B.S.R. vs P.S.R.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: August 03, 2023
Pronounced on: December 04, 2023
+ MAT.APP.(F.C.) 89/2022
B.S.R. …… Appellant
Through: In person
Versus
P.S.R. …..Respondent
Through: In person with Ms. Seema Durrary, Advocate
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
SURESH KUMAR KAIT, J
1. The Appeal bearing no. MAT.APP.(F.C.) 89/2022 has been preferred by the appellant/husband against the respondent/wife under Section 19 of Family Courts Act, 1984, thereby challenging the order dated 20.05.2022 passed by learned Family Court in CS No.1/2020, whereby his application for amendment of plaint under Order VI Rule 17 CPC has been dismissed.
2. The brief facts, are that the marriage between the parties was solemnised in Arya Samaj Mandir on 20.01.2005. Due to disputes between the parties, they separated in June, 2018.
3. In the year 2020, the husband filed a suit bearing no. CS(OS)1/2020 for Declaration of Title and Possession in respect of A-14-S, Delhi Police Apartments, Mayur Vihar-I, Delhi (hereinafter referred to as the suit property) and restraining the wife from creating any third party interest or to alienate the suit property. The husband claimed that the immovable suit property was purchased on 12.06.2012 in the name of the wife and though both of them had jointly obtained loan for purchase of the suit property, however, all the payments of loan were paid by him only. He had further claimed that the property transaction was benami in nature and fell under Section 2(9)(A)(b) exception (iii) of the Benami Transactions (Prohibition) Act, 1988. The husband averred before the learned Family Court that since October, 2017, behaviour of his wife changed and they used to frequently fight. He therefore, sought a declaration that he was the owner of the suit property, since he had made the payments of the entire consideration amount.
4. The wife in her Written Statement, stated that the property was purchased in the joint names of the parties and the money for the purchase of the property was given by her and her parents. She stated that she had sold her jewelry for this purpose and that no money was paid by the husband. She vehemently denied that the husband had purchased the property in her name and sought dismissal of the suit for Declaration of Title and Possession filed by the husband.
5. During pendency of the said suit, the husband filed an application under Order VI Rule 17 CPC seeking amendment in the plaint, before the framing of issues in the suit. The following amendments were sought by him:-
i) In paragraph 3 (ii)(e) of the plaint, he sought to delete Insurance and Pollution Certfificate amount was paid by plaintiff/ husband.
ii) Additions in paragraph 3 (ii)(e) of the plaint reading as under:-
Para 3(iii): Property transaction was benami in nature and falls under section 2(9) (A) (b) exception (iii) of The Prohibition of Benami Property transaction Act, 1988. It was not the intention of the Plaintiff / husband to create any benefit, any right in the immovable property to the defendant/wife. In this regards Sale Deed is annexed as ANNEXURE P-1, release deed is annexed as ANNEXURE P-2 AND Sanction letter of home loan, Home loan payment, EMI payment by plaintiff husband and related documents are annexed herewith for kind consideration of this Honble court as ANNEXURE P-3 (Colly.).
INSERT-
At the instance of wife, plaintiff released his share of property in the favour of Co-owner/ wife, who is defendant herein. Benami property transaction and release deed was done in order to maintain peaceful family atmosphere of trust & confidence. But at the time of execution of release deed the plaintiff could not foresee the real intention of defendant/wife; who was aspiring to take undue advantage of innocence of husband/ plaintiff. The subsequent event of filing police complaint dated 18.06.2018 by defendant/wife exhibits the real intention of the defendant to take control of the property and render the husband in a miserable condition. This conduct of defendant prima facie exhibit fraudulent intention on her part
iii) To substitute Prayer in Para 4 (b) of the plaint from, To award the cost of the suit to set aside the release deed and award the cost of the suit.
6. While dismissing the aforesaid application, the learned Family Court vide impugned order dated 20.05.2022 observed that at the time of filing of the plaint in 2020, the plaintiff was already aware about the filing of police complaint by the defendant on 18.06.2018. Thus, it was held as under:-
In the present case, the plaintiff was aware about the filing of police complaint by the defendant at the time of filing of the suit. The present suit is filed by the plaintiff in the year 2020, whereas the complaint filed by the defendant is of 18.06.2018. In the present case pleading is complete. The plaintiff wants to implead that under pressure of defendant he has released his share in the property in favour of the defendant. The application under Order VI Rule 17 filed by the plaintiff is without any merits and same is hereby dismissed.
