Bombay High Court
Kavita Agarwal vs Sanjeev Kumar Agarwal on 30 June, 2025
2025:BHC-AS:25948
WP-1128-2025-(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1128 OF 2025
Mrs. Kavita Agarwal ]
Age : 51 Years, Occu: House Wife ]
R/at: Temporarily at: B-1102 ]
Sylvan Heights, Sanewadi, ]
Aundh, Pune- 411007 ] ...Petitioner
Versus
Mr. Sanjeev Kumar Agarwal ]
Age: 57 Years, Occu. : Business ]
R/at: 901 Aman Co-op HSG Society, ]
Plot No. 10, 11 Bhosale Nagar, ]
Pune- 411007 ] ...Respondent
..................................................................................
Mr. Abhijit Sarwate a/w Ms. Hardev K. Aidhen, for the
Petitioner.
Mr. Hitesh Vyas a/w Mr. Rasik Raut, for the Respondent.
..................................................................................
CORAM : MANJUSHA DESHPANDE, J.
RESERVED ON : 11th JUNE, 2025
PRONOUNCED ON : 30th JUNE, 2025
KARTIKEYA GOTI 1 of 20
::: Uploaded on - 30/06/2025 ::: Downloaded on - 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
JUDGMENT :
–
1. Rule. Rule made returnable forthwith and heard finally
with the consent of the parties.
2. The Petitioner has challenged the order of rejection of
his application passed by the Family Court No.5, Pune, below
Exhibit 37 in Petition B. No. 35 of 2023.
3. It is the case of the Petitioner that the Petitioner and
Respondent who are, inter se, Husband and Wife, during their
matrimony, have purchased various properties. The Petitioner
was compelled to leave her matrimonial house on 17.02.2021.
Since then, she is residing with her brother and thereafter, in
the rented premises. The property, as described in the plaint, is
purchased vide ‘Agreement to Sale’ dated 30.12.2010, which is
duly registered with the Sub-Registrar No. II, Taluka Haveli,
District Pune. The entire stamp duty has been paid on the said
document and possession has been handed over to the
Petitioner and Respondent. The Petitioner and Respondent are
joint owners of the suit premises. The suit property comprises
of 4 bed rooms, 4 WCs, 1 Kitchen, 1 dry balcony, 1 pooja and
KARTIKEYA GOTI 2 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
dining room, 1 balcony, 1 terrace, 1 hall and huge lobby. The
suit property is a duplex, with internal staircase leading to the
upper floor, which has only one entrance. The nature of the
suit property is such that it cannot be demarcated/divided, so
as to create two tenements. Since she has left her matrimonial
home, the Petitioner is deprived of her right to enjoy
matrimonial home, which, according to her, is an act of
domestic violence and it amounts to harassment by the
Respondent. Persistent threat is created by the Respondent to
her life, privacy and dignity.
4. Presently, the matrimonial home is occupied by the
Respondent along with their son and daughter-in-law. Owing
to the conduct of Respondent, she is constrained to stay
outside her matrimonial home. Hence, she is entitled to seek
partition in the suit property. On the said premise, she has
filed suit for partition of the suit property.
5. The Respondent had filed a Written Statement on
11.03.2024. According to him, the Petition filed by the
Petitioner is false and frivolous, there is no dispute between
KARTIKEYA GOTI 3 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
them, which cannot be resolved. But, the Petitioner out of her
extreme anger issues, egoistic nature and hunger for money,
has voluntarily left her matrimonial house. According to the
Respondent, there is no cause of action occurred to the
Petitioner to file the Petition in the Family Court.
6. So far as the property in respect of which the partition is
claimed by the Petitioner, the Respondent, in his Written
Statement, has admitted that, for the sake of future security,
he decided to buy the flat in joint names by obtaining a loan of
Rs. 1.28 Crores against the said property. He also obtained a
loan of Rs. 70 lakhs from HDFC Bank Limited. The ‘Agreement
to Sale’ was executed in the year 2010, but the final deed of
conveyance is yet to be executed. The suit property cannot be
partitioned as the suit property is not of absolute ownership.
