KAMINI SAHUANI v. PURNA CHANDRA SAHOO — 1986 DIGILAW 294 (ORI)

P. C. MISRA, J. ( 1 ) THE plaintiff in Money Suit No. 139 of 1971 of the Court of Subordinate Judge, Berhampur is the appellant challenging the legality of the judgement and decree passed in the said suit. ( 2 ) THE suit was for recovery of articles or in the alternative the price thereof amounting to Rs. 16,440. 05 paise with future interest. Admittedly the plaintiff is the legally married wife of defendant No. 1. Defendant No. 2 is the father, defendant No. 3 is the mother and defendant No. 4 is the brother of defendant No. 1. The plaintiff's case is that, she married defendant No. 1 about two years prior to the date of the suit as per their caste custom and she was presented with various articles including gold and silver ornaments, partly worn on her person and partly kept in her hand box which were taken with her when she was sent to the house of defendant No. 1. All these articles, which were taken by her as dowry, the details of which have been given in schedule 'a' of the plaint, were kept in the house and custody of defendant No. 1. ( 3 ) ACCORDING to the plaintiff the defendants were not satisfied with the extent of dowry taken by her and began ill-treating her in several ways in order to extract more dowry. The plaintiff alleges that her life became miserable and the situation deteriorated gradually. Her living there became unsafe and her father was intimated about this. The father of the plaintiff then approached defendants 1 and 2 to send the plaintiff to his house. They agreed on condition that the plaintiff would give in writing that the marriage stood dissolved and she would not return to the house of the defendants thereafter and the defendants 1 and 2 would be paid a sum of Rs. 20,000/- by the plaintiffs father which they had spent for the marriage of the defendant No. 1. It was not possible to agree with the aforesaid conditions and consequently the plaintiff had to continue in the house of the defendants as before. 20,000/- by the plaintiffs father which they had spent for the marriage of the defendant No. 1. It was not possible to agree with the aforesaid conditions and consequently the plaintiff had to continue in the house of the defendants as before. She has further alleged that even though she was doing all that was possible to be done to please her husband and defendant No. 2 with the hope that their attitude towards her would change in course of time, she was ultimately disappointed. During the night of 7-8-1970 the defendants assaulted the plaintiff by slaps, lathis and by touching her person with hot iron rods and drove her out of the house. She was made to sit outside the house in a pitiable condition. On being informed, the plaintiffs brother came, with whom the plaintiff left for her father's house where she was treated and cured. This incident was reported at the Police station on 8-8-1970 and the father of the plaintiff had also sent a registered notice to defendants 1 and 2 on 15-8-1970. Defendant No. 2 gave a reply to the aforesaid notice on 20-8-70 making all sorts of false allegations. They also instituted a complaint case against the plaintiff and her brother alleging that they had stolen some properties from the house of defendants 1 and 2. It has also been mentioned in the plaint that the plaintiff has started a proceeding for maintenance in the Court of Sub-divisional Magistrate, Berhampur against the defendants. ( 4 ) ACCORDING to the plaintiff the properties described in schedule A of the plaint are her personal belongings and the defendants have no manner of right to retain the same. As they did not return the said articles to the plaintiff in spite of repeated demands the suit had been filed for the reliefs indicated above. It had been prayed that the defendants were jointly and severally liable to return the articles or pay the price thereof. ( 5 ) THE defendant No. 1 filed a written statement denying the plaint allegations. According to him the plaintiff's father instigated the plaintiff to pursue defendant No. 1 to get separated from his parents and brothers with the evil desire to get into the management of the properties of defendant No. 1. ( 5 ) THE defendant No. 1 filed a written statement denying the plaint allegations. According to him the plaintiff's father instigated the plaintiff to pursue defendant No. 1 to get separated from his parents and brothers with the evil desire to get into the management of the properties of defendant No. 1. The defendant No. 1 did not listen to the persuasion of the plaintiff at which she felt insulted and made false communication to her father. She was advised by her father to create all sorts of trouble in the house of defendant No. 1 and suddenly left the house for living with her brother with golden ornaments and other valuables of the defendant's house. It was claimed that while leaving the defendant's house she has taken away 12 tolas of golden ornaments which she had