Delhi District Court
Shikha Sharma vs Aashish Vohra on 25 April, 2011
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA)17,DELHI
Suit No. 88/06
Unique Case ID No. 02401C05761322006
Shikha Sharma
W/o Shri Anil Sharma
R/o, 109/110, Vinova Puri,
Lajpat Nagar,
New Delhi110024 .....Plaintiff
Versus
1 Aashish Vohra
S/o Shri Vijay Vohra
2 Smt Sudesh Vohra
W/o Shri Vijay Vohra
3 Shri Vijay Vohra
S/o not known
All Resident of :
S/C 258, Shastri Nagar,
Ghaziabad.
4 Smt. Archna Bhasin
W/o Shri Rajesh Bhasin,
R/o Flat No. 305,
Annupama Apartments, Kaushambi,
Ghaziabad. ........Defendants
Suit no. 88/06 Page 1/25
Date of Institution of Suit : 10.07.2006
Date when reserved for orders : 19.04.2011
Date of Decision : 25.04.2011
JUDGMENT
1 Vide this judgment I shall decide a suit filed by the plaintiff for recovery of Rs. 10 lacs and mandatory injunction against the defendants. The brief facts necessitating in filing the present suit are given as under:
2 That plaintiff is the elder sister and adoptive mother of the deceased Rosy, wife of defendant no. 1 who died unnatural death on 28.04.2005 at her matrimonial home. The plaintiff after the death of her parents brought up Smt. Rosy like her daughter and spent considerable amount in her marriage. She gave a sum of Rs. 9,050/ on 17.02.2003 on the occasion of Roka ceremony and a sum of Rs. 70,500/ cash approximately at the time of Ring Ceremony on 01.03.2003 to defendants. She had given a sum of Rs. 1,92,614/ approximately on sagan.
As per the desire of the defendants, plaintiff and her family member had given cash, cloths and jewelery of . Rs. 4,64,700/ approximately on the occasion of marriage on 14.04.2003 to the defendants. However, defendants were not happy in spite of receiving considerable amount of dowry and started harassing the deceased Rosy Suit no. 88/06 Page 2/25 after few days of her marriage. In order to save her from persistent maltreatment and torture, plaintiff and her family member on different occasions paid considerable amount besides valuable items. In order to buy peace and happiness for the deceased, they also presented various gifts and cash amount on different festivals. But the cruelty, torture and harassment for money reached to such a level that it become unbearable for Rosy and she died unnatural death on 28.04.2005. After her death, plaintiff reported the matter to Ghaziabad Police pursuant to which an FIR No. 234/2005 under Section 498A / 304B / 120B IPC was registered against the defendants. The trial of the aforesaid case was transferred from Ghaziabad to New Delhi Pursuant to the transfer application filed before the Hon'ble Supreme Court, . The plaintiff and her family member till the death of deceased Rosy kept on meeting the illegal demands of the defendants in order to save her matrimonial life and had given gifts, cash and other valuable goods amounting to Rs. 10 lacs approx and the defendants are jointly and severely liable to return the same. On the basis of the above averments present suit has been filed for adjudication. 3 Pursuant to the summons defendants appeared and filed their written statement taking various preliminary objection that plaintiff has no cause of action for filing the present suit, that Defendant no. 2 to 4 have been falsely implicated in the case. On Suit no. 88/06 Page 3/25 merit, it is stated that marriage between defendant no. 1 and Smt. Rosy had taken place as per Hindu Rights and Ceremonies, it was a simple marriage. It is denied that plaintiff and her family member spent considerable amount in the marriage and the dowry articles. It is also denied that at the time of Roka ceremony a sum of Rs. 9,050/ was given to the defendants on 17.02.2003. It is also denied that at the time of Ring Ceremony an amount of Rs. 70,500/ was given to the defendants. It is also denied that a sum of Rs. 1,92,614/ was given at the time of Shagun. It is stated that defendants never made and expressed any desire to get any cash, cloths and jewelery at any point of time. It is denied that cash, cloths and jewelery of approx. Rs. 4,64,700/ was given to the defendants. It is stated that there had never been any cruelty torture and harassment by the defendants either for money or for dowry. Whatever jewelery or cash was given to Rosy, she was keeping the same with the plaintiff except those which she used to wear ordinarily and therefore the defendants have no idea what items were given to Rosy. A double bed and one T.V was given at the time of marriage voluntarily from the side of plaintiff. The defendants have always willing to return the same to the plaintiff but the plaintiff with malafide intention wants huge amount which the defendants are neither liable to pay nor in a position to pay. All other averments have also been denied. It is prayed that suit be dismissed. Suit no. 88/06 Page 4/25 4 Plaintiff filed replication thereby reiterated the averments made in the plaint and denied the averments made in the written statement.
