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Sardar Surinder Singh Vs. Manjeet Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Misc. First Appeal No. 18 of 1982
Judge
Reported inAIR1983J& K86
ActsHindu Marriage Act, 1955 - Section 27; ;Code of Civil Procedure (CPC) - Section 151
AppellantSardar Surinder Singh
RespondentManjeet Kaur
Appellant Advocate J.R. Sharma, Adv.
Respondent Advocate T.S. Thakur, Adv.
DispositionAppeal allowed
Cases ReferredKamta Prasad v. Smt. Oma Wati
Excerpt:
- .....disposal of certain articles of moveable property, some of which, according to her, were her exclusive property, whereas the others werethe joint property of the parties. she had annexed two lists to her application, out of which list a, which inter alia included gold ornaments, represented her exclusive property. the appellant in his objections had, however, contended that the entire property was the joint property of the parties, as it had been gifted away to both the spouses at or about the time of their marriage.2. the learned district judge, on agreement of the parties, had initially appointed one s. avtar singh advocate as the superdar of the said property, and the appellant had willingly undertaken to hand over to him the aforesaid property, which was admitted by him to be.....
Judgment:

I.K. Kotwal, J.

1. Two cross petitions i. e. one filed by Surrinder Singh, the appellant herein, under Section 9 of the Hindu Marriages Act, 1955, and the other by Manjeet Kaur, the respondent herein, were disposed of by District Judge, Jammu, by the consent of the parties, and a decree for judicial separation passed in favour of the respondent against the appellant. During the pendency of these proceedings, the respondent had also moved an application under Section 27 of the Act, seeking disposal of certain articles of moveable property, some of which, according to her, were her exclusive property, whereas the others werethe joint property of the parties. She had annexed two lists to her application, out of which List A, which inter alia included gold ornaments, represented her exclusive property. The appellant in his objections had, however, contended that the entire property was the joint property of the parties, as it had been gifted away to both the spouses at or about the time of their marriage.

2. The learned District Judge, on agreement of the parties, had initially appointed one S. Avtar Singh Advocate as the Superdar of the said property, and the appellant had willingly undertaken to hand over to him the aforesaid property, which was admitted by him to be in his possession. Later on, he has fallen back upon his word and had challenged the aforesaid order in appeal before this Court. That appeal was heard and disposed of by me by my order dated 7-5-1979, the operative part whereof reads as under :--

'This appeal is totally misconceived. Apart from the fact that the appeal has been preferred against an agreed order, the order itself is totally innocuous as what the trial Court has actually done is that it has kept the articles on the superdnama of a counsel for one of the parties without deciding any right to their ownership. I find no force in this appeal which is dismissed with costs.'

After this appeal came to be dismissed, a new Superdar, namely, Mr. S. L. Kotwal Advocate was appointed by the Court, again with the consent of the parties, to whom some articles of the property were also handed over by the appellant, which of course did not include ornaments weighing six tolas of gold, which the respondent claimed to be her exclusive property, and which the appellant said were jointly owned by the parties. The learned District Judge by a separate order passed on her application under Section 27, which too came to be passed on the same date on which the main petitions were disposed of by him, directed the Superdar to hand over the property entrusted him to the respondent, besides directing the appellant to hand over to her the ornaments weighing six tolas of gold. The appellant has challenged the aforesaid order in this appeal on two grounds: firstly, that he could not have passed such an order on a separate application, but could have given such a direction in the decree in the main petition in itself; and secondly,that he has erred in law, in that, he without making any enquiry and recording any finding to that effect has treated the ornaments tc be the exclusive property of the respondent and issued the impugned direction accordingly, even though he otherwise too has no jurisdiction under Section 27 to make such a direction in respect of the separate property of any party to the litigation. At this stage it becomes necessary to take notice of Section 27 which reads as under:

'In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.'

