Delhi High Court
Ashwin Lal vs Aruna Lal on 14 December, 2010
Author: Rajiv Shakdher
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 14.12.2010
IA No. 14466/2009 in CS(OS) No. 793/2007
ASHWIN LAL ..... PLAINTIFF
Vs
ARUNA LAL ..... DEFENDANT
Advocates who appeared in this case:
For the Plaintiff : Mr Manu Nayar with Ms Aradhna Mittal, Advs.
For the Defendant: Ms Gita Dhingra, Adv.
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may
be allowed to see the judgment ? No
2. To be referred to Reporters or not ? No
3. Whether the judgment should be reported
in the Digest ? Yes
RAJIV SHAKDHER, J
IA No. 14466/2009 (O. 12 R. 6 of CPC by Pltf.)
1. The captioned application has been filed by the plaintiff under the provisions of
Order 12 Rule 6 of the Civil Procedure Code, 1908 (in short „Code‟). The plaintiff/
applicant has filed a suit for partition and recovery of possession qua an immovable
property bearing no. BB-21-A, Ground Floor, DDA MIG Flat, Janakpuri, New Delhi -
110 058 (hereinafter referred to as „Janakpuri Flat‟). The suit is instituted by the plaintiff
against his own wife, who is the only defendant in the suit. In the suit the plaintiff has
claimed one-half share in the Janakpuri Flat.
2. The brief facts, which apparently led to the filing of the present suit and, to the
extent they are relevant for the disposal of the present application are set out hereinbelow:
2.1 The plaintiff and the defendant evidently got married on 13.12.1985. They were
blessed with two sons; Abhinav Lal and Ankit Lal, presently aged 23 years and 19 years
CS(OS) 793/2007 Page 1 of 11
respectively. It appears that the marriage soured and, consequently, the plaintiff filed for
dissolution of marriage on, 05.05.2005 under Section 13(1)(ia) of the Hindu Marriage
Act, 1955 (hereinafter referred to as „HM Act‟) on the ground of cruelty. The said
proceedings were originally registered as Matrimonial Case No. 392/2005, and thereafter,
re-registered as HMA case No. 187/06/05. These proceedings are pending adjudication
in the District court. The plaintiff, admittedly has also filed a proceeding in the Guardian
Court being: 26/B/2007; these proceedings are also pending adjudication.
3. As against this, the defendant it appears has filed a proceeding under Section 125
of the Code of Criminal Procedure, 1973 (in short „Cr.P.C‟).
3.1 Apart from this the defendant, it appears, has also filed a criminal complaint
which has been registered with police station Sultanpuri vide FIR No. 453/2007 under the
provisions of Section 420, 268 and 471 of the Indian Penal Code, 1860 (in short „IPC‟).
The defendant avers that she was forced to file the said complaint with the police as the
plaintiff had committed a criminal breach of trust by forging her signatures in order to
effect the sale of property owned by her being plot No. 64, Sector - 22, Rohini, New
Delhi (hereinafter referred to as „Rohini property‟). The defendant alleges that the
proceeds from this property were used by the plaintiff to purchase another „flat‟
exclusively in his own name, in Dwarka. It is alleged that when this fact came to the
knowledge of the defendant, she lodged the aforementioned criminal complaint with the
police.
4. In the background of the aforesaid proceedings pending in various courts inter-se
the plaintiff and the defendant certain averments have been made by the defendant herein,
which the plaintiff submits are an admission of the fact that he has 50% share in the
Janakpuri Flat. For the sake of convenience, I am setting out the relevant extracts from
the pleadings based on which the plaintiff claims that there is an admission which,
entitles him to relief as claimed in the captioned application.
(i) Guardianship Proceedings: Order dated 05.10.2007:
CS(OS) 793/2007 Page 2 of 11
".... Admittedly the flat in question that is FLAT NO. BB21A MIG FLAT, JANAKPURI is
co-owned by both the respondent and the petitioner 50-50....".