5 On the basis of the pleadings of the parties vide order dated 30.01.2009 following issues have been framed for adjudication:
1. Whether the suit is without any cause of action? OPD
2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP
3. Whether the plaintiff is entitled to a decree of Rs. 10 lacs?
OPP
4. Relief 6 In order to prove her case, plaintiff examined herself as PW1 and reiterated the averments made in the plaint in her examination in chief. She exhibited the list of Roka ceremony as Ex. PW1/1, Ring ceremony Ex. Pw1/2, Shagun ceremony as Ex. PW1/3, Annexure J Ex. PW1/4, receipt issued by Mehrason Jewelers dated 25.03.2003 Ex. PW1/5, receipt of T. V dated 09.04.2003 Ex. PW1/6, list of articles given during wedding ceremony Ex. PW1/7, list of gifts Ex. PW1/8 & Ex. PW1/9, voucher no. 1096 dated 04.10.2003 Ex. Suit no. 88/06 Page 5/25 PW1/10, another list of gifts Ex. PW1/11, amount given in the first marriage anniversary Ex. PW1/12, gifts mentioned in annexure I & J Ex.; PW1/13 & Ex. PW1/14.
Plaintiff examined Sh. Yogesh, Ahlmad of the court of Sh. J. R. Aryan, Patiala House who proved the copy of the FIR Ex. PW2/A. 7 Plaintiff also examined Smt. Gurbachan Sehgal as PW3 who also reiterated the averments made in the plaint. She exhibited bill no. D751/0203 and D750/0203 dated 13.03.2003 as Ex. PW3/1 and PW3/2, receipt no. 7609 dated 07.11.2001 as Ex. PW3/3, receipt of Kanak Jewellers dated 27.10.2000 as Ex. PW3/4 and the receipt from Tribhovandas Bhimji Zaveri dated 18.11.2000 as Ex. PW3/5. 8 Plaintiff also examined Sh. Anil Mehta as PW4. During examination in chief, PW4 deposed that he is in the business of tent and catering. The receipt Ex. PW4/1 was issued by him which bears his signatures at point A. Plaintiff also examined Sh. Anil Sharma as PW5 who also reiterated the averments made in the plaint in his examination in chief.
9 In order to answer the claim of the plaintiff, defendant examined himself as DW1 who reiterated the averments made in the written statement in his examination in chief.
Suit no. 88/06 Page 6/25 10 I have heard both the Ld. counsels for the parties and perused pleadings, evidences and other material placed on record. My issue wise findings is as under: 1 Whether the suit is without any cause of action? OPD 2 Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP 3 Whether the plaintiff is entitled to a decree of Rs. 10 lacs? OPP 11 All issues are taken together as they are interconnected with each other.
Plaintiff has taken a plea that she is the adoptive mother of Smt. Rosy. The said plea has been controverted by the defendant who stated that plaintiff had apprised before the marriage that parents of Rosy had expired and she is her elder sister.
In order to prove above plea, plaintiff examined herself as PW1 . In Para 2 of her examination in chief she deposed that "plaintiff is the elder sister and adoptive mother of the deceased Rosy wife of defendant no. 1 who died unnatural death at her matrimonial home on 28.04.2005". During crossexamination, PW1 stated that documents regarding the adoption of deceased Rosy are in the court file. She Suit no. 88/06 Page 7/25 again stated that documents for adoption had been filed in the criminal case pending in Patiala House Courts. She does not remember whether any adoption deed was written or not. She does not remember what ceremonies took place at the time of adoption. She does not remember in which class Rosy was studying at the time of adoption. She denied that she had never adopted deceased Rosy and the whole story regarding adoption is false.
