Full Judgment
12 Rule 6 Civil Procedure Code reads as under :-
'5.Judgment on admissions-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, made such order or give such judgment as it may think fit, having regard to such admission.
(2)Whenever a judgment is pronounced under Sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.'
MRS.CHANDERMobini Chopra, learned counsel for plaintiff, has contended that plaintiff has given details of her Stridban, in various lists, which are annexures P. 4 to P. 7. In the annexures, so filed by defendant no. 1, there is clear admission on the part of defendant no.1, that certain articles, belonging to plaintiff, are in his possession.
(28) MR.BEHL, learned counsel for defendant, on the other hand, has urged that, under law, the pleadings should be read, as a whole, and the alleged admission cannot be read in isolation. He has placed reliance upon the judgments in Motabhoy Mulla Essabhoy v. Mulji Haridas A.I.R. 1915 PC 2; Indermal Tekaji Mahajan v. Ramprasad Gopilal and another : AIR 1970 MP40 and State Bank v. Midland industries 1987 R.L.R. 59.
(29) In Indermal Tekaji Mahajan (supra), that Divilion Bench held :
'.....IT isplain that the principle illustrated above is that, if a written statement incorporates an admmission of some facts favorable to the plaintiff and a denial of certain other facts favorable to him or an assertion of still other facts which are unfavorable to him, he (plaintiff) must, if he wants to take advantage of the admission, take not only the first set of facts as truly stated but also the second set of facts as so stated. But the principle is limited in application to facts and does not embrace within its ambit any plea of law raised by the defendant on the cumulative effect of the two sets of facts. We would show in the following paragraphs that the conclusion reached by the lower Court can be supported on this basis.
IT is now well established that where an alternative case, which the plaintiff could have made, but did not make in the plaint, is admitted by the defendant in his written statement, it is permissible to grant to the plaintiff relief on that basis. So, in firm Shrinivas Ram Kumar v. Mahabir Prasad : [1951]2SCR277 . Mukherjee J. (as he then was) held :
'THE rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other aide was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff baud on the defendant's own plea cannot possible be regarded with surprise by the letter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings.'
(30) In para 12 of the written, statement filed by defendant no. 1, there is a specific averment, statement to the following effect :-
'HOWEVER,out of the alleged and exaggerated items of dowry arbitrarily valued on a very high side and stated to have been given to the plaintiff by her parents, the number of items actually given and those left behind by her on 5-11-1983 at the matrimonial home and which are in the possession of the defendant are shown in annexure D. 3.'
In the same para, it is further stated that the articles, under columns no. 2 and 7, at Seriall Nos. 1, 2, 20, 21 and 23, of annexure D. 3, are for exclusive use of plaintiff, and rest of the articles, are meant for joint use of plaintiff and defendant No. 1.
(31) While, denying the allegations, in the corresponding paras of the plaint, defendant no. I, in para 14 of his written statement, has stated that the total value of the sarees, left behind by plaintiff, is not more than Rs. 670.00 , as against the value of Rs. 6,100.00 , claimed by plaintiff, in annexure P.6. The full details, have been given by defendant no. 1 in annexure D. 4.
(32) In para 16 of the written statement, there are following averments:
'A comparative list showing the alleged number of gifts given to the plaintiff by her parents after her marriage as stated in annexure P. 7. the number actually given to her and the articles out of them left behind by the plaintiff on 5th November, 1983 and the present value thereof is at annexure D. 5.'
(33) Defendant no. I has also alleged that, after the marriage, certain items were purchased by him, from his own saving/income and the same have been shown in annexure D. 6.
(34) In annexure D. 3, defendant no. 1 has given the details of the articles, which were given, by way of gifts, to plaintiff, and left behind by her, when she left the house. According to this statement, following articles, were left behind:
1. Sarees plus blouses and petticoats and suits 2. Wedding Duppatta 1 3. Beds 2 4. Dressing table 1 5. Sofa Set 3 Pcs. 6. Dining Table 1 7. Centre Table 1 8. Almirah 1 9. Trunk Nil 10. Mattresses 2 11. Sewing machine 1 12. Daries Nil 13. Bed covers 4 Nos. 14. Table cloth Nil 15. Air Bag Nil 16. Pillows 2 17. Picnic set Nil 18. Room heater Nil 19. Utencils a. Pressure cooker 1 b. Milk Boiler 1 c. Dhoungas 4 d. Glass 6 e. Plates 4 f. Katories 6 g. Tray 1 h. Rice Plate 1 i. Spoons 4 j. Handalium karabi 1 20. Night Gown 1 21. Shawls 1 22. Blankets 1pair 23. Skivvies 1
(35) Defendant no. I has admitted that the articles at Seriall Nos.l, 2, 20, 21 and 23 of annexure D. 3, are for exclusive use of plaintiff. The other items, according to defendant no. l,are meant for joint use of plaintiff and defendant No. 1. However, defendant No. I has not disputed that all these articles, as shown in annexure D. 3, were given to plaintiff, as gifts, at the time of marriage.
