge. But that
amendment was of precious little use to her, at any rate
when she was still living at home in peace with her
husband. She would never have heard of a Class F
charge: and she would not have understood it if she had.
If she is to be protected at all, it will be by the decision of
the judges.
The wife’s share
Alongside the deserted wife’s equity, there was another
development of even greater significance. It was the
concept of the “wife’s share” in the matrimonial home. In
former times the house was usually conveyed into the
name of the husband alone. He was the one who went
out to work, earned the money, paid the deposit and the
mortgage instalments. But when the wife went out to
work, things changed. Her earnings came in very useful.
They went into the family pool. Out of it the outgoings
were paid including the deposit and the mortgage
instalments. The conveyancers in the old days would
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have held that the wife gained no interest whatever in
the house by reason of her contributions. She got no
share in the house itself. Nor, if it was sold, did she have
any share in the proceeds of sale. For the simple reason
that she could show no contract, no legal right whatever
to support any claim : see Hoddinott v. Hoddinott
[1949] 2 K.B. 406. But by a remarkable series of
decisionsI do not hestaite, looking back, to call them
remarkableit was held that when a wife contributed in
money or money's worth to the purchase of the house,
she acquired a share in it. This started in 1953 in
Rimmer v. Rimmer [1953] 1 Q.B. 63, and was carried
forward in Cobb v. Cobb [1955] 1 W.L.R. 731 : Fribance
v. Fribance (No.2) [1957] 1 W.L.R. 394 and Hine v.
Hine [1962] 1 W.L.R. 1124. These decisions were based
to some extent on section 17 of the Married Women’s
Property Act 1882. That ground was held by the House
of Lords to be erroneous in Pettitt v. Pettitt [1970] A.C.
777 on the ground that that section was procedural only.
It did not affect the rights of the parties.
But the decisions were justified in the next year by the
House of Lords on a very newand very acceptable
ground. It was in Gissing v. Gissing [1971] A.C. 886
when the House held that, in these cases of the
matrimonial home, a wife, who contributes in money or
money’s worth, does obtain a proprietary interest. It is
done by way of a trust imposed on the husband. Even
though the house is taken in the husband’s name alone,
the law imposes a trust upon him by which he holds the
legal estate in trust for them both jointly in such shares
as justice requires: see Falconer v. Falconer [1970] 1
W.L.R. 1333; Hargrave v. Newton (formerly Hargrave)
[1971] 1 W.L.R. 1611 and Hazell v. Hazell [1972] 1
W.L.R. 301. This concept of a trust was adopted by the
legislature. It extended it to contributions, not only to the
purchase of a house, but also to improvements to it: see
section 37 of the Matrimonial Proceedings and Property
Act 1970. Since that time it has become universal.
Nowadays most wives go out to work and their earnings
are useddirectly or indirectlyfor the purchase or
improvement of the matrimonial home. By so doing they
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obtain a beneficial interest in it. The husband holds the
legal estate on trust for him and his wife both jointly
usually halfsharesthough it may be less or more.”
66. It was concluded that the wife, who has share in the
house, has an equitable interest in the land and hence the
purchaser of the land or the lender of money who has
knowledge or notice of the interest of the wife, takes it subject to
her interest.
67. The Matrimonial Homes Act, 1967 was repealed by the
Matrimonial Homes Act, 1983 (MH Act) and brought into force
from 9th May 1983. The 1983 Act dealt with the consolidation of
the rights of a husband or wife to occupy a dwelling house
which was their matrimonial home. Section 1(1), (2), (3), (4)
and (10) determined the statutory rights along with Section 9
thereof.
Under Section 1(1) where one spouse was entitled to occupy a
dwelling house by virtue of a beneficial estate, interest or
contract or an enactment and the other spouse was not so
entitled, then such other spouse would have a right of
occupation. Under that right of occupation, he or she had a right
not to be evicted or excluded therefrom or a right to enter upon
and occupy it.
Under Section 1(2) either spouse may apply for declaring,
enforcing, restricting or terminating those rights, or for
prohibiting, suspending, or restricting the right of the other.
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Under Section 1(3), the Court could make any just and
reasonable order having regard to the conduct of the spouses,
the respective needs, financial resources and the needs of their
children in that behalf as also to make periodical payments to
the other spouse in respect of such occupation and for
repayment and maintenance of the dwelling house.
Under Section 1(4), such order would remain in force for a
specified period or until further orders.
Under Section 1(10), the Act would have no application to any
dwelling house which was not the dwelling house of the
spouses. The spouse’s rights of occupation would continue until
the marriage subsisted.
