MAHMAD USAF ABASBHAI BIDIWALE Vs. HURBANU MANSUR ATAR

JUDGEMENT

(1.) PLAINTIFFS Nos. 1 and 2 who are the grand -daughter and grand -father respectively had filed Regular Civil Suit No. 227 of 1966, in the Court of Civil Judge, Junior Division, Karad, against defendants Nos. 1 and 2 who are son and father respectively for recovering a sum of Rs. 1,295 being the value of various articles given to defendant No. 1 in his marriage with plaintiff No. 1. According to the plaintiffs, the marriage between plaintiff No. 1 and defendant No. 1 was performed on December 5, 1965. Before the marriage, there was an agreement entered into between plaintiff No. 1 and defendant No. 2 on December 25, 1964 and by virtue of the said agreement, it was agreed that the plaintiffs would give defendant No -. 1 certain articles such as golden ring, utensils, etc. in consideration of the defendant No. 1 marrying plaintiff No. 1. Plaintiff No. 1 and defendant No. 1 lived as husband and wife till August 9, 1966, on which date defendant No. 1 pronounced talaq. According to the plaintiffs, plaintiff No. 1 was not at all at fault and the marriage was terminated by defendant No. 1 Unilaterally. Plaintiff No. 1 was ready and willing to live with defendant No. 1 as his wife. The plaintiffs, therefore, claimed that the articles which were given to defendant No. 1 in consideration of the said marriage were liable to be returned by defendant No. 1, and hence they served a notice on September 19, 1966, on the defendants asking them to return the said articles. The defendants having failed to comply with the said notice, the present suit was filed.

(2.) BY their written -statement, the defendants denied that defendant No. 1 had given divorce to plaintiff No. 1 without any cause. They further denied that the plaintiffs would be entitled to claim the return of the said articles. They also disputed the number as well as the nature of the articles alleged to have been given by the plaintiffs. In the alternative, they also contended that the articles were given as and by way of gifts or presents and hence the same were not liable to be returned. On these pleadings, the trial Court framed the necessary issues and came to the conclusion that the plaintiffs had proved that they had given defendant No. 1, at the time of the marriage, articles valued at Rs. 812.20. The Court also held that the said articles were given in consideration of the contract of marriage and not by way of gifts or presents. The Court further held that only defendant No. 1 was liable to return the said articles, and decreed the suit of the plaintiffs against defendant No. 1, to the extent of Rs. 812.20, holding that under Section 65 of the Contract Act, defendant No. 1 was liable to return the said articles or their value. The Court dismissed the plaintiffs' suit as against defendant No. 2. This decree dated April 2, 1968 was challenged by defendant No. 1 by Civil Appeal No. 161 of 1968 filed in the District Court, Satara. The learned Assistant Judge, Satara, who heard the said appeal, confirmed the findings given by the trial Court and dismissed the appeal by his order dated September 2, 1969. It is this order which is challenged in this second appeal.

(3.) MR . Rane, the learned counsel, appointed amicus curiae in, the absence of any appearance on behalf of the respondent -plaintiffs, submitted that under the Mahomedan law, marriage was a contract and the evidence on record showed that the articles in question were given to the appellant under the said contract. The appellant had rescinded the contract unilaterally, and therefore, in view of Section 64 of the Contract Act, he was liable to return the benefits, namely, the said articles; 'received under the said contract. He also submitted that the contract of marriage envisaged that the appellant and plaintiff No. 1 would remain united in the marital bond as husband and wife and the contract was not confined only to the act of undergoing a marriage -ceremony. Hence, the appellant had not fulfilled his part of the contract when he rescinded the same unilaterally. He further submitted that Section 64 of the Contract Act envisages the return of the benefits only by the person rescinding the contract and there was no obligation on the other side to return the benefits. In reply to the last contention advanced by Mr. Pratap, Mr. Rane submitted that whether the articles valued at Rs. 175 were also given along with those mentioned in the yadi, exh. 32, or not, is a pure question of fact and both the Courts having held that the said articles were also given along with others, this Court should not disturb the said finding of fact. In this connection, he also pointed out that before the appellate Court, the only contention which was raised was that the articles in question were given as a present or gift and not in consideration of marriage. There was no dispute raised with regard to the value of articles so given at the time of marriage.