Daughter still has right to family property, even if she has been given dowry: HC

A daughter who has been given dowry at the time of her marriage, can still claim a right in her family's properties, the Goa Bench of the Bombay high Court has held.

"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 a Single-Judge Bench of Mahesh Sonak said.

The order was passed while rejecting the argument of a family led by four brothers and a mother that since the four daughters were given some dowry at the time of their wedding, they cannot claim a right in the family's properties.

"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," the the High Court said.

The Bench was hearing a plea filed a woman seeking injunction against her mother and four brothers, from creating any third party rights in her family's properties.

The appellant was the eldest married daughter of the house. However she was not given a share in any of the properties by her brothers and mother.

She told the court that the mother and other sisters had given consent to a transfer deed executed in 1990 in favour of her two brothers. By virtue of this deed, the family shop and house were transferred in favour of the two brothers.

She pointed out that she learnt about this only in 1994 and subsequently she moved the civil court. Her suit was decreed by the civil court, but an appeal against it was allowed by the appellate court. Following this, she petitioned the High Court.

In their contention, the brothers said that she had no right to the properties. They relied on an oral partition of the said properties, wherein their own three sisters had given up their rights as they too were given dowry at the time of their marriage, like in the case of the appellant.

"There is no evidence whatsoever to sustain such a plea. Merely stating that there was some family arrangement by which four daughters of Antonio (father) and Matilda (mother) were given dowry at the time of their marriages is insufficient to spell out the ingredients of the family arrangement or an oral partition. Secondly, in terms of Article 2184 of the Portuguese Civil Code, a partition which is merely severance of a joint status cannot be effected orally and has necessarily to be by a written document," the court said.

Justice Sonak took note of the fact that the appellant had clearly testified that she filed the suit within six weeks of learning about the said deed. He said that the brothers failed to prove that the appellant learnt about the said deed in 1990 itself.

"To my mind, this was a slender base to non-suit the Appellant on the limitation issue. The Trial Court failed to account for the evidence where the Appellant disclaimed knowledge about the Court proceedings to which she was not a party and, of course, the transfer deed," the High Court said.

The Bench then quashed the transfer deed and granted an injunction in favour of the appellant.