1. These two appeals arise out of the common judgment passed in A.S. Nos.24 and 15 of 1987 on the file of the Additional District Judge, Warangal.
2. In both the appeals, plaintiff is the appellant. Second Appeal No. 178 of 1988 arises out of the judgment in A.S. No. 24 of 1985 which was filed against the judgment in O.S. No. 229 of 1981 on the file of the Additional Subordinate Judge, Warangal, by the respondent herein. Second Appeal No. 260 of 1988 was filed against the judgment in A.S. No. 15 of 1987 by the appellant-plaintiff against that part of the judgment in O.S. No. 229 of 1991 refusing to grant interest to the plaintiff.
3. The facts in brief are that the appellant filed the suit O.S. No. 229 of 1981 against husband and her father-in-law for recovery of Rs. 17,150/- which is made up for Rupees 15,000/- principal and Rs.2,150/- interest, being the amount of dowry paid by her father before her marriage with the 1st defendant (who died during the pendency of the suit.) The father of the apellant paid a sum of Rs. 15,000/- by way of a cheque dt. 19-4-1974 infavour of the 2nd defendant on the Canara Bank, Warangal and that her marriage with the 1st defendant in the suit was performed on 3-5-1974. The 2nd defendant kept the amount in a fixed deposit and had not paid the amount to her. She filed O.P. No. 32 of 1979 on the file of the Subordinate Judge's Court, Warangal seeking for a decree of nullity of marriage. O.P. No. 109/78 was filed by her husband seeking restitution of conjugal rights. Though she demanded return of Rs. 15,000/- paid by her father as dowry, the same was not returned to her and therefore she filed the suit for recovery of the said amount with interest.
4. The 2nd defendant filed a written statement admitting that the marriage between the plaintiff and the 1st defendant took place on 3-5-1974 and that the father of the plaintiff paid a sum of Rs. 15,000/- as dowry, as consideration for the marriage between the plaintiff and the 1st defendant by a cheque dated 19-4-1974. The said amount was kept in fixed deposit for one year which was later withdrawn. The appellant is not entitled to seek return of the amount or interest therein since the payment of dowry by her father was illegal and as the same was opposed to public policy. The mother of the 1st defendant is also a necessary party.
5. In the suit the plaintiff examined herself as P.W. 1 and second defendant examined himself as D.W. 1. The cheque was marked as Ex. A. 1. The lower Court held that the plaintiff is entitled to recover the amount of Rs. 15,000/- and accordingly decreed the suit for Rs. 15,000/- with proportionate costs and had not granted the interest on the amount of Rs. 15,000/- to the plaintiff. Aggrieved by the decree of recovery passed by the lower Court, the 2nd defendant preferredA.S. No. 24 of 1985 before the Additional District Judge, Warangal, whereas aggrieved by the refusal of the lower court to grant interest, plaintiff preferred A.S. No. 15 of 1987.
6. The Appellate Court allowed the appeal filed by the 2nd defendant and dismissed the appeal filed by the plaintiff, against which, the present Second Appeals are filed by the plaintiff.
7. The main contention of the learned counsel for the appellant is that Section 3 of the Dowry Prohibition Act, 1961, provides that if any person, after the commencement of the Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more, and the proviso under the section empowers the Court to impose a sentence of imprisonment for a term of less than five years for adequate and special reason to be recorded in the judgment. She also points out that Section 6 of the said Act provides that the dowry paid should be for the benefit of the wife or her heirs. According to Section 6 of the Act, 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 three months after the date of marriage; or (b) if the dowry was received at the time of or after the marriage, within three months 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. Section 6(2) also provides that 'If any person fail to transfer any property as required by subsection (1) within the time limit specified therefor, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine. Therefore, counsel submits that the payment of dowry was not denied and therefore under Section 6(1) of the Act, ifwithin the time prescribed the dowry has not been transferred for the benefit of the woman, person who received the dowry is liable for punishment. However, pending the transfer the person shall have to hold the amount in trust for the benefit of the woman. Therefore, though under Section 3 of the act, payment of dowry is punishable, in view of Section 6 of the Act, the suit for recovery of dowry paid in violation of Section 3 is maintainable.
8. The question therefore is whether a suit filed for recovery of dowry is maintainable notwithstanding the fact that penalty was provided under Section 3 of the Act for giving or taking or abetting of giving or taking of dowry.
