Rajbir Kaur v Harjit Singh A/L Kartar Singh (BA-33-425-09/2021)

HARJIT SINGH A/L KARTAR SINGH

BALVINDER KAUR A/P TARLOCHAN SINGH (NO. K/P : 750812-08-5760) …RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT S/N cj5Cr4/ce0yZCIhuS0krpg

This divorce petition was filed by the Petitioner Wife (“PW”) against the Respondent Husband (“RH”) on the ground of adultery allegedly committed by the RH with the Co-Respondent.

The majority of the issues in this petition have since been resolved, and the parties have recorded agreed terms pursuant to the Consent Order dated 28.8.2024.

Hence, the sole remaining issue between the PW and the RH concerns the alleged “friendly loans” amounting to RM126,261.00, which the PW claims to have extended to the RH during the course of their marriage and now seeks to recover from him. Salient Background 4. The parties were lawfully married on 28.8.2000 and have two children both of whom are above 18 years old.

According to the PW, at all material times during the duration of their marriage the RH did not maintain consistent stable long-term employment. His work history comprised short term engagements as a car reposessor, private investigator and later involvement in money lending activities. She alleges significant periods during which he made no financial contribution toward the household and family expenses, particularly between 2015 and did not provide regular or adequate financial support for her and the children. S/N cj5Cr4/ce0yZCIhuS0krpg

Due to the RH’s inconsistent income, the PW states that she was compelled to shoulder the financial burden of the household on her own. To make ends meet she worked multiple jobs and occasionally sought financial assistance from her family members in order to sustain the family’s daily needs.

The PW claims that the RH would frequently borrow money from her for personal use, assuring her that he would repay the amounts borrowed from her later. The PW alleged that these sums constituted friendly loans extended to him over time via bank transfers from between 2013 up to 2020. When accumulated the PW claims these amounts total RM126,261.00. She states that the RH has refused to repay the amount he owed to the PW and she is now claiming this sum via this divorce petition.

Since the only issue that went to trial in this petition was the ‘friendly loan’ extended to the RH, there was no reason for this Court to enquire into the reasons for the breakdown of the marriage, save to record that the marriage had irretrievably broken down. Contentions of Parties 9. In her Amended Divorce Petition dated 14.8.2023, the PW referred to the RH’s alleged habit of borrowing money from her in Paragraph 17, which reads as follows: “17. Oleh sebab Responden Pertama tidak mempunyai pendapatan tetap, Responden Pertama selalu membuat pinjaman wang daripada S/N cj5Cr4/ce0yZCIhuS0krpg Pempetisyen untuk perbelanjaan sendiri dan Pempetisyen menuntut pengembalian wang-wang tersebut daripada Responden Pertama seperti dibuktikan dalam transaksi-transaksi di Lampiran E. Sesalinan transaksi akaun Pempetisyen dari

Maybank bertarikh 31.3.2016, 30.6.2016, 30.9.2016,

12.2016, 31.03.2017, 30.6.2017, 30.9.2017,

31.12.2017, 31.3.2018, 39.06.2018, 30.9.2018,

31.12.2018, 31.03.2019, 30.6.2019, 30.09.2019 dan 31.12.2019 dilampirkan di sini dan ditandakan secara kolektif sebagai Lampiran E.”

The reliefs sought by the PW in Paragraph 33 of the DP relating to the alleged “friendly loan” include the following : “ a) … b) Pempetisyen menuntut wang nafkah sara bagi dirinya sendiri daripada Responden pertama dalam jumlah RM3,000.00 sebulan bermula daripada 05.06.2020 sehingga

Mahkamah seterusnya pengambilan wang-wang yang dinyatakan di perenggan 17 di atas; c) … d) … e) … S/N cj5Cr4/ce0yZCIhuS0krpg f) … g) … h) … i) … j) … k) … l) … m) … n) Apa-apa relief yang dianggap suai manfaat dan munasabah oleh Mahkamah yang Mulia ini.”

The PW gave evidence in her Witness Statement regarding the alleged friendly loan. At trial, she referred to Paragraph 10 of her Witness Statement (PWS1, pp. 6–7), where the relevant portion reads as follows: “10. Question : Can I refer you to page 16-147 of the Petitioner’s Document Bundle, can you explain to the court what this is? S/N cj5Cr4/ce0yZCIhuS0krpg Answer : These are copies of my bank statements starting from the month of September 2013 until August 2020 to show the money transfers I have made to the First Respondent for the money that he borrowed from me during the marriage. The transfers to the First Respondent can be seen in pages 24, 26, 30, 34, 36, 41, 44, 46, 48, 50, 52, 53, 54, 55, 62, 64, 72, 74, 75, 76, 80, 85, 87, 89, 90, 91, 95, 96, 103, 110, 113, 116, 117, 119, 120, 121, 124, 129, 130, 131, 133, 135, 140. The total amount of money transferred to the First Respondent as a friendly loan from me is RM126, 261.00.”

