Sardar Surinder Singh vs Manjeet Kaur

I.K. Kotwal, J.—Two cross petitions i. e. one filed by Surrinder Singh, the appellant herein, u/s 9 of the Hindu Marriages Act, 1955, and

the other by Manjeet Kaur, the respondent herein, were disposed of by District Judge, Jammu, by the consent of the parties, and a decree for

judicial separation passed in favour of the respondent against the appellant. During the pendency of these proceedings, the respondent had also

moved an application u/s 27 of the Act, seeking disposal of certain articles of moveable property, some of which, according to her, were her

exclusive property, whereas the others were the joint property of the parties. She had annexed two lists to her application, out of which List A,

which inter alia included gold ornaments, represented her exclusive property. The appellant in his objections had, however, contended that the

entire property was the joint property of the parties, as it had been gifted away to both the spouses at or about the time of their marriage.

The learned District Judge, on agreement of the parties, had initially appointed one S. Avtar Singh Advocate as the Superdar of the said

property, and the appellant had willingly undertaken to hand over to him the aforesaid property, which was admitted by him to be in his

possession. Later on, he has fallen back upon his word and had challenged the aforesaid order in appeal before this Court. That appeal was heard

and disposed of by me by my order dated 7-5-1979, the operative part whereof reads as under :--

This appeal is totally misconceived. Apart from the fact that the appeal has been preferred against an agreed order, the order itself is totally

innocuous as what the trial Court has actually done is that it has kept the articles on the superdnama of a counsel for one of the parties without

deciding any right to their ownership. I find no force in this appeal which is dismissed with costs.

After this appeal came to be dismissed, a new Superdar, namely, Mr. S. L. Kotwal Advocate was appointed by the Court, again with the consent

of the parties, to whom some articles of the property were also handed over by the appellant, which of course did not include ornaments weighing

six tolas of gold, which the respondent claimed to be her exclusive property, and which the appellant said were jointly owned by the parties. The

learned District Judge by a separate order passed on her application u/s 27, which too came to be passed on the same date on which the main

petitions were disposed of by him, directed the Superdar to hand over the property entrusted him to the respondent, besides directing the appellant

to hand over to her the ornaments weighing six tolas of gold. The appellant has challenged the aforesaid order in this appeal on two grounds: firstly,

that he could not have passed such an order on a separate application, but could have given such a direction in the decree in the main petition in

itself; and secondly, that he has erred in law, in that, he without making any enquiry and recording any finding to that effect has treated the

ornaments tc be the exclusive property of the respondent and issued the impugned direction accordingly, even though he otherwise too has no

jurisdiction u/s 27 to make such a direction in respect of the separate property of any party to the litigation. At this stage it becomes necessary to

take notice of Section 27 which reads as under:

In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property

presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Whereas Section 27 deals with the property belonging to the spouses, Section 26 deals with their children, and Section 25 with permanent

alimony and maintenance that may be awarded in favour of a party. Power of the Court to pass an order under these sections is discretionary. The

object behind the enactment of these sections appears to be to ensure a severance in possibly all respects between those spouses who, as the

Court thinks, cannot live together. The framers of the Act intended that in their own interests, as well as in the interests of their children, every

attempt should be made to settle all possible disputes between such spouses, and that too once for all, so that they do not have any opportunity to

enter into fresh litigation with each other, on any account whatsoever. Keeping in view the aforesaid legislative intent and the plain language of

Section 27, the following propositions clearly emerge :

(i) power of the matrimonial Court u/s 27 of the Act is discretionary;

(ii) pendency of a main proceeding e. g. for divorce, judicial separation, restitution of conjugal rights etc. etc. is a condition precedent for the

exercise of this power.

(iii) this power can be exercised by the Court only in respect of that property, whether movable or immovable, which is jointly owned by the

parties;

(iv) that joint property must be such as was presented to them at a time or stage which is in close proximity to the time of their marriage, whether it

in presented at, before or after the marriage; and

(v) a provision in regard to such property has to be made in the decree itself that the Court may eventually pass in the main proceeding, but not by

a separate order.

There is nothing in Section 27 which debars the Court from making an enquiry into a dispute whether or not the property is jointly owned by the

parties, or whether or not it is such as was presented to them at or about the time of their marriage. But the section excludes by necessary

intendment, its application to the property, which the party seeking a direction from the Court; claims that it exclusively belongs to it. But for the

provisions of this section, it cannot be gainsaid that the parties could not have got their claims settled in respect of the property jointly owned by

them, except by filing a regular suit. This section no doubt provides for a speedy and cheap remedy to that extent, but its perimeters cannot be

extended to include even the property belonging exclusively to one of the parties. I am unable to accept the argument that even if the section does

not specifically apply to exclusive property of the litigating spouses, the Court can still make provision in respect of such property in the decree in

the main proceeding, in exercise of its inherent power u/s 151 C. P. C. Inherent power cannot include a power similar to the one conferred by

Section 27, even though this section in terms does not apply to exclusive property, nOR CAN inherent power be invoked where the party has an

alternative remedy of suit for obtaining the appropriate relief. With utmost respect to the learned Judge, I am unable to subscribe to the view taken

in Kamta Prasad Vs. Smt. Om Wati, , that the Court can in exercise of its inherent power pass appropriate order in respect of that property also,

in which the party seeking such an order claims exclusive ownership.

The impugned order, it is so obvious is indefensible, for it suffers from two serious infirmities. To begin with, the learned District Judge has

ordered delivery of the property to the respondent. without making any enquiry and without recording a finding as to whether the property

mentioned in List A is the joint property of the parties, or is exclusively owned by one of them. He could have exercised his power u/s 27 only if he

were to find that not only the property was the joint property of the parties, but also that it had been presented to them at or about the time of their

marriage. When the nature of its ownership was in dispute, he ought to have recorded evidence on the point in particular, the statements of the

donors thereof who would naturally be the most competent witnesses to depose on the issue and passed an appropriate order only thereafter.

Secondly, he ought to have made appropriate provision in that behalf in the decree in the main proceeding itself and not proceeded to pass a

separate order. Normally, the parties are supposed to raise such a claim in their main pleading, but even if they raise it in a separate application, the

Court should insist on amendment of the pleading in the main case to incorporate such a claim therein and should thereafter raise a distinct issue on

the point. It should not try such an issue in a parallel proceeding. Where the party fails to raise the claim in the main pleading, either before or after

its amendment, the Court must necessarily decline to exercise its discretionary power u/s 27 in its favour, leaving it to agitate the same in a regular

suit. No direction for amendment of the main pleading can, however, be given in the instant case, as the main petition itself stands finally disposed,

of.

For all that has been said heretofore, the appeal succeeds, which is allowed accordingly. The order impugned in it is set aside and respondent's

application u/s 27 is dismissed. This will not, however, debar her from bringing a regular suit for recovery of the aforesaid property, if so advised.

No costs.