The suit property is not free from encumbrances since the loan
obtained from the HDFC Limited, which was taken against the
suit property, was transferred to his hotel located at
Hinjewadi, Pune.
KARTIKEYA GOTI 4 of 20
::: Uploaded on - 30/06/2025 ::: Downloaded on - 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
7. It is his contention that only out of love and affection, he
has purchased the said flat in their joint names. Just because
her name is mentioned in the ‘Agreement to Sale’ of the
property, she cannot be declared as a joint owner. He alone has
paid full consideration of the said flat. According to him, the
suit filed by the Petitioner suffers from non-joinder of the
parties, since the housing society in which the residential
premises are located is not made a party Respondent.
8. The application for issuing preliminary decree was filed
by the Petitioner on 20.04.2024. The application was filed
relying to the averment made by the Respondent, in Para “N”
on Page 17 of the Written Statement, wherein it is stated by
the Respondent that, out of love and affection, he purchased
the said flat in joint name with the Petitioner. According to
him, there is a contradiction in the stand taken by the
Petitioner on Page Nos.6 and 17. On Page No.6, there is an
averment made by the Respondent that, the Petitioner cannot
be a joint owner of the said flat, whereas on Page No.17, he
has admitted that, the flat is in joint name with the Petitioner.
Relying on the averment made on Page No.17, the Petitioner
KARTIKEYA GOTI 5 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
has filed application for passing of a preliminary decree.
9. The application was opposed by the Respondent by filing
‘Say’ to the application. According to him, merely because
property was purchased in the joint name, it does not entitle
the Petitioner for half share in the property. Only after framing
of issues on the basis of pleadings of parties regarding
maintainability of the suit and right of ownership, etc., the
Petitioner would be entitled for relief as claimed by her.
10. On the basis of the rival contentions, the application at
Exhibit 37, was heard by the Judge, Family Court, Pune in P.B.
No. 35 of 2023, which came to be decided vide order dated
09.12.2024. The application has been rejected by holding that,
the stage of the suit is preliminary, and as yet, no evidence is
recorded. After framing issues, parties will get an opportunity
to lead evidence to prove the respective consideration, if any,
paid by them, and thereafter, their share or title will be
proved. By recording the above observations, the application
was rejected vide order dated 09.12.2024. This order of
rejection dated 09.12.2024 is assailed by the Petitioner.
KARTIKEYA GOTI 6 of 20
::: Uploaded on - 30/06/2025 ::: Downloaded on - 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
11. It is the contention of Mr. Sarwate, learned Counsel
appearing for the Petitioner that, the impugned order is
erroneous on the background of fact that, an application under
Order VII Rule 11 (a) & (D) r/w Section 151 of the Civil
Procedure Code, 1908 (CPC), was filed by the Respondent for
rejection of the plaint, on 12.12.2023. In the application, the
categorical stand of the Respondent was that the Petitioner has
herself clearly admitted that the ‘Agreement to Sale’ of the
property is executed and final ‘conveyance deed’ of the
property is yet not executed. In view thereof, prayer for
rejection of plaint was made on the ground that if title is not
perfect, suit for partition is not maintainable.
12. While passing the order on the objection raised by the
Respondent, the Judge, Family Court No.5, Pune, has rejected
the application on 08.02.2024, with the observation that he
has gone through the copy of the Index II, filed below Exhibit
3, which shows that the Petitioner and the Respondent are
joint owners of the suit property. Therefore, taking into
consideration the nature of relief claimed by the Petitioner and
the averments made by her in the Petition as well as
KARTIKEYA GOTI 7 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
considering scope of Section 7 of the Family Court Act, 1984,
cause of action has arisen to the Petitioner to file the suit for
partition. With the above observations, the application is
rejected on 08.02.2024 by the Judge, Family Court No.5,
Pune.
While rejecting the application filed below Exhibit 37,
the Judge, Family Court No.6, Pune, has taken a totally
contradictory view, to his earlier view taken while rejecting the
application below Exhibit 17, vide order dated 12.12.2023.
