Mumtaz Begum vs Ahmed Khan on 6 March, 1996

    Mumtaz Begum vs Ahmed Khan on 6/3/1996

JUDGMENT

   S.V. Maruthi, J.

   1. The plaintiff is the appellant. The appeal arises out of a Suit O.S. No.
19 of 1982 filed by the plaintiff for a decree against the person and properties
of the defendants and to direct the defendants 1 to 3 to pay the value of the
suit schedule Zaheb articles Chadava or return the same articles as detailed in
the suit schedule including the return of the Scooter 150 Bajaj bearing No. ATX
8325 or its value prevailing in the market i.e. Rs. 15,000/- and to direct the
defendants 1 to 3 to pay the Mehar amount of Rs. 5,500/- and two Dinar-E-Surque
or its equivalent value of two tulas pure gold at Rs. 1,950/- per tula and for
awarding costs with interest @ 12% per annum.

   2. The averments made in the plaint in brief are as follows: The plaintiff
and the 1st defendant were married on 19.11.1978 as per Muslim Personal Law at
Kothagudem. Defendants 2 and 3 are the father and mother of defendant No. 1. The
Mehar of the plaintiff was fixed at Rs. 5,500/- with two Dinar Surque (1 Dinar
is equivalent to 1 tula of pure gold). On the occasion of the marriage, the
plaintiff's parents gave suit schedule Zahez articles including a scooter
bearing Model No. 1150- ATX 8325, gold and silver ornaments, grocery, cutlery,
furniture, bedding, wearing clothes etc. On the occasion of marriage, the 1st
defendant has given 7 tulas of necklace as "Chadava" i.e., gift, which has
become the property of the plaintiff being a gift given on the occasion of the
marriage. Since the plaintiff was meted with ill-treatment by the parents of the
1st defendant they are living separated. The plaintiff requested the 1st
defendant to return all the suit schedule Zahez articles and Chadava articles
besides Mehar amount. Since the 1st defendant did not return them, she issued a
Lawyer's notice on 12.3.1982. The 1st defendant issued a reply stating that he
had given talaq to the plaintiff which has become effective from the date of
receipt on 27.3.1982. Hence this suit for recovery of suit schedule Zahez and
Chadava articles, Mehar amount and 4 tulas of gold ornaments snatched from the
plaintiff's person on 21.2.1982 during her last visit to the house of defendants
1 to 3 and the scooter.

   3. The 1st defendant filed a written statement stating that the Jahez list
submitted by the plaintiff does not speak the name of the donor and donee. The
plaintiff cannot ask for the return of the gifts alleged to have been given to
the 1st defendant. The Jahez articles given by the plaintiff's parents to the
1st defendant or his guardian are irrevocable gifts. He admitted that the 3rd
defendant gave gold chain but not as Chadava gift to the plaintiff. It does not
become the property of the plaintiff. He denied that he kept the Jahez articles
and the gold chain alleged 'Chadava' with him. The plaintiff is not entitled to
recover the Jahez articles and the gold chain which was given to her as Chadava
and the scooter.

   4. Defendants 2 and 3 also filed a written statement contending that the
plaintiff's parents did not give the alleged Jahez articles and that the
plaintiff is not entitled to recover the suit schedule property.

   5. The plaintiff examined 4 witnesses on her behalf and the defendants
examined 5 witnesses. The plaintiff marked Exs. A-l to A-14 and the defendants
have not filed any documents. On the basis of the above pleadings, the learned
Subordinate Judge framed the following issues :

     1. Whether the plaintiff's parents have given the suit schedule 'Jahez'
articles ?

     2. Whether the defendant 1 gave gold ornaments i.e., 'Chadava' weighing 7
tulas of gold to the plaintiff and it has become an absolute property of the
plaintiff.

