Allowed

Mrs.Bridget D'Souza (Since Deceased) and Ors. v. Dorothy Anthony D'Souza

Bombay HC26 Feb 2009S/1056/2003

Case brief

AI extract

What is this about?

The High Court decreed a suit for declaration of title and possession. The court held that as the marriage between Plaintiff No.2 and Defendant had been declared null and void, the Defendant lost all rights to the flat and was to be evicted as a trespasser.

What did the court decide?

Declaration that Plaintiffs are owners of the flat and Defendant is a trespasser; direction to Defendant to quit, vacate and hand over possession; permanent injunction.

Mrs.Bridget D'Souza (Since Deceased) and Ors. Vs… — Matrimonial and Divorce | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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SUIT NO. 1056 OF 2003

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Mrs. Brudget D’Souza (Since deceased) Mr. Agnelo D’Souza & Ors.

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... Plaintiffs.

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V/s.

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Dorothy Anthony D’Souza.

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... Defendant.

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Mr. Devendra Sharma for the Plaintiffs. None for the Defendant.

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CORAM : S.C. DHARMADHIKARI,J.

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26TH FEBRUARY 2009.

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ORAL JUDGMENT :-

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On the last two occasions when the matter was

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.
placed		before	me, I	had	observed that	if	the	D	efendant
desires	to	lead	evidence	and	therefore,	must	step	into	the
box,	he	will	be permitt	ed to	do so.	The	order	was	passed
on 19th		Novem	ber 2008	granti	ng an op	portunity	to	the	First
Defendant		to l	ead eviden	ce.	However,	that	oppo	rtunity	was

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not availed off and therefore, the right of the Defendant

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to lead evidence stood forfeited.

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2.	On	3rd Dece	mber 20	08, I had	noted tha	t the Fi	rst
Defendant	was	ab	sent.	Sh	e has	not	taken the	benefit	of
the	order	passed	on	19th	Nove	mber	2008.	Plaintiff	No.1
has	expired	and	her	heirs	are	already	brought	on	record.
Therefore,	I	had	perm	itted	Mr.	Sharm	a to	approach	the
Commissio	ner	for	record	ing	evidence	and	request	the	said

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Commissioner	to	place	on	record	the	evidence	recorde	d till
date.	The	report	of the	Commiss	ioner	was to	be	forwarded
alongwith	the	record	and	that is	why	the	matter	was
adjourned.	S	ubsequently,	on	20th	Janua	ry 2009,	I	was
informed	that	the	report	of the	Co	mmissioner	is	duly
received.	Fr	om a	perusal	of the	report	and the		Roznama,

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it is apparent that the First Defendant has not taken part

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in the proceedings after cross examining the Plaintiff.

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It is in such circumstances, that I permitted Mr. Sharma to argue the matter by relying upon the available material. Mr. Sharma has argued the matter and also tendered his Written Submissions. Although, the name of the Defendant and her Advocate duly appears on Board, none has been appearing since 19th November 2008. The matter

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was partly heard on 10th February 2009 and 11th February

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2009 and is now placed for Judgment.

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Mr. Sharma, learned Counsel appearing for the

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Plaintiffs	contended	that	th	is is a Suit	filed	by	the
Plaintiffs	for	recovery	of	possession of	an	i	mmovable
property.	The	Original	Plain	tiff No.1 was	the	mother	of
Plaintiff	No.2.	She e	xpired	on 12th	June	2008	and
Plaintiff	Nos.1(a	) to	1(c)	are her	Legal	Repre	sentatives.
The	Plaintiffs	purchased	a	flat at Andhe	ri, whic	h is	more
particularly	described	in	para	2 of the	plaint,	on	4th
January	1980.	The		Co-operative	Society,		thereafter,
issued	a Share	Certificate	be	aring No.45	dated	3rd	October

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1983 which is the document of title, according to Mr.

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Sharma.

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5.		It is s	tated th	at Plaintiff No.2	was worki	ng abroad
at	Dubai		and	he purchased	the	property	from	his	income
generated		abroa	d.	Prior	to	working	at Du	bai,	Plaintiff
No.2	was	wor	king	with Ge	offrey	Man	ners &	Co.	The
Defendant		was	also	then work	ing.	They	came to	know	each
other.		At	a	common	function,	the	Plaintiff	No.2	proposed
marriage		to	the	Defendant.	The	Defend	ant did	not	inform
the	Plain	tiff	tha	t she is	already	marrie	d to	one	Romeo
Eustene		D’Souza	.	Plaintiff	No.2	and	the	Defendant	got

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married on 18th February 1980 under Special Marriage Act.

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Thereafter, Plaintiff No.2 went back for service abroad.