In addition, the PW tendered and referred to her Maybank and Public Bank account statements, which she confirmed were her own. She testified that the monies transferred from these accounts to the RH were sums she had allegedly lent to him on a “friendly basis.” Her oral testimony during examination-in-chief was as follows : “Dato Jasbir (JSK) : Madam Rajbir, can you inform the Court if these are your bank statements? PW1 : Yes JSK : Yes, Now Madam Rajbir can you turn to page 24 of those documents. Madam I am referring to your witness statement. In your witness statement there is a list of transfers which are stated in question and answer 11. Can asking you to refer to those only. S/N cj5Cr4/ce0yZCIhuS0krpg PW1 : Question what ah? Judge : 11 JSK : Question answers 11, the second part of the answer you said the transfer to First Respondent can be seen in pages 24, 26 etc. right? Now that is the one I want you to take a quick look and to inform to the court what are these transfers, were they made by you, for what. That’s what I want you to do, so take a quick look page 24, 26, 30, 34. (…) PW1 : Okay these are the statement where I lend the money to Mr Harjit Singh.”

According to the PW, the numerous documents referred to in her Witness Statement, together with her oral testimony, demonstrated that sums of money were transferred from her bank account to the RH’s bank account (Account No. 317XXXXXX). She further contended that these transfers established that the monies were received by the RH and constituted loans made on a “friendly basis” during the marriage, particularly when the RH had no stable employment or income to support his daily needs or the family’s expenditure.

The RH denies the PW’s account. He maintains that, notwithstanding fluctuations in his income, he continued to provide for the family by contributing towards groceries, utility bills, and the children’s daily and educational expenses. More significantly, he disputes the PW’s financial capacity to extend the alleged loans, asserting that her income from providing tuition S/N cj5Cr4/ce0yZCIhuS0krpg and from AVON commissions was modest. He contends that her earnings were insufficient to meet the household expenses, let alone to lend money to him.

He also contends that the PW herself engaged in lending activities to multiple individuals, as allegedly evidenced by her numerous bank transfers to various recipients.

The RH contended that the circumstances surrounding the so-called friendly loan were inherently suspicious. He highlighted that the alleged advances were made in irregular and inconsistent amounts, sometimes as little as RM50.53 — and even questioned how a genuine loan could possibly be denominated in such odd figures, noting pointedly that “no one gives a loan that rounds up to RM0.03.”

He further relied on the PW’s own bank statements, which described the purposes of the transfers using terms such as “for payment”, “UPM”, “car”, “Hakim”, “lady”, “Raj (to MH Khera Enterprise – Meerasa)”, and “Sultan.” At no point was any transfer annotated as relating to a loan. According to the RH, if the PW had truly intended the payments to constitute a loan, it would have been a simple and straightforward matter to indicate the nature or purpose of the transaction alongside each transfer. Yet, no such notation existed.

On the issue of pleadings, the RH maintained that the PW’s claim for a friendly loan was not properly pleaded from the outset. More critically, there was no specific prayer seeking the repayment of the alleged loan, rendering the claim procedurally deficient. S/N cj5Cr4/ce0yZCIhuS0krpg

The RH further argued that, even if the Court were to consider the PW’s assertion of a loan, the claim was in any event time-barred. He pointed out that the PW had not pleaded any term or condition for repayment, and the earliest transfer relied upon was made in 2013. The Divorce Petition, however, was only filed in 2021; some eight years later well beyond the applicable limitation period. Analysis and Decision 20. In arriving at its decision, the Court has carefully considered the totality of the evidence adduced by the parties, including both oral testimony and the documentary exhibits tendered during the proceedings.

In law, the burden of proof rests on the party who seeks the Court’s judgment in his or her favour in respect of any legal right or liability (s. 101 Evidence Act 1950). In the present case, that burden lies squarely on the PW, who asserts that she had advanced monies to the RH by way of a friendly loan. The burden she carries is twofold: first, the burden of establishing her case; and second, the burden of producing the necessary evidence. The applicable standard of proof is on a balance of probabilities. It is trite that the burden does not shift to the opposing party until and unless the party bearing it has first discharged it (ss. 101, 102 and 103 Evidence Act 1950).

