In the Court of Sh. P.K. Matto, Additional District Judge
(EAST) Karkardooma Courts, Delhi.
Unique Case ID No.: 02402C0800462007
Date of Institution : 13.12.2007
Date of Reserving Judgment: 26.09.2013
Date on which judgment was pronounced: 07.10.2013
Smt Promila Kumari
w/o late Shri Veeresh Kumar
d/o Shri P L Jatav,
r/o D33A, Gali no.3,South Anarkali, Delhi 51….. Appellant/plaintiff
1. Veeresh Kumar (expired on 31.1.2013)
s/o Shri Puran Singh
2. Shri Vijay Singh
s/o Shri Puran Singh
3. Shri Puran Singh
s/o Shri Ghamandi Lal
4. Smt Anita
d/o Shri Puran Singh
5. Smt Kamlesh
d/o Shri Puran Singh
All r/o 54, Kundan Nagar, Laxmi Nagar,Delhi. ….Respondents/Defendants.
1. This is an appeal against the impugned judgment and decree passed by the ld. trial court on dated 31.10.2007, vide which, the suit of the plaintiff for delivery of stridhan property and alternative for recovery of Rs. 2,07,600/ has been dismissed.
2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff had filed a suit for delivery of stridhan property and alternative relief for the recovery of Rs. 2,07,600/ against the respondents/defendants stating therein that the appellant/plaintiff was married to the respondent no.1/defendant no.1(since deceased) on dated 15.5.1991, in accordance with Hindu rites and ceremonies and the respondent no.2/defendant no.2 is the brother of the respondent no.1/defendant no.1. Respondent no.3 is the father of the respondent no.1/defendant no.1. Respondent no.4 and 5 are the sisters of the respondent no.1/defendant no.1. The appellant/plaintiff has averred that her parents spent a huge amount of Rs. 1,50,000/ approximately on her marriage and gave dowry articles including, cash, jewellery, utensils, T.V., fridge and other misc. house hold items, which are mentioned in the list annexure A, which has been Ex.P1 and all the articles/items mentioned in the annexure A(Ex.P1), which are the stridhan of the plaintiff/appellant and she has exclusive right over the same and after her marriage, she had joined her matrimonial home and gave love and affection to the respondents and performed all her matrimonial duties and obligations expected from a Hindu wife. But, the respondents/defendants were not satisfied with the dowry items and they asked to the appellant/plaintiff to bring Rs. 3 lakhs in cash from her parents and the appellant/plaintiff was physically and mentally harassed and tortured to bring Rs. 3 lakhs in cash and she was unable to bear the cruelties and she lodged a complaint in the crime against women cell on dated 3.12.1992 and the respondents/defendants have returned some of the stridhan articles in the CAW cell, which are mentioned in the annexure B which have been mentioned in Ex.P2 and the respondents/defendants are still in possession of the stridhan articles, which have been mentioned in Ex.P3 and the same have not been returned despite of repeated requests and the worth of the remaining stridhan articles still under the possession of the respondents/defendants is Rs.2,06,500/ and the same have been misappropriated by the respondents/defendants. It is further averred that the appellant/plaintiff served a legal notice dated 20.8.1997 upon the respondents/defendants to return the remaining stridhan articles, but, they failed to return and prayed for directing the respondents/defendants to deliver the stridhan articles as mentioned in the AnnexureC(Ex.P3), to the plaintiff and also made an alternative prayer for passing a decree of Rs. 2,07,600/ of the value of stridhan in favour of the plaintiff/appellant and against the defendants/respondents alongwith interest @ 18% per annum till the realization of the decreetal amount.