(ii) Metropolitan Magistrate, Tis Hazari (in proceedings taken out by the defendant
under Section 125 of the Cr.P.C.): Extracts from affidavit in reply filed by the defendant
herein:
".....That contents of para 4 of the application are admitted to the extent that settlement
had been entered into between the parties but the settlement was not in respect of
maintenance/ alimony. It was with regard to the flat No. BB-21A, MIG Flat, Janakpuri,
New Delhi which is co-owned by both the parties....."
(iii) Petition under Section 24 of the HM Act:
"......Flat No. BB-21A, Janakpuri, New Delhi was purchased. Though the flat was
purchased by respondent, the petitioner forcibly got his name included in his papers as
50% owner...."
(iv) Rejoinder to the Petition under Section 25 of the HM Act:
"....It is denied that respondent was forced to purchase the flat in joint name but the
same was done out of love and affection which they then had...."
(v) In this court: Reply filed by the defendant in a revision preferred by the plaintiff
being CM(M) bearing No. 1583/2006 against the order of interim maintenance passed by
the Matrimonial Court. In the captioned application an assertion has been made by the
plaintiff that the defendant admitted that in the Janakpuri Flat the plaintiff has one-half
share.
5. Reference is also made to the reply filed by the defendant in an application filed
under Order 23 Rule 3 read with Section 151 of the CPC filed by the plaintiff in CM(M)
1583/2006. As noticed above, the said CM(M) was filed to impugn the order of interim
maintenance passed by the criminal court under Section 25 of the HM Act. In this
regard, it is asserted that even in this reply there is an assertion that plaintiff is a 50%
owner of the Janakpuri Flat.
6. Based on the aforesaid, it has been argued by the learned counsel for the plaintiff,
that an admission in the pleadings has been made by the defendant, not only in the
pleadings filed in this court, but also before other courts, in which proceedings are
pending, inter se parties to the effect that: the plaintiff owns one-half share in the
Janakpuri flat and hence, a preliminary decree declaring him one-half owner of the suit
property, as prayed for in the captioned application, ought to be passed by this court.
7. On the other hand, the learned counsel for the defendant has rebutted the
contentions of the plaintiff, and in her rebuttal, has largely relied upon the reply filed to
the captioned application.
8. I have heard the learned counsel for the parties. In my view the application under
Order 12 Rule 6 of the CPC has to be governed by the following broad principles:
(i) The provisions of Order 12 Rule 6 (to seek a decree from a court based on
admissions) can be triggered by a litigant at any stage of the proceedings. This provision
is available both to the plaintiff and the defendant. Ordinarily, courts are more inclined
to entertain an application under Order 12 Rule 6 of the CPC at a stage prior to issues
being framed in the suit. However, there have been instances where courts have
entertained such an application even after issues have been framed, which in any event
appears to be the plain language of the provision.
(ii) A decree on admission is passed by court only when there are clear and
unambiguous admissions.
(iii) The provisions of Order 12 Rule 6 of the CPC are wide enough to envelope
within its ambit not only admissions made in pleadings but also those made "otherwise".
These could include admissions even in documents/ correspondence exchanged between
parties.
(iv) The jurisdiction of the court to pass a decree under Order 12 Rule 6 of the CPC is
both "permissive" and "discretionary". This is clear as the Order 12 Rule 6 of the CPC
uses the word „may‟.
(v) The admissions by a party may be either "oral" or in "writing". This is in
contradiction with the provisions of Order 12 Rule 1 of the CPC which refers to
admission made in "pleadings" or "otherwise in writing".
9. In the context of above, I may also note the provisions of Section 58 of the Indian
Evidence Act, 1872 (in short „Evidence Act‟). The said provision requires that no fact
need be proved in any proceedings which parties thereto or their agents agreed to admit at
the hearing or which before the hearing they agree to admit by writing under their hand or
by any rule of pleadings in force at the time they are deemed to have admitted by their
pleadings. This Section contains a proviso which confers discretion on the court to
require that, even facts admitted, be proved otherwise then by admission. There are,
therefore, broadly two kinds of admissions: those which are made in pleadings, and those
which are made during trial, that is, at or before the hearing. In such circumstances law
does away with the rigour of parties having to prove such facts. The logic is quite
simple; admitted facts do not require proof. The Supreme Court in the case of Nagindas
Ramdas vs Dalpatram Ichharam alias Brijram (1974) 1 SCC 242 had an occasion to
deal with admissions evidently made in an application under Order 23 Rule 3 of the CPC.