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6.	T	hereafter,	he ca	me to kno	w about the i	llicit
relations	betwe	en	the	Defe	ndant	and	the	said	Romeo
D’Souza.		Ther	efore,	Plaint	iff No.2	filed	M.J.		Petition
No.255	of	198	7 on	25th	February	1987,	praying	that	the
marriage	bet	ween	him	and	the Defen	dant	be dissol	ved by	a

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Decree of Divorce. The marriage was nullity according to

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him.

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7.	The	City Civil	Court at	Bombay	also permitt	ed
Plaintiff	No.2	to	apply	for	interim	relief	and	granted	an
interim	injunction	so		as to	preserve	an	d	protect	the
subject	matter	of	this	Suit.	S	ubsequen	tly,	the	M.J.
Petition	was	decreed	on	12th	February	1988	exparte	.	The

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Defendant	applied	for	setting	aside	the	ex-	parte	order	and
decree.	The	ex-parte	decree	was	set	aside	and	again	the
Marriage	Petition	was	heard	by	the	City		Civil	Court.

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Finally, an order dated 27th July 1989 was passed

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declaring that the marriage is null and void ab-initio.

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8.	The	Plaintiff has stated that the Defendant,
therefore,	ha	s no right, title and interest in	the	flat.
She c	eased	to be his wife. Once the re	lationship	of
husband	and	wife has come to an end, then, she	is	a tress
passer	in	the suit flat. Earlier, the		Plaintiff
approached	the	co-operative Court which granted	his	claim.
However,	the	Defendant appealed to the	Co	-operative
Appellate	Court	which reversed the Judgment	of	the
Co-operative		Court and held that the Co-operat	ive	Court
has	no	jurisdiction to entertain the dispute	claiming	the
eviction	of	the Defendant. The Co-operative		Appellate
Court	order	was challenged by the Plaintiffs	by	filing
Writ	Petition	bearing Writ Petition No.3953 of	1992	in
this	Court	which was dismissed by this Court o	n 12th	July
2002.	This	Court granted liberty to the	Plaintiff	to

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initiate appropriate proceedings. Accordingly, this Suit

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for declaration of title and possession has been filed.

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Mr. Sharma has invited my attention to paragraphs

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9 to 16 of the plaint and contended that the plea set up in the plaint is duly proved. This is a clear case where once the marriage has been dissolved and the Plaintiffs

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are owners of the property, then, the Defendant has

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right to occupy and use the suit flat, as she is a rank tress passer.

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10.	Mr. Sharma has invited my attention to the
affidavit	in evidence filed on behalf of the		Plaintiff.
Plaintiff	No.2 - Anthony John D’Souza has stepped	into	box
and	reiterated the plaint averments. He has	produced	the
documents	of title. He has produced the Ag	reement	for
Sale and	the Share Certificate No.45 issued on	3rd	October
1983	which clearly certifies that the shares (5	)	bearing
Distinctive	Nos. 221 to 255 of Rs.50/- each	in	Mayur
Apartments	of Mayur Co-operative Housing Society	are	held
by the	Second Plaintiff. His name is entered	in	the
members	register at Sr. No.61. By virtue of	this	Share
Certificate,	the Plaintiff is entitled to use and		occupy
the	suit flat. The particulars with regard to	payme	nt of
maintenance	and other sums have also been	proved	by
producing	the receipts. Mr. Sharma has	invited	my
attention	to paragraph 5 of his Examination	in	chief
wherein	he has stated very clearly that t	he	purchase
consideration	was paid in instalments by cheques	which	are
issued	from his Saving Bank Account No.169332	with	the
Bank	of India, Museum Branch. Original Counte	rfoils	are
produced.	The Bank passbook is also produ	ced.	The
Receipt	No.188 dated 4th January 1980 are Rec	eipt	No.52
dated	25th August 1980 acknowledging payment	by	the
developer/bui	lder are also produced and proved.		After

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registration		of	the	Soc	iety, Plain	tiff	No.2	has	pointed
out t	hat	the	bills	were	raised in		his	name	although,
shares	were	in	the	joint	names of		Plaintiff	Nos.1 and	2.
The	entire	paym	ent	which	has been		forwarded	by him	by
cheques	has	also	been	prove	d. He		has prov	ed issuance	of
original	certifi	cate.		Thus,	he ha	s	prov	ed his	title
according	to	Mr.		Sharma.	Furth	er,	Mr.	Sharma	has
invited	my	attent	ion	to	paragraphs	10	to	13 of	the
Examinatio	n	in	Chief,	wher	eby, the		plaint	averments	with
regard	to	the	marria	ge	with	th	e Def	endant and	its
dissolution	are		proved.		The Decr	ee	of th	e City	Civil

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Court, Bombay dissolving the marriage is also placed on

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record.

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Each of these documents have been duly taken on

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record and marked in evidence.

