- (1.) JUDGEMENT :- This appeal has been filed against the Judgement of the learned District Judge. Bikaner dated 4-8-1986 whereby the learned lower Court has ordered that 21 sarees, 2 quilts, two Gaddas, 12 bed-sheets, one Godrej Friz. Steel Utensils. Steel Almirah, one Sofa, one Central Table, one Watch, one Washing machine, one double-bed, two tea sets, oven and various gifts amounting to Rs. 10,000/-, one golden set weighing 5 tolas, another golden set weighing 3 tolas, two Kadas weighing 4 tolas, one ring weighing one tola and another ring weighing 10 grams, and one chain weighing 1 tolas be returned to the wife-respondent after obtaining a receipt as they exclusively belonged to her. The learned lower Court has also passed a decree for dissolution of the marriage but that finding or decree has not been challenged by the husband-appellant in this appeal. The husband-appellant has only challenged the finding of the learned lower Court regarding delivery of the abovesaid properties to the wife-respondent.
(2.) On 12-11-1986, learned counsel appearing for the parties requested that this appeal may be heard and decided on merits at the admission stage.
(3.) Mr. Mridul Jain, learned counsel appearing for the husband-appellant has argued that S.27 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') provides that in a proceeding under this Act, the Court may make such provision 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. According to him. S.27 of the Act does not authorise the Court to order for the delivery of the property in the proceedings under this Act which exclusively belongs to any one of the spouses. The Court can only pass orders about the delivery of her (wife) apportioned share of the gift which are jointly owned by the husband and the wife and which have been given to them at or about the time of the marriage. In support of this argument, he has placed reliance on a Division Bench decision of the Gujarat High Court in Suryakant v. Jashumati, 1981 Hindu LR 473, wherein it has been held as under : "S.27 of the Hindu Marriage Act, 1955, expressly confers jurisdiction upon the Civil Court to make such a provision in the decree as it thinks fit in relation to any property which may belong jointly to both the husband and the wife. It does not enable the Court to make any provision in the decree in respect of property which may exclusively belong either to the husband or the wife. The express enabling provision made in S.27 in regard to the joint property rules out by necessary implication the jurisdiction of the Court, in matrimonial proceedings to make any provision in such decree in respect of property which may exclusively belong either to the husband or to the wife." In that case, it has been further held as under : "While construing in S.27, what we are required to bear in mind is not what it does not exclude but what it includes within the jurisdiction of the Court. Once we are able to define in terms of S.27, the ambit of our jurisdiction, the further question which we are required to answer is whether what is expressly included in S.27 amounts to exclusion by necessary implication of what is not included in it. To say that, since S.27 does not exclude the power of the Court in respect of the property belonging exclusively to the husband or the wife, it enables the Court to deal with such property is to legislate. It is not the function of a Court of law to legislate. Nothing would have been easier for the Parliament than to say, if the Parliament had so intended, that the Court in matrimonial proceedings would have the jurisdiction to deal with any kind of property belonging exclusively to the husband or to the wife or jointly to both of them. That the Parliament in its wisdom did not bring within the sweep of S.27 a property exclusively belonging either to the husband or the wife clearly shows that S.27 was not intended to confer jurisdiction upon the Court in respect of property belonging exclusively either to the husband or to the wife." In Sushma Kumari v. Rameshchand, (1982) 1 DMC 272, a learned single Judge of the Delhi High Court has observed as follows : "that under S.27 of the Act a decree with regard to the property exclusively belonging either to the husband or the wife cannot be passed." The same view has been expressed by another learned single Judge of the Delhi High Court in Smt. Shukla v. Brij Bhushan, AIR 1982 Delhi 223, wherein it has been held as under : "S.27, Hindu Marriage Act, 1955 is a substantive provision empowering the Court in any proceeding under the said Act to make a just and proper order regarding property presented at or about the time of the marriage of the parties and belonging jointly to both of them. The Court exercising the jurisdiction under the Act is powerless to deal with properties exclusively belonging to one or the other spouse. In this case, the wife who pleaded that the properties were presented to her and, therefore, belonged to her was held not entitled to the relief of their recovery under S.27 of the Act. Her remedy lay before the Civil Courts. Neither could such an order be based on O.7, R.7 read with S.151, C.P.C." In Smt. Shukla's case, AIR 1982 Delhi 223, the decision of the Allahabad High Court in Kamta Yd. v. Om Wati, AIR 1972 All 153, was dissented from. In Kamta Yd. v. Om Wati, AIR 1972 All 153, a learned single Judge of the Allahabad High Court has interpreted S.27 of the Hindu Marriage Act as under : "The Section does not exclude the power to pass a decree relating to property belonging exclusively either to the husband or wife as that power is inherent in the proceedings under the Act themselves. The words "which may belong jointly to both the husband and wife" in the Section show conferment of an enabling power to deal with jointly owned properties also but do not restrict the Court's power to such properties alone. In view of S.21 all powers of a Civil Court are available while dealing with the proceedings under the Act. Therefore, by virtue of the powers under S.151 and O.7, R.7, C.P.C. also the Court has the power to pass that decree against the husband." Thus, the learned single Judge of the Allahabad High Court in Kamta Pd.'s case (supra) has taken the view that the provisions of S.27 of the Act are only enabling provisions. They do not exclude the consideration of the properties belonging exclusively either to the husband or to the wife. Moreover it has taken the view that S.27 of the Act empowers the matrimonial Court with all the powers of a Civil Court and, therefore, by virtue of the powers under S.151 read with O.7, R.7, C.P.C., the Court has power to pass a decree even. regarding the property which exclusively belongs to the husband or to the wife. This view has been dissented by a learned single Judge of the Delhi High Court in Smt. Shukla's case (supra) and by a Division Bench of the Gujarat High Court in Suryakant v. Jashumati, 1981 Hindu LR 473. The Gujarat High Court has taken the view that while construing S.27, the Court is required to bear in mind is not what it does not exclude but what it includes within the jurisdiction of the Court. S.27 of the Act only provides for delivery or the apportionment of the property which jointly belongs to the husband or the wife and which have been gifted to them at or at the time of the marriage. Thus, it does not enable the Court to make any provision in the decree in respect of property which may exclusively belong either to the husband or to the wife. The express enabling provision made in S.27 in regard to the joint property rules out by necessary implication the jurisdiction of the Court, in matrimonial proceedings to make any provision in such decree in respect of property which may exclusively belong either to the husband or to the wife.;