MARY Vs. CHERCHI

JUDGEMENT

(1.) The plaintiff is the appellant: The facts leading to this appeal are the following: The second defendant is her husband. Their marriage took place on 29-1-1963. Previous to that on 10-1-1963 there was a marriage engagement and at that time the plaintiff's father entrusted to Lazar, the second defendant's father, Rs.6,001/- as Sreedhanam amount for plaintiff's benefit. Out of that a sum of Rs. 2, 226/- had been utilised for making ornaments to the plaintiff. The plaintiff's case is the balance sum of Rs. 3,775/- was agreed to be paid to her on demand after three years and this promise was made by the second defendant's father on 8-2-1963. Though the plaintiff asked for the payment of the amount the second defendant's father promised to pay the same without delay. But he could not fulfil the promise as he died on 17-9-1966. Thereafter there was a karar entered into between the children of this Lazar regarding the partition of his assets and liabilities. This sum of Rs. 3,775/- was specifically mentioned as an item to be paid to her. But even thereafter the amount was not paid and alleging these the plaintiff filed the suit in 1968 for recovery of this amount with interest. The brothers of the second defendant, namely, defendants 1,3, 4 and 5 denied the entrustment and the promise said to have been made by Lazar on 8-2-1963. They alleged that mention in the karar dated 30-4-1967 of this sum of Rs. 3,775/- was as a result of fraud, misrepresentation and coercion on the part of the second defendant. Further the plaintiff is not a party to the karar and all the executants have withdrawn from the provisions of the karar and hence the plaintiff is not entitled to rely on the same. The payment and receipt of Streedhanam are prohibited under law and hence even if any amount is paid as Streedhanam the plaintiff is not entitled to recover the same. In any event it was contended that the suit is barred by limitation. The Trial Court decreed the suit. On appeal the lower court has dismissed the suit and hence this Second Appeal.

(2.) When the Second Appeal came up for hearing before a learned Single Judge the correctness of the decision in Thoma v. Sarakutty ( 1975 KLT 386 ) was questioned and hence this was adjourned for hearing by a Division Bench That is how this case is being considered by us.

(3.) Though the contesting defendants denied that any amount was paid as Streedhanam to the plaintiff at the time of her marriage, the concurrent finding entered into by the two courts that Rs. 6,001/- was entrusted to Lazar and that out of that only a sum of Rs. 2,226/- had been utilised for the plaintiff's benefit is justified by the evidence in this case. The karar that was entered into by the children of Lazar after his death is marked Ext. A5. Though the contesting respondents dispute its validity there is no evidence to prove that the case was entered into as a result of any fraud or misrepresentation. Ext. A5 clearly mentions that a sum of Rs. 3,775/- being the balance of Streedhanam amount has to be returned to the plaintiff. This is treated as a liability to be discharged from the assets of the deceased Lazar. This clearly proves the plaintiff's case that Rs. 3,775/- is the balance of the Streedhanam amount to be accounted for from the estate of the deceased Lazar.