Kerala High Court
Alphonsa vs Neetha on 17 October, 2019
Equivalent citations: AIR 2020 (NOC) 589 (KER.), AIRONLINE 2019 KER 480, (2019) 4 KER LJ 500, (2019) 4 KER LT 846
Author: T.V.Anilkumar
Bench: A.M.Shaffique, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941
Mat.Appeal.No.654 OF 2013
AGAINST THE JUDGMENT DATED 18-06-2013 IN OP NO.1941/2010 OF FAMILY
COURT,THRISSUR
APPELLANTS/RESPONDENTS 1 & 2:
1 ALPHONSA,
AGED 58 YEARS, W/O. CHALISSERY ANTHONY, CHIYYARAM
DESOM & VILLAGE, THRISSUR TALUK.
2 ANTHONY,
AGED 68 YEARS, CHALISSERY HOUSE, CHIYYARAM DESOM &
VILLAGE, THRISSUR TALUK.
BY ADV. SRI.DINESH MATHEW J.MURICKEN
RESPONDENTS/PETITIONER & 3RD RESPONDENT:
1 NEETHA,
AGED 28 YEARS, W/O. CHALISSERY ANSON, CHIYYARAM DESOM
& VILLAGE, THRISSUR TALUK, PIN-680026.
2 ANSON,
S/O. ANTHONY, CHALISSERY HOUSE, CHIYYARAM DESOM &
VILLAGE, THRISSUR TALUK, PIN-680026.
R1 BY ADVS. SRI.SUNIL N.SHENOI
SRI.P.VISWANATHAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2019, THE COURT ON 17.10.2019 DELIVERED THE FOLLOWING:
M.A.No.654/2013
-:2:-
Dated this the 17th day of October, 2019
J U D G M E N T
T.V.ANILKUMAR J.
Appellants are the parents-in-law of the 1st respondent, who filed O.P.No.1941 of 2010 before the Family Court, Thrissur, seeking to recover a sum of Rs.11,00,000/- being the parental share and value of gold ornaments, from appellants with interest. The 2nd respondent in appeal is the son of appellants as well as the husband of the 1 st respondent. No relief was claimed by wife against husband, even though he was arrayed as 3rd respondent in the original petition. The appellants were arrayed as respondents 1 and 2 in the court below. A decree was granted for recovery of Rs.11,00,000/- against the appellants personally as well as the petition schedule property of five cents owned by the 1st appellant allowing the original petitioner to realise the decree amount by sale of the property.
2. The spouses were married on 31.12.2006 and they have a minor child. The allegation raised by the 1 st respondent, who is the petitioner in O.P.No.1941 of 2010 is that when she was betrothed to the 2nd respondent, husband, a sum of Rs.5,00,000/- was entrusted by her father with appellants on an understanding that the amount should be kept for her benefit as the trustees. But, the cash amount was converted for the personal use of the appellants. The 1st respondent also claimed that she was adorned with 50 M.A.No.654/2013 -:3:- sovereigns of gold ornaments at the time of marriage and out of the ornaments, 40 were taken by the appellants for discharging their liability towards a chitty prized from a private kuri company. It is stated that in return for the entire benefits received, the appellants agreed to assign petition schedule land owned by the 1st appellant, the mother-in-law in favour of the 1 st respondent/petitioner and as assurance towards the proposed assignment, Ext.A1 original title deed of the land was also entrusted with her. It is stated that, since the appellants did not keep their words, the 1st respondent filed the present original petition for recovery of cash amount of Rs.5,00,000/- and the value of 40 sovereigns of gold ornaments calculated at the rate of Rs.15,000/- per sovereign, from the appellants.
3. The appellants denied the alleged entrustment of cash amount as well as having taken away 40 sovereigns of gold ornaments alleged to be owned by the 1 st respondent. Their contention in the objection is that they were against the 2nd respondent marrying the 1st respondent, since bride was not a good choice to the family. It is contended that all preparations and negotiations in connection with the marriage were held at the sole instance and responsibility of the 2nd respondent himself. Appellants and their daughters did not at all intervene in the matter, except attending the marriage conducted on 31.12.2006. It is said that even after the respondents started to reside under the same roof also, they cooked separately and lived M.A.No.654/2013 -:4:- independently. There was no need or occasion for demanding gold ornaments of the 1st respondent. The loan liability with private kuri institution was discharged by making use of funds raised by sale of first appellant's property, as evidenced from Ext.B2 sale deed dated 22.12.2008. Ext.A1 title deed happened to be handed over to the respondents in connection with totally a different situation as could be borne out from Ext.B1, which is an agreement signed by the respondents and appellants in the presence of local mediators as on 21.02.2009. Ext.B1 came into existence when appellants agreed to assign petition schedule land in favour of respondents in consideration of his having undertaken to meet the marriage expenses of his sister and also maintain the parents and bear all allied expenses after the marriage of his sister. Ext.A1 title deed was entrusted with the 2nd respondent for arranging execution of assignment deed. It was not returned so far though promise to execute assignment deed was not fulfilled.