The PW’s pleaded case on the alleged friendly loan rests entirely on a single, vague sentence in Paragraph 17 of the Divorce Petition (“DP”), which merely states that certain sums were S/N cj5Cr4/ce0yZCIhuS0krpg transferred to the RH. Upon close scrutiny of the DP, it is evident that the pleading is overly general and materially inadequate. The allegation in Paragraph 17 lacks the clarity, specificity, and precision required of a party who asserts the existence of a debt.

Paragraph 17 discloses nothing more than a bare allegation that monies were lent to the RH. No material particulars have been pleaded. On the face of the Amended DP, it is plain and obvious that the PW has failed to plead the essential elements of a concluded borrowing or any coherent basis for asserting that the transactions amounted to a “friendly loan.”

The pleadings are far from perfect and do not contain sufficient particulars of the claim for a friendly loan. The PW has failed to particularise the amounts allegedly owed, the dates on which the loans were purportedly taken, or the purposes for which they were requested. There is no pleading of any repayment term, any demand for payment or even any agreement, oral or otherwise. In essence, the PW has not set out any of the essential particulars that would allow the Court to understand, evaluate, or even identify the alleged loan transactions.

The deficiencies in the PW’s pleadings are compounded by the absence of evidence showing that the RH had ever requested the alleged loans. Not a single piece of evidence demonstrates that the RH had approached the PW for financial assistance, nor is there any averment to that effect in the DP. Without such foundational assertions and proof, the Court is left only with the fact that the PW transferred monies into the RH’s account—acts that, without context, could equally suggest voluntary transfers S/N cj5Cr4/ce0yZCIhuS0krpg for reasons unknown. The bank statements tendered reveal that the PW had been transferring substantial sums to numerous individuals during the material period, further clouding the assertion that the transfers to the RH were loans rather than part of her routine financial dealings.

The PW has also failed to identify the alleged loan amounts in a systematic or coherent manner. Instead, she makes a bare assertion inviting the Court to “look at Lampiran E” appended to the DP. This, in my view, is wholly inadequate. Each alleged loan transaction ought to have been clearly set out, identified, and pleaded with precision so as to allow the RH a fair and meaningful opportunity to respond. The PW cannot simply cast figures before the Court and expect it to undertake the task of reconstruction on her behalf. It is her legal duty to discharge the burden of proving that :-

the RH had requested the loans;

(ii) the sums transferred correspond to those requests, and

(iii) the monies remain unpaid.

It is plainly insufficient for the PW to rely on a single, broad-brush sentence regarding monies transferred to the RH. A monetary claim of this nature must be specifically pleaded, properly particularised, and duly proven. The law requires clarity, precision, and completeness in pleading such claims, particularly where the relief sought depends on establishing distinct loan transactions. In the absence of such essential particulars, the Court is left without a proper factual foundation upon which to assess the claim. S/N cj5Cr4/ce0yZCIhuS0krpg

In this regard, this Court finds merit in the RH’s contention that the PW’s failure to plead each and every essential detail — including the dates, amounts, and circumstances of the alleged loans — renders the claim fundamentally defective. Without these particulars, the PW’s case is unsustainable both in form and in substance. The inadequacy of the pleadings strikes at the very root of the claim, leaving the Court with no basis to conclude that a legally enforceable loan ever arose.

Furthermore, there is no evidence before the Court to show that the PW had ever made a demand for repayment of the alleged friendly loan. Equally significant is the fact that the reliefs sought in Paragraph 33 of the DP make no reference whatsoever to any claim for the return of the sums purportedly lent to the RH. The PW has not prayed for the repayment of the alleged loan at all.

This Court therefore agrees with the RH’s submission that, in the absence of any specific prayer for repayment, this Court is not empowered to grant such relief. It is a fundamental principle of civil procedure that the Court cannot award a remedy that has not been pleaded or prayed for. Consequently, the omission is fatal to the PW’s claim for the alleged friendly loan.

As rightly highlighted to the Court, the figures said to constitute the alleged friendly loan appear, on their face, suspicious and inherently illogical. A closer examination of the bank statements reveals transfers to the RH in irregular and incongruous amounts, including a sum as small as RM50.53 on 29.9.2016. Such an oddly denominated figure strains credulity and makes it S/N cj5Cr4/ce0yZCIhuS0krpg difficult to accept that the transfer formed part of a genuine loan arrangement. As learned counsel for the RH succinctly observed, “no one gives a loan that rounds up to RM0.03.”