(36) As per annexure D. 4, the following articles, which had been given to plaintiff, as gifts, by the in-laws, were left behind : Sarees with blouses and petticoats
(37) In Annexure D. 5, defendant no. I has given the details of the articles, which bad been given to plaintiff, by her parents, after the marriage. According to defendant no. I, following articles, were left behind by plaintiff:
1. Sarees with blouses 2 2. Bed cover 1 pair 3. Steel Glass 8 4. Bait! (Brass) 1 5. Transistor 1 6. Cardigan & one shawl 2
(38) Defendant no. 1 has given the details of articles, in annexure D. 6, which were allegedly purchased by him. Annexure D. 7 contains the details of the articles, allegedly belonging to defendants, but are in possession of plaintiff.
(39) In VinodKumar Sethi and others v.State of Punjab and another. 1982 8 HLR 327, the Full Bench of Punjab and Haryana High Court, held that a Hindu wife could own property in her own right. It was further held :
'NOW once it is so held that articles of dowry and traditional presents given at the wedding are owned by the bride individually in her own right, then one fails to see how by the mere fact or her bringing the same into her husband's or parents-in-law's household, would forthwith divest her of the ownership thereof. Separate and individual right to property of the wife therein cannot vanish into thin air the moment the threshold of the matrimonial home is crossed. To say that at that point of time she would cease to own such property altogether and the title therein would pass to her husband or in any case she would lose half of her right therein and become merely a joint owner of the same, with the family of her husband does not appear to me as even remotely unwarranted either by the statute, principles or logic. No such marriage hazard against the wife can be implied in law. Once she owns property exclusively, she would continue to hold and own it as such despite marriage and coverture and the factum of entering the matrimonial home. The second part of Mr. Thapar's argument, thereforee, is equally unsustainable......... ......I am afraid that even this line of distinction sought to be drawn with regard to the articles of dowry which are for the common use and enjoyment by the couple also cannot be accepted as general proposition. Though at the initial flush the argument has a tinge of plausibility, a closer analysis would reveal it fallacy. What may be kept in mind is that the dowry and the traditional presents given to a bride in a Hindu wedding may usually be put in three categories as under :-
(I)Property intended for exclusive use of the bride, e.g. her personal jewellery and wearing apparel etc. ;
(II)Articles of dowry which may be for common use and enjoyment in the matrimonial home ;
(III)Articles given as presents to the husband or the parents-in-law and other members of his family.
OBVIOUSLY as regards the third category those presents and gifts intended for the husband or his relations after delivery would pass into their ownership and may well ceases to be the property of the bride. This would be so also as the traditional presents etc. gives by the husband and parents-in-law to the bride at or about the time of wedding would pass into her ownership. Similarly as regards the first category of articles meant for the exclusive use of the bride, she would reliant her pristine ownership therein irrespective of her entry and presence in the matrimonial home or that of her parents-in-law. As regard category (ii) it is purely a question of fact whether the articles of common use and enjoyment were given and intended to be the exclusive property of the bride or otherwise. I am inclined to the view that the normal presumption would be that the ownership in such life articles would vest 287 in the Hindu wife unless it can be clearly established to the contrary that these were given expressly for the joint ownership of the couple. Dowry of this nature would be commonly used and enjoyed with the implied and license of the wife Mere joint enjoyment thereof does not necessarily divest a Hindu wife or her exclusive ownership or to make it joint property by the mere factum of such user. This seems to be soon general principles of law. An individual owner of property, apart from a Hindu wife, may well allow the use of the property jointly by others. But that by itself cannot divest him of the ownership or make a licensee joint owner forthwith. 1. thereforee, see no reason how a Hindu wife is to be treated invidiously and on a different plane from any other of property in this context. Indeed the nature of article, whether meant for exclusive or common use, seems hardly relevant to the question of ownership therein. It was rightly contended on behalf of the respondent State that mere joint user and enjoyment cannot make the husband a joint owner of the property if it originally belonged to the wife strictly. The valid submission herein was that joint user or enjoyment be rein must be deemed to be with the express and implied leave and license of the owner, namely, the wife and the moment she revokes such a leave or license then any such claim to joint use and enjoyment would obviously come to an end. The break-down of the marriage or the splitting np of the matrimonial home would inevitably involve the revocation of such leave and license by the wife thus resuscitating her right to exclusive possession.'