4. The court below examined PWs.1 to 4 and marked Exts.A1 to A5. The 1st appellant was examined as RW.1 and Exts. B1 to B3 were marked on appellant's side.
5. The court below found on evidence that the appellants received cash amount of Rs.5,00,000/- given by PW.4, the father of the 1st respondent at their residence one day prior to the date fixed for betrothal ceremony. It also found that 40 sovereigns of gold ornaments owned by the 1st respondent were taken away for discharging their M.A.No.654/2013 -:5:- kuri liability. The possession of Ext.A1 title deed with the 1st respondent was taken as a circumstance for drawing an inference that entrustment of gold ornaments and cash was true. This finding of the court below is assailed by appellants for the reason that evidence on record never justified such a finding.
6. Heard the learned counsel for the appellants and the 1st respondent. The 2nd respondent husband did not contest either in the court below or in appeal presumably because no relief was claimed against him.
7. On going through the order, we find that in so far it permitted the 1st respondent to realise the decree amount by sale of petition schedule property, the order cannot be held to be sustainable even assuming that the order upholding her entire claim for money is valid. The court below in addition to granting a personal decree passed an order for sale of the property also, enabling the 1st respondent to realise the decree amount. The part of the order allowing sale is, according to us, opposed to law. The 1st respondent did not seek any relief with respect to petition schedule property and even if any relief was sought also, no order for sale could have been granted, since the petitioner cannot legally claim any charge in respect of the landed property. Liability for charge would arise either when a party has consented for creation of such charge or when there is a provision incorporated in a statute creating charge. No such M.A.No.654/2013 -:6:- situation exists in the present case. What is averred in paragraph No.4 of the original petition is that appellants agreed to assign petition schedule five cents in favour of the respondents in consideration for the alleged benefits received from them. This alleged agreement to assign the land cannot be equated to an agreement to create a charge in the property since the agreement to sell a land and an agreement consenting to create a charge are contra distinguishable under law. Therefore, that part of the impugned order for realisation of decree amount by sale of the property is illegal and therefore liable to be set aside in this appeal.
8. One of the arguments raised by the learned counsel for the appellants is that the original petition claiming recovery of cash amount and value of gold ornaments was not maintainable before the Family Court inasmuch as the proceeding in question did not fall in any of the clauses
(a) to (g) in Section 7(1) of the Family Courts Act,1984(for short 'the Act'). The essence of the contention is that the proceedings neither related to a dispute between parties to marriage with respect to their property nor it was instituted in the circumstances arising out of a marital relationship. On the other hand, the learned counsel for the 1st respondent contended that the nature of proceeding falls within clause (d) of Section 7(1) of the Act and it was instituted in the circumstances arising out of the matrimonial relationship of respondents. M.A.No.654/2013 -:7:- Evidently, the proceeding is not the result of any dispute between spouses, though it pertained to the property of the 1st respondent. Clause (c) of Section 7 (1) of the Act does not, therefore, apply to the present case. The 1 st respondent has no case that her assets were ever misappropriated by her husband nor was any part of it entrusted with him. The admitted case itself is that the 2nd respondent, husband was not a party to entrustment of cash or gold nor was he benefited by it.
9. In order to bring the case within clause (d) of Section 7(1) of the Act, dispute between spouses is not sine qua non. What is required, on the other hand, is that the proceedings must have been initiated in the circumstances arising out of their matrimonial relationship. What precisely matters is that the cause of action for the proceeding should have a legal and reasonable nexus with the matrimonial relationship. A causal or remote connection of cause of action with relationship is not sufficient to bring forth a proceeding within the province of the aforesaid clause. A few decisions cited at the Bar namely: Janaki Amma and Others v. Renuka Sadanandan and Others[2016(1) KHC 266], Vijayalakshmy v. P.K. Jayashree and Another [2018(5)KHC 416] Suprabha v. Sivaraman[2006 KHC 228] and Anil Kumar K.B. v. Sheela N. S. and Others [2011(3) KHC 942] are relevant in this respect.