13. According to the learned Counsel for the Petitioner, the
application has been rejected by the Judge, Family Court, by
making observations contrary to his own findings, recorded in
the order below Exhibit 17. Admittedly, while rejecting the
application under Exhibit 17, it is recorded in his order that
the copy of Index II filed below list Exhibit 3, itself is evident
to show that the Petitioner and the Respondent are joint
owners of the suit property and therefore, taking into
consideration the averments made by the Petitioner, the cause
of action has arisen for her to file the suit, seeking relief of
KARTIKEYA GOTI 8 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
partition of the suit property, along with declaration of ½
undivided share in the suit property. With such observations,
the application has been dismissed.
14. As against that, in the impugned order it is held that,
undisputably, sale deed is not yet executed and therefore, it
cannot be said that property is purchased, hence, no valid and
legal title is vested in the parties. Since there is no valid title
acquired by the parties, the preliminary decree cannot be
passed.
15. It is the contention of the Petitioner that observations
made by the Judge, Family Court, are not at all tenable since,
it would operate as res judicata in view of the earlier
observations recorded in the order below Exhibit 17. Reliance
is placed on the observations made by the Hon’ble Supreme
Court in support of his contention that res judicata can apply
even to different stages of the same suit. In order to lend
support to his contention, Mr. Sarwate, the learned Counsel,
relies on the observations made by the Hon’ble Supreme Court
in Sulthan Said Ibrahim V/s. Prakasan and Others 1. According
1 2025 SCC OnLine SC 1218
KARTIKEYA GOTI 9 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
to him, once the Judge, of the Family Court has taken a view
on a particular issue and has recorded a finding on that issue,
he cannot take a contrary view at a further stage in the same
suit, as it would operate as res judicata.
16. The other ground raised by the Petitioner is that, it is not
necessary to execute the sale deed for claiming partition. The
right of the Petitioner is established by the Annexure II of the
Agreement to Sale, which is a registered document. It contains
names of both, the Petitioner as well as the Respondent and
the entire stamp duty is paid on the document, on the value of
the property.
17. Reliance is placed on the explanation in Schedule I of
Article 25 of the Maharashtra Stamp Act, 1958, which
provides that in case of an ‘Agreement to Sale’ of immovable
property, if the possession of any immovable property is
transferred or agreed to be transferred to the purchaser before
the execution or at the time of execution or after the execution
of such agreement, then such ‘Agreement to Sale’ shall be
deemed to be a conveyance and stamp duty thereon shall be
KARTIKEYA GOTI 10 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
leviable accordingly. Considering the explanation, the title of
the Petitioner is perfect and does not require ‘a sale deed’ to be
executed for the conferment of title.
18. It is his further submission that the admission given by
the husband in his Written Statement that the wife is co-
owner, is not required to be proved. The admission itself
makes the the Petitioner entitled for the relief of passing of
preliminary decree.
19. According to him, from the very fact of admission given
by the Respondent about the jointness of ownership of the
Petitioner and the Respondent, makes the Petitioner entitled to
the share in equal ratio along with the Respondent-Husband.
No sooner it is admitted by the husband that the wife has a
share to extent of 50%, the said fact need not be proved.
20. It is, therefore, submitted that the order passed by the
Judge, Family Court, is erroneous, self-contradictory and
contrary to the provisions of law. Hence, it deserves to be
quashed and set aside.
KARTIKEYA GOTI 11 of 20
::: Uploaded on - 30/06/2025 ::: Downloaded on - 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
21. Per Contra, Mr. Vyas, the learned Counsel appearing for
the Respondent, submits that though the property is purchased
in the joint names of the Petitioner and the Respondent, mere
averment does not make wife entitled to such property. The
Court is required to consider issues regarding the
maintainability of the Petition, ownership of property, whether
the Petitioner is entitled for the relief claimed and also
whether the Court has jurisdiction to try and entertain the suit
before passing a decree. Unless the issues are decided by
leading evidence, a preliminary decree is not capable of being
passed.
