KUNJU MOIDEEN Vs. SAYED MOHAMMED

JUDGEMENT

(1.) The plaintiff in O.S.208 of 1975 of the Munsiff's Court, Palai, is the appellant. Defendants 1 to 3 in the suit are the respondents. The plaintiff agreed to give his daughter in marriage to the second respondent He intended to purchase an item of his property in the name of his daughter and the 2nd respondent. A sum of Rs.3001/- was paid to the 3rd defendant through the 1st defendant. The marriage did not take place. The respondents did not return the amount of Rs.3001/-, which was obtained from the plaintiff. The suit was laid for the recovery of the said Rs.3001/-with interest from 14-2-1975 Respondents denied receipt of the amount It was also contended that the suit is not maintainable to recover the amount, since it was dowry coming within the purview of the Dowry Prohibition Act. The courts below concurrently found that respondents 1 and 2 received the amount The trial Court decreed the suit. In appeal the learned Subordinate Judge, Kottayam, found that the plaintiff paid the sum of Rs.3001/- to defendants 2 and 3 and the 1st defendant is not liable. Even so, the lower appellate Court held that the amount so paid satisfied the definition of dowry contained in the Dowry Prohibition Act. Relying on the decision reported in Thomas; v. Sarakutty, 1975 0 KerLT 386 it was held that the plaintiff cannot cover the amount. The plaintiff has come up in Second Appeal.

(2.) Questions A to G have been formulated in paragraph 14 of the appeal memorandum as substantial questions of law arising in the second appeal They are as follows :- "A) Whether an amount paid by a Mohammedan in connection with the marriage of his daughter to the prospective bridegroom for the purchase of a property in the joint names of his daughter and the would-be son-in-law, dowry as defined in the Dowry Prohibition Act 1961? B) When an amount is paid to the prospective son-in-law for purchase of a property in the joint names of one's own daughter and the prospective son-in-law and the marriage does not take place, is not the father of the girl entitled in law to recover the amount so paid? C) Where an amount is paid in connection with a proposed marriage but the marriage itself does not take place, can that amount be said to be 'dowry' within the meaning of the Dowry Prohibition Act, 1961. D) Is not a suit for recovery of a sum paid, even if it be dowry, maintainable when the proposed marriage in consideration of which it is paid, does not take place or is cancelled? E) Do the provisions of the Dowry Prohibition Act 1961 bar a suit for recovery of Dowry paid? F) Whether respondents 1 and 2 do not hold the amount as trustees liable to repay the same as such to the appellant in view of the trust having become incapable of being executed? G) On the facts and in the circumstances of the case, is not the appellant entitled to the decree prayed for?

(3.) Counsel for the appellant, Mr. Balasubramonyam contended that on a fair reading of the plaint, it is evident that the plaintiff paid the amount for purchase of property in the name of his daughter and the 3rd defendant. It will not be dowry within the definition of Dowry Prohibition Act. In the alternative, it was contended that even assuming that the amount paid will satisfy the definition of dowry contained in the Act, the suit to recover the amount paid is not barred. The lower appellate Court was in error in holding so.