Under Section 9(1) of the Act, where any spouse has the right of
occupation in a matrimonial home, he or she could apply for an
order prohibiting, suspending or restricting the exercise of the
right by the other or requiring the other spouse to permit its
exercise by the Applicant.
Under Section 9(3), if the spouse had a right under a contract or
an enactment to remain in occupation of the dwelling house,
Section 9 would apply where they would be entitled by virtue of
the legal estate vested in them jointly.
68. Hence in terms, the new legislation conferred a complete
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right of occupation to both the spouses to remain in their
matrimonial home peaceably and without disturbance by the
others. This was despite any other contractual or statutory right
and also when they were joint owners.
69. The contribution of the wife was, therefore, seen to be
deeper than only “financial contribution” initially contemplated
in the case of Falconer (supra). Any nonfinancial interest in a
marriage which is a life partnership was also given due and
equal importance. It is this profound concept of a sacramental
relationship that is the bedrock of common law as has
developed from precedent to precedent as Alfred Lord Tennyson
had poetically expounded and which the legislations in England
and India have accepted and endorsed.
70. This is an incident of gender equality enshrined in our
Constitution.
71. In India the rights of the Indian wives in their matrimonial
home were governed by the common law. Statutes in England,
the Matrimonial Homes Act, 1967, The Matrimonial Proceedings
and Property Act, 1970, The Domestic Violence and Matrimonial
Proceedings Act, 1976 and the Matrimonial Homes Act, 1983
(Repealing the Act of 1967) appear to be the guiding force
behind the Prevention of Women from Domestic Violence Act,
2005 (D.V. Act).
72. This concept has been appreciated and accepted by the
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Supreme Court an another context also. In the case of Arun
Kumar Agrawal & Anr. Vs. National Insurance Company Ltd.
& Ors. (2010) 9 SCC 218 the Supreme Court considered what
would be “just compensation” to be awarded to a widow upon
the death by accident of her husband taking into account the
gratuitous services rendered by the wife in caring for the
husband and children, managing the household affairs which
has been observed cannot be equated with services rendered by
others. Giving a broad definition to the prime services the
Supreme Court observed “it is not possible to quantify any
amount in lieu of services rendered by wife/mother to the
family” but that they would be entitled to adequate
compensation in lieu thereof to bring about to gender equality as
per the mandate under the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW).
73. It is common knowledge that parties were married since
1997. The parties continued to be husband and wife until after
the purchase of their last matrimonial home in 2006 and lived
together in it until the winds of change rocked their marriage.
The parties have begotten two children. No matter their
disputes, the wife is entitled to continue in the matrimonial
home. The children also need the care and protection of a
home. The husband has accepted this fact. Upon the case of the
wife that her rights were being betrayed she sued in the Family
court for the necessary injunction in respect of her matrimonial
home. The husband accepted that right and pretended to go
along with the wife whom he had disputes. Hence he offered to
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sell the flat on the sustainable ground that he was in financial
crisis after he took the loan and promised to obtain another,
perhaps smaller, house for his wife and children. This was
despite the fact that the flat stood in the name of the husband
and his mother. He claimed the consent of his mother. He never
contended that the mother had made payment of any
consideration for the flat No. 703, their matrimonial home. The
wife's right must continue despite the husband's camouflage in
wanting to pay off the bank. The wife's financial contribution is
of no significance. She is an equal partner in matrimony. She
lived in matrimony with the husband for more than a decade.
She is entitled to an equal share in the matrimonial home. This
right was her common law right now been statutorily recognized
and enshrined in Section 19 of the D.V. Act. Upon the fraud of
the husband (being the applicant's son) in putting up his mother
as the claimant who has roped even the income tax authority to
deprive his wife and children, the matrimonial Court must come
to her rescue. It would be as Lord Denning had proclaimed in
his golden words “justice for the bank with mercy for the
wife”. Justice has been done to the bank. The bank is finally
paid up. The other created obstacle is the Income Tax
Department. Justice would have to be done to the Income Tax
Authority as well. It would have to be “Justice for Income Tax
Department with mercy for the wife and children”. This
justice would be done from the husband's share. The husband
who is seen to be an upstart and who has receded into the
background is manifestly the main hero of the entire act. He
having failed in his attempt to show his mother's share, only his
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share must be used for the attachment of the Income Tax
Authority. The wife's share must be kept secured. This would
also be for the security of the children.
