GADAMSETTY NAMMALWAR CHETTI Vs. GADAMSETTY PERUNDEVI THAYARAMMAL

JUDGEMENT

(1.) In this case the plaintiff-respondent sue to recover certain jewels which, she alleges, are her striahanam. Her husband was ordered to pay a sum of Rs. 12,300 into Court by the 7th April, 1924. The order was passed on the 24 March. The payment was to be made in a suit in which the present appellants were the plaintiffs. After the date fixed for payment it appears that the plaintiff's husband arranged to sell the jewels now claimed by the plaintiff to the appellants in part satisfaction of the claim of Rs. 12,300 under the order. In accordance with the arrangement the plaintiff's husband put in an application to the Court to sanction this arrangement as there was a minor concerned and the arrangement amounted to a compromise between the parties in respect of this claim of Rs. 12,300. The appellants signified their agreement to this application when it was put into Court. The application was for leave to be granted to the 1 plaintiff to receive these jewels on behalf of his minor son in respect of this order of Rs. 12,300. An affidavit was filed at the same time which said that It had been agreed that in lieu of the said sum of Rs. 12,300 the undermentioned jewels should he handed over by the 1 defendant to the 1 plaintiff .... All the eight items have now been deposited with the mediator pending the order of this Hon ble Court granting leave to the 1 plaintiff to receive them.

(2.) Before the leave of the Court was obtained the present-plaintiff claimed these jewels as hers and they were also attached by a creditor. Accordingly orders were postponed and finally the application was withdrawn and dismissed on 24 July, 1924, with the plaintiffs , the present appellants , costs, by which date, the 2nd appellant had obtained majority. The appellants have relied at the trial on a provision of Hindu Law, that in times of necessity a husband is entitled to take his wife's property to relieve that necessity. It has been found by the learned Judge that that necessity did not exist but he has also found in his judgment-he does not base his decision on it-that the husband had not disposed of these jewels and as he died before the disposal the creditors cannot seize the jewels which . belonged to the plaintiff to pay his debts. This finding was not in accordance with the pleadings and apparently the attention of the parties had not been directed to it, but it having found a place in the judgment it was undoubtedly the duty of the appellants to meet this aspect of the case. They were not prepared to do so at the first hearing but were granted time and have now argued the case. In the first place they contend that the finding that the jewels were the stridhana of plaintiff is wrong. There is the evidence of the plaintiff and her relations coupled with entries in her husband's account book which go strongly to support the plaintiff's case. There is no evidence contra and I must therefore accept the learned Judge's finding that the jewels were plaintiff s.

(3.) The next question is whether the husband had disposed of these jewels before he died. He had deposited them with a mediator who was to hold them pending sanction of the Court being obtained. His possession therefore was clearly the possession of the person who would be entitled to these jewels subject to the Court's order. If the sanction had been given, his possession would have been that of the appellants. But in this case no sanction was given and therefore the property in the jewels did not pass to the appellants. There was an agreement by the deceased to sell the jewels but payment had not been made and the goods had not been delivered and therefore the property in them had not passed. It was then contended for appellants that this is not necessary but that according to the text the husband had a right to take his wife's stridhana and need not dispose of them. The text runs as follows: A husband is not liable to make good the property of his wife taken by him in a famine or for the performance of a duty or during illness or while under restraint.