JUDGMENT - S.P. BHARUCHA, J.:---The appellant-wife and the respondent-husband were married under Hindu rites on 25th September, 1974. On 24th September, 1975 the husband filed a petition (being M.J. Petition No. 7405 of 1975) in the City Civil Court at Bombay for annulment of the marriage on the ground of the wife's relative impotency. A petition for divorce on the ground of desertion was thereafter filed by the husband (being M.J. Petition No. 427 of 1983).

2. Consent terms were taken on 10th January 1984 in the petition for annulment. By Clause (1) thereof the petition for divorce was agreed to be heard immediately and the evidence of the husband recorded in the petition for annulment was agreed to be read as evidence therein. By Clause (2) the wife stated that she did not desire to contest the petition for divorce and had no objection to it being made absolute. By Clause (3) wife agreed not to challenge the legality or validity of the husband's second marriage. Clauses (4) and (5) read thus :

"(4) Parties to address the Hon'ble Court on the questions of alimony, pass and future maintenance, as also on the question of the respondent being entitled to ornaments and other expenses as claimed in the Written Statement and the costs of the petitions on the evidence already recorded on behalf of both the parties in Petition No. 7405 of 1975.

(5) The parties agree that findings recorded by the Court on questions in Clause No. 4 above shall be accepted by them as final and binding upon them and there shall be a decree accordingly."

By Clause (6) the parties agreed not to apply for variation or modification or recession of the order as to permanent alimony and maintenance. Under Clause (7), having regard to the clauses that preceded it, the husband withdrew all allegations against the wife relating to relative impotency and cruelty and withdrew the petition for annulment.

3. Counsel for the parties then addressed the Court on the questions of alimony, maintenance and the entitlement of the wife to the property claimed by her in her written statement to the petition for annulment. The learned Judge noted the consent terms and the issues that survived in view thereof, namely,

"(4) Does the respondent prove that she was presented ornaments and articles as stated in para 16 of the Written Statement?

(5) Is the respondent entitled to the return of the said ornaments and articles?

The learned Judge referred to section 27 of the Hindu Marriage Act and found that he claim of the wife of the said property was on the basis that it was her exclusive property and not property that belonged jointly to husband and wife. Having regard to the decision of a learned Single Judge of this Court in (Banoo Jal Daruwalla v. Jal C. Daruwalla)1, 65 B.L.R. 750, which dealt with a pari materia provision in the Parsi Marriage and Divorce Act, 1936, the learned Judge held that his jurisdiction under section 27 did not cover the said property. Accordingly, he recorded no finding on issue No. 4 quoted above. The learned Judge awarded to the wife maintenance and costs.

4. This appeal is filed by the wife against the judgment and order of the learned Judge in so far as it does not record a finding in regard to the said property. There is no appeal on either side in regard to the award of maintenance and costs.

5. Section 27 of the Hindu Marriage Act reads thus :

"Section 27. The disposal of property : 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."

Section 42 of the Parsi Marriage and Divorce Act, 1936, reads thus :

"Disposal of joint property :--In any suit under this Act, the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented, at or about the time of marriage, which may belong jointly to the husband and wife."

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