12 Plaintiff also examined her sister Gurbachan Sehgal as PW3 who reiterated the version of PW1 in her examination in chief. During crossexamination, PW3 stated that adoption of Rosy did not take place in her presence. She volunteered that plaintiff told her that adoption took place in the year 1993. She does not know whether any adoption deed was prepared.
13 Plaintiff also examined her husband Sh. Anil Sharma as PW5 who also reiterated the same version in his examination in chief. During crossexamination, PW5 stated that adoption referred by him has taken place in 1993. No adoption deed was written. He volunteered that it was published in a Newspaper. 14 An examination of the pleadings and evidence led on record shows that plaintiff has put forth a plea that she is the adoptive mother of Late Smt. Rosy. The onus to prove the above is thus upon the plaintiff. However, she has failed to place any material on record Suit no. 88/06 Page 8/25 on the basis of which it can be said that any such adoption has taken place. She has also failed to narrate as to which ceremonies were performed at that time. PW5 has stated that factum of adoption was got published in a Newspaper but no such Newspaper has been placed on record.
15 Section 5 of Hindu Adoption and Maintenance Act, 1956, provides that No adoption shall be made after the commencement of the Act except in accordance with the provision contained in chapter. Section 6 of the Act provides essential condition of a valid adoption. Section 8 speaks about the capacity of a female Hindu to take in adoption , it reads as under: Capacity of a female Hindu to take in adoption Any female Hindu
(a) who is of sound mind,
(b) who is not a minor, and (C) who is not married, of if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption. Suit no. 88/06 Page 9/25 16 As per Section 8, it is competent to a female Hindu who is of sound mind and has completed the age of 18 years to take a son or a daughter in adoption in her own right provided she is not married. Thus, it follows from the perusal of Section 8 that a Hindu wife can not adopt a son or daughter to herself even with the consent of her husband because this section expressly provides for cases in which she can adopt a son or daughter to herself.
17 In the instant case, although plaintiff has failed to produce any material which can show that she had adopted Rosy even otherwise if she had been able to prove such adoption, it would have been void as per Section 5 of the Hindu Adoption and Maintenance Act 1956 because a Hindu wife does not have capacity to adopt a child during the lifetime of her husband as per Section 8 of the Act. The plaintiff has thus failed to prove that she is the adoptive mother of Late Smt. Rosy.
18 Plaintiff has further taken a plea that she spent a huge amount on the occasion of Rokka and Shagun ceremony of Smt. Rosy. She also spent Rs. 4,64,700/ on her wedding as per the desire of the defendants. Even after the marriage, on all the festivals, plaintiff had spent huge amount to buy peace for Smt. Rosy who was treated with cruelty in connection with demand of dowry by the defendants. Suit no. 88/06 Page 10/25 19 The defendants controverted the above plea and pleaded that the marriage was performed in a simple manner and only ceremonial gifts were exchanged between the parties and they never raised any demand of dowery nor treated the deceased with cruelty at any point of time.