10. The learned counsel for the appellants contended M.A.No.654/2013 -:8:- relying on paragraph No.4 of the original petition that appellants agreed with respondents to assign petition schedule land in return for the cash amount and the gold ornaments received. The substance of the contention is that promise to assign the land has given rise to a cause of action which is sustainable even in the absence of any marital relationship and therefore the proceeding cannot be embraced within Section 7(1)(d) of the Act. We are not inclined to accept the above contention, since the claim made for return of money and value of gold ornaments is not based on a cause of action arising out of the promise made to assign the land. The relief claimed in the original petition is not for an order for assignment of land. On the other hand, the cause of action pleaded as it appears from the entire pleading put forth in the original petition indicates that the liability of the appellants is sought to rest on an alleged trust created by conduct of the parties. Parents-in-law receiving cash paid on behalf of bride or their taking away of ornaments attaches to them legal obligation to hold the same as trustees with further liability to transfer the assets in the name of the person from whom they are received or removed. The concept of such legal liability arising out of the obligation in the nature of trust can be seen to have been laid down by the Honourable Supreme Court in Pratibha Rani v. Suraj Kumar and Another [(1985) 2 SCC 370]. This principle is reflected in Section 6 of the Dowry Prohibition Act,1961 also. In M.A.No.654/2013 -:9:- short, going by the sum and substance of the case pleaded by the first respondent, cause of action for the original petition can be seen to arise out of the circumstances created by the marital relationship. Therefore, it can be held that the court below rightly entertained the original petition considering it as falling within the ambit of clause (d) of Section 7(1) of the Act. The plea attacking maintainability of original petition raised by the learned counsel for the appellants, therefore, fails.
11. The next question which requires to be considered is whether the allegation raised by the 1st respondent that there was entrustment of Rs.5,00,000/- with the appellants in connection with betrothal is true. As regards entrustment of cash with appellants, there is no documentary evidence and the only direct evidence in this respect is from the testimonies of PW.4, the father and a close friend of his examined as PW.3, who accompanied the former and claimed to have witnessed the entrustment. PW.1, the original petitioner nor her brother, PW.2 was not the person present at the time of the alleged entrustment of cash. All these four witnesses said that the betrothal was arranged to be conducted on 09.12.2006. A day immediately before the betrothal day fixed, PW.4 took Rs.5,00,000/- kept in a black bag, in bundles of 500/- rupee notes and proceeded to the house of the appellants and entrusted the amount with the 2nd appellant, who is the father of the 2nd respondent. The 1st appellant was also present along with M.A.No.654/2013 -:10:- the 2nd appellant being ready to receive payment from the father of the petitioner.
12. PW.2, brother of the original petitioner supporting his sister said that both of them witnessed PW.4 placing currency notes of Rs.5,00,000/- in a bag and carrying it in his own car along with PW.3, a close friend, for proceeding to the house of the appellants. PWs.3 and 4 said that the notes in bundles were taken out of the bag and presented to the appellants in their house. The evidence given by PWs.3 and 4 was accepted by the lower court as convincing. Though it was argued by the learned counsel for the appellants that PW.3 is a highly interested witness and untrustworthy, we do not find any reason to reject the evidence of both these witnesses. PW.3 is a very old close friend of PW.4 and they have personal acquaintance with each other for about 40 years. Quite naturally, PW.4 might have only chosen to take PW.3 along with him as the best person to witness the entrustment of cash going to be made. There are no material contradictions as between the testimonies of these witness. Even though these witnesses were cross-examined in detail and their credibility attacked, in our opinion, they were rightly believed by the court below, since nothing could be brought out to discredit their evidence. Their evidence has established that a day prior to the betrothal ceremony, cash amount of Rs.5,00,000/- was entrusted with the appellants at their house and it was received by them. M.A.No.654/2013 -:11:-
13. It is pertinent to note that appellants have kept silence as to their presence as well as the son, the 2 nd respondent on the date of alleged entrustment of cash at their house. Their simple statement is that they and their daughter kept away from the betrothal ceremony, since their son's choice of first respondent as his bride did not relish them. Even if they were truly absent at the time of betrothal ceremony, nothing comes out from their evidence denying their presence in the house at the time of the alleged entrustment of cash being made on 08.10.2006. During cross-examination of RW.1, it came out that they also participated in the marriage negotiations which took place and the dowry amount fixed was at their instance. This testimony of RW.1 contradicts the case set up by the appellants in paragraph No.4 of their pleadings that the son alone took part in the marriage negotiations and they had no sort of involvement nor held any deliberations in the matter. When this inconsistency between the testimony of Rw.1 and the case set up by them in the pleadings is taken note of along with failure to explain their presence at the time of alleged handing over of cash at their house on a day prior to the betrothal ceremony, there is ground to hold that the case of entrustment of cash as set up by first respondent is probable and also believable. The view taken by the court below in this regard based on evidence and circumstances appears to be sound and the finding rendered holding the appellants liable to return the amount M.A.No.654/2013 -:12:- does not, in our opinion, require any interference.
