IN THE FAMILY COURT AT BANDRA, MUMBAI

PETITION NO. B / 43 OF 2001

Smt. Tillotamma V. Lele }

Mumbai } …Petitioner

V/s

Shri Sakharam K. Lele }

Mumbai } …Respondent

SYNOPSIS OF WRITTEN ARGUMENTS OF THE PETITIONER

A] The Petitioner has filed the Petition under section 7 of The

Family Courts Act, 1981.
Section 7 of the Family Court Act, reads as

(1) Subject to the other provisions of this Act, a Family Court

shall
(a) have and exercise all the jurisdiction exercisable by any
district Court or any subordinate Civil Court under any law for the
time being in force in respect of suits and proceedings of the
nature referred to in the explanation.

(2) be deemed , for the purposes of exercising such

jurisdiction under such law, to be a district Court or , as the case
may be , such subordinate Civil Court for the area to which the
jurisdiction of the Family Court extends.

Explanation:- The suits and proceedings referred to in this

subsection are suits and proceedings of the following nature ,
namely:

(a) a suit or proceeding between the parties to a

marriage for decree of a nullity of marriage ( declaring
the marriage to be null and void or , as the case may be
, annulling the marriage) or restitution of conjugal
rights or judicial separation or dissolution of marriage;
 2

(b) a suit or proceedings for a declaration as to the validity

of a marriage or as to the matrimonial status of any
person:
(c) a suit or proceedings between parties to a marriage
with respect to the property of the parties or of either of
them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of
the person or the custody of , or success to , any minor.

B] Explanation (a), (b) and (c) are necessarily between

the parties to the marriage. But explanation (d) does not
state that it should be between the parties to the marriage
only . On the contrary it qualifies that in circumstances
arising out of a marital relationship. It is submitted that
the circumstances arising out of marital relationship includes
matrimonial house, matrimonial assets moveable as well as
immoveable.

Section 7 deals with the jurisdiction of the Family Court but

does not specify clearly the acts under which such
applications and Petitions are to be made.

Therefore, with regard to section 7(1) (a) and 7(1) (b) the
Petitions/ Applications are to be made under different
personal laws such as Hindu Marriage Act, Special Marriage
Act, The Divorce Act, etc.

As far as section 7(1) (c) is concerned it deals with the

property of the parties to the marriage or either of them and
therefore, it is necessarily between the parties to the
marriage.

Whereas the legislature in its letters and spirit has clarified

that the Family Court has jurisdiction to try and decide the
suit or proceeding for an order or injunction in circumstances
arising out of marital relationship.
 3

Circumstances arising out of marital relationship includes

matrimonial house regardless whether it is owned by the
parties to the marriage or either of them. Matrimonial house
means the house where the man and woman have resided
and co-habited with each other as husband and wife. As such
the matrimonial house is an outcome of the circumstances
arisen out of marital relationship.

The jurisdiction of the family court with regard to injunction,

maintenance, custody or guardianship is vested keeping in
mind the provisions of explanations (d)(e)(f)(g),
Applications/Petitions are made under Hindu Succession Act,
Hindu Adoption and maintenance Act, Guardianship and
Wards Act, Section 125 Cr.P. C.

C] Facts in brief pertaining to matter before this

Hon’ble Court
• The Petitioner and her deceased husband got married to
each other 27th August,1978 and since then they were
staying and co-habiting with each other till her husband,
Vijay S. Lele died on date 22nd March,2001.After his
demise, the Petitioner and her two sons are continuously
living at the same house for last more than 31 years, till
date.

• The Petitioner is widow of Late Vijay S. Lele who died on

22nd March 2001 and the Respondent is her father in law.

• The Suit Property is only technically in name of the

Respondent. The Petitioner, her husband and their two
sons were residing there for last 31 years and the
Respondent never stayed with the Petitioner’s family at
any point of time. The society outgoings and loan for
purchase of flat was paid with interest, by the Petitioner’s
late husband Vijay S. Lele, till his death and after his death
it has been paid by the Petitioner.

• The Petitioner has only one shelter i.e. suit property, where
she is continuously staying since her marriage day, i.e.
since date 27th August 1978. On the Contrary the
 4

Respondent had three more flats in his own name, in

Goregaon, other than the suit premises. Namely
3/Godavari Building, 1/Narmada Niwas and Govind
Building.