The Supreme Court, while dealing with the admissions in a compromise application,
observed as follows:
"....Admissions, if true and clear, are by far the best proof of the facts
admitted. Admissions in pleadings or judicial admissions, admissible under
Section 58 of the Evidence Act, made by the parties of their agents at or
before the hearing of the case, stand on a higher footing than evidentiary
admissions. The former class of admissions are fully binding on the party
that makes them and constitute a waiver of proof. They by themselves can
be made the foundation of the rights of the parties. On the other hand,
evidentiary admissions which are receivable at the trial as evidence, are by
themselves, not conclusive. They can be shown to be wrong."
10. In the background of the aforesaid principle of law, let me examine the state of
pleadings in the present case. In the written statement filed by the defendant, the
averments made in respect of the suit property are broadly thus:
10.1 It is contended by the defendant that in 1988 she purchased the flat bearing No.
DG-II/123-D, SFS Flat, DDA, Vikaspuri (in short „Vikaspuri property‟) for a
consideration of Rs 95,000/-. It is further averred that the money to purchase the
Vikaspuri property was garnered by the defendant partially from sale of her ornaments,
while the balance was received in the form of financial assistance rendered by the uncle
and the brother of the defendant. Some portion of the finances is also attributed to money
lying with the defendant in the form of savings. It is specifically averred that from sale of
her ornaments she collected a sum of Rs 45,000/-, while the uncle and the brother pooled
in a sum of Rs 20,000/-. It is further averred, that the Vikaspuri property was sold by the
defendant, in 1995, for a sum of Rs 4.30 lacs. The intention behind the sale of the
property, as averred by the defendant, was to buy a more commodious property/ house. It
is stated that the consideration of Rs 4.30 lacs was received by the plaintiff and, out of
that sum, the Janakpuri flat was purchased for a sum of Rs 3 lacs. The balance sum, i.e.,
Rs 1.30 lacs was retained by the plaintiff and, invested by him elsewhere. It is averred,
that it is, in the Janakpuri flat that the defendant is, residing with her sons. These
averments have been made in paragraph 8 and 9 of the "preliminary objections"
contained in the written statement. Identical averments have been made in paragraphs 1
and 2 of reply on merits, once again contained in written statement. There is an assertion
to the same effect even in paragraph 10 to 12 of the reply on merits in the written
statement. Though assertion in the said paragraphs of the written statement is similar to
the ones contained in other paragraphs noticed above; there is an additional assertion, of
which the plaintiff seeks to take advantage. The assertion being that the plaintiff is only a
"benamidar" and, therefore, the Janakpuri flat is owned by the defendant alone. Since the
plaintiff has laid much stress on this part of the pleadings, I may extract the same for the
sake of convenience:
"10-12. ...Preliminary objections taken in the written statement may be
allowed to be urged as part of the reply of paras 10 to 12 of the plaint. Flat
NO. DG-II/123D, SFS DDA Flat, Vikaspuri had been purchased by the
defendant out of her own funds in 1988 at a consideration of Rs 95,000/- and
that the said flat was sold in 1995 at a consideration of Rs 4,30,000/-. After
the said flat was sold flat No. BB/21A, DDA MIG Flat, Janakpuri was
purchased in 1995 and the name of the plaintiff was added as he insisted for
the same, although he had not contributed even a single penny for its purchase.
Therefore, though the flat is in joint name plaintiff is only „Benamidar‟ and the
flat belongs to and is owned by the defendant alone. It is denied that for
purchase of the flat in question father of the plaintiff advanced loan of Rs
5,00,000/-. If plaintiff had taken a sum of Rs 5.00 lakhs, he might had taken for
carrying out any other business activity. The said amount, however, was not
invested in the flat in question. Flat in fact, had been purchased at a
consideration of Rs 3,00,000/- out of sale proceeds of flat NO. DG-II/123D,
Vikas Puri, Delhi and question of investing Rs 5.00 lacs apparently is without
any basis. It is not disputed that proper sale deed was not executed and the
documents like General Power of Attorney, Agreement to Sell, Will etc. had
been executed by the seller in the joint name of the plaintiff and defendant. The
said documents in original had been and continues to be in possession of the
plaintiff."