(40) Defendant No. I, in annexure D. 3, filed by him with within statements, has admitted that the articles, mentioned therein, were given to plaintiff, at the time of marriage. Thus, in may view, plaintiff is owner of the articles, so given to her, by way of traditional gifts, at the time of marriage. Defendant No. I has further admitted the various articles, left behind by her and, which are in the possession of defendant no 1. According to defendant no. 1, the articles, shown at Seriall Nos. 1, 2, 20, 21 and 23 of annexure D. 3, were for exclusive use of plaintiff, while, rest of the articles, were meant for joint use of plaintiff and defendant no. 1.
(41) In other words, defendant no. I has not alleged that, the articles were given jointly to plaintiff and defendant no. 1, but has alleged that certain articles, were for joint use of the couple. The articles, which ar,e admittedly for the exclusive use of plaintiff, and were given to her, at the time of marriage, are to be delivered to plaintiff, by defendant no. 1. As plaintiff is the owner of these articles, so, even, the use by defendant no. I, was with the leave and license of plaintiff.
(42) This is a question of fact as to whether, the articles, as alleged by defendant no. I, were given for joint use. But, there arc certain articles, which from their very nature, suggest that these were not given for joint use. Even otherwise, as, plaintiff had left the house in November, 1983, the license for joint use stood revoked. Out of the articles, as mentioned in annexure D. 3, besides the articles, admittedly for exclusive use, of plaintiff I find that the articles, mentioned at Seriall Nos. 3,4,11,13 and 19 i.e bed (1). dressing table (1), Sewing machine (1), Bed Covers (2 pcs) and utencils, (details given in annexure D. 3), are to be delivered back to plaintiff.
(43) Similarly, in annexure D. 4, defendant no. I has admitted that the articles, namely, Sarees with blouses and petticoats, 3 in number, shown at Seriall No. I had been given to plaintiff by the in-laws, and arc in possession of defendants No. 1. Defendant no. I is liable to hand over these plaintiff.
(44) In the like manner, the articles shown in annexure D. 5, which had been given to plaintiff, by her parents, after marriage, are owned by plaintiff and are to be delivered to her by defendant no. 1. Out of this list the articles, which are admittedly in possession of defendant no. I and are for exclusive use of plaintiff, have to be returned. These articles are : Sarees with blouses (two in number).
(45) With regard to the other articles, as mentioned in annexure D. 6, there is no admission, on the part of defendant no. 1. On the contrary, it is alleged that defendant no. I acquired to same.
(46) It is not disputed that plaintiff is residing separately, from her husband, since November, 1983. The only child, is also living with her. Moreover, defendant no. 1, filed a petition, for dissolution of marriage, by a decree of divorce, under Section 13(l)(ia) of the Hindu Marriage Act, 1955, in November, 1982. There was a compromise and the petition was withdrawn. Plaintiff also lodged various reports, with the police against, defendants. Defendant no. I. also filed another petition, for dissolution of marriage, on the ground of cruelty, against plaintiff.
(47) All this shows that the marriage has broken down, though, there arc judicial separation, between plaintiff and defendant no. 1.
(48) Under there circumstances, I am of the view, that the suit is liable to be partly decreed, for recovery of the specific moveable properties as mentioned above, on the basis of the admission of defendant no. I and direction is to be given to defendant no. 1, to deliver these articles to plaintiff.
(49) However, the suit will proceed, with regard to the rest of the claims of plaintiff, as well as, set off of defendant no. 1.
(50) Under the facts and circumstance of the case, I pass a decree (with regard to part of the claim of plaintiff) in favor of plaintiff and against defendant no. I, for recovery of the specific moveable properties, and direct defendant no. I to deliver to plaintiff, the following articles :
Item as per Annexure D. 3. Number of items Sarees plus blouses and petticoats and suits 6 Wedding Duppatta 1 Bed 1 Dressing Table 1 Sewing machine 1 Bed covers 2 pcs. Utencils a. Pressure cooker 1 b. Milk Boiler 1 c. Dhoungas 6 d. Glass 6 c. Plates 4 f. Katories 6 g. Tray 1 h. Rice plate 1 i. Spoons 4 j. Handloom karahi 1 Night Gown 1 Shawls 1 Skivvies 1 Item as per Annexure D. 4. Sarees with blouses and petticoats 3 Item as per Annexure D. 5. , Sarees with blouses 2
(51) The question, with regard to costs, shall be decided, at the time of final disposal of the suit. 1. A. 8399 of 1987 stands disposed off.