The Bombay High Court in the case of Terezinha Martins David vs Miguel Guarda Rosario Martins while dismissing 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 any right in the family’s properties. held that even if a daughter is given dowry at the time of her marriage, her right in the family’s properties does not cease and she can still stake claim.
“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 had been attempted to be extinguished by the brothers, post the father’s demise,” held the court.
The case was about a plea filed by a woman seeking an injunction against her mother and four brothers, from creating any third party rights in her family’s properties. The appellant, despite being the eldest married daughter of the house, was not given any share in the properties. She pointed out that the mother and the other sisters had given consent to a transfer deed executed in 1990 in favour of two of her brothers. By virtue of this transfer deed, the family’s shop and house were transferred in the favour of the two brothers. She further contended that she learnt of the same only in 1994 and subsequently she instituted proceedings before the civil court. Her suit was decreed by the civil court; however, an appeal against it was allowed by the appellate court.The brothers contented that they relied on “oral partition” of the said property to which the court said that “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 bench after considering all observations quashed the said transfer deed and granted an injunction in favour of the appellant.