22. It is further submitted that in the Written Statement
itself, there is an averment that the sale deed of the property
has not been executed and final conveyance deed has not been
registered between the original owner and the parties.
Therefore, with a defective title of property, which involves
third party interest, it is not permissible to draw a preliminary
decree. Such relief claimed by the Petitioner is premature.
23. I have given due consideration to the arguments
KARTIKEYA GOTI 12 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
advanced by respective Counsel and after hearing the
respective parties at length, the question that arises before this
Court is, ‘whether the relief of drawing a preliminary decree
and the consequential reliefs, denied by the impugned order
deserves interference by this Court?’
24. The Preliminary decree is explained in Section 2 (2) of
the CPC, which reads thus:
“(2) “decree” means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary
or final. It shall be deemed to include the rejection of
a plaint and the determination of any question within
section 144, but shall not include-
(a) any adjudication from which an appeal lies as
an appeal from an order, or
(b) any order of dismissal for default.
“Explanation- A decree is preliminary when
further proceedings have to be taken before the suit
can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be
partly preliminary and partly final;”
25. So far as the partition suit is concerned, the enabling
KARTIKEYA GOTI 13 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
provision is Order XX Rule 18. The Sub-clause 2 of Rule 18 of
the Order XX, reads thus:
“18. Decree in suit for partition of property or separate
possession of a share therein.-Where the Court passes a
decree for the partition of property or for the separate
possession of a share therein, then,-
(1) ……..
(2) if and in so far as such decree relates to any
other immovable property or to movable property,
the Court may, if the partition or separation cannot
be conveniently made without further inquiry, pass
a preliminary decree declaring the rights of the
several parties interested in the property and giving
such further directions as may be required.”
26. The Petitioner is claiming relief of passing of preliminary
decree as provided under Sub-Section 2 of Rule 18 of Order
XX. Upon going through the application filed by the Petitioner,
the ‘Say’ filed by the Respondent, and the impugned order, it
is apparent that the Petitioner is relying on the averment made
in the Written Statement about admission of jointness of
ownership of the suit flat. This averment is claimed to be an
admission given by the Respondent. It is worthwhile to note
that though the Respondent has made an averment about the
joint ownership, however, Respondent has also categorically
KARTIKEYA GOTI 14 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
denied the entitlement of the Petitioner by taking a stand that
he has purchased it by making payment of full consideration
without contribution from the Petitioner from his own funds
and also by availing loan. The loan which is obtained on the
said property is still an encumbrance on the property. Hence,
there is a denial of right and entitlement of the Petitioner,
considering the denial by the Respondent, merely because
there is an averment about jointness in ownership, it does not
make the Petitioner entitled to claim preliminary decree,
unless the right of the Petitioner is established by framing of
issues and leading evidence.
27. In the present case, it is not in dispute that evidence of
the parties is yet to be recorded. The pleadings of the parties
about the payment of consideration and their respective shares
are required to be proved by leading evidence. This being the
admitted position, the other issues raised by the Petitioner
does not deserve consideration.
28. It would be apposite to refer to the judicial
pronouncement of the Hon’ble Supreme Court in the case of
KARTIKEYA GOTI 15 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
Shub Karan Bubna @ Shub Karan Prasad Bubna V/s. Sita
Saran Bubna & Others2. The ratio of the reported judgment is
squarely applicable in the present case.
29. It is held by the Hon’ble Supreme Court that in a suit for
partition and separate possession, the prayer is not only for
declaration of plaintiff’s share in the suit property, but also
division of its share by metes and bounds. This involves three
issues:
(i) Whether a person seeking division has a share or interest
in the property?
(ii) Whether he is entitled for the relief of partition and
separate possession?
(iii) How and in what manner the property should be divided
by metes and bounds?
30. In the first stage of the suit, the Court decides whether
the Plaintiff has a share in the property and whether he is
entitled to division and separate possession. The decision of
2 (2009) 9 SCC 689
KARTIKEYA GOTI 16 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
these two issues results into a decree, which is passed under
Order XX Rule 18, which is termed as preliminary decree.