Another salient point is that the reasons accompanying the transfers, as reflected in the bank statements, do not in any way suggest that the payments were intended as loans. The annotations recorded beside the transactions include descriptors such as “for payment”, “UPM”, “car”, “lady”, “Hakim”, “Raj to MH Khera Enterprise – Meerasa”, and “Sultan.” There were no annotations referencing that it is a loan. The Court finds that no reasonable inference of a loan can be drawn from such transactions.

It must also be appreciated that the mere act of voluntarily transferring money to one’s spouse does not, without more, give rise to a friendly loan. In the absence of clear evidence of a request for a loan, an agreement to lend, or any contemporaneous record reflecting such an arrangement, the characterisation of these transfers as loans cannot be sustained.

The PW’s reliance on the bank statements alone do not prove that the transactions contained therein were meant as a loan. Transfer alone does not amount to a loan.

Having reviewed the facts and evidence in their entirety, it is the finding of this Court that the PW has failed to discharge the burden of proof incumbent upon her. She has not demonstrated that the RH ever requested the alleged loans, that the monies were transferred pursuant to any loan arrangement, or that she S/N cj5Cr4/ce0yZCIhuS0krpg had at any point demanded repayment. The bank statements relied upon by the PW do not, on their face, reflect any characteristics of a friendly loan.

The sole evidence adduced consists of bank transfers made into the RH’s account in irregular, fragmented, and peculiar amounts. I find it troubling — and indeed suspicious — that the sums purportedly constituting the loan were made in dribs and drabs and in odd denominations, with no plausible explanation offered by the PW for this pattern. Transfers made in irregular and trivial sums are inconsistent with typical loan transactions. Beyond a sweeping assertion that the RH lacked stable employment and therefore she “lent” him money, no further evidence was provided to substantiate the existence of a loan or its terms.

No corroborative evidence was produced by the PW to support her allegation that the transfers constituted a friendly loan. There were no WhatsApp messages, no police reports, and no written demands to the RH indicating that the monies were ever intended as loans or that repayment was sought.

Given that the parties were married at the material time, the monies could just as likely have been voluntarily given in the ordinary course of matrimonial life. Married couples often transfer funds between accounts for daily needs and absence of clear evidence of a loan, such transfers cannot readily be elevated into enforceable debts.

It is trite law that a claim for monies owed must be specifically pleaded and strictly proven. It cannot suffice for the PW to simply S/N cj5Cr4/ce0yZCIhuS0krpg assert, in effect, “this is the money I gave the RH; he must pay me back.”

In this regard, the dictum of Lord Goddard in Bonham-Carter v Hyde Park Hotel [1948] WN 89 applies with full force: "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and so to speak, throw them at the head of the court, saying, 'This is what I have lost, I ask you to gives me these damages'. They have to prove it."

The PW, in the present case, has not done so.

This principle forms a fundamental rule in the proof of any monetary claim, underscoring that the burden rests squarely on the PW to adduce sufficient evidence and documentation to establish, first, that the transfers constituted a friendly loan, and second, that the total amount purportedly owed indeed amounts to RM26,261.00. It is essential to emphasise the need for clear proof of the precise sum claimed. Such proof must be supported by cogent, credible, and contemporaneous documentary evidence. Bare, self-serving assertions by the PW are wholly inadequate and do not satisfy the required standard.

For completeness, I find that the PW has failed to prove the existence or quantum of any amount allegedly owed, including the sum of RM26,261.00. Accordingly, the PW has not established her claim on a balance of probabilities. S/N cj5Cr4/ce0yZCIhuS0krpg

Merely inviting the Court to “look through Lampiran E” cannot substitute for proper pleading.

A claim of this nature being one of special damages triggers the requirement of precise, specific and unambiguous pleading. A bare assertion unsupported by particulars is insufficient.

During cross-examination, the PW candidly admitted that there was no written agreement, no agreed repayment terms, and that she had never made any formal or informal demand for repayment from the RH at any material time. She further conceded that she was uncertain as to which specific account certain sums were transferred into. These admissions, taken together, are significant. They strike at the very foundation of the PW’s claim and fatally undermine her assertion that the transfers constituted a friendly loan capable of enforcement. Absent clarity, documentation, or any contemporaneous act asserting a right to repayment, the PW’s claim is left unsupported by credible or cogent evidence.