74. The parties were to have a healthy, happy, nuclear
matrimonial home after selling out their flat and purchasing
another flat for themselves. In that flat, the income tax
attachment would loom large. The wife is not responsible for
the attachment. The husband is the sole defaulter. The husband
claims that he has a good case in his appeal, if and when it
would be prosecuted. The husband's share in the flat would not
only suffice for the income tax attachment but will be amply
protected by the merits of the husband's case that he has
emphasized.
75. Under these circumstances how the amount lying to the
credit of this writ petition be equitably used must be considered
and ordered.
76. Whilst the wife's claim to her matrimonial home ranks
paramount and cannot be sacrificed at the alter of the Income
Tax Authority which has itself not claimed any relief and which
has been deliberately, mischievously and collusively sought to be
brought on record for a nefarious purpose of settling the income
tax dues from the only property otherwise claimed by the wife as
her matrimonial home, the Income Tax Authority's claim would
have to be taken into account and secured against the husband's
share in the matrimonial home.
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77. The wife has disputes with her husband. She has been
tricked into the sale of the flat upon the assurance of the
husband that the proceeds will be for her matrimonial home and
duped into not receiving any of them upon the claim of the
mother for herself and at her own instance also the income tax
authority. The husband has many properties as hereinabove
stated, shown by the wife. Two of the properties are stated to
have been attached by the income tax authorities. The income
tax dues can be recovered only from the sale of the shop which
is attached.
78. It may be mentioned that the husband, who has been
separately represented, orally claimed that the shop has been
sold. No deed of sale is produced. The shop could not have
been sold in lieu of the attachment. Even if it is sold the sale
would be void as against the income tax authorities. The
husband, however, seeks to discharge his income tax dues from
the only property available to the wife as her matrimonial home.
So be it; though he has put up his mother to claim a 1/2 share
upon her name being put as a joint owner for the sake of
convenience, it is now seen, for the sake of cheating his wife.
79. The husband alone must bear the obligation of paying his
tax, so far evaded with all penalties and interest claimed by the
Tax Recovery Officer. The husband claims that he has filed an
appeal. Even that is not produced before the Court. It is for the
husband to satisfy his income tax liability in accordance with
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law. The wife cannot be held at stake for such payment.
80. If the wife is given the entire amount of Rs.75 lakhs which
indeed is the proceeds of the matrimonial home in which she is
entitled to live with her children, the husband also would be
entitled to live therein. In that case, as per the assurance of the
husband in the family Court applicationcumreply being his
assurancecumstatement the purchase of the property worth
Rs.75 lakhs would be the alternative matrimonial home of the
parties. Rs. 75 lakhs is seen indeed to be the proceeds of their
matrimonial home alone in which they both are alone entitled to
live with their children. However in view of the husband's
conduct and the disputes, it would be more appropriate for the
Court to grant separately to both of them the 1/2 share in the
sale proceeds which may belong to both of them separately
instead of granting to them jointly as a matrimonial home.
81. Hence 1/2 of the sale proceeds being Rs.37.5 lakhs would
belong exclusively to the wife as and for the alternative
residence to her matrimonial home available for her and her
children's residence. The remainder of Rs.37.5 lakhs would
belong exclusively to the husband subject to his income tax
liability. Since it is seen that the mother's name was only a
facade and her application is totally dishonest and she does not
genuinely own or has paid for the suit flat which is the
matrimonial home of the husband and wife, she cannot be
granted any relief and cannot be disbursed any amount from the
amount deposited in this Court as the part of the sale proceeds.
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Hence following order:
1. The impugned order dated 23rd August, 2011 of the
Family Court No. 7, Mumbai is modified.
2. The wife shall be entitled to withdraw Rs.37.5 lakhs
from the amount of Rs.75 lakhs lying deposited to the
credit of this Writ Petition in this Court. That shall be used
by her in procuring a separate residential premises in
which she shall be entitled to reside with her children.
3. The Tax Recovery Officer, Respondent No.2 in C. A.
No. 146 of 2013 being the relevant Income Tax Authority
shall be entitled to withdraw the Income Tax dues with
interest and penalty subject to any appeal and order
passed therein from the remainder 50% amount payable to
the husband as his share in the matrimonial home.
4. Only thereafter the husband shall be entitled to
withdraw the remainder of the amount lying deposited in
this Court after deducting Rs.25,000/ therefrom which
shall be paid to the wife as costs of prosecuting the above
application No.286 of 2013 and the above petition.
5. Rule to that extent is granted.
6. The mother's application No.146 of 2013 is
dismissed with costs of Rs.25,000/.
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7. Both above applications and the Writ Petition are
disposed of accordingly.
8. This order is stayed for two weeks.
(MRS. ROSHAN DALVI, J.)
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