3. Ld. Trial Court had issued the summons to the respondents/defendants and on completion of service, the respondents/defendants had filed joint written statement and raised preliminary objection stating that the suit of the plaintiff is not maintainable, as the plaintiff has already lodged a complaint u/s 406/498A IPC and the lists of the stridhan articles filed by the plaintiff are false and fabricated, as on 17.3.1993, the plaintiff had already received the entire jewelleries, clothes and other household items from the respondents/defendants. Replying to the suit on merit, the defendants have stated that at the time of marriage, the parents of the plaintiff had neither supplied to the defendants any list of items and the expenditure nor made the facts public at any time and they have denied the allegations of demand of dowry levelled against them. It is further stated that on the night of 18.12.1991, the plaintiff had taken away with her entire jewellaries and clothes to the house of her father, despite resistance and against the will of the defendant no.1 and further stated that remaining articles were returned on 17.3.1993 in the CAW cell. It is further stated that the plaintiff did not like to live in joint family being the daughter of an income tax officer and the plaintiff developed the habit of dictating terms to the defendants and misbehaving with them, despite of arrogant attitude of the plaintiff, the defendant no.1 made all efforts to have a cordial relation with her. It is further stated that the plaintiff left her matrimonial home in the night of 18.12.1991, however she returned with her own will, but, she again left the matrimonial home on 17.3.1993. It is further stated that she has already received the remaining articles in the CAW Cell. It is further stated that the family members of the plaintiff beat to the male members of the defendants family. It is further stated that after the marriage, the defendants had never demanded Rs. 3 lakhs from the plaintiff as alleged. It is further stated that the plaintiff lodged a complaint with the CAW Cell on 3.12.1992 and at the time of filing of the suit, she did not file any list of stridhan and the lists were prepared subsequently and further stated that this was done to cover up the fact that on 18.12.1991, the plaintiff had already taken away the jewellery, clothes and the household articles with her. It is further stated that the plaintiff had submitted a list of stridhan articles in the police station on 27.1.1993 and in her statement on 17.6.1993 before the police station Krishna Nagar, she had stated that she did not want any stridhan articles from the defendants and the list of dowry/stridhan articles filed by the plaintiff is false and fabricated and the defendants/respondents had further stated that the suit is filed by the plaintiff/appellant, to harass, insult and humiliate to the defendants/respondents and sought the dismissal of the suit of the plaintiff/appellant, being false and frivolous.
4. The plaintiff has filed the replication and denied the averments of the written statement of the defendants and reiterated and reaffirmed the contents of the plaint.
5. From the pleadings of the parties , the ld. trial court was pleased to frame the following issues:
(i) Whether the articles as mentioned in the annexure A annexed with the plaint were given at the time of marriage and constitute stridhan of the plaintiff?OPP.
(ii) Whether the same were entrusted to the defendants as mentioned in the plaint?OPP
(iii) Whether the articles/stridhan of the plaintiff were returned to the plaintiff in the dowry cell and the matter was settled/compromised?If so, its effect?OPD.
(iv) Whether the plaintiff is entitled to the dowry articles/stridhan or to alternate value of the same as claimed in annexure ”C”?OPP.
(v) Whether the plaintiff is entitled to any amount?If so, at what rate and to what extent?OPP.
(vi) Whether the plaintiff is entitled to any interest?If so at what rate, to what amount?OPP.
6. In order to prove her case the plaintiff has examined herself as PW1, her father as PW2 and her brother as PW3. Whereas, the defendants have examined defendant no.1 as DW1 and defendant no.3 as DW2.
7. The Ld. Trial Court vide it’s judgment dated 31.10.2007 had dismissed the suit of the plaintiff.
8. Feeling aggrieved with the impugned judgment and decree dated 31.10.2007 passed by Ld. Trial Court, the appellant has filed the present appeal.
9. The notices of the appeal were issued to the respondents and on the completion of the service, respondents have put their appearance through their counsel and contested the appeal.
10.The record of the trial court is also requisitioned.
11.I have heard Ld. Counsels for the parties and perused the record.
