Ravinder Kaur & Ors. v. Baljit Kaur & Ors.

1. This is an appeal arising out of order dated 6th March, 2013, whereby the learned Single Judge has framed issues in the suit. The appellant is aggrieved by the impugned order whereby the court has declined to frame an issue “whether the suit property was a joint family property in the hands of late Smt. Balwant Kaur, if so whether the plaintiffs are entitled to a declaration to that effect” and “whether the late Smt. Balwant Kaur had a right to bequeath the suit property, if so to what extent.”.

2. The appellant/plaintiff had filed the present suit for declaration, partition, injunction and cancellation of sale deeds dated 03.02.2011 and 04.02.2011. The case set up by the appellant/plaintiff in the plaint is as 2013:DHC:2274 under: "2. Sardar Beant Singh in the year 1965 had purchased a portion of the suit property bearing old Plot No. 248B/1, Prakash Mohalla, Garhi Jharia Maria, Delhi along with the built up portion constructed thereon admeasuring 55 sq. yards, in the name of his wife, namely, Smt. Balwant Kaur vide a registered sale deed dated 09.12.1965, being document No. 7616 in Additional Book No.1, Volume NO. 1432 from page No. 37 to 42.

3. Sardar Beant Singh in the year 1969 purchased the remaining portion of the suit property bearing old Plot No. 248-B, Prakash Mohalla, Garhi Jharia Maria, Delhi along with the built up portion constructed thereon admeasuring 50 sq. yards, in the name of his wife, namely, Smt. Balwant Kaur vide a registered sale deed dated 06.12.1969, being document No. 7992 in Additional Book No.1, Volume No. 2315 from page NO. 97 to 99.

4. After having purchased the entire suit property admeasuring 105 sq. yards of plot, S. Beant Singh out of the family funds and resources got constructed a 2 storey house comprising of ground floor, first floor and a mezzanine on second floor. Smt. Balwant Kaur being a house wife, had no source of income and/or funds at any point of time for purchasing or carrying out construction on the suit property. All the family members of S. Beant Singh i.e., his wife Smt. Balwant Kaur and his sons and daughters with their families used to reside in the suit property and acknowledged the suit property as their family property having been purchased by S. Beant Sing. Since Smt. Balwant Kaur was the recorded owner of the suit property, the applications for the necessary amenities were filed in the name of Smt. Balwant Kaur and her name was recorded as the owner of the suit property in all government departments including the MCD and electricity department.

5. The suit property though is registered in the name of Smt. Balwant Kaur, as aforesaid Smt. Balwant Kaur is only the ostensible owner thereof and real owner of the suit property is/was S. Beant Singh.

6. S. Beant Singh died intestate on 03.08.1990. However, upon the death of S. Beant Singh, it was agreed between the family members that no immediate partition shall take place and the family members shall continue to jointly use the suit property for the purpose of their residence.

7. Smt. Balwant Kaur during her lifetime never claimed the suit property to be her exclusive property. On the contrary, Smt. Balwant Kaur and the other family members after the death of S. Beant Singh continued to treat the suit property as the joint family property.

3. In the light of the above averments in the plaint, learned counsel for the appellant submits that it was obligatory on the court to frame the issue whether the suit property was a joint family property in the hands of Smt. Balwant Kaur. Learned counsel for the appellant/plaintiff fairly conceded that neither the parties nor their predecessor Sardar Beant Singh and Smt. Balwant Kaur were members of a Hindu Undivided Family or a Joint Hindu Family as recognized by the Mitakshara Law. He fairly conceded that the case of the Appellant/plaintiff is that since the father Sardar Beant Singh was living with his son jointly, any property purchased by the father either in his own name or in the name of his wife would partake the character of a joint family property.

4. Learned counsel for the appellant/plaintiff admits that title/sale deed of the property was in the name of Smt. Balwant Kaur wife of S. Beant Singh, however he submits that the funds for purchase of the said property were provided by S. Beant Singh and the property was purchased in the name of his wife. The learned counsel for the appellant on an enquiry fairly conceded that it was not the case of the appellants that there was any joint family business or any source of funds from any Hindu Undivided Family which was utilized for the purposes of purchase of this property but his case is that the funds for purchase of this property were provided by S. Beant Singh, the husband of Smt. Balwant Kaur and since S. Beant Singh was living in the property with his son it would become a joint family property in which the family members of S. Beant Singh and Smt. Balwant Kaur would automatically have rights.

5. The learned counsel for the appellants submits that in terms of Section 3 and 4 of the Benami Transactions (Prohibition) Act 1988, the appellants should be given an opportunity to prove that Smt. Balwant Kaur was holding the property for the benefit of the entire family.

6. The submission of the learned counsel merits rejection as no such issue arises from the pleadings of the parties. The case of the appellant as set up in the plaint is that the property was purchased in the name of Smt. Balwant Kaur and the source of funds was the funds of S. Beant Singh. It is at best a case of a husband buying a property in favour of his wife in respect of which Section 3 (2) (a) of the said Act raises a presumption that any property purchased by a person in the name of his wife is purchased for the benefit of the wife.

7. The learned Single Judge has correctly held that “a mother who is owning the property, even if the funds thereof have flown from the corpus of the father, cannot be said to be the trustee of the said property for the benefit of all her children or standing in a fiduciary capacity in relation to the said property for all her children. The fiduciary capacity within the meaning of Section 4 (3) (b) has to be a fiduciary capacity in law i.e. which is created by law. Similarly, to be a trustee there has to be a creation of trust in law; admittedly there is neither in the present case.”

8. Issues are to be framed only when a material proposition of fact or law is affirmed by one party and denied by the other. It is only when finding on a particular fact or law affects the decision that an issue would arise. Issue would not be framed on every disputed fact. Before any issue is framed, the plaintiff has to at least set up a case in the plaint. The court while framing any issue has to keep in mind the case set up by the plaintiffs which is disputed by the defendant. The court would not frame an issue merely because the counsels for the parties are of the view that an issue needs to be framed and evidence required to be led thereon. If the court is of the opinion that if pleas of law are raised which are themselves contradicted by the party in his own pleadings and such pleas have no legs in law to stand on, no issue in that respect would be framed and suit would certainly not be set down for trial on such pleas.

9. Learned counsel for the appellant has submitted that the non-framing of the issue has virtually led to a dismissal of the suit qua the pleas raised by the Appellant. Learned counsel relies on the judgment of the Hon’ble Supreme Court in Alka Gupta Vs. Narender Kumar Gupta (2010) 10 SCC 141 to contend that a civil suit cannot be dismissed without a trial. The judgment referred to by the learned counsel for the appellant is not applicable in the facts of the case inasmuch as the Hon’ble Supreme Court was dealing with the case where the suit had been dismissed summarily on the ground of abuse of process of court and on the ground that the suit was based on falsehood and was found to be barred by the principles of constructive res judicata. The said judgment does not lay down the proposition of law that even where no case is set up or that the pleadings of the parties do not require framing of the issue the court is still obliged to frame an issue and set the case down for trial.

10. The judgment Pratima Sinha and others Vs. Shashi Kumar Narain Sinha and Ors. (2004) 13 SCC 599 relied upon by the learned counsel for the appellant also does not further the case of the appellant inasmuch as in the said case the trial court had dismissed the suit on a preliminary ground without framing any issue and the Hon’ble Supreme Court held that the trial court should have framed the issues arising out of the pleadings. In the present case, the learned Single Judge has declined to frame an issue since no such issue arises out of the pleading of the parties.