brought from her father, 18 tolas of golden ornaments which were given to her by defendant No. 2 during marriage ceremony and various other valuable ornaments of defendant No. 1's mother and sister. The defendants after coming to know about all the alleged theft demanded for return of the golden ornaments which the plaintiff had taken away unauthorisedly and ultimately informed the police about the same. It is next contended that the police did not take any action being influenced by the plaintiff's father whereafter the private complaint case was started. As regards the other dowry articles brought by the plaintiff it has been stated in the written statement that the same may at best be worth Rs. 3000/- and the plaintiff's claim is false and exaggerated. According to the defendant No. 1 the plaintiff had brought some brass bell metal and aluminium utensils in a closed box the key of which is still with the plaintiff and the details of the contents of the box are still unknown to the defendants. He specifically denies that the plaintiff did not bring any steel articles or golden ornaments as given in the plaint schedule. It is lastly contended that the suit is misconceived as the articles mentioned in the plaint were joint properties of both the plaintiff and the defendant No. 1 and the plaintiffs suit for return of those articles is untenable. He specifically denies that the plaintiff did not bring any steel articles or golden ornaments as given in the plaint schedule. It is lastly contended that the suit is misconceived as the articles mentioned in the plaint were joint properties of both the plaintiff and the defendant No. 1 and the plaintiffs suit for return of those articles is untenable. ( 6 ) THE learned Subordinate Judge after framing all the necessary issues and receiving evidence adduced by both parties decreed the suit in part directing the defendants to return the plaintiff's wearing garments failing which the plaintiff shall recover a sum of Rs. 972. 25 paise from them. So far as the other articles are concerned the learned Subordinate Judge held that the other articles excepting the golden ornaments were either given to defendant No. 1 as a marriage presentation or were given to both the plaintiff and defendant No. 1 for joint use for which the plaintiff would not be entitled to a decree. The Subordinate Judge though found that the plaintiff had taken with her golden ornaments weighing at least 12 tolas and the silver ornaments as disclosed in the plaint, he refused to pass a decree for return of gold articles holding that the plaintiff has failed to prove satisfactorily that her ornaments were kept back before she left her husband's house. ( 7 ) IN this appeal the appellant challenges all the findings of the trial Court recorded against her and claims that on the evidence on record she is entitled to a full decree of her suit. ( 8 ) IN the schedule of properties given in the plaint several wearing apparels have been described under the heading 'clothes'. Some of those from their very nature, can be said to be the presentation offered to defendant No. 1 alone. The rest of the clothes are the wearing apparels of ladies the valuation of which has been fixed at Rs. 972. 25 by the learned Subordinate Judge, who has passed the decree for its return. In the circumstances the learned counsel for the appellant did not press his claim for those articles, which from their very nature can be said to be meant for defendant No. 1 and not for the plaintiff. 972. 25 by the learned Subordinate Judge, who has passed the decree for its return. In the circumstances the learned counsel for the appellant did not press his claim for those articles, which from their very nature can be said to be meant for defendant No. 1 and not for the plaintiff. He also did not seriously press for the articles mentioned under the heading 'other articles' which includes some exclusively usable by defendant No. 1 such as Raleigh Cycle, Bata shoe, wrist watch etc. Having gone through the evidence of the witnesses examined by both parties we find it difficult to come to a conclusion that the plaintiff had taken with her all those articles mentioned in different items in the plaint schedule. The evidence adduced on behalf of the plaintiff is discrepant and of a general character. Except that some of the articles mentioned in the schedule are commonly given to the bride during the marriage, there is practically no evidence on record to prove that those articles were actually given to her or the valuation thereof. In the absence of categorical evidence it is not possible to hold that the plaintiff had been presented with the plaint schedule articles during her marriage and in that view of the matter it would be improper to decree the plaintiff's case merely on the presumption that some articles of the nature as mentioned in the plaint must have been given as customary in marriages in the society to which the parties belong. ( 9 ) THE learned counsel for the