In the decision reported in Scariah Varghese v. Marykutty (1991 (2) KLT 71), it was held :
"Even if there was no previous demand, the plaint itself can be considered as a demand. It is not a correct statement that the dowry would only part take the nature of a trust amount. True under the Trust Act, there are certain obligations which are in the nature of trust and certainly without any other statutory provision the amount given as dowry will legitimately assume the character and nature of trust in the hands of any person other than the person entitled to the amount, viz., the wife. Of course for recovery of a trust amount no period of limitation is prescribed. By virtue of the Dowry Prohibition Act, the statute itself says that the amounts in the hands of the husband or the husband's parents for and on behalf of the wife is a trust amount and so there is no difficulty to say that the obligation is one under trust to return the amount by virtue of the statutory provision and so there is no limitation for such a suit."
Kerala High Court
Mat.Appeal.No. 184 Of 2011 ( ) vs Biju Gopalan on 27 June, 2012
This appeal is filed by the respondents 1 to 3 in O.P.478/2009 on the file of the Family Court, Thiruvalla. Respondents 1 and 2 herein were the petitioners in that O.P., which was filed by them under Section 7 of the Family Courts Act for recovery of an amount of Rs.8,00,000/- towards the value of gold ornaments and value of movables.
2. The case of the petitioners in the O.P. is briefly as follows : Petitioners 1 and 2 are the parents of deceased O.S.Bindu. The first respondent married Bindu on 3.11.2002 at Lakshmi Auditorium near the residence of the petitioners, as per the custom of Ezhava community. The said Bindu was working as an L.D. Clerk in the Revenue Department and the first respondent was working as a teacher. There are no issues out of the wedlock. Respondents 2 and 3 are the father and mother of the first respondent respectively. In connection with the marriage, Bindu was given 408 gms. of gold ornaments, out of which 280 grams were entrusted to the 2nd respondent on the direction of the first respondent. 80 gms. Of gold ornaments were entrusted to the third respondent on 10.12.2002 as directed by the first respondent which was sold or pledged, and the amount was used by the respondents. The ornaments were taken by the respondents on the date of death of Bindu. On 9.9.2003 Bindu was murdered and was hanged in the bathroom and it was alleged that she committed suicide. A crime is registered by the police under Sections 306,304B and 498A read with Section 34 IPC and is pending before the Sessions Court, Pathanamthitta as S.C.345/04. At the time of marriage, apart from the above ornaments, presentation items worth Rs.25,000/- were also given to deceased Bindu which are now in the custody of the respondents. Certain certificates described in the petition schedule are also in the possession of the respondents. On the death of Bindu, petitioners approached the SNDP Yogam office bearers and the Pathanamthitta Union for a mediation to get back the above articles or its value. But, so far it is not returned. A notice was also sent on 22.12.2008 but it was refused. Hence, the claim for Rs.7,65,000/- as value of ornaments and value of movables scheduled in the petition and for return of certificates.
3. Respondents filed objection, wherein they contended as follows : The petition is not maintainable. The petitioners have no right to file such a petition. The marriage is admitted. But the claim that she had 408 grams of gold ornaments is denied. The alleged entrustment of ornaments to the respondents is also denied. The allegation that the ornaments of deceased Bindu was appropriated by the respondents on her date of death is also denied. The allegation that it was a murder is also denied. The further allegation that deceased Bindu was assaulted and was treated cruelly by the respondents while residing with them is also denied. The crime registered and the consequent trial before the Additional Sessions Court as S.C.345/04 ended in acquittal finding that the allegations against the respondents in connection with the death of Bindu is false. The further allegation that the deceased was given movables worth Rs.25,000/- in connection with the marriage is also denied. They are not in possession of any of the certificates of the deceased. The notice sent by the petitioners never reached the respondents. They are not liable to pay any amount as claimed in the petition or to return any articles as claimed.
4. Before the Family Court, on the side of the petitioners, PW1 to PW4 were examined and Exts.A1 to A3 were marked. On the side of the respondents, the first respondent was examined as CPW1 and Exts.B1 to B7 were marked. The Family Court, on considering the evidence on record allowed the Original Petition in part directing the respondents to pay Rs.6,12,000/- to the petitioners towards value of 51 sovereigns of gold ornaments within one month, failing which the petitioners will be entitled to recover it with interest at the rate of 7% per annum from the date of decree till date of realization. The petitioners were also allowed to get their proportionate costs in the petition. Against that judgment and decree dated 16.8.2010, respondents 1 to 3 filed this appeal.