Lastly, and by no means least, one of the principal points raised by the RH was that the PW failed to specifically pray for an order for the return of the alleged friendly loan. It was submitted that this Court only possesses jurisdiction to grant orders that relate to the reliefs specifically sought by the parties. Since the PW’s current claim was not expressly prayed for, the Court does not have the authority to grant such an order. It was further contended that substantive claims or reliefs cannot be rescued or implied by omnibus prayers. S/N cj5Cr4/ce0yZCIhuS0krpg

Counsel for the PW argued otherwise. While acknowledging that no specific relief for repayment of the alleged loan was included in the prayers of the Amended DP, the PW contended that the Court should nevertheless grant the relief pursuant to prayer (o) of the Amended DP, which asserts that the Court has the authority to grant any order it deems fit and/or just, particularly in matters arising from matrimonial disputes, pursuant to Section 24(a) of the Courts of Judicature Act 1964.

Although the PW’s argument is understandable, it cannot be accepted in the present context. The PW’s pleadings are too vague and fractured to be “saved” by the Court’s inherent jurisdiction. Not only has she failed to specifically plead the details of her alleged loan, she has not expressly prayed for an order for its repayment. Paragraph 33 of the Amended DP clearly show that no relief is sought for the return or repayment of any monies allegedly lent. The absence of a prayer is fatal. The Court’s jurisdiction is invoked by the reliefs sought not by subsequent argument. A Court cannot, under the guise of exercising jurisdiction, invent or create a cause of action that was never properly pleaded.

This principle is supported by the Federal Court’s decision in Shirley Kathreyn Yap v Malcolm Thwaites [2016] MLJU 643: “[50] We are of the view there was no basis for the trial judge to make an order for payment of specific sum that was not pleaded or prayed for. S/N cj5Cr4/ce0yZCIhuS0krpg [53] On this issue, we would like to refer to what was said by the Federal Court in RHB Bank Berhad (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188 where the Court held inter alia that : “we would like to add that it is not the duty of the court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and its not for the court to pursue a cavalier approach to solving their dispute by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the court must be discouraged otherwise the court would be accused of making laws rather than applying them to a given set of facts.” [55] …On the facts and circumstances of what was pleaded by the Plaintiff in his Amended Statement of Claim and in light of the Plaintiffs statement given during trial that he was not seeking payment of specific sum but only an accounting of gross stake money, the Court of Appeal was clearly wrong in making such an interpretation on the general prayer of “Any other relief deemed suitable by the Honourable Court.”

It is the considered view of this court that the PW cannot fall back on omnibus or general prayers to cure a substantive omission. S/N cj5Cr4/ce0yZCIhuS0krpg

It is also trite law that parties are bound by their pleadings. As observed by the Federal Court in Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 4 CLJ 1, it is a cardinal rule that parties cannot adduce facts or submissions on matters not pleaded. Cases must be decided on the issues presented on the record.

In the circumstances, this Court cannot accept the PW’s arguments which fall outside the parameters of her pleadings. The absence of a specific prayer for repayment of the alleged friendly loan is fatal to her claim.

The burden lies squarely on the PW to establish the very foundation of her claim: that the transfers to the RH constituted a friendly loan. At this juncture, this Court find no compelling evidence to support this assertion, save for a bare averment that borders on conjecture.

It is therefore the considered view of this Court that, having failed to properly plead the relief she now seeks, the PW cannot rely on the general prayer for “any other relief deemed suitable by the Honourable Court.” Conclusion 56. In light of the foregoing, and after a careful examination of the pleadings, the evidence adduced by the parties, and their respective submissions, this Court finds that, on a balance of probabilities, the PW has failed to prove that the monies S/N cj5Cr4/ce0yZCIhuS0krpg transferred to the RH’s bank account were advanced as a friendly loan.

In conclusion, the Court is guided by the authority of Zeme Trade (M) Sdn Bhd v Ketua Setiausaha Kementerian Pelajaran Malaysia & Anor [2020] CLJU 1859, wherein Justice Wan Ahmad Farid (as he then was) held that a plaintiff is not entitled to advance a claim that has not been properly pleaded.

Accordingly, the PW’s claim for the return of the sum of RM126,261.00 is hereby dismissed.

The parties shall bear their own costs. Dated 30 November 2025. (JULIE LACK) Judge High Court of Malaya Shah Alam Selangor Darul Ehsan S/N cj5Cr4/ce0yZCIhuS0krpg (SELANGOR) Counsel for the Petitioner : Muhammad Nurluqman Bin Dzulaidin Tasrin (Messrs Jasbeer, Nur & Lee) Counsel for the Respondents : Charlotte Jennifer Thomas (Messrs Jennifer Thomas & Co.) S/N cj5Cr4/ce0yZCIhuS0krpg