12.The ld. counsel for the appellant has submitted that the appellant and her witnesses PW2&3 have successfully proved on the record that the dowry articles of the appellant, as mentioned in the list Ex.P3 are misappropriated by the respondents. He has further submitted that the list of dowry articles has been proved on the record as Ex.P1 and some of the dowry articles were returned vide Ex.P2, whereas, the dowry articles, as mentioned in Ex.P3 have been misappropriated by the respondents, value of which is Rs.2,07,600/ and he has further submitted that the receipt of the jewellery articles are Ex.P6& Ex.P7 and in order to prove her case, the plaintiff has examined herself as PW1 . Her father namely Shri P L Jatav as PW2, whereas, her brother namely Shri Brijesh Kumar as PW3 and the Ld. Trial Court has committed grave error while dismissing the suit of the plaintiff and prayed for setting aside the impugned judgment and decree under appeal and decreetal of the suit.
13.On the other hand, the ld. counsel for the respondents has submitted that respondent no.1 was the husband of the appellant, who expired on dated 31.1.2013. He had already taken divorce from the appellant. He has further submitted that the appellant took away her jewelleries on dated 18.12.1991, i.e. at the time of leaving her matrimonial house and the remaining articles were returned to the appellant vide Ex.P2, as a settlement was arrived at between the parties. He has further submitted that the lists Ex.P1&P3 are fabricated documents. The same list of alleged dowry articles Ex.P1 is not prepared as per rule 2 of the Dowry Prohibition(Maintenance of list of presents to the Bride and Bridegroom) Rules 1985, as it is not signed by the respondent no.1 and also submitted that since the list of alleged dowry articles is not in consonance of the rule 2, so , it cannot be looked into and an adverse inference is liable to be drawn . He has relied upon the judgment passed by their Lordship of High Court of Delhi in case Smt Neera Singh vs The State (Govt. of NCT of Delhi) and others 2008(3) RCR (Criminal) 287. He has further submitted that these lists have been fabricated to extort the money from the respondents. He has further submitted that the appellant/plaintiff has failed to prove on record whether these articles were ever purchased or specifically entrusted to the respondents/defendants. He has further submitted that in view of non specific entrustment of the alleged articles, the act of misappropriation of any article as alleged by the ld.counsel for the appellant cannot be attributed to the respondents/defendants. He has also relied upon the judgment passed by their lordship of High Court of Delhi in case titled as Sukhbir Jain and another vs State 1993 JCC 91. He has further submitted that receipts Ex.P6&Ex.P7 are forged and fabricated documents and with the mere exhibition of the documents, same cannot be held to be proved and he has further submitted that the plaintiff during her cross examination has admitted that there was no almirah for keeping articles. He has further submitted that the marriage between the parties was solemnized on dated 18.05.91 and the plaintiff lived in her matrimonial home till 18.12.91. She has spoiled the life of the respondent no.1, who was an educated person, who died untimely in view of harassment done by the plaintiff. The respondent no.3 is the old aged father of the respondent no.1(deceased), who has lost his son in young age, in view of such harassment caused by the appellant. Respondent no. 2 is also son. Respondent no.4 & 5 are daughters of the respondent no.3 and the suit of the plaintiff was false, frivolous and devoid of merit, so, the Ld. Trial Court has rightly dismissed the suit and there is no infirmity in the impugned judgment and decree under appeal and the suit of the plaintiff is based on the concocted story and fabricated documents and the plaintiff had filed the civil suit in the ld. trial court to harass the respondents and succeeded to harass the respondents for numbers of years and even after the dismissal of the suit, she did not stop and filed the present appeal to harass the respondents and for extorting money from the respondents and prayed for the dismissal of the appeal, being false, frivolous and devoid of merit.
14.I have given thoughtful consideration to the submissions made by the ld.counsels for the parties and perused the record.
