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Moiliakiriath Abbas Vs. Meeyanathu Kunhipathu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1228 of 1971
Judge
Reported inAIR1975Ker129
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Dowry Prohibition Act, 1961 - Sections 6
AppellantMoiliakiriath Abbas
RespondentMeeyanathu Kunhipathu and anr.
Appellant Advocate O. Balanarayanan, Adv.
Respondent Advocate S. Parameswaran,; M.M. Abdul Khader and; M.M. Pareed Pil
DispositionAppeal dismissed
Excerpt:
property - sale deed - section 100 of code of civil procedure, 1908 and section 4, 5 and 6 of dowry prohibition act, 1961 - whether transaction relating to dowry is void - in case of violation of sections 4 and 5 transaction not become invalid - plaintiff is bound to transfer property to woman and he is a trustee until such transfer for woman - property continues to be with person who purported to effect a transfer - held, transaction by sale deed is not void and is a transfer for dowry. - - 1 to 3 (the evidence is taken in the connected case wherein the present plaintiff is only a defendant) clearly swear that there was an agreement between the plaintiff here and the defendant's father before the 'nikah',that a sum of rs. 2 is an attestor to the sale deed as well as the gift deed..........suit. through her father-guardian she filed a written statement in which it was contended that the sale deed relied on by the plaintiff is a void document under which neither right nor possession passed, that it was executed for the balance 'kasi' (dowry) agreed to be paid to the plaintiff by the defendant's father at the time of the defendant's marriage and hence it is hit by the dowry prohibition act. the allegation that the plaintiff was in joint possession of the property is totally denied and his claim for partition is also not sustainable.2. along with this suit the defendant's father filed a suit to set aside the sale deed on the ground that it is not supported by consideration. he claimed that it is a void document hit by the provisions of the dowry prohibition act. the two suits.....
Judgment:

G. Viswanatha Iyer, J.

1. Plaintiff is the appellant in this second appeal. He sued for partition and separate possession of one-half of the plaint schedule property on the following facts. The property belonged to one Hassan and his wife Aisa. They made a gift of an undivided one-half share in the property to the defendant, their eldest daughter, as per registered gift deed dated 16-9-63. On the same day the remaining undivided half right was assigned to the plaintiff. At the time of the assignment the defendant was his wife. The marriage was conducted in 1962 and recently the plaintiff divorced the defendant and therefore he does not wish to keep the property joint any longer. They are in joint possession of the property. A registered notice was issued demanding partition. Instead of complying with that demand a reply notice has been issued making false allegations. In the reply it is stated that the document is not supported by consideration and that the property was given as 'Kasi' for the marriage. The plaintiff denied the allegations in the reply notice and sued for partition. The defendant was a minor on the date of suit. Through her father-guardian she filed a written statement in which it was contended that the sale deed relied on by the plaintiff is a void document under which neither right nor possession passed, that it was executed for the balance 'Kasi' (dowry) agreed to be paid to the plaintiff by the defendant's father at the time of the defendant's marriage and hence it is hit by the Dowry Prohibition Act. The allegation that the plaintiff was in joint possession of the property is totally denied and his claim for partition is also not sustainable.

2. Along with this suit the defendant's father filed a suit to set aside the sale deed on the ground that it is not supported by consideration. He claimed that it is a void document hit by the provisions of the Dowry Prohibition Act. The two suits were tried together and evidence was taken in the father's suit. Though it was found that the sale deed in favour of the plaintiff for one-half share is really in lieu of dowry, the declaration asked for in the connected suit was not given on the ground that the plaintiffs therein are parties to an illegal transaction and they cannot after committing the illegality claim a declaration that the document is a void document. In this suit it was found that the document is a void document prohibited by the provisions of the Dowry Prohibition Act. The consideration stated in it was found to be not the real consideration. Therefore, this suit was also dismissed. Two appeals were filed before the lower appellate Court. The conclusions arrived at by the trial Court were confirmed and both the appeals were dismissed. The plaintiff has come up in second appeal. No appeal is filed against the decision in the other case.

3. The Dowry Prohibition Act, 1961, defines 'dowry' in the following terms :--

'In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly --

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any person, to either party to the marriage or to any other person;

at or before or after the mariage as consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.'

