The absence of specific denial regarding the retention of jewellery by the defendant constituted an implied admission, supporting the plaintiff's claim for return based on customary practices.

JUDGMENT :

G.Ilangovan, J.

This Second Appeal is filed against the decree and judgment passed in AS No.49 of 2007 by the Principal District Court, Thanjavur, dated 28/02/2008, confirming the decree and judgment, dated 14/06/2006 passed in OS No.149 of 2004 by the District Munsif Court, Thanjavur.

2.The averments in the plaint in brief:-

(i)The marriage between the plaintiff and the defendant was performed on 10/12/1986 as per their religious rites. For 3 weeks only, they were living together. On 07/01/1987, she was taken by the defendant to her parental home, living there promising to take her back after some-time. At that time, the defendant and his parents removed all the jewellery stating that it will be kept in the Bank locker. Later, the defendant filed a suit in OP No.110 of 1987 on the file of the Sub Court, Thanjavur. That application was allowed, on 16/11/1988. Against which, CMA No.21 of 1989 was filed on the file of the Principal District Court, Thanjavur West. It was allowed on 05/11/1992. Against which, the defendant filed appeal before the High Court of Madras in A.A.A.O No.35 of 1993. The High Court, by order, dated 26/02/1997 restored the order of the trial court. Now the order has become final. Later, the defendant initiated proceedings for annulment of marriage stating that the plaintiff is suffering from mental illness. That petition was allowed and the marriage between the parties was annulled.

(ii)At that time of marriage, the plaintiff was presented with ornaments and other articles mentioned in the schedule. The account was maintained by the father of the plaintiff. The property was in the custody of the defendant. It was mentioned in the earlier proceedings also. After getting the decree of nullity of marriage, the defendant has no right to retain the articles. So, they are bound to return the same. By notice, dated 17/02/1999, the defendant was required to return the jewellery and articles. But so far, it was not complied by the defendant. Hence, the suit.

3.The statement:- The suit framed as such is not maintainable. It was already decided in OP No.110 of 1987 that the plaintiff is a mentally ill-patient. Without mentioning the same, the suit is filed, which is not maintainable. Right from the beginning, the father of the plaintiff was not behaving properly. Suppressing the mental capacity of the plaintiff, he arranged marriage. Even after that issue, a false complaint was given, which was registered in Crime No.861 of 1988. Criminal case was filed in CC No.677 of 1988. After 2-1/2 years, that criminal case ended in acquittal. So, in that criminal case itself, the plaintiff's father admitted that the plaintiff returned to house with Tali and earrings. The plaintiff took all the jewellery at the time of leaving the house. After a lapse of 12 years, the suit is filed. Even at the time of enquiry, the defendant gave a list containing 41 items stating that he is ready to return the articles. Along with the written statement, they have annexed a list containing the articles in the custody of the defendant. He is ready to return the articles to the plaintiff as per the order of the court. The suit is barred by limitation and prayed for dismissal of the suit.

4.Based upon the pleadings of both sides, the trial court has formulated the following issues:-

(1)Whether the plaintiff's father presented the gold ornaments and the articles mentioned in the plaint to the defendant at the time of marriage?

(2)Whether the suit is maintainable or not as the suit has been filed by the plaintiff without the help of the guardian?

(3)Whether the suit claim is barred by limitation?

(4)Whether the defendant has kept only the properties mentioned in the written statement or not?

(5)To what other reliefs, the plaintiff is entitled to?

5.Before the trial court, the plaintiff's father was examined as PW1 and marked 7 documents as Exs.A1 to A7. On the side of the defendant, the defendant was examined as DW1 and marked 2 documents as Exs.B1 and