9. The appellate Court following the judgment of this Court in G. Ramasubbaiah v. G. Rajamma 1975 (1) APLJ 168, wherein it was held that 'If the dowry has been paid by one party to the marriage and received by the other party of the marriage after the commencement of the Act, then it will come wihthin the mischief of Section 3 of the Act, subject of course, to the provisions of Section 6. There is nothing in Section 3 which prohibits taking back the dowry paid before the Andhra Pradesh or Central Act came into force', held that the dowry paid after commencement of Act, 1961, could not be recoverable, subject of course to Section 6 of the Act.
10. It is true that Section 3 of the Act makes it punishable the taking or giving or abetting of giving or taking of dowry. However, Section 6 of the Act says that a person who received the dowry shall have to transfer it within the period mentioned therein for the benefit of the woman, failing which, he or she shall be liable for punishment. Pending such transfer, the person holds the amount in trust for the benefit of the woman. Admittedly, the suit in the present case is filed for recovery of the amount pending transfer of the amount. In this context, I may refer to a decision of the Kerala High Court in M. Abbas v. M. Kunhipathu, : AIR1975Ker129 . Interpreting Section 6 of the Act, it was held that at page 130-
'As per that section the plaintiff is bound to transfer the property to the woman and he is a trustee until such transfer-of 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 gives to the taker. But the taker must hold it for the benefit of the woman.....'
11. Therefore, the Legislature itself has provided under Section 6 of the Act, that pending transfer of the dowry, the person who received the dowry holds it in trust for the benefit of the woman. In other words, the father-in-law, namely, the 2nd respondent in this case is only a trustee and the appellant is the beneficiary. The rights of the beneficiary are dealt with under Section 56 of the Trusts Act, 1882, which reads as follows:
'56. Right to specific execution:
The beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary's interest;
Right to transfer of possession:
and where there is only one beneficiary and he is competent, or where there are several beneficiaries and they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust property to him or to such person as he or they may direct.'
12. Section 56 of the Trust Act enables the beneficiary to file a suit for recovery of trust property.
13. I may also point out that the Dowry Prohibition Act contemplates two stages. The first stage is taking or giving or abetting of giving or taking of dowry. The second stage is, after taking dowry and pending transfer of the same to the beneficiary, the person holds it in trust for the benefit of the woman. Though under the first stage, namely, taking or givingor abetting of giving or taking of dowry is punishable and therefore such act is a void transfaction; under second stage i.e. after taking the dowry, the Legislature itself has provided that the person who took the dowry shall hold it in trust for the benefit of the woman pending transfer in her favour. Therefore, during the second stage, it is open to a woman to file a suit to recover the amount from the person who held the dowry in turst, if that person has not transferred the trust property in favour of the woman for her benefit. It follows from the above, that the suit by the plaintiff, in this case, is maintainable, as admittedly, the 2nd defendant, who admitted to have recived the amount of dowry from the father of the plaintiff by was of a cheque on 19-4-1974, had not transferred it for the benefit of the plaintiff. The observations made by this Court in Ramasubbaiah's case (supra) also categorically say that giving or reciving of dowry will come within the mischief of Sec. 3 of the Act, subject to the provisions of Sec. 6. Subject to the provisions of Section 6 mean that the person taking the dowry holds the property for the benefit of the woman as a trustee. It does not mean to say that during the said period, the woman cannot file a suit for recovery of the same. Section 6 of the Act enables the wife to file a suit for recovery of the dowry paid, if the person who received the dowry has failed to transfer the property for the benefit of the woman within the prescribed period.
14. It follows from the above, that the plaintiff is entitled to recover the amount of dowry and the suit is maintainable under Section 6 of the Dowry Prohibition Act, 1961.
15. Second Appeal No. 178 of 1988 is allowed with costs and the judgment of the Additional District Judge Warangal in A.S. No. 24 of 1985 is set aside and the judgment and decree of the Additional Subordinate Judge in O.S: No. 229 of 1981 is restored. Consequently, appellant is also entitled to interest on the dowry amount of Rs. 15,000/-paid to the 2nd defendant. The Second Appeal No. 260 of 1988 is also allowed with costs and the judgment of the Additional District Judge, Warangal in A.S. No. 15 of1987 is set aside. The plaintiff is directed to pay the Court-fee.
Note: This Judgement in respect of Court-fee is corrected as per the Court Order dt. 27-4-1994 on for bearing mentioned.
16. Appeal allowed.