20 In order to prove her case plaintiff examined herself as PW1. During crossexamination, PW1 stated that there was no demand of dowry till the Rokka ceremoney. Prior to Shagun, defendants had told that what was to be given to what relative and no other dowry demand was made till then. She denied that Rs. 9050/ was not given at the time of Rokka ceremony. She also denied that Rs. 70,500/ was not given at the time of Ring ceremony. She also denied that Rs. 1,92,614/ or any such amount was not spent at the time of Shagun. PW1 deposed that She does not remember the exact cash given in the Shagun ceremony, probably it was Rs. 3100/ A gold ring and clothes were given to the father of Ashish but she does not remember the cash amount given to him. She further stated that Rs. 10,000/ lumpsum was given to their relatives. One gold chain was given for each brothers in law of defendant no. 1 and gold ear rings to his sisters. She further stated that except gold items and furniture, other items were given by them out of their free will and joy. On the occasion of Marriage, they gave two gold sets to Rosy, four bangles and two kadas. She admitted that whatever jewellery and other items were Suit no. 88/06 Page 11/25 given by them to Rosy at the time of her marriage were out of their freewill and without demand. She does not remember what items were purchased before and after Rokka ceremony. She does not know the name of the persons who had written the receipt of purchases made by them. She denied that the receipt are forged. She also denied that Ex. PW1/1, 2, 3, 7, 8, 9, 11 to 14 are forged documents. She admitted that no list of dowry items was prepared at the time or after the marriage and signatures of any person from defendant side were not taken for receiving the goods. She stated that none of the gold items were given to Smt. Rosy remained with her. same were with her mother in law. She denied that all the gold articles found on the body of Smt. Rosy were taken by her. She stated that those articles were given to defendant side. She denied that she did not give any items except usual sweets on the occasion of Dewali and other festivals. 21 Plaintiff also examined her sister Smt. Gurbachan Sehgal as PW3. During crossexamination, PW3 deposed that there was no dowry demand till Ring ceremony. She does not remember how much prior to the marriage, she purchased jewellery items. She does not know the name of persons who signed the receipt filed by her for selling the jewellery items. She denied that she did not purchased any item for or in connection with the marriage of Rosy and receipt Ex. PW3/1 to 5 are forged. She further stated that no demand was made in her immediate presence. She volunteered that Rosy used to tell her Suit no. 88/06 Page 12/25 such demands.
22 Plaintiff also examined her husband, Sh. Anil Sharma as PW5. During crossexamination, PW5 stated that he does not remember now the date of Rokka ceremony of Rosy. Shagun was given at about 23 days prior to marriage. At the time of Shagun ceremony one double bed, one T.V, one dressing table, bedding were given. Furniture was sent prior to the marriage. The jewellery was given at the time of marriage. About jewellery given at the time of Shagun his wife knows. He does not remember about the detail. He denied that Shagun and marriage ceremony were simple and no jewellery was given. The payment to Mehta Tent House was given by his wife in his presence. It was an amount of Rs. 80,000/, some amount was given to him in advance. He does not remember what amount was given to him in advance. He does not remember what amount was paid by his wife to Mehta Tent House in his presence. He does not remember the jewellery items given on the occasion of marriage. He further stated that he does not remember the articles given on the occasion of Karva Chauth and Diwali. He volunteered that they had maintained a diary whenever they went to the house of the defendant and whatever they had given, they noted in that diary. He further stated that they have not filed that diary as same is their personal diary. He also does not remember the articles given on the occasion of Lohri, Diwali and marriage anniversay. He denied that all Suit no. 88/06 Page 13/25 the list referred in his affidavit are forged, false and fabricated. He stated that none of the list is bearing signature either of defendant no. 1or his parents. He denied that marriage was very simple. He further denied that there was no dowry or cash etc. was given. 23 In order to answer the claim of the plaintiff, defendant no:
1 examined himself as DW1. During crossexamination, DW1 admitted that his marriage was solemnized by the plaintiff and her husband. He further stated that Roka ceremony was performed at his residence. The Chunni / Shagun ceremony was held on 12.04.2003 at Krishna Sagar Banquet Ghaziabad. The Ring ceremony was also performed at Banquet Hall in Delhi. It was attended by 60 persons out of which 2025 persons were from their side. On 12.04.2003 approximately 110 guests were present out of which 5060 guests were from their side. The expense of Shagun was bear by his father. He does not have any idea that what amount was spent by his father on the Shagan ceremony. In Shagan ceremony one T.V , one wrist watch, Rs. 1100 cash was given to him, Rs. 500 cash each to his grand mother, father, mother, sisters and brother in laws, One shawl to his mother , 10 sweets boxes, his cloths (suit length), pant shirt for his father and brother in laws, one saree each for his sisters and mother were given from the side of the plaintiff. He denied that a gold chain, silver thali, gold pendant set to his mother, gold tops to his sisters, and the suit to his grand mother were also given at the time of Shagan. He Suit no. 88/06 Page 14/25 denied that 31 sweet boxed, fruits and 5 dry fruits boxes were also given. He further stated that double bed, almirah, dressing table with stool were received by them on the day of marriage. The ring ceremony was attended by his two mama, one mausi, two chacha alongwith their family members and one Bua attended . The lunch was hosted by the plaintiff in a Banquet hall where rings were exchanged.