     3. Whether the Jahez and Chadava articles are retained by the defendants ?

     4. Whether the defendants forcibly took bangles, gold chain from the
plaintiff by use of violence ?

     5. Whether the value of the suit schedule is properly valued ?

     6. Whether the Mehar and Iddat amounts were paid by the defendant No. 1 ?

   6. The learned Judge, on the basis of the evidence, decreed the suit to an
extent of Rs. 21,024/- against the 1st defendant. The rest of the suit claim was
dismissed. The suit was dismissed without costs against defendants 2 and 3. The
1st defendant was also directed to pay to the plaintiff the proportionate costs
of the suit. In other words the learned Judge rejected the claim of the
plaintiff for recovering the Chadava i.e. 7 tulas of gold and the scooter which
was given by her parents at the time of marriage. Hence, the appeal by
plaintiff.

   7. The main contentions of the appellant is that the 7 tulas of gold was
presented to her at the time of marriage. Any gift presented at the time of
marriage became the absolute property of the appellant and, therefore, she is
entitled to recover the same. She also contended that the scooter was given by
her parents to the first respondent and, therefore, she is entitled to recover
the same. It is submitted that under Section 3(1)(d) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (for short 'the Act'), a divorced
woman shall be entitled to retain all the properties given to her before or at
the time of marriage or after her marriage by her relatives or friends or the
husband or any relatives of the husband or his friends. Therefore, in view of
Section 3(1)(d) of the Act, the appellant is entitled to recover the gold
ornaments which were given to her by the first defendant at the time of the
marriage. On the other hand, the learned Counsel for the respondents contended
that the Act was passed in 1986 and the suit was filed in 1982 and since the Act
has no retrospective effect, the learned Judge was right in not granting the
relief in respect of the Chadava.

   8. The question, therefore, is whether the appellant is entitled to recover
the Chadava article and scooter ?

   9. It is not disputed that the gold chain was given at the time of marriage
by the first respondent and it was taken away by the husband. Admittedly, the
property that was given at the time of marriage becomes the 'Stridhana' of the
wife and, therefore, the appellant is the absolute owner of the property. It is
a gift given to her by the first respondent at the time of the marriage and she
has accepted the same, and therefore, it cannot be revoked later on. Hence, she
is entitled to retain the same.

   10. As regards the scooter, admittedly, it was a gift given to the first
respondent at the time of the marriage by the parents of the appellant. Since,
it was a gift given by the parents of the appellant, once it is accepted, it
becomes the absolute property of the donee and, therefore, he is entitled to
retain the same.

   11. There cannot be any dispute that the Muslim Women (Protection of Rights
on Divorce) Act, 1986 was brought into force on 19.5.1986 and there is no
provision making it retrospective in operation. Therefore, the appellant cannot
seek relief under Section 3(1)(d) of the Act.

   12. However, before the Act came into force the Muslim Law in force is
applicable to both the parties. Tayyibiji's Muslim Law Sub-para 1 (4th Edition,
P. 425) says that under Hanafi Law, a gift cannot be lawfully revoked where, at
the time when the gift is made, the donor is the husband or wife, of the donee.
Sub-section (2) says that the Shite authorities are agreed that to revoke such a
gift is abominable, and some hold it unlawful, but the better opinion is that it
is unlawful. Therefore, the Muslim Law recognises that a gift given by the
husband or wife cannot be revoked. At the time when the 'Chadava' was given to
the appellant the first respondent was her husband. Therefore, such gift is
irrevocable and the first respondent cannot retain the same. She is entitled to
recover the same and her appeal to that extent is allowed.

   13. As regards the scooter, it is no doubt given by the parents of the
appellant at the time of her marriage to the first respondent. When it was
gifted to him no condition was imposed stating that on the happening of an event
it is revocable. Further, they have not reserved the right to revoke the gift.
Since it was accepted by him i.e. the first respondent, the appellant is not
entitled to recover the same as the gift is not revocable on the facts and
circumstances of the case.

   14. In view of the above, the appeal is allowed to the extent indicated above
namely that the appellant is entitled to recover the gold chain which was given
to her at the time of the marriage by the first respondent as Chadava. The
appeal is partly allowed with proportionate costs.