JUDGMENT
S.C. Pandey, J
1. The respondent filed a petition under Sections 12 and 13 of the Hindu Marriage Act, 1955 (henceforth ‘the Act’) for declaration that her marriage with the appellant be declared void. She further claimed that in case it was not possible to award aforesaid declaration by a decree, then a decree for divorce be passed. The Civil Suit No. 294-A/96 filed by the respondent was dismissed by judgment and decree dated 14.5.1997 by 4th Additional Judge to the Court of District Judge, Jabalpur. The respondent filed First Appeal No. 310/97. This Court, by judgment and decree dated 11.11.1997, allowed the appeal and set aside the judgment and decree of the Trial Court dismissing the suit. A decree, declaring that the marriage between the appellant and the respondent was null and void, was passed because it was held that the appellant had a spouse living at the time of the marriage with the respondent. Having declared that the respondent was entitled to declaration that her marriage with the appellant was null and void, this Court (Hon’ble Shri N.K. Jain, J.) had also given a direction in the following words :
Para 11: “The appellant has also made application under Section 27 of the Act for return of the property allegedly given in dowry to the respondent. This application is disposed of with the direction that the Executing Court shall hold enquiry into the application and in case the respondent-husband is found in possession of any such property presented to him by the appellant or her family members on or about the time of marriage, the same shall be ordered to be returned or cost thereof to be paid to the appellant.
A decree be drawn up accordingly.”
2. Accordingly, the learned trial Judge made an enquiry and passed the judgment and decree (though styled as order) dated 29.1.1998 to the effect that the appellant was in possession of the articles mentioned in the application filed by the respondent-wife under Section 27 of the Act and, therefore, the appellant was ordered to return those articles mentioned in the application. Accordingly, a decree was also passed.
3. In this appeal, learned Counsel for the appellant argued that the finding recorded by the Court below is liable to be set aside because it was contrary to Section 27 of the Act. Learned Counsel for the appellant argued that only those articles would be returned which were given to the appellant and the respondent jointly at the time of marriage. It was further argued that the Court below had traversed beyond the requirement of Section 27 of the Act and passed the impugned order wrongly. Moreover, learned Counsel for the appellant assailed the conclusion of the Trial Court regarding the receipt of the articles by the appellant. His contention was that an exaggerated claim under Section 27 of the Act was being made on behalf of the respondent. Learned Counsel for the appellant argued that the finding recorded by the Court below was wrong.
4. learned Counsel for the respondent supported the judgment and decree of the Trial Court arguing the findings recorded by the Court below are unassailable. It was based on preponderance of probabilities. Learned Counsel for the respondent also said that the order of remand permitted the respondent to restore back the property received by him on account of fraud because the appellant knew that he was marrying the respondent during the life-time of his wife.
5. Having heard the Counsel for the parties, this Court is of the view that the Trial Court was bound by the decision of this Court in First Appeal No. 310 of 1997 and the judgment passed therein shows that the Trial Court was required to find out the property “allegedly given in dowry” to the appellant and the Trial Court was required to find out that in case the appellant was found in possession of “any such” property presented to him by the respondent or by her family members at the time of marriage. That property was ordered to be returned or cost thereof be paid to the respondent. I as a Presiding Judge of subsequent Co-ordinate Bench cannot travel ,beyond the judgment and decree dated 11.11.1997 passed by Hon’ble Shri N.K. Jain, J. Nor could the Court below do so. In view of this matter, whatever was presented to the appellant by way of dowry by the respondent or the members of her family had to be restored to her or its price in lieu thereof. Therefore, there is no much scope for argument that only the property that could be restored under Section 27 of the Act would be the property presented at or about the time of marriage which belonged jointly to both husband and wife: The words used by this Court in its earlier judgment are by way of dowry presented by the respondent or the members of her family. Therefore, the only thing that has to be seen if the Trial Court went wrong in holding that the articles mentioned in application under Section 27 of the Act were the articles presented to the appellant at the time of marriage by way of dowry by the respondent or the members of her family. The respondent wife has claimed in her application under Section 27 of the Act that apart from Rs. 11,000/- (Rupees eleven thousand) certain articles were also given. The articles were item Nos. 3 to 9 mentioned in the application and the value of the articles was mentioned by the respondent in her application. Similarly, it was claimed that in paragraph 2 of the application that there were nine items of ornaments which the respondent was wearing at the time of her marriage and it was claimed that these items too were retained by the appellant.
6. The appellant – husband, on the other hand, denied that he had received any item except one golden ring worth Rs. 900/- and it was further stated that the items belonging to the respondent were returned by the appellant including the ornaments.
7. It appears that the Trial Court did not try to find out from the evidence on record what were the items given to the appellant at the time of marriage by way of dowry. Further, the Trial Court has also failed to apply its mind to the evidence on record whether the respondent had proved that the ornaments given to her at the time of marriage were retained by the appellant. Under these circumstances, it would be proper for this Court to set aside the order of the Court below and remit the case back to the Trial Court for deciding the application under Section 27 of the Act afresh. It is directed that both the Courts below shall give due attention to the judgment passed by this Court today which declares that not only this court but also the Courts below are bound by the judgment and decree passed by this Court in First Appeal No. 310/97 decided on 11.11.1997. It is directed that the learned trial Judge shall also frame issues on which the parties shall be required to give evidence in accordance with the order of remand passed by this Court and give a fresh opportunity to the parties to lead evidence regarding the each item alleged to be given to the appellant by the respondent or the members of her family by way of dowry and also in respect of the property given to the respondent-wife at the time of her marriage which was retained by the appellant.
8. The result is that the judgment and decree passed by the Court below dated 29.1.1998 is hereby set aside and the case is remitted back to the Trial Court for fresh decision in accordance with law. It is made clear that the parties shall be entitled to lead fresh evidence before the Trial Court by virtue of this order of remand. Consequently, this appeal succeeds and is allowed to the extent indicated above. No costs.