The Milnies were given to mamas, mamis, bua, chacha, chachi and his parents. He can not say what amount was given to the relatives but he knows that Rs. 500/ each were given to his parents. Rs. 1100 / were given to him at the time of ring ceremony by the plaintiff. He denied that Milni of Rs. 3100/ each were given to his parents. One gold set which was given by them and a gold set given by the plaintiff side was worn by Rosy at the time of marriage. Two gold bangles and gold ring were also worn by Rosy. On the Chunni ceremony they had given a gold set, gold chain, and Rs. 1100 with 1011 sweets boxes. one diamond Mangal Sutra was given by them to Rosy in marriage. 24 A careful examination of the pleadings and the evidence led on record shows that there are material contradiction in the pleading and evidence of the plaintiff. In the plaint, plaintiff has mentioned that she has incurred expenses on various occasions, however, during crossexamination, PW1 stated that she does not remember the exact amount given by her. She further stated that probably an amount Rs. 3100 / was given to defendant no:1 in Lagan, Suit no. 88/06 Page 15/25 whereas in the list of shagan Ex.PW1/3, it is mentioned that a sum of Rs. 21000/ was given to defendant no. 1. It is the admitted case of the plaintiff that no list of articles was prepared at the time of marriage or subsequently 25 The plaintiff examined her husband Sh. Anil Sharma as PW5 who during crossexamination stated that they have maintained a diary whenever they went to the house of the defendant and whatever they had given, same was noted in that diary. However plaintiff has not produced the said diary on record for the reason best known to her. The said diary was a very vital peace of evidence which could have substantiated the entries made in the lists however plaintiff has withheld the said vital peace of evidence for the reason best known to her. Due to the nonproduction of said diary, the above lists Ex PW1/1, 2, 3, 7, 8, 9, 11 to 14 remained unproved.
Defendant no. 1 in his examination in chief has stated that Rs. 1100/ cash was given to him in Shagun ceremony . He further stated that no cash amount was given to him on Ring Ceremony. He also stated that on Karva Chauth Rs. 500/ cash, one saree and suit for Rosy and one pant shirt for him was given by the plaintiff. On Diwali 34 sweet boxes, suit for Rosy, pant shirt for him, pant shirt for his father, saree for his mother and Rs. 500/ was sent through someone. He further stated that on Lohri Rewari, popcorn, peanuts and Rs. 500/ was sent by plaintiff to his residence through someone and Suit no. 88/06 Page 16/25 nothing was sent on his marriage anniversary. Dw1 has been thoroughly cross examined by the plaintiff however she has not disputed the above testimony of DW1. No suggestion whatsoever has been given to DW1 by the plaintiff in this regard nor his attention has been drawn by the plaintiff to the amount mentioned in the above list. The testimony of DW1 with respect to the above facts thus remained unchallenged and uncontroverted.
26 It is well settled law that when a witness deposes a fact and no suggestion is given to such witness contrary to that . The person against whom such deposition is given deemed to have admitted the said fact. The plaintiff has not disputed the fact of amount and gift exchanged by her on various occasions. Thus deemed to have admitted the facts so deposed by Dw1. consequenltely the plea of the plaintiff that she spent huge amount from Rokka ceremony onwards and presented the cash and gifts as detailed in lists Ex. PW1/1, 2, 3, 7, 8, 9, 11, 12, 13, 14 remained unsubstantiated and unproved.
