ABBAS Vs. KUNHIPATTU
LAWS(KER)-1974-4-2
HIGH COURT OF KERALA
Decided on April 01,1974

ABBAS Appellant
VERSUS
KUNHIPATTU Respondents

JUDGEMENT

- (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 marriage 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." Ss. 3 and 4 of the Act prohibit and make punishable the giving, taking or demanding dowry. S.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 or 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. pw. 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 plain tiff, 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 come to my own conclusion regarding the nature of the transaction. I am bound by the concurrent finding of fact. I have to proceed on the basis that the transfer evidenced by Ext. B-1 sale deed is really a transfer for dowry.;


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