15.Perusal of the record shows that the plaintiff has claimed that the dowry articles were given in the marriage as per (AnnexureA) Ex.P1 and she has received the dowry articles in the CAW Cell in accordance with the (Annexure B), Ex.P2 and the articles mentioned in the (Annexure C), Ex.P3 are yet to be returned and the ld. counsel for the appellant/plaintiff has submitted that the appellant/plaintiff has examined herself as Pw1 and her father namely Shri P L Jatav was examined as PW2, whereas, her brother Shri Brijesh Kumar has been examined as PW3 and from the testimonies of all the trio witnesses, the plaintiff/appellant has successfully proved her case on record. The ld.counsel for the respondents has submitted that the list of alleged dowry articles are forged and fabricated with the intention to extort the money from the respondents and the list of alleged dowry articles is not prepared in consonance with the rule 2 of Dowry Prohibition (Maintenance of list of presents to the bride and bride groom) Rules 1985. He has relied upon the judgment passed by their Lordship of High Court of Delhi in Smt Neera Singh vs The State (Govt. of NCT of Delhi) and others 2008(3) RCR (Criminal) 287.
16.Their Lordship of High Court of Delhi in case Smt Neera Singh vs The State (Govt. of NCT of Delhi) and others 2008(3) RCR (Criminal) 287 is pleased to hold that:
”I consider time has come that courts should insist upon disclosing source of such funds and verifications of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition(Maintenance of List of Presents to the Bride and Bridegroom)Rules, 1985 reads as under:
”2. Rules in Accordance with which lists of presents are to be maintained.(1) The list of presents which are given at the time of the marriage to be bride shall be maintained by the bride. (2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom.
(3) Every list of presents referred to in subrule(1) or subrule(2)
(a) Shall be prepared at the time of the marriage or as soon as possible after the marriage;
(b) shall be in writing.
(c ) shall contain:
(i) a brief description of each present;
(ii) the approximate value of the present;
(iii) the name of the person who has given the present; and
(iv)where the person giving the present is related to the bride or bridegroom, a description of such relationship.
(d)shall be signed by both the bride and the bridegroom.
5. The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn.”
17.I have perused the Rule 2 of the Dowry Prohibition (Maintenance of list of presents to the bride and bridegroom) Rules 1985. In accordance with the rule 2 the same list was required to be signed by both bride and bridegroom and from the perusal of the list of the alleged dowry articles Ex.P1, it is clear that the same has not been signed by the bride groom i.e. the deceased respondent no.1/defendant no.1, so the same is found in violation of Rule 2 of the Dowry Prohibition (Maintenance of list of presents to the bride and bride groom) Rules 1985 . The ld.counsel for the appellant/plaintiff has submitted that since the list of dowry articles is Exhibited so the same can be held to be a proved document. This court has perused the record and from the perusal of the cross examination of the plaintiff it is clear that at the time of exhibition of Ex.P1, P2, and P3 the ld.counsel for the respondents/ defendants had objected to the mode of proving and thus, it is clear that the burden of proving all these documents relied upon by the plaintiff was on the appellant/plaintiff and since the list of alleged dowry articles Ex.P1 is not prepared in consonance of Rule 2 of the Dowry Prohibition (Maintenance of list of presents to the bride and bride groom) Rules 1985, so the same cannot be looked into and in view of non signing of Ex.P1 by the bridegroom i.e. deceased/respondent no.1, an adverse inference is drawn in the light of law laid down by their lordship of High Court of Delhi in the above said judgment of Smt Neera Singh vs The State (Govt. of NCT of Delhi) SUPRA and it is held that the same has been prepared subsequently to create the evidence against the respondents/defendants.