27 Plaintiff has also placed on record various receipt Ex. PW1/4 to 6. During crossexamination, she showed her inability to tell as to who signed those receipts. Defendant given a suggestion that same are forged which was denied by the plaintiff . PW3 has also placed on record certain receipts. Perusal of the receipt Ex. PW3/3 to 5 shows that those articles were purchased on 07.10.2001, 07.10.2000 Suit no. 88/06 Page 17/25 and 08.11.2000 whereas the marriage of Smt. Rosy was preformed on 14.04.2003. PW3 has failed to connect the above articles purchased by her from the articles presented to Smt Rosy during her marriage. PW3 has also placed receipt dated 13.01.2003 Ex. PW3/1 and 2. Defendant gave similar suggestion to PW3 which she also denied. However, in order to prove above receipt, it was incumbent for the plaintiff to summon the person from whom those articles were purchased, who could have proved those receipts by producing the relevant record of such purchases but plaintiff has not examined the shopkeeper who could have proved that those articles were purchased against those receipts. However, plaintiff has not examined the shopkeeper from where these articles were purchased. Therefore the receipt Ex. PW1/4 to Ex. PW1/6 and Ex. PW3/1 to Ex. PW3/5 have not been proved in accordance with law.
28 Admittedly plaintiff had presented some ceremonial gifts and cash to the defendants and their relatives during the marriage however those were given without any specific demand. In cross examination, plaintiff has admitted that those gifts were exchanged out of her own freewill and there was no demand for those gifts. Some gifts in cash or in kind are customarily given in certain communities as well as in certain families. Gifts which are customarily given at the time of Engagement, Tilak or marriage must, therefore, be regarded as gifts according to customs prevalent in the concerned communities or Suit no. 88/06 Page 18/25 families for the purpose of creating human relationships with the members of that family. These gifts can not be regarded as istridhan of late Smt Rosy, nor they can be regarded as dowries. These gifts were not intended to be the consideration for marriage.
The Hon'ble Supreme Court In "Arun Garg V/S State Of Punjab" reported as 2004{4} {criminal} 531, has held that "the complainant could not have filed a civil suit for recovery of the dowry amount ,if any, as the payment itself was illegal and prohibited under law".
Therefore the amount spent by the plaintiff in presenting gifts and cash to the defendants before the marriage, at the time of marriage and after the marriage can not be recovered because under Dowry Prohibition Act not only demand of dowry is prohibited but giving of dowry in the marriage is also prohibited and same is against the public policy.
29 Defendant no. 1 during cross examination has admitted that he has two gold sets including ear tops, diamond Mangal Sutra, one double bed, one dressing table, Samsung T.V, Almirah with him. These articles were given to Late Smt. Rosy at the time of her marriage therefore these articles were her Istridhan. It was her absolute property with the right to dispose off the same.
Suit no. 88/06 Page 19/25 30 The said property is her absolute property which would be devolved upon her Legal Heir after her death as per Section 15 of Hindu Succession Act which reads as under:
Section 15 General rules of succession in the case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father:
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in subsection (1)
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection(1) in the order specified therein, but upon the heirs of the father;
and
(b) any property inherited by a female Hindu from her husband or from her fatherinlaw shall devolve, in the absence of any son or daughter of the decease (including the children of any Suit no. 88/06 Page 20/25 predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband.
31 On a plea regarding of Section 15, it is clear that the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughter (including the children of any predeceased son or daughter) and the husband. Any other interpretation, in my considered opinion would not be in consonance with the statute and would amount to violating the words of the statute which is not legally permissible.
32 Ld. Counsel for the plaintiff would argue that plaintiff is the Legal Heir of Late Smt. Rosy as defendant no. 1 can not be termed as legal heir of deceased Rosy because he has incurred a disqualification being an accused of committing dowry death of deceased Smt. Rosy.
