Daughter Does Not Lose Right In Family Property Merely Because Dowry Was Paid At Her Marriage: Bombay High Court

Justice MS Sonak quashed a Transfer Deed made by brothers transferring family property without the consent of the appellant sister.

"However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father's demise," the court held.

The court said that there is no evidence about providing a sufficient dowry to the daughters of the house and concluded that the joint family property was being usurped by the brothers to exclude the sisters.

“The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house,” the court held.

The appellant is the eldest daughter of her parents and has three sisters and four brothers. After the death of her father, a Deed of Succession was executed declaring the appellant as an heir to his property. A Transfer Deed was executed by which her mother and two of her brothers transferred her a family shop to her other two brothers without her consent. She filed a suit challenging the Transfer Deed claiming she has undivided right in the suit shop.

The brothers claimed that the four daughters were settled by payment of sufficient dowry at their marriages. The suit shop wasn't ancestral property but an asset of the partnership firm formed by the three sons and their late father, the court was told. They filed a counter claim challenging the Deed of Succession.

The trial court dismissed the appellant’s suit but partly allowed the counter claim and cancelled the Deed of Succession. The appeal court partly allowed the appeal and restored the Deed of Succession. However, it did not interfere with the trial court’s decision on the ground that the appellant’s suit was time barred. She filed the second appeal.

The suit was filed four years after the Transfer Deed but the appellant claimed she only came to know about the Transfer Deed six weeks before institution of the suit. The court noted that there is no evidence to show that the appellant was aware of the Transfer Deed more than three years before filing the suit.

Once the appellant produced her evidence, the burden was on the defendants to establish that she had knowledge of the Transfer Deed more than three years before the suit, the court said. However, they did not even attempt to discharge this burden. Therefore, the trial and appellate court’s finding on limitation was perverse, the HC held.

As per Article 1565 of the Portuguese Civil Code, the mother was not entitled to transfer her share in the suit shop to her two sons without the consent of other sons and daughters, the court said. Further, as per Article 2177 of the Code, a co-owner cannot dispose of any part of the common property unless it is allotted to him in partition.

Therefore, the Transfer Deed was null and void, the court held while observing that the suit shop was not allotted to the transferor by a Deed of Partition.

The court added that there is no evidence that the suit shop was brought into the firm’s assets. Further, the court said that there is no evidence of oral partition and partition cannot be effected orally under the Code.

Therefore, the court held that the appellant has an undivided right in the suit shop. The court issued a permanent injunction to the brothers from transferring the suit property to anyone in the future except with the written consent of the appellant and other co-owners.

Case no. – Second Appeal No. 89 of 2005

Case Title – Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors.

Citation: 2023 LiveLaw (Bom) 152

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