18.Their Lordship of Delhi High Court in case titled as “Sudhir Engineering Company v/s Nitco Roadways 1995 RCR 286, was pleased to hold that “Mere admission of document in evidence does not amount to it’s proof. Admission in evidence of a party’s document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of sections 6365 of the Evidence Act is adduced without laying foundation for its admissibility of where a document not properly stamped is admitted in evidence attracting applicability of section 36 of Stamp act.” “But the right of a party disputing the document to argue that the document was not prove will not be taken away merely because it had not objected to the admissibility of the document. The most instructive example is of a WILL. It is a document required by law to be attested and its execution has to be proved in the manner contemplated by section 68 of the Evidence act read with section 63 of the Succession Act. The party challenging the WILL shall not be excluded from demonstrating at the final hearing that the execution of the WILL, though exhibited, was not proved as statutorily required.” It is further held:that the marking of a document as an exhibit,be it in any manner whatsoever either by use of alphabets or by use of numbers,is only for the purpose of identification. While reading the record, the parties and the court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion, as one would be left simply guessing or wondering which was the document to which the witness was referring to while deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been merely proved because it has been marked as an exhibit.”
“Two Division Benches of Lahore High Court Ferozchin v/s Nawab Khan AIR 1928 Lah 432 and Hari Singh V/s Firm Karam Chand AIR 1927 Lah 115 have clearly held that the admission of documents under order 13 rule 4of CPC does not bind the parties and unproved document cannot be regarded as proved nor do they become evidence in the case without formal proof.”
19. Whereas, their Lordship of hon’ble Supreme Court in case Sait Tara Ji v/s Yelemarti Satyam AIR 1971 SC 1865 was pleased to hold that “Mere marking of an exhibit does not dispense with the proof of document”.
20.Thus, from the law laid down by their Lordship of High Court of Delhi and their lordship of Supreme Court of India in the above said judgments, it is clear that with the mere exhibition of a document, a document cannot be held to be proved. Since the appellant/plaintiff has also relied upon two receipts issued by M/s Babu Ram and sons Sarraf, which are Ex.P6 and Ex.P7 and at the time of exhibition thereof, in the ld. trial court, the objections to the mode of proving of these documents were raised by the counsel for the defendants, so, it was incumbent on the part of the appellant/plaintiff to prove these documents in accordance with the mode of proving. The appellant/plaintiff has exhibited these documents in her statement, whereas, she is not the scribe of these documents and the appellant/plaintiff was having ample opportunities to examine the witness i.e. the scribe of these documents to prove these documents, in the ld. trial court during the trial, but, the appellant/plaintiff did not do so. Therefore, for withholding of best evidence available to the appellant/plaintiff in the ld. trial court, an adverse inference is drawn against the appellant/plaintiff. The ld.counsel for the appellant/plaintiff has submitted that articles as mentioned in the Ex.P3 (Annexure C) are yet to be returned and the same have been misappropriate by the respondents/defendants and for proving this fact, it was incumbent on the part of the appellant/plaintiff to prove on record that the articles alleged to have been misappropriate were entrusted to the respondents/defendants, but, this court finds that no specific entrustment of any article to any of the respondents/defendants is averred in the plaint or in the testimony of the plaintiff and in the absence of any specific entrustment, to the respondents/defendants, the act of misappropriation of alleged articles, cannot be attributed to the respondents/defendants. Reliance is placed on the judgment passed by their Lordship of High Court of Delhi in case Sukhbir Jain and others vs State 1993 JCC 91 Thus, from the record of the trial court, it is clear that the appellant/plaintiff has miserably failed to prove on record any receipts of the items, vide which the articles are alleged to have been purchased and since this court finds that the list of alleged dowry articles Ex.P1 is also not prepared in consonance of Rule 2 and the transactions of purchasing of the alleged items are also not proved and from the facts and circumstances, it is clear that the list of alleged dowry articles has been prepared subsequently to create the evidence that too after arising of the dispute between the parties. The ld. trial court has framed a categorical issue no.2 regarding the entrustment of the articles to the respondents/defendants, as mentioned in the plaint and since the Pw1 during her cross examination has stated that the jewelleries and clothes presented were handed over to her and also stated that on dated 18.12.1991, when she had left her matrimonial home for the first time, the jewellery was lying with the respondents/defendants, but, specific fact regarding the entrustment of any dowry articles to the respondents/defendants is not averred by the plaintiff and during the cross of examination PW1, she has stated that the fact regarding the giving of dowry articles was told to the defendants and same were entrusted to her. The appellant/plaintiff has alleged that the jewellery articles and clothes were taken from her custody from her almirah on 18.12.1991, but, such statement of the Pw1 is found to be contradictory, as during her cross examination in one breath, she has stated that she was never provided any almirah and she has also admitted that on dated 18.12.1991 she was never there in her matrimonial home and also admitted that she has stated in an other court that her articles were removed by her in laws from her custody/almirah on 18.12.1991. So, in the given circumstances, the ld. trial court has rightly come to the conclusion that since the appellant/plaintiff was not present in her matrimonial home on dated 18.12.1991, so the question of taking away the articles from her custody on dated 18.12.1991 does not arise and since the entrustment of any articles to the respondents/defendants is not proved on the record , so, the ld. trial court has rightly decided the issue no. 2 in favour of the respondents/defendants and against the appellant/plaintiff.
