SHRI. UMESH VISHNU ATHAVALEversusSMT. AMITA UMESH ATHAVALE

                                  1/6                        18-IA-12970-2025.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
               INTERIM APPLICATION NO.12970 OF 2025
                                        IN
                FAMILY COURT APPEAL NO.123 OF 2014


Umesh Vishnu Athavale                               ..   Applicant
                     Versus
Amita Umesh Athavale                                ..   Respondent
                                        …

Mr.Prasad Gaonkar for the Applicant.
Ms.Anita Agarwal a/w Ashwini Jadhav for the Respondent.



                       CORAM: BHARATI DANGRE &
                                MANJUSHA DESHPANDE, JJ.
                       DATED : 23rd JANUARY, 2026

P.C:-

1        Interim Application filed by husband who is the Appellant in
Family Court Appeal No.123/2014, seek the following reliefs :-


    “a) The Respondent be ordered and directed to execute and register an
    agreement for Permanent Alternate Accommodation i.e. the new premises
    in the redeveloped building in lieu of suit premises being Flat No.4, 1 st
    floor, Neelkanth Niwas, Purandare Park Co-op. Housing Society Ltd.,
    Hindu Colony, Dr. Ambedkar Road, Dadar (E), Mumbai - 400 014,
    alongwith the Applicant-Appellant with the Developer M/s.Shreeji
    Construction, proprietor Mr.Devesh N. Jani, without prejudice to the
    rights and contentions of both the parties.

    b) During the pendency of the Appeal, the possession of the new
    premises i.e. the Permanent Alternate Accommodation to be given in lieu
    of the suit premises be handed over the Applicant-Appellant.”



Ashish
                              2/6                     18-IA-12970-2025.doc




2        The aforesaid reliefs are sought in the background that the
Applicant was running his clinic in Neelkanth Niwas, Purandare Park
CHS Ltd. which was undertaken to be redeveloped by M/s.Shreeji
Construction.


         The Developer executed PAAA in lieu of the existing
ownership Flat No.4 and allotment of the new flat in the proposed
building. However, it is the claim of the Applicant/ husband that the
Respondent wife did not execute the PAAA and there is no dispute
that she is a 50% shareholder in the suit property and therefore, the
Developer was insisting on the PAAA to be signed by the co owners,
as the share certificate till date stand in the name of both.


3        The Developer applied for summary eviction under Section
95(A) of the MHADA Act, 1976 and the proceedings clearly record
the presence of both the co owners during the meeting held on
11/03/2022 and it further record that Dr.Umesh Vishnu Athavale,
one of the co-owner of premises No.4, who was operating his clinic
in the existing premises agreed to vacate the said premises, provided
he is given transit compensation and corpus which was given to
other members.


         There is also reference to the matrimonial proceedings
pending between the Parties and the decision of the Family Court
was also put forth,     with a specific observation that there is an
Appeal filed in the High Court arising out of the Judgment and
Decree of the Family Court.



Ashish
                               3/6                    18-IA-12970-2025.doc




4        The contention of the wife was also appreciated and
ultimately the order was passed to the effect that the entire
redevelopment scheme is being obstructed and continuously delayed
on account of the pending matrimonial dispute between the parties
and the members of the premises have failed to hand over the
possession, and, therefore, an action deserve to be taken under
Section 95(A) of the MHADA Act against the occupants.


         As a consequence thereof, we are informed that the action was
taken and the premises were vacated by the present Applicant in the
year 2021.


5        Now by the present Application, the Applicant has prayed for
direction to the Respondent/wife to sign the PAAA which is prayer
clause (a) in the Application        and during   the pendency of the
Appeal the possession of the new premises be handed over to him as
he was in possession of the premises.


6        On hearing the learned counsel for the Applicant as well as
the learned counsel representing the Respondent, our attention is
also invited to the Judgment of the Family Court dated 22/01/2014,
in the two proceedings decided together in form of Petition No. A-
759/2005 filed by the husband for seeking a Decree of Divorce on
the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage
Act, 1955 and seeking custody of the children. Whereas, the second
Petition filed in form of Petition No. B-2/2008 was filed for a
declaration that the Petitioner was a sole owner of the said premises


Ashish
                                  4/6                        18-IA-12970-2025.doc


i.e. Flat No.4 Neelkanth Niwas Purandare Park CHS Ltd., i.e., the
subject matter of the present Application and the Respondent wife
had no right, title, interest or share therein.