3. Whereas Section 27 deals with the property belonging to the spouses, Section 26 deals with their children, and Section 25 with permanent alimony and maintenance that may be awarded in favour of a party. Power of the Court to pass an order under these sections is discretionary. The object behind the enactment of these sections appears to be to ensure a severance in possibly all respects between those spouses who, as the Court thinks, cannot live together. The framers of the Act intended that in their own interests, as well as in the interests of their children, every attempt should be made to settle all possible disputes between such spouses, and that too once for all, so that they do not have any opportunity to enter into fresh litigation with each other, on any account whatsoever. Keeping in view the aforesaid legislative intent and the plain language of Section 27, the following propositions clearly emerge :

(i) power of the matrimonial Court under Section 27 of the Act is discretionary;

(ii) pendency of a main proceeding e. g. for divorce, judicial separation, restitution of conjugal rights etc. etc. is a condition precedent for the exercise of this power.

(iii) this power can be exercised by the Court only in respect of that property, whether movable or immovable, which is jointly owned by the parties;

(iv) that joint property must be such as was presented to them at a time or stage which is in close proximity to the time of their marriage, whether it inpresented at, before or after the marriage; and

(v) a provision in regard to such property has to be made in the decree itself that the Court may eventually pass in the main proceeding, but not by a separate order.

4. There is nothing in Section 27 which debars the Court from making an enquiry into a dispute whether or not the property is jointly owned by the parties, or whether or not it is such as was presented to them at or about the time of their marriage. But the section excludes by necessary intendment, its application to the property, which the party seeking a direction from the Court; claims that it exclusively belongs to it. But for the provisions of this section, it cannot be gainsaid that the parties could not have got their claims settled in respect of the property jointly owned by them, except by filing a regular suit. This section no doubt provides for a speedy and cheap remedy to that extent, but its perimeters cannot be extended to include even the property belonging exclusively to one of the parties. I am unable to accept the argument that even if the section does not specifically apply to exclusive property of the litigating spouses, the Court can still make provision in respect of such property in the decree in the main proceeding, in exercise of its inherent power under Section 151 C. P. C. Inherent power cannot include a power similar to the one conferred by Section 27, even though this section in terms does not apply to exclusive property, nOR CAN inherent power be invoked where the party has an alternative remedy of suit for obtaining the appropriate relief. With utmost respect to the learned Judge, I am unable to subscribe to the view taken in Kamta Prasad v. Smt. Oma Wati, AIR 1972 All 153, that the Court can in exercise of its inherent power pass appropriate order in respect of that property also, in which the party seeking such an order claims exclusive ownership.

5. The impugned order, it is so obvious is indefensible, for it suffers from two serious infirmities. To begin with, the learned District Judge has ordered delivery of the property to the respondent. without making any enquiry and without recording a finding as to whether the property mentioned in List A is the joint property of the parties, or is exclusively owned by one of them. He could have exercised his power under Section 27only if he were to find that not only the property was the joint property of the parties, but also that it had been presented to them at or about the time of their marriage. When the nature of its ownership was in dispute, he ought to have recorded evidence on the point in particular, the statements of the donors thereof who would naturally be the most competent witnesses to depose on the issue and passed an appropriate order only thereafter. Secondly, he ought to have made appropriate provision in that behalf in the decree in the main proceeding itself and not proceeded to pass a separate order. Normally, the parties are supposed to raise such a claim in their main pleading, but even if they raise it in a separate application, the Court should insist on amendment of the pleading in the main case to incorporate such a claim therein and should thereafter raise a distinct issue on the point. It should not try such an issue in a parallel proceeding. Where the party fails to raise the claim in the main pleading, either before or after its amendment, the Court must necessarily decline to exercise its discretionary power under Section 27 in its favour, leaving it to agitate the same in a regular suit. No direction for amendment of the main pleading can, however, be given in the instant case, as the main petition itself stands finally disposed, of.

6. For all that has been said heretofore, the appeal succeeds, which is allowed accordingly. The order impugned in it is set aside and respondent's application under Section 27 is dismissed. This will not, however, debar her from bringing a regular suit for recovery of the aforesaid property, if so advised. No costs.


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