21.It is not a matter of dispute between the parties that certain articles have been received by the appellant/plaintiff in the CAW Cell vide Ex.P2. Since the appellant/plaintiff has not denied that the certain articles were received by her in the CAW Cell vide Ex.P2 (Ex.DW1/2), but the respondents/defendants have failed to bring any cogent evidence to prove on record that the matter was settled/compromised, so the ld. trail court has rightly decided the Issue no. 3 and held that articles mentioned in Ex.P2 (Ex.DW1/2) were returned to the plaintiff, but fact of settlement/compromise is not proved and in view of failure on the part of the appellant/plaintiff to discharge her onus to prove Issue no. 1 and 2, the ld. trial court has also decided issue no. 4,5 and 6 against the plaintiff and dismissed the suit of the plaintiff.
22.The ld.counsel for the respondents/defendants has submitted that the appellant/plaintiff had file the civil suit in the ld. trial court to harass the respondents/defendants. It is worthwhile to mention her that at the time of arguments on the appeal, the appellant/plaintiff and the respondent no.3/defendant no.3 were present in the court, the respondent no.3/defendant no.3 is the old aged father of the respondent no.1/defendant no.1(deceased) and this court find no sorrow or sadness in the eyes of the appellant/plaintiff despite of death of the respondent no.1/defendant no.1, during the pendency of the present appeal. Rather, she was found in a fit of furey towards the respondent no.3/defendant no.3, who is not able to face the anger of the appellant/plaintiff , in view of thunder jolt suffered by him from the untimely death of his beloved son Vireseh, in his young age . It is also pertinent to mention here that PW3 namely Shri Brijesh Kumar, who is the brother of the plaintiff has denied the suggestions given to him by the ld. counsel for the respondents/defendants, during his cross examination that his sister (Promila) is a quarrelsome, but, that witness has denied the same suggestion. But at the time of arguments on the present appeal, after looking the conduct of the appellant/plaintiff, for the respondent no.3/defendant no.3, in the court room, it is observed by this court that the appellant/plaintiff is a short tempered lady, who is not able to control her temperaments and despite of untimely death of the respondent no.1/defendant no.1, she had shown her angered eyes to the respondent no.3/defendant no.3 even in the court room and in the opinion of this court, such temperaments of the appellant/plaintiff must have been a reason for short survival of her nuptial tie.
23.In view of the above discussions, since the case of the appellant/plaintiff was based on the unproved documents, so I do not find any force in the submissions made by the ld.counsel for the appellant/plaintiff.
24.Accordingly, this court does not find any infirmity in the impugned judgment and decree under appeal, which may require any interfere therein, so the impugned judgment and decree under appeal passed by the Ld. trial court stand upheld, whereas the appeal of the appellant is hereby dismissed being devoid of merit. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room and the record of the trial court is also ordered to be returned. Pronounced in the open court:
Dated:07.10.2013 (P.K. Matto) Additional District Judge 03 (EAST)KKD:Delhi