7        The husband also sought permission to rectify the Deed of
Transfer registered on 26/07/2001 at the office of Sub-Registrar of
Assurance Mumbai City, by deleting the name of the Respondent
wife as second transferee and the Petitioner to be shown as sole
transferee. He also sought an order of injunction permanently
restraining the wife from disturbing and interfering with his
possession of the suit premises.


         As far as the proceedings filed by the husband in Petition B-
2/2008, when the issues were recasted, issue No.6 was framed
thus:-


    “6. Whether the respondent (wife) proves that the suit property including
    furnitures, fixtures, machineries is/are owned and jointly possessed by
    the petitioner and the respondent and that she is the joint legal owner
    having joint legal possession as stated in Paragraph-VII of her written
    statement ?”

         The aforesaid issue is answered in the negative with the
following observations :


    Issue No.6 :

    “128.       The petitioner has claimed that he has purchased the suit
    property, but only for convenience and at the insistence of the respondent
    he has taken her signature on the document as a joint owner of it.
    According to the petitioner he has purchased the furnitures, fixtures,
    machineries himself. However, respondent has claimed that the petitioner
    has used the amount from their joint Account in ICICI bank for purchase
    of the furnitures, fixtures and machineries. However, neither of them has
    proved with documentary evidence that the furnitures, fixtures and
    machineries are owned and jointly possessed by the petitioner and or joint

Ashish
                                   5/6                         18-IA-12970-2025.doc


    with the respondent. As regards the fact that she is the joint legal owner
    having joint legal possession, adverse inference would have to be drawn
    with respect to the fact that the petitioner has not placed the share
    certificate of the society on record. The respondent claims that she had
    been working out of that premises and preparing her papers etc. However,
    it is the case of the petitioner that she came into the premises one day and
    put some of her articles and took photographs of the same. That would
    not mean that she is in joint legal possession. Moreover, it is the
    petitioner’s case that the respondent is admittedly a full time employee
    and Head of the Department of the Cheat Medicine of K.E.M. Hospital and
    is likely to become a Dean shortly. She is not entitled to private practice
    when she is holding the said post.”

         The aforesaid issue was contested in the Petition filed by the
wife and answered accordingly.


         As far as the Petition No. A-759/2005 filed by the
Petitioner/Husband is concerned, the issue being framed as to
whether the Petitioner had proved that the Respondent had treated
him with cruelty and, therefore, it amounts as a ground for divorce,
the issue has been answered in the affirmative, but on the issue
whether the Petitioner proved,that he is the better of the parents in
whose custody the children’s welfare would be more secure and
protected, has been answered in the negative.


8        In the clear cut finding being rendered in the proceedings filed
by the Husband on issue No.6 to which we had made reference,
since it is held that she is the co-owner of the subject premises, but
she was not in possession of the premises and the issue being
answered against her, i.e. in the negative, and by taking into
consideration the settled position of law to the effect that when
possession of the premises under the re-development is taken from a
party, irrespective of any dispute with the party who was not in
possession, the possession of the new premises shall be handed over


Ashish
                              6/6                     18-IA-12970-2025.doc


to the party from whom the possession is taken, we must apply the
same principle here. It is the husband who was in possession of the
subject flat which was subjected to re-development and therefore it
is he who is entitled to be put back in possession.


         However, we make it clear and address the concern of
Advocate Mrs. Anita Agarwal representing the wife, that the
Respondent/wife is entitled and has already been declared as a co-
owner of the premises, though she was held to be not in possession
and, therefore, if she intend to claim any interest in the said
property, alongwith the husband as a co-owner, she can institute
appropriate proceedings or file any application in the            pending
proceedings.    The possession of the premises is directed to be
handed over to the Applicant/Husband only on the basis, that he is
held to be in possession and the possession of the premises is taken
from him for the purpose of its re-development under the provisions
of the MHADA Act, 1976 and therefore it is imperative that he shall
be put back in possession.


9        In the wake of the aforesaid circumstances, we deem it
appropriate to grant the Application in terms of prayer clause (a)
and (b) by directing the Respondent-wife to sign the PAAA, pursuant
thereto the Applicant shall be put in possession of the premises but
he shall not act in any manner which shall be detrimental to the
interest of the Respondent/wife as she is the 50% co owner of the
premises, and he shall not create any third party interest, in the
property.


(MANJUSHA DESHPANDE, J.)                    (BHARATI DANGRE, J.)

Ashish