On the other hand, Ld. Counsel for the defendant would argue that Section 25 of the Hindu Succession Act only debars a person who is accused of murder or who abets murder only and there was no charge of murder upon the defendant, thus Section 25 has no application. He further contended that defendants have been acquitted by the criminal court of charges levelled against them. Suit no. 88/06 Page 21/25 33 Section 25 of the Hindu Succession Act reads as under:
Section 25Murderer disqualified A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
34 A perusal of Section 25 shows that a heir who is an accused of murder or abets murder is disqualified from inheriting any property of the deceased. In the instant case Smt. Rosy expired in unnatural circumstances and an FIR was registered against defendant no. 1 under Section 498A/ 304B / 120B IPC. During the pendency of the suit, defendants has been acquitted by the Court of Sh J.R.Aryan Ld Additional Session judge Delhi vide judgement dated 18052010. The question which requires consideration at this juncture is whether the disqualification incurred by defendant no: 1 still operational after his acquittal by the competent criminal court? The said is question has been answered by the Hon'ble Delhi High Court in Chaman Lal Vs. Mohan Lal reported as AIR 1977 Delhi 97. In this case Hon'ble High Court has held that "Section 25 provides that if a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property in furtherance of the succession to which he or she committed or abetted the commission of the murder. In the present case widow had been acquitted of the charge Suit no. 88/06 Page 22/25 of murder of her husband and acquittal was final for the purpose of Succession Act. It was not the scheme of the Succession Act that Civil Court should again examine the charge of murder and hold an enquiry or trial independently after the acquittal from the criminal court. There was no other restriction on the heir once he or she was entitled to succeed under Section 8".
35 Defendant no. 1 is the husband of deceased Rosy. No doubt that he had incurred a disqualification under section 25 of Hindu Succession Act 1956 as he was made accused of committing dowry death of Smt Rosy. However duirng the pendency of the suit defendant no:1 has been acquitted from the said charge by a competent criminal court vide judgement dated 18.05.2010, the disqualification incurred by defendant no.1 being an accused of commission of an offence under section 304B IPC, has now been removed after his acquittal by a competent criminal court. Therefore defendant no. 1 is competent heir of deceased Smt. Rosy under section 15 of the Hindu Succession Act, therefore he is entitled to inherit the Istridhan left by her. In view of the above discussion, My issue wise findings is as under: Issue No. 1 Whether the suit is without any cause of action? OPD Suit no. 88/06 Page 23/25 36 The onus to prove this issue is upon the defendants. The plaintiff has successfully proved on record that at the time of filing of the suit she was one of the legal heir of deceased / Smt. Rosy, as defendant no. 1 was disqualified being her heir under Section 25 of Hindu Succession Act, 1956. Therefore, the plaintiff has cause of action for filing the present suit. The defendant has failed to discharge the onus of issue no. 1, same is accordingly decided against the defendant.
Issue No. 2 Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP 37 The onus to prove this issue is upon the plaintiff. Defendant no. 1 is the husband of deceased Smt. Rosy admittedly he had incurred disqualification of being heir of deceased Smt. Rosy at the time of filing of the present suit. But during the pendency of the present suit, defendants have been acquitted by the competent criminal court vide judgment dated 18.05.2010. Therefore, the disqualification incurred by defendant no. 1 as provided under Section 25 of the Hindu Succession Act has been removed during the pendency of the suit. Defendant no. 1 being the legal heir of the deceased Smt. Rosy as per Section 15 of Hindu Succession Act therefore the Istridhan property left by Smt. Rosy devolved upon defendant no. 1 only and not upon the plaintiff. The plaintiff is thus not entitled for the decree of Suit no. 88/06 Page 24/25 mandatory injunction as prayed for. The plaintiff has failed to discharge the onus of issue no. 2, same is accordingly decided against the plaintiff.
Issue No. 3 Whether the plaintiff is entitled to a decree of Rs. 10 lacs? OPP 38 The onus to prove this issue is upon the plaintiff. However, she has failed to prove on record that she had given dowry to the defendants to the tune of Rs. 10 lacs. Moreover, giving dowry is also prohibited under Dowry Prohibition Act and same can not be recovered as held by Hon'ble Supreme Court in "Arun Garg Vs. State of Punjab (Supra)". The plaintiff has thus failed to discharge the onus of issue no. 3, same is accordingly decided against the plaintiff.
Relief 39 In view of my findings on issue no. 2 & 3, the suit filed by the plaintiff is dismissed. Both the parties shall bear their cost respectively. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
25th April , 2011 Additional District Judge
Delhi
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