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It is not as if the Defendant had no opportunity to

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controvert		the	ca	se	of	the	Plai	ntiff.		She	f	iled	her
Written		State	ment	duly	eng	aged	an	Ad	vocate	and	aft	er	the
issues		were	fra	med,	part	icipate	d	in	the	proce	edings.		The
Commissi	oner’s		R	eport	sh	ows	tha	t	the	Defe	ndant’s	Ad	vocate
appeared		for		cross-ex	aminat	ion		before		earlier		Commi	ssioner
so	also		before	the	Co	mmiss	ioner,	who	has		forwar	ded	his
report	(Mr.		N.R.	J	agtap).		It	is	clear	from	a	perusal	of
the	Cro	ss-exam	ination		that		the	o	riginal		Agreem	ent	is
proved		(see	Questi	ons	12	and	13).		It	has	also	clear	that
possession		of	flat	was	giv	en	to	her	on	4th	January		1980.

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That is the answer but immediately the Defendant gave a
suggestion to the Plaintiff that the Flat was taken from
the builder on 21st January 1981 and he denies that
suggestion. The Plaintiff pointed out that both the
Plaintiffs and the sister of PW-1 Linda accompanied the
Defendant while booking the flat. Even the receipts were

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shown to the Plaintiff in his cross-examination. Question

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No.25 reads thus :-

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Ans. Yes."

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This is not a cross-examination of the wife but is

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a cr	oss-examination	of	Pl	aintiff	No.2		(PW-	1) who has	filed
the	suit for	poss	ession	of	ti	tle.		If this is	the
cross-exa	mination,	then,		it is	a	n	admitte	d case that	on
account	of	the	marri	age,	the	Def	endant	occupied the	flat.
She	occupied	it	as	a wife	of	Pla	intiff	No.2. She	has
asked	him about	the	sum.		She	has	also	asked few q	uestions
in	regard	to the	firs	t marri	age	and	the	Issue from	the
same.	The	entire	cros	s-examina	tion	has	be	en perused by	me
with	the assi	stance	of	Mr.	S	harm	a.	The Answers	to
Questions	44	to	50	would	rev	eal	that	the Defendant	is
aware	that	the	flat	has	been	ac	quired	by Plaintiff	No.2
from	his i	ncome.	E	ach of	the	do	cument	s which have	been

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placed on record are admitted. There is no dispute raised

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with regard to the documents of title.

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14.	Theref	ore, the pleas set up in	the plaint stand
proved	accord	ing to me.	The	Wri	tten Sub	missions	tendered
by Mr.	Sha	rma refer to	each of	the	above	mentioned	facts.
I am	in	agreement with	Mr. Sha	rma	that	the	Plaintiffs
have duly		discharged the	burden cast		on	them.	Issue
Nos.2, 4,	7	and 8 are	framed casti	ng	a burd	en on	the
Defendant.		Beyond filin	g W	ritte	n S	tatement	and
Cross-examining		the Plainti	ffs, the	Def	endant	has	done
nothing.	She	has not	disputed	the	right,	title	and
interest of	the	Plaintiffs.	She has		not disp	uted tha	t the
maintenance	ch	arges and	expenses	incur	red are	paid	by
Plaintiff	No.2.	Having n	ot entered	in	to the	witness	box
and not	disp	uting the m	arriage and		dissolution	thereof	, in

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my view, it is clear that the Defendant has no right,

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title and interest in the Suit flat.

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The case of the Plaintiffs deserve acceptance. The

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Suit	is accordingly	decreed		and	it is declared	that	the
Plaintiffs	are the o	wners	of	Fl	at No.D-9, ad	measuring	403
Sq.Ft.,	2nd floor,	May	ur	Apar	tments, Mayur	Co-o	perative
Housing	Society Ltd.,		Marol		Maroshi, And	heri	(East),
Mumbai.	It is also	declare	d	that	the Defendant	is a	tress
passer	in respect of	this	pr	operty.	There will	be	a
decree	directing the	Defe	ndant	to	quit, vacate	and	hand
over	vacant and pea	ceful	poss	ession	of the flat	to	the

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Plaintiffs.		The	Sui	t is	decreed	in	term	s	of	prayer
clauses	(a)	to	(c).	Mr.	Sharma	does	not		press	prayer
clause	(d)	of	the	plaint.	There	will	also	be	a	permanent
injunction	in	t	erms	of	prayer	clauses		(e)	and	(f).
Advocates	co	sts	to	be com	puted as	per	Rules.		Decree	be

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drawn accordingly. All concerned to act on authenticated

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copy of this order.

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(S.C. DHARMADHIKARI,J.)

Mrs.Bridget D'Souza (Since Deceased) and Ors. v. Dorothy Anthony D'Souza

Case brief

What is this about?

What did the court decide?

Mrs.Bridget D'Souza (Since Deceased) and Ors. v. Dorothy Anthony D'Souza

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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