5. Heard the learned counsel for the appellants and the learned counsel for the respondents.
6. At the time of argument, learned counsel for the appellants raised the following contentions : The court below ought to have considered the fact that respondents herein were not having financial ability to raise such funds to purchase the said 408 grams of gold ornaments. Even during the trial of S.C.345/04, the respondents averred that their daughter was having only 40 sovereigns of gold ornaments. The ornaments, if any, entrusted to the appellants herein are not held in trust by them and on the death of O.S.Bindu, the cause of action arose and as the same is not claimed within three years from that date, it is barred by limitation. The respondents have no right to seek recovery of gold ornaments or its value, as the gold ornaments were gifted to the first appellant husband through late Bindu(wife). The said ornaments come within the definition of gift under Section 122 of the Transfer of Property Act, 1882. The gift was given unconditionally and voluntarily and has been accepted. Therefore, respondents have no right to claim recovery of the gold. The gold ornaments were never held in trust. The appellants cannot be treated as trustees. On the other hand, they are to be treated as 'donees'. Even if the gold ornaments are not treated as gift, respondents cannot seek recovery of the gold as per the provisions of Hindu Succession Act, 1956. After the death of Bindu, who was the wife of the first appellant, her gold ornaments and properties devolved on the first appellant as per Section 15 of the Hindu Succession Act. So, respondents have no right over the gold ornaments. Learned counsel for the respondents supported the judgment of the court below.
7. The marriage between the petitioners' daughter O.S.Bindu and the first respondent, son of respondents 2 and 3, which took place on 3.11.2002 at Lakshmi Auditorium, near the residence of the petitioners, is not disputed by the respondents. Ext.A1 is the certificate dated 29.9.2003 issued by K.Balan, President of the SNDP Branch No.268, Pariyaram, stating that the above marriage took place on 3.11.2002 and that at the time of marriage, the bride, O.S.Bindu was wearing gold ornaments of 51 sovereigns (408 gms.) and that fact is recorded in the marriage register kept by Pariyaram SNDP Branch register. PW2, Madhusoodanan Nair, the Secretary of the SNDP Branch, Pariyaram has produced the marriage register containing the entries regarding the marriage that took place on 3.11.2002. Photocopy of page 31 of that marriage register containing the entries regarding the marriage between O.S.Bindu and first respondent is marked as Ext.A3. PW3 Balan was the President of the SNDP Branch at the time of marriage and he was also an attesting witness to Ext.A3. In Ext.A3, it is recorded that at the time of marriage of Bindu with the first respondent, she was wearing gold ornaments of about 408 grams (51 sovereigns).
8. PW3 deposed that at the time of marriage, Bindu was wearing 51 sovereigns of gold ornaments and that he signed in Ext.A3 as a witness and as the President of the SNDP Branch. PW3 deposed that in Ext.A3, first respondent and his father had signed. The first petitioner, who is the father of deceased Bindu was examined as PW1. He deposed about the facts as stated in the O.P. PW4 Anil is the son of the petitioners and brother of deceased Bindu.
9. PW4 deposed that at the time of marriage, 51 sovereigns of gold ornaments were given to Bindu. He further deposed that the respondents demanded 51 sovereigns of gold ornaments as the respondents had given that much of gold ornaments when they conducted the marriage of the daughter of respondents 2 and 3. PW4 deposed that the fact that 51 sovereigns of gold ornaments were given to Bindu is recorded in Ext.A3. PW4 deposed that at the time of marriage two pairs of gold rings weighing 2 sovereigns, five gold chains weighing 17 sovereigns, one necklace having a weight of 3 sovereigns, 21 bangles weighing 21 sovereigns, ten rings having a weight of 5 sovereigns, one pair of kolussu having a weight of 2 sovereigns and one gold coin having a weight of 1 sovereign and thus in total, 51 sovereigns of gold were given to Bindu at the time of marriage and the total weight of gold ornaments was recorded in Ext.A3, in the presence of respondents 1 and 2 and they had also put their signatures in Ext.A3.