11. It is also pertinent to note that the defendant has filed a counter claim. The
counter claim has been filed by the defendant inter alia to seek a declaration that she is
the sole owner of the Janakpuri Flat. In paragraph 2 of the counter claim a similar
assertion has been made. Since the same is relevant and was heavily relied upon by the
plaintiff, specially the last line of the paragraph 1, the same is also extracted below for the
purposes of convenience:
"2. That the said flat of Vikas puri was sold in the year 1995 at a
consideration of Rs 4,30,000/- and flat no. BB-21A, MIG Flat, Janakpuri,
New Delhi was purchased in the joint names of the plaintiff and defendant.
This flat was purchased at a consideration of Rs 3,00,000/- and that balance
sum of Rs 1,30,000/- was utilized for acquiring plot admeasuring 60 sq.
mtrs. being plot No. 64 in Pocket-5, Sector-22, Rohini, New Delhi in the
joint names of plaintiff and defendant."
12. At this stage, since I am on the counter claim I may also advert to certain other
extracts of the counter claim, which are as follows:
".... Thus flat NO. BB-21A, MIG Flat, Janak Puri, New Delhi is a property
of the defendant and plaintiff has no right whatsoever in the flat in
question..."
"....Thus defendant is owner of both the flats i.e., flat NO. BB-21A, MIG
Flat, Janakpuri, New Delhi which flat is in possession of the defendant as
also flat No. 3501, 5th Floor, Sector - 6, Plot No. 7, Gyan Shakti Apartment
HIG, Dwarka, New Delhi also belongs to the defendant and plaintiff has no
right, title or interest whatsoever in the said two flats....."
".....That defendant thus seeks a declaration with respect to flat No. BB-21A,
MIG Flat, Janakpuri New Delhi, that defendant alone is the owner of the flat
in question and that plaintiff has no right whatsoever in the said flat...."
"...... It is, therefore, most respectfully prayed that your Lordships may be
graciously pleased to declare that defendant is sole owner of flat NO. BB-
21A, MIG Flat, Janakpuri, New Delhi...."
13. I may only notice a similar stand has been taken in the reply filed by the
defendant to the captioned application.
13.1 A perusal of the pleadings filed in this court would show that the defendant has
attempted to explain as to what her stand is, as regards how the plaintiff came to jointly
own the Janakpuri Flat. It was urged before me by the learned counsel for the plaintiff
that once the defendant has taken a stand in pleading that the plaintiff was her benamidar
then the provisions of the Benami Transactions (Prohibition) Act 1988 (hereinafter
referred to as the „Benami Act‟) would get triggered. It was contended that in view of
this stand, the defendant‟s defence that she is the real owner of the property cannot be
examined by the court. Reliance in this regard was placed on Section 4 of the Benami
Act. Before I deal with the same, let me also advert to the averment made by the plaintiff
in paragraph 8 and 12 of the "reply to preliminary objections" in his replication filed in
this court. These are as follows:
"8. Para no. 8 of the preliminary objections is wrong and denied. It is
wrong and denied that Flat No. DG-II/123D, SFS Flat, DDA Vikas Puri was
purchased by the plaintiff in 1988 for a consideration of Rs 95,000/-. It is
further denied that for the purchase of the same, the defendant sold her
ornaments for a sum of Rs 45,000/- and a sum of Rs 20,000/- have been
given by the uncle and brother of the defendant and that the balance amount
was lying in savings account with the defendant. It is wrong and denied that
the entire sale consideration of the said flat in question amounting To Rs
95,000/- had been paid by the defendant. The defendant be put to strict
proof of the averments made in this para. However, all the documents in
respect of the said property are in possession of the defendant."
