MOHINDER SINGH DEVYAL Vs. APPAJEET DEVYAL

JUDGEMENT

(1.) THE plaintiff has filed the present suit for declaration that he is the real and beneficial owner of five fully paid up shares held by the 1st defendant in the Suhas Co-operative Housing Society Ltd. as well the real and beneficial owner of the Flat No. 17 in the said society. He has also prayed for a decree of mandatory injunction and order requiring the 1st defendant to transfer to the plaintiff in the aforesaid flat the fully five paid-up shares held by the defendant No. 1 in the said society and for that purpose the defendant No. 1 should be directed to sign and execute such instruments of transfer and other deeds, documents for effectually transferring the said flat and shares in the name of the plaintiff. This is the main relief which the plaintiff has prayed for in the present suit.

(2.) THE plaintiff was the husband of the defendant No. 1 at the relevant time and he is the father of the defendant No. 2. The dispute is between the plaintiff husband and the defendant No. 1- wife. It appears that the matrimonial home of the plaintiff and the defendant No. 1 has broken down and the matrimonial relationship have been shattered culminating in the decree of divorce by mutual consent on 10-10-1995. The defendant No. 2 is the son of the plaintiff and the defendant No. 1 and he continues to be on record but he appears to be not interested to pursue the litigation as the learned Advocate Smt. Shaikh, who appears for him states that he has taken away the papers from her long back. The learned Advocate has shown me two letters dated 19-9-2002 and 18-10-2002 seeking final discharge as the papers were taken from her and therefore, it was not possible for her to appear before this Court.

(3.) IT is the case of the plaintiff that the suit flat is his personal property purchased by him from his own income though for the sake of convenience the agreement to purchase with the vendor, Shri Lele and the share certificates of the co-operative society were in the name of the defendant No. 1. According to him, since he was employed as a Radio Officer on the ships and he was away from home continuously for quite a long time to facilitate the day to day transactions concerning the flat the relevant documents were entered into in the name of defendant No. 1. It is his case that the defendant No. 1 was employed with the Central Railway as a Clerk and her monthly salary was Rs. 140/- p. m. and that the total monthly pay packet including DA etc. was approximately Rs. 400/- p. m. during the relevant period. According to the plaintiff, his monthly income as Radio Officer employed on the Foreign Ships was approximately 1100 pound p. m. (Rs. 25,000 to Rs. 30,000 p. m.) According to him, he used to remit the amount to the defendant No. 1 and the same was deposited by her in the joint account which was maintained and operated by both of them with the Bank of Baroda. According to the plaintiff, out of the said amount he had made payment for the purchase of the suit flat to Mr. Lele, the owner of the flat on 4-11-1971 Rs. 10,000/-, 29-11-1971 Rs. 9,000/- and 4-1-1972 Rs. 9,000/ -. According to the plaintiff, the suit flat therefore belongs to him and not to his wife the defendant No. 1 and he has therefore prayed for the aforesaid decree.