10. PW4 deposed that out of 51 sovereigns, 15 sovereigns were purchased before the marriage on different occasions and after the engagement, 10 sovereigns of gold ornaments were purchased from a jewellery at Pathanamthitta and 20 sovereigns were purchased in the presence of the first respondent from Bhima Jewellery, Alappuzha and the remaining gold ornaments were gifted by the relatives of Bindu. PW4 deposed that for purchasing gold ornaments, Rs.2,00,000/- was obtained by giving rubber trees standing in one acre of their property for slaughter tapping. Rs.1,00,000/- was borrowed from the Pathanamthitta Pinnokka Vikasana Sahakarana Sangham, Pathanamthitta. PW4 deposed that after one week of the marriage, as per the direction of the first respondent, the second respondent, his father, took 35 sovereigns of gold ornaments from Bindu for the purpose of keeping the same in Bank locker and within one month, as per the direction of the first respondent, his mother, the third respondent obtained 10 sovereigns from Bindu and that ornaments were either sold or pledged.
11. It is pertinent to note that PW4 was not cross examined by the counsel for the respondents and the first respondent was also present before the Family Court at the time of chief examination of PW4. Therefore, it is clear that the respondents are not challenging the testimony of PW4. Ext.A2 is the photograph of deceased Bindu and first respondent which was taken at the time of marriage, which shows that at the time of marriage, Bindu was wearing a number of gold ornaments. In the chief affidavit filed by the first respondent it is stated that one of the gold chains worn by deceased Bindu at the time of marriage was produced before the Fast Track Court in connection with S.C.345/04, which was marked as MO2. In the written statement and at the time of examination of first respondent as CPW1, respondents have no case that the ornaments worn by Bindu at the time of marriage were fake gold ornaments. When cross-examined, CPW1 deposed that as stated by the respondents in the written statement and in the chief affidavit filed by him, they are prepared to give back the gold ornaments of Bindu to the petitioners. Ext.B1 is the copy of the deposition given by the first petitioner before the Sessions Court in S.C.345/04, in which nothing is stated by him with regard to the quantity of gold ornaments given to Bindu. Ext.B3 is the copy of the deposition given by the brother of Bindu, in which it is stated that 51 sovereigns of gold ornaments were given to Bindu at the time of marriage. Ext.B4 is the copy of the deposition given by the second petitioner in S.C.345/04. But, she was not examined before the Family Court. Ext.B5 is the copy of FIR and F.I. Statement given by PW4 before the Police, in which, it is stated that 40 sovereigns of gold ornaments were given to Bindu at the time of her marriage. Since PW4 is not cross-examined by respondents, when he was examined before the Family Court, it has to be held that the respondents are admitting those facts deposed by him. On appreciating the evidence on record, we are of the view that the Family Court is fully justified in finding that 51 sovereigns of gold ornaments were given to Bindu at the time of marriage and that the respondents misappropriated the same. Since PW4 was not cross examined by the respondents with regard to the source of money for purchasing the gold ornaments of Bindu, the appellants cannot at present, contend that the petitioners have no financial ability to raise funds to purchase 51 sovereigns of gold.
12. In the decision reported in Scariah Varghese v. Marykutty (1991 (2) KLT 71), it was held :
"Even if there was no previous demand, the plaint itself can be considered as a demand. It is not a correct statement that the dowry would only part take the nature of a trust amount. True under the Trust Act, there are certain obligations which are in the nature of trust and certainly without any other statutory provision the amount given as dowry will legitimately assume the character and nature of trust in the hands of any person other than the person entitled to the amount, viz., the wife. Of course for recovery of a trust amount no period of limitation is prescribed. By virtue of the Dowry Prohibition Act, the statute itself says that the amounts in the hands of the husband or the husband's parents for and on behalf of the wife is a trust amount and so there is no difficulty to say that the obligation is one under trust to return the amount by virtue of the statutory provision and so there is no limitation for such a suit."
In the decision reported in Chacko v. Annamma (1993 (1) KLT 675), it was held :
Even if the stridhanam property of a married woman, is placed in the custody of her husband or in laws they would be deemed to be trustees and bound to return the same if and when demanded by her. In the case at hand, we are of opinion that in case S. 10 is not applicable, the only Article that is applicable is the residuary Article Art.113.
13. According to the appellants, the claim should have been made within three years of the death of deceased Bindu, which was in 2003. According to Article 113 of the Limitation Act, the period of limitation begins to run only when the right to sue accrues. The right to sue accrues when there is a demand and consequential refusal. In this case, a written demand for getting the articles was made by he petitioners on 22.12.2008. That notice was refused by the respondents. The suit is filed within three years of the written demand. Therefore, we are of the view that the suit is not barred by limitation.