• There was no trouble what so ever, caused to the

Petitioner till death of her late husband, from the
Respondent and his family but immediately after death of
her husband, the Respondent and his other family
members namely his younger son, Shrikant S Lele and his
daughter, Mrs.S A. Pathak, started harassing the Petitioner
and her sons. The Respondent threatened and harassed
them, to compel them to leave her matrimonial house. The
Respondent with the help of some hired, professional
goons, threatened the Petitioner with dire consequences if
the Petitioner and her sons would not vacate the flat. The
Petitioner had filed several Police Complaints for her
protection, from the attack and assault from Respondent
and other in-laws. She had requested for the safety of her
life and lives of her sons, safety of her property and safety
of her matrimonial house. The same is in record of this
Hon’ble Court i.e. Exh A and Exh B

• The Petitioner had filed several Complaints on 24/05/2001,

25/05/2001 and then as per the advice of Police, the
Petitioner had served legal notice to the Respondent
through her Advocate on 6th June 2001.

• The Respondent had even applied to the society for

transfer all the rights, title and interest in the said suit flat,
in the name of the Petitioner’s late husband. Application
dated 07.12.1976 addressed to Chairman, Udar Goregaon
CHS, Goregaon by the Respondent and formal membership
application form dated 07.12.1976 filled by Petitioner’s late
husband. The Respondent was paid by the Petitioner’s late
husband, with a direct payment of Rs.55,000/- towards the
consideration amount with interest, in the said suit flat.
The relevant documents are proved and are taken on
Record.
 5

• The Petitioner’s late husband contributed towards the total

consideration of the flat and also made payments towards
society’s outgoing bills which contained loan repayment
with interest. The Petitioner has possessed the various
documents showing payments made to the Respondent
and the same was produced and proved before this
Hon’ble Court.

• The Respondent has bequeathed the suit premises to Mr.

Shrikant Lele by his alleged will during the pendency of the
present petition when the title of the suit flat was in
dispute. The said Mr. Shrikant Lele, alongwith the
Respondent attempted to dispossess the Petitioner from
her matrimonial home and assaulted her elder son Amit
Lele and assisted the Respondent in stealing important
documents, valuables, cash etc. from Petitioner’s
matrimonial home, in her absense. The Petitioner had filed
Police Complaint dated 26th August 2001.

D] Respondent’s case

• The Respondent had allowed his late son and Petitioner to

stay in the suit premises since her marriage in year 1978.

• The Petitioner and her late husband having majority share

holdings in the companies formed by them.

• The Petitioner and her sons are the only heirs to the
property of late Vijay Lele.

• The suit property is exclusively purchased by him out of his

self acquired funds and the entire housing loan together
with interest thereon was also repaid by him. The
Respondent was staying with the Petitioner and his
deceased son.

• The entire society outgoings were paid by the Respondent

and Mr. Vijay Lele were not paying the outgoings to the
society. The Respondent has no other premises to stay
except suit premises.
 6

• The Respondent is not bound to maintain the Petitioner or

her sons. The Petitioner had filed false complaints against
the Respondent and his son Shrikant in police station to
harass the Respondent and grab his self earned property.
.

E] Issues were framed by this Hon’ble Court vide

Exhibit 15 and 16 are

1. Is the Petitioner entitled to a declaration that the suit

premises namely, B-6, Ajanta, 1st floor, Udar Co-operative
Housing Ltd., S. V. Road, Goregaon (West), Mumbai- 400
062, is her matrimonial home?

2. Is the Petitioner entitled to a declaration that she and her

children have the right to continue their residence in the
suit premises mentioned above without any interference
whatsoever by the respondent or any of his servants or
agents until they are evicted there from by due process of
law?

3. What order and decree?

4. does the respondent prove that the suit premises is his self
acquired property and that the petitioner’s deceased
husband has not contributed a single pai towards the
same? (additional)

5. Whether this court has jurisdiction to entertain and decide

the Petition?(additional)

With regard to issue no.1 following are the admitted

facts.

1. The Petitioner started residing at the suit flat-B-6, Ajanta,

1st floor, Udar Co-operative Housing Ltd., S. V. Road,
Goregaon(West), Mumbai- 400 062 from her marriage i.e.
on 27th August 1978 and continues to reside till the date.
2. The Petitioner and her deceased husband late Vijaykumar
S. Lele stayed and co-habited with each other and their
 7

children namely Mr. Amit and Mr. Rahul where born out of
said wedlock.
3. The Petitioner’s late husband started to reside alone at the
suit flat from the inception of the building in year 1975.
4. The Respondent never stayed at the suit flat. His
permanent address of residence was other than the suit
flat.
5. No attempt of whatsoever nature was made by the
Respondent to evict the Petitioner from her matrimonial
house till the death of her husband.
6. The Respondent had resigned from the Membership of the
said society of the suit flat, in favour of, Petitioner’s
husband in year, 1976.