31. In view of the aforementioned observations of the
Hon’ble Supreme Court, there remains no ambiguity, on the
issue that even for drawing of preliminary decree for deciding
the entitlement of share, a person claiming share in the
property is required to prove that he has a share or interest in
the property and he is entitled to relief of division and
separate possession by leading evidence, unless the share is
not disputed.
32. Hence, in view of the background of the observations
made by the Hon’ble Supreme Court upon going through the
reasons for rejection of application for granting preliminary
decree, I do not find any perversity in the findings recorded
by the Judge, Family Court. The Judge, Family Court, has
rightly observed that the parties, have to lead evidence, only
upon leading evidence, a preliminary decree is capable of
being drawn, it is on this premise, the application has been
rightly rejected.
KARTIKEYA GOTI 17 of 20
::: Uploaded on - 30/06/2025 ::: Downloaded on - 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
33. By invoking powers of this Court under Article 227 of
the Constitution of India, the Petitioner has challenged the
order below Exhibit 37 passed by the Family Court No.6, Pune.
So far as the power of the High Courts under Article 227 is
concerned, they are limited and are to be exercised sparingly.
No interference is to be caused in the orders passed by the
subordinate Courts over whom the High Court has power of
superintendence, merely because the decision is erroneous.
The powers under Article 227 cannot be exercised to correct
the error of fact or law. The powers under Article 227 are to be
exercised only to correct the jurisdictional errors committed by
the subordinate Courts. Only in case of failure to exercise
powers or exercise of powers leading to miscarriage of justice,
the High Courts may interfere with the orders passed by the
subordinate Courts or Tribunals. This position of law has been
time and again considered and reiterated in its various
judicial pronouncements by the Hon’ble Supreme Court. The
decision of Rajendra Diwan V/s. Pradeep Kumar Ranibala &
Another3 has squarely laid down the parameters for exercise of
powers under Article 227 of the Constitution of India. In
3 (2019) 20 SCC 143
KARTIKEYA GOTI 18 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
Paragraph Nos. 85 and 86, which reads thus:
“85. The power of superintendence conferred by
Article 227 is, however, supervisory and not
appellate. It is settled law that this power of judicial
superintendence must be exercised sparingly, to keep
subordinate courts and tribunals within the limits of
their authority. When a Tribunal has acted within its
jurisdiction, the High Court does not interfere in
exercise of its extraordinary writ jurisdiction unless
there is grave miscarriage of justice or flagrant
violation of law. Jurisdiction under Article 227
cannot be exercised “in the cloak of an appeal in
disguise”.
“86. In exercise of its extraordinary power of
superintendence and/or judicial review under
Articles 226 and 227 of the Constitution of India, the
High Courts restrict interference to cases of patent
error of law which go to the root of the decision;
perversity; arbitrariness and/or unreasonableness;
violation of principles of natural justice, lack of
jurisdiction and usurpation of powers. The High
Court does not re-assess or re-analyse the evidence
and/or materials on record. Whether the High Court
would exercise its writ jurisdiction to test a decision
of the Rent Control Tribunal would depend on the
facts and circumstances of the case. The writ
jurisdiction of the High Court cannot be converted
into an alternative appellate forum, just because
there is no other provision of appeal in the eye of
the law.”
34. In the present case, though the Petitioner may have
KARTIKEYA GOTI 19 of 20
::: Uploaded on – 30/06/2025 ::: Downloaded on – 30/06/2025 22:38:55 :::
WP-1128-2025-(J).odt
raised certain arguable grounds, however, they are not
relevant, for deciding the issue involved in the impugned
order below Exhibit 37. It is well reasoned order, which is very
much within the contours of law, hence, does not call for
interference. As a result, Writ Petition is dismissed.
35. Rule is discharged.
[MANJUSHA DESHPANDE, J.]
KARTIKEYA GOTI 20 of 20
::: Uploaded on - 30/06/2025 ::: Downloaded on - 30/06/2025 22:38:55 :::