12. ....... It is wrong and denied that all immovable properties starting from
property NO. DG-II/123D, SFS Flats, Vikas Puri, New Delhi had been
purchased by the defendant. It is wrong and denied that out of the sale
proceeds of the said flat, subsequent property namely Flat NO. BB-21A,
Ground Floor, MIG, DDA Flats, Janakpuri, New Delhi and Plot No. 64,
Pocket No. V, Sector 22 Rohini, Delhi and Flat NO. 3501, HIG 5th Floor
Sector VI, Plot NO. 7, Ghan Shakti Apartments, Dwarka, New Delhi had
been purchased out of the initial investment made by the defendant. In fact,
the properties in questions belong to the plaintiff and were purchased out of
the income of plaintiff alone apart from the loan he had obtained and the
defendant has no concern with the properties. It is reiterated that the
properties belongs to the plaintiff alone. The plaintiff is the absolute owner
of the properties and the entire consideration in purchase of properties
belonging to the plaintiff and were out of self-acquired income and there is
no contribution of the defendant whatsoever in purchase of the said
properties. (the emphasis is mine)
14. A reading of the pleadings filed by the defendant and the vehement refutation by
the plaintiff, in particular in the replication filed, demonstrates that there is an assertion of
the plaintiff that the entire consideration, amongst others, for the Janakpuri flat had been
paid by the plaintiff, and that the plaintiff is the "absolute owner" of the properties
referred to in the written statement including the Janakpuri Flat. On the other hand, as
noticed hereinabove, the defendant contends to the contrary. What is contended by the
plaintiff as an admission, has been attempted by the defendant to be put in a perspective.
Whether the defendant‟s version is right or wrong can only be ascertained after evidence
has been led by parties.
14.1 In these circumstances, I am of the opinion that there is no clear and unambiguous
admission by the defendant. The fact that in other foras pleadings have been filed by
parties, to which extensive reference was made by the learned counsel for the plaintiff,
would not persuade me to decree the suit at this stage, without a trial, for the reasons that
those pleadings may have to be explained by the defendant at the trial. As noticed by me
above, the averments in the pleadings filed in this court veer to that position. In other
words seek to explain the defendant‟s averment in that behalf.
15. In so far as the submission of the learned counsel for the plaintiff with regard to
Benami Act is concerned, I am of the view that the said submission raises a serious
question of law which the court may have to deal with by reading the plaint in a holistic
manner and having regard to the provisions of the Benami Act. Though, I do not intend
to dilate on the provisions of the Benami Act extensively, at this stage it is pertinent to
note that while, Section 4 sub-Section (2) provides that no defence based on any right in
respect of any property held benami whether against the person in whose name the
property is held or against any other person, shall be allowed in any suit, claim or action
by or on behalf of a person claiming to be the real owner of such property; sub-section
(3) clause (b) of Section 4 excludes certain persons from the rigours of sub-Section (1)
and (2) of Section 4. These being: either a person, who holds the property in issue in his
capacity as a trustee or in a fiduciary capacity and, such property is held for the benefit of
another person for whom he is a trustee or towards whom he stands in such capacity.
Whether a spouse, i.e., a husband, would come within the ambit of sub-Section (3) clause
(b) of Section 4 of the Benami Act is a question that may have to be examined by the
court at the stage of trial. This is more so in view of the fact that while sub-Section (1) of
Section 3, prohibits persons generally from entering into benami transaction, an
exception to this general rule is provided in clause (a) of sub-Section (2) of Section 3,
amongst others, in so far as a "wife" or "unmarried daughter" is concerned. Whether, as
indicated above, a husband, i.e., the plaintiff in this case, would fall in clause (b) of sub-
Section (3) of Section 4 is an aspect which may have to be examined in the schematic
context of the Benami Act. In any event, as noticed above, the plaintiff in the replication
claims to be the owner of the suit property.
16. Therefore, for the aforementioned reasons, I am of the opinion that the captioned
application deserves to be dismissed. It is ordered accordingly.
RAJIV SHAKDHER, J
DECEMBER 14, 2010
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