F] The Additional issues were framed after the

amendment application was allowed by this Hon’ ble Court. It is
submitted in the said order this Hon’ble Court has specifically
held that with a view to avoid multiplicity of litigation, the
amendment to the effect of invoking section 14 of Hindu
Succession Act and Section 19 of Hindu Adoption and
Maintenance Act . Therefore, now the present petition has to be
treated as one filed under section 14 of Hindu Succession Act
and Section 19 of Hindu Adoption and Maintenance Act read with
section 7 of the Family Court Act, 1984.

• It can be seen from the proceedings that although an

opportunity to produce documentary as well as oral
evidence was given to the Respondent by this Hon’ble
Court, no effort of whatsoever nature was made by the
Respondent. It is therefore, stated that the pleadings of the
Respondent were never proved before this Hon’ble Court.

• On the other hand the Petitioner has proved all the

documents produced on record pertaining to her stay in
the suit premises as Matrimonial House, consideration paid
by the deceased husband of the Petitioner to the
Respondent during his life time, no attempt of whatsoever
nature was made by the Respondent to evict the Petitioner
from her matrimonial house till the death of her husband,
the Respondent is having adequate place to stay in and
therefore, the suit property is not at all needed to the
 8

Respondent. On the other hand the Petitioner is staying

with her two sons in Mumbai who are employed in Mumbai
having no residential premises in Mumbai and therefore,
the Petitioner is in need of the suit property for her
personal use and occupation.

• The Petitioner has made out case beyond any reasonable

doubt that the suit premises is her matrimonial house
which is in her possession since her marriage i.e. 1978 till
the date and that she cannot be evicted from the said
house without following due process of law. The Petitioner
is therefore, entitled for order and injunction in her favour
as provided under section 7 (1) (d) of the Family Court
Act,1984.

G] Now it has to be seen whether this Hon’ble Court can

try and decide the right , title and interest of the said
premises under the provisions invoked;

a) Section 7(1)(d) refers to the a suit or proceeding for an

order or injunction in circumstances arising out of a marital
relationship. It is clear that the suit premises being
matrimonial house of the Petitioner has arisen out of her
marital relationship with her deceased husband Mr. Vijay
Kumar Lele. Apart from the same she has every right to
succeed to the property of her deceased husband. The
documents such as counter foils of the cheques towards
consideration of suit property, corresponding act on the part
of the Respondent of transferring share in favour of the
Petitioner’s deceased husband Mr. Vijaykumar Lele. It is
submitted that only because it was a family’s arrangement in
the form of an Express Oral arrangement and Agreement,
between the father-the Respondent and the son-the late
husband of the Petitioner. Hence there was no document such
as gift deed, Release deed, sale deed etc but only this Express
Oral Arrangement and Agreement between them was
existent. Therefore Society did not transfer the share even
upon the written request of the Respondent. Even the
Respondent did not even make any attempt, to evict the
Petitioner or her family members during the life time of her
 9

husband. Even it was never the case of the Respondent

throughout the proceedings, since year 2001.

b) Assuming for the sake of arguments, that the suit

property stands in the name of the Respondent who is father-
in-law of the Petitioner, considering the provisions of Section
19 of Hindu Adoption and Maintenance Act, the Petitioner is
entitled to claim right over the suit premises and this Hon’ble
Court has every jurisdiction to try, hear and decide the right ,
title and interest in respect of suit premises, which is the
matrimonial house of the Petitioner for last 31 years.

c) The right and interest in the suit premises is already

created in the favour of the Petitioner by virtue of her
marriage with Late Vijay Kumar Lele.

s) The question of title in the suit property is presently

in the name of the Respondent, although he had accepted the
consideration from the Petitioner’s husband and also the
Respondent had resigned from the Membership of society, in
favour of Petitioner’s husband. It is therefore, submitted that
apart from her right to residence from the Respondent as per
Hindu Adoption and Maintenance Act, the Petitioner is entitled
for title of the property being purchased by her deceased
husband from the Respondent.

H] The Petitioner states that considering the facts and

circumstances pleaded and proved in this case, if only the
injunction is granted without awarding the right, title and
interest of the suit premises in the favour of the Petitioner, it
would lead to one more litigation for title of the property.
Considering the fact that this Petition is pending before this
Hon’ble Court since 2001 and therefore, if the issues are not
decided with reference to right, title and interest in the suit
premises, it would lead to further litigation between the
parties, more particularly when the documents pertaining to
ownership of the suit premises are proved beyond doubt.

The Petitioner therefore, prays that this Hon’ble Court may be

pleased to allow the petition and grant reliefs as prayed for.
 10

Mumbai
Dated: Petitioner