Sections 3 and 4 of the Act prohibit and make punishable the giving, taking or demanding dowry. Section 5 makes an agreement for giving or taking dowry also void. On the basis of these provisions if dowry is given or agreed to be given as consideration for the marriage, it comes within the mischief of the Act. In this case the document is styled a sale deed. The consideration is said to have been received previously. Though the plaintiff has got a case that he paid Rupees 1,000/- to the vendors for the tobacco business of the father, that is not satisfactorily proved. PWs. 1 to 3 (the evidence is taken in the connected case wherein the present plaintiff is only a defendant) clearly swear that there was an agreement between the plaintiff here and the defendant's father before the 'Nikah', that a sum of Rs. 1,250/- or properties worth that was agreed to be given to the plaintiff for the marriage of plaintiff and the defendant. P. W. 2 is an attestor to the sale deed as well as the gift deed executed on the same day as the sale deed. He has stated that the sale deed was executed in performance of the agreement to pay dowry. He has also stated that the document was styled a sale deed only to cover the otherwise invalid transaction. The Courts below have believed the witnesses and come to the conclusion that the sale deed is really an assignment for the purpose of dowry and that no consideration as recited in it passed before the transaction. Though the appellant's counsel tried to make out that there is inconsistency between the pleadings and the evidence regarding the transaction alleged by the defendant, I do not find any substantial inconsistency. It was stated in the written statement that Rs. 1,250/- was agreed to be paid to the plaintiff, that Rs. 250/- was paid and since the balance could not be paid one-half of the property was transferred to the plaintiff towards that. The evidence let in by the witnesses also proceed on the same line. In this view it is not open to me go into the evidence and came to my own conclusion regarding the nature of the transaction. I am bound by the concurrent finding of fact have to proceed on the basis that the transfer evidenced by Ext. B-1 sale deed is really a transfer for dowry.

4. The further question is whether the transaction is void. Both the Courts proceed on the basis that the transaction is void, as offending Section 23 of the Contract Act read with Section 6(h) of the Transfer of Property Act. But, when the Courts found that the document is a transaction by way of dowry, there is no scope for approaching the case as if the transaction is a sale. No doubt, demanding, giving or taking or agreement to give or take a dowry are all invalid as per Sections 3, 4 and 5 of the Dowry Prohibition Act. But, if in violation of those provisions 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 which is in the following terms :--

'Dowry to be for the benefit of the wife or her heirs-- (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given that person shall transfer it to the woman --

(a) if the dowry was received before marriage, within one year after the date of marriage; or

(b) if the dowry was received at the time of or after the marriage, within one year after the date of its receipt; or

(c) if the dowry was received when the woman was a minor within one year after she has attained the age of eighteen years and pending such transfer, shall hold it in trust for the benefit of the woman.

(2) If any person fails to transfer any property as required by Sub-section (1) and within the time limited therefor, he shall be 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).

(3) Where the woman entitled to any property under Sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being.

(4) Nothing contained in this section shall affect the provisions of Section 3 or Section 4.'

As per that section the plaintiff is bound to transfer the property to the woman and he is a trustee until such transfer for the woman. In other words, the beneficial interest in the transaction is with the woman and the plaintiff transferee is only a trustee. That shows that the transaction does not become a void transaction. If it should be a void transaction there is no transfer at all. The property continues to be with the person who purported to effect a transfer. But that is not the scope of the Act. The property passes from the giver to the taker. But the taker must hold it for the benefit of the woman. So, the courts below are not right in holding that the transaction evidenced by Ext. B1 is void.

5. But, this will not help the plaintiff. The plaintiff is, by virtue of Section 6 of the Act, only a trustee for the defendant for the half share covered by Ext. B1. The other half share was transferred to the defendant under Ext. A1 on the same day. Though a contention is taken in the written statement that the gift deed is also invalid, that contention need not be looked into in view of the unequivocal statement of the defendant's father in his deposition as P. W. 1 that one-half right over the property under Ext. A1 belongs to the defendant. Really there is no prohibition in law of a gift of an undivided share. In this case strictly Ext. A1 gift does not stand in isolation. Exts. A1 and B1 have to be read together and construed together. Though under Ext. A1 one-half of the property is said to be given possession of to the defendant (plaintiff was acting as the guardian for that transaction), the other half is given to the plaintiff, and possession is also stated to have been given to him and in law he has to hold it in trust for the defendant. That means the defendant is the transferee of the entire beneficial interest in the property and both Exts. A1 and B1 clearly express that possession has been transferred. The parties are close relations and it is only necessary that there must be a clear intention expressed in the document that possession has been transferred. That is clearly expressed both in Exts. A1 and B1. Therefore, the entire beneficial interest in the property vests with the defendant and the plaintiff has no right to demand a partition from the defendant.

6. In the result, the second appeal fails. It is dismissed; but I make no order as to costs.


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