plaintiff mainly concentrated on the gold ornaments the value of which comes to almost 50 per cent of the claim in the suit. According to him several witnesses examined on behalf of the plaintiff have categorically stated about the individual items of gold ornaments that were given to the plaintiff and that she had carried those ornaments to her husband's house. Those witnesses are P. Ws. 1, 6, 7 and 10 whose evidence has been placed in extenso during the course of argument. The learned trial Court has discussed the evidence of these witnesses in the impugned judgement and found that there are serious discrepancies between the case made out in the plaint and the evidence adduced on behalf of the plaintiff for which he did not place any reliance on the said evidence. The learned trial Court has discussed the evidence of these witnesses in the impugned judgement and found that there are serious discrepancies between the case made out in the plaint and the evidence adduced on behalf of the plaintiff for which he did not place any reliance on the said evidence. He further came to a conclusion that the plaintiff had taken at least 12 tolas of golden ornaments from her father's place. After careful consideration of the evidence on record, we find no justification to deviate from the said finding. The aforesaid finding gains some support from the admission of defendant No. 1 in para-9 of the written statement where it has been stated that the plaintiff had brought 12 tolas of gold ornaments which she was wearing. The learned Court below refused to pass a decree for return of golden ornaments worth 12 tolas on the ground that it was difficult to accept the plaintiff's story that her ornaments were taken away from her person in the night of 7-8-1970. ( 10 ) TAKING into consideration the broad probabilities and analysing all the evidence adduced in this case we feel that the learned Subordinate Judge is not justified in his aforesaid conclusion. It is the plaintiff's case that she was ill-treated and driven out of the house of her husband. Even though the story of ill-treatment and torture to the plaintiff has been disputed by the defendants, their story that the plaintiff took away all her belongings and the ornaments while leaving her husband's place is not supported by any evidence. It is futile to expect the plaintiff to prove her story by independent evidence that the members of the family of the defendants. Admittedly, it is not a case where the plaintiff came to her father's house and stayed there without returning to her husband's house. The plaintiff's leaving the husband's house, as is apparent from the evidence adduced, was in an unpleasant situation and it cannot be believed that under the circumstances, the defendants allowed her to take away all the ornaments she had brought with her as well as the ornaments that were presented to her by defendant No. 2. The plaintiff's leaving the husband's house, as is apparent from the evidence adduced, was in an unpleasant situation and it cannot be believed that under the circumstances, the defendants allowed her to take away all the ornaments she had brought with her as well as the ornaments that were presented to her by defendant No. 2. The facts and circumstances and the broad probabilities of the case lead us to believe that the plaintiff was not allowed to take back her gold ornaments which she had brought as dowry to the house of the defendants. ( 11 ) WE have already found that the plaintiff had taken with her the gold ornaments weighing at least 12 tolas which fact has been admitted in the written statement. In the plaint the weight of the individual golden ornament has not been given. But the total valuation thereof has been given as Rs. 8066/ -. Though the plaintiff and some other witnesses examined on her behalf stated that the plaintiff was given golden ornaments weighing about 25 to 26 tolas, P. W. 6, who claims to have supplied the ornaments from his workshop states that old golden ornaments weighing 19 to 20 tolas were given to him by the plaintiff's brother for preparing new ornaments meant to be given to the plaintiff. The valuation of all the golden ornaments in the plaint excluding that of the value of the silver ornaments comes to about Rs. 8000/-, taking the total weight of the golden ornaments to be 12 tolas as found by the learned trial Court. and admitted in the written statement. Calculating the value of the gold at the rate of Rs. 400/- per tola, the total value of 12 tolas of golden ornaments comes to Rs. 4800/- which the plaintiff is entitled to recover from the defendants. ( 12 ) IN the circumstances we would allow the appeal in part directing that the plaintiff would recover a sum of Rs. 4,800/- towards the value of the golden ornaments besides rs. 972. 25 P. which has already been decreed by the Court below from the defendants. ( 13 ) BOTH parties shall bear their respective costs in this appeal. ( 14 ) B. K. BEHERA, J. :- I agree. Order accordingly. .