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2010 Supreme(Del) 820
THE HIGH COURT OF DELHI AT NEW DELHI
HON'BLE MR JUSTICE RAJIV SHAKDHER
ASHWIN LAL ..... PLAINTIFF
Vs
ARUNA LAL ..... DEFENDANT
IA No. 14466/2009 in CS(OS) No. 793/2007
Decided on : 14.12.2010
For the Plaintiff : Mr Manu Nayar with Ms Aradhna Mittal, Advs.
For the Defendant: Ms Gita Dhingra, Adv.
Headnote:A) Civil Procedure Code, 1908, Order 12 Rule 6 :- Plaintiff, husband filing a decree of declaration in respect of the property on the basis of admission made by defendant/ wife that the husband is the 50 % owner of the property in question in different collateral litigation. The defendant / wife has explained in detail as to how the purchase of the flat was financed and contradicted the claim of ownership. The alleged admissions being being not admissions iin pleadings, but evidentiary admissions, which are not conclusive in themselves, but only receivable in evidence which can be contradicted by the concerned parties.
B) Benami Act, Section 4, 3:- Contention of plaintiff in the case that the wife having accepted that plaintiff, the husband is the 50 % owner of the property in question cannot claim the ownership exclusively for herself now in the counter affidavit is not acceptable as the case is covered by Section 3m where the fiduciary capacity of capacity are protected by it.
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 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:
“…. 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 paper