14. Learned counsel for the appellants argued that there is no pleading in the petition to the effect that the petitioners gave 51 sovereigns of gold ornaments to deceased Bindu at the time of marriage as dowry or Stridhanam and as such the petitioners cannot seek return of gold ornaments on the basis of proviso to Sub Section (3) of Section 6 of the Dowry Prohibition Act, 1961 (for short 'the Act'). It is true that in the petition it is not stated by the petitioners that 51 sovereigns of gold ornaments were given to Bindu as dowry. But, it is stated in the petition that 51 sovereigns of gold ornaments were given to Bindu in connection with the marriage. Therefore, those ornaments given by the petitioners will come under the purview of "dowry" as defined in the Act.
15. In the written statement filed by the respondents or at the time of examination of first respondent as CPW1, respondents have no case that 51 sovereigns of gold ornaments were gifted by Bindu to the first appellant. There is also no evidence to show that Bindu gifted those gold ornaments to the first appellant before her death. Therefore, the appellants cannot now contend that Bindu gifted the gold ornaments to the first appellant. In the decision reported inKunhu Moideen v. Sayed Mohammed (1985 KLT 516), it was held that if in violation of the provisions of the Act, dowry is given and received, the consequence is not that the transaction is invalid, the consequence is that provided for in the Act itself in Section 6. In the decision reported in Scariah Varghese v. Marykutty (1991 (2) KLT 71), it was held :
The suit is maintainable even if it is streedhanam or dowry notwithstanding the Dowry Prohibition Act on the basis that "streedhanam is always the property of the woman whoever is given custody of the same. Woman can always claim it back and enforce the return of it. A suit for recovering this amount will not be hit by the Dowry Prohibition Act". A suit by the wife is justly maintainable for the return of her dowry from her husband or his father or whoever is in custody of the same. S.6 of the Dowry Prohibition Act makes it obligatory to repay the amount of dowry received by any person other than the woman to whom it belongs within a particular period. Further it is said that the amount in the hands of `any other person is a trust amount by enacting that the person shall hold it' in trust for the benefit of the woman. The statute docs not stop there. It further says that if any person fails to transfer the dowry as required by S.6(l) of the Dowry Prohibition Act it is an offence and it is punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both; but such punishment shall not absolve the person from his obligation to transfer the property as required by sub-section (1) of the above Act. So it is clear and evident that the husband or the parents of the husband cannot keep the dowry when a demand is made by the wife. It has to be returned and the statute says that if not returned, it is a punishable offence. The Dowry Prohibition Act will not stand in the way of maintaining the suit. The suit is perfectly maintainable.
16. Learned counsel for the appellants submitted that for getting back the gold ornaments, respondents could have approached the Dowry Prohibition Officer and a civil suit for that purpose is not maintainable. That argument cannot be accepted in view of the principles laid down in the decision reported in Pratibha Rani v. Suraj Kumar and another (AIR 1985 SC 628). In the said decision, it was held as follows :
"There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accident etc. It is an anathems to suppose that when a civil remedy is available, a criminal, prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406, I.P.C. or render the ingredients of Section 405, I.P.C. nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law."
17. According to the petitioners in the O.P., the respondents committed murder of Bindu, whereas the respondents contended that Bindu committed suicide. It is an admitted fact that Bindu died within seven years of her marriage with first respondent otherwise than due to natural causes and she had no children in the marriage.
18. The proviso to Sub Section 3 of Section 6 of the Act was inserted by amending Act 43 of 1986 which came into force on 19.11.1986 to the effect that where a woman dies within seven years of her marriage, otherwise than due to natural causes, the property in question shall be transferred to her parents, if she has not left any children. Since Bindu died issue-less within seven years of the marriage otherwise than due to natural causes, the petitioners, who are parents of Bindu are entitled to get back 51 sovereigns of gold ornaments or its value from the respondents, who misappropriated it. Therefore, we are of the view that the Family Court is fully justified in decreeing the suit for return of the value of 51 sovereigns of gold ornaments. Accordingly, this appeal is dismissed, as it is without any merits. The respondents in this appeal are entitled to get the costs of this appeal from the appellants.
Sd/-
K.M.JOSEPH, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
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