7. Aggrieved by the dismissal of application under Order VI Rule 17 CPC, the husband has challenged the Order of the learned Family Court dated 20.05.2022 in the Appeal number MAT.APP.(F.C.) 89/2022 on the ground that the learned Family Court has failed to mention any plausible reason and the application was dismissed in a mechanical manner. Therefore, the impugned order suffers from lack of equity, fairness and justice.
8. The husband has submitted that the learned Family Court has failed to consider as to whether the amendment sought was imperative for just adjudication of the case or the amendment is bona fide or mala fide.
9. To the contrary, the wife in her reply to the Appeal has averred that she is the absolute owner of the property in question and in the name of making amendment to the plaint, the husband is trying to create his right in the said property. The wife has averred that similar application seeking amendment of the plaint was earlier dismissed by the Family Court on 28.06.2021. The wife has averred that on 12.06.2012 the suit property was purchased by her by paying Rs.18,15,000/-. The appellant took the cash from her and also took joint loan to save taxes.
10. Further, he had relinquished his rights vide Release Deed dated 27.03.2018 in her favour since he wanted to marry one Ms. Shreedha Shankaran, her colleague in National Institute of Technology, Calicut. The wife has averred that in the year 2017 the husband had file Divorce Petition under Section 13 of the Hindu Marriage Act, 1956 but withdrew the same on the ground that he wanted to ameliorate his relationship with her but has filed about 85 cases against her thereafter.
11. The wife has averred that through these amendments, the husband is trying to create his interest in the property. It is submitted that her father had bought the property in her name but in order to avail tax benefits, the husband requested the wife to add his name. Hence, dismissal of the Appeal is sought by the wife.
12. Submissions Heard
13. It is not disputed that the parties were living together till June, 2018 and it is the case of husband that since the year 2017, his wife used to frequently quarrel with him. Thereafter, the plaintiff filed a suit for Declaration that the suit property was purchased in the name of the wife out of love and affection for her and in order to save stamp duty vide Sale Deed dated 12.06.2012. The suit property was purchased by taking the joint loan in the name of the plaintiff and defendant/wife though all the payments of loan were made by him. He released his share in the property subsequently vide Release Deed dated 27.03.2018, in the favour of wife out of love and affection and in order to save the stamp duty. He, thus sought a Declaration that the property was purchased benami in the name of the wife and that he was the owner of the suit property, since he made the payments of the entire consideration amount.
14. It is the case of the respondent/wife that the petitioner had filed a Divorce Petition under Section 13 Hindu Marriage Act in the year 2017 but had withdrawn the same by claiming that he wanted to reconcile with the defendant/wife. However, he thereafter filed 85 cases against him. The plaintiff had filed the suit for Declaration of Title by claiming that the suit property had indeed been purchased jointly. However, he had subsequently released the property in favour of the defendant vide Release Deed dated 27.03.2018. The plaintiff by way of the amendment of plaint wants to insert that the Release Deed was done in order to maintain peaceful family atmosphere of trust and confidence at the time of execution of Release Deed. He could not foresee the real intention of the wife who was aspiring to take undue advantage of innocence of the husband/ plaintiff from the subsequent filing of the Police Complaint on 18.06.2018, did he become aware of the real intention of the defendant who wanted to take control of the suit property.
15. Significantly, there was no claim in the suit that the defendant had taken advantage of the innocence of the plaintiff or that the Release Deed was executed by the husband only to maintain peace in the matrimonial life. In fact, he had categorically asserted in his plaint that he had executed the Release Deed dated 27.03.2018 in favour of his wife out of love and affection and to save the Stamp Duty. By way of the amendment, not only does he want to challenge the Release Deed which was admittedly executed by him, but also to get it set aside. The proposed amendment not only amounts to retraction of admission by the plaintiff, but also presents a case which was never set up originally. The relief claimed is in fact contrary to the original pleadings. The appellant/husband by way of this proposed amendment is trying to set aside the Release Deed, which was admittedly executed by him, only to nullify the defence of the defendant/wife to oppose the relief as was claimed in the suit originally. Whether the suit property was Benami in nature and falls under exception 3 of Section 2(9)(A)(b) of the Prohibition of Benami Property Transactions Act, 1988 is the subject matter of determination in the suit.
16. The present application seeks not only to introduce a new case but also to retract the admissions made in the plaint. It would not be prudent to permit the amendments sought by the plaintiff. The application has been rightly dismissed by the learned Judge, Family Court.
17. We find no infirmity in the impugned order. The appeal is hereby dismissed as being without merit.
(SURESH KUMAR KAIT)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
DECEMBER 04, 2023
rk/r
MAT.APP.(F.C.) 89/2022 Page 7 of 7