14. As regards the allegation that appellants misappropriated 50 sovereigns of gold ornaments of first respondent, there is no documentary evidence other than her testifying as PW.1 that the ornaments were taken for discharge of their loan liability with a private kury company in the year 2008. The initial burden to prove that gold was either entrusted with appellants or it was taken away by them lies on the person who claims decree for recovery. Law laying down burden of proof in this respect is clear from Pankajakshan Nair v. Shylaja and Another [2017 (1) KHC 620] and Shinu P.K. v. Dhanya Madhavan [2013 (3) KHC 735]. PWs.2 to 4 have no information or direct knowledge about the alleged misappropriation of ornaments otherwise than through PW.1. The 1st appellant, as RW.1 denied the allegation of misappropriation and said that there was no occasion or need for demanding any ornaments, since the relationship between parties was not as cordial enough to demand or take away the ornaments. She testified that after the marriage of spouses, they lived as separate families under the same roof, since the marriage was against their liking. Since evidence as regards the alleged misappropriation is based on oath against oath of the parties, a decision thereon could rest only on the broad of probabilities and the circumstances of the case.
15. PW.1 referring to Ext.A4 marriage album testified that she was adorned with 50 sovereigns of gold ornaments M.A.No.654/2013 -:13:- at the time of marriage. She explained that bill was not taken from the jewellery, since PW.2 her brother, who was a working staff in the Jewellery managed to obtain the ornaments free of tax. The brother as well as PW.1 spoke to the descriptions of ornaments and the quantum as 50 sovereigns. RW.1 said that some of the ornaments seen in the marriage album were imitation gold. But, she was not able to point out in the Album which of them were fake.
16. The court below took the view that the 1 st respondent was adorned with 50 sovereigns of gold at the time of marriage based on materials on record and we also consider that such a view cannot be said to be unreasonable. But, the crucial question is whether the appellants took 40 sovereigns from the 1st respondent for the purpose of discharging their liability with Damian Subsides and Kuries Limited, as contended by the 1st respondent. RW.1 did not deny that she had financial liability with the kuri company. According to her, she discharged it by raising funds by sale of her property as proved by Ext.B2 sale deed dated 22.12.2008. Ext.A3 receipt issued by the kuri company on 22.10.2008 shows that the liability to the company was only Rs.2,04,549/- much less than the value of 40 sovereigns of gold. Ext.B2 sale deed shows that property was sold for an amount of Rs.1,50,000/- which, in all probability, must have been shown much lower than the actual amount for which it was sold. The reasonable inference that could be drawn is that M.A.No.654/2013 -:14:- appellants discharged their liability with kuri company with the amount raised by sale of Ext.B2 property. Even according to PW.1, the value of 40 sovereigns during the relevant period was approximately Rs.6,00,000/-. It is not rather reasonable to assume that 40 sovereigns worth such a larger amount than what is due to kuri company were received or taken from the 1st respondent for discharge of appellant's financial liability.
17. The formidable circumstance which the 1st respondent relies on in support of entrustment of gold ornaments is possession of Ext.A1 original title deed of petition schedule property. She alleges that document came to custody pursuant to an oral agreement to assign the property in return for the assets taken by the appellants. The appellants have a very definite explanation as to how the title deed came to the custody of the respondents. RW.1 explained that when appellants were in need of money for sending their daughter in marriage, they approached the 2nd respondent to help them which he mercilessly refused. On intervention of local mediators, the 2nd respondent agreed to help the parents provided they were prepared to assign the petition schedule property in his name. He agreed to maintain the parents and also to meet all necessary expenses to be incurred after the marriage of the sister. The conditions on which the appellants agreed were reduced to writing in Ext.B1 dated 22.02.2009. There is no dispute between parties about the execution of Ext.B1 nor M.A.No.654/2013 -:15:- the conditions incorporated therein. It is clear from this document that the 2nd respondent undertook to bear the registration expenses for execution of the assignment deed in his name. The testimony of RW.1 in this background is that the 2nd respondent got the title deed from appellants making them believe that he had taken all necessary steps for execution of assignment deed. But, he did not keep his words nor return the deed. There is no reason to reject the testimony of RW.1 explaining the circumstances as to how Ext.A1 title deed came into the possession of respondents. Ext.B1 agreement belies the case set up in paragraph 4 of the original petition that there was an oral agreement to assign the land in return for the assets taken by appellants. In our view, the court below failed to appreciate the evidence in its proper perspective and perceive the true circumstances and probabilities of the case. Therefore, the finding that the appellants are liable to pay the value of gold ornaments to original petitioner cannot be held to be legal and sustainable. The order to the extent it directed payment of value of gold ornaments is liable to be set aside.
In the result, the appeal is allowed in part, setting aside the impugned order dated 18.6.2013 of the Family Court, Thrissur, allowing recovery of Rs.11,00,000/-. The order is modified limiting the right of the original petitioner in O.P.No.1941 of 2010 to recover only a sum of Rs.5,00,000/- being the cash amount entrusted with the M.A.No.654/2013 -:16:- appellants, with 12% interest per annum from the date of petition till the date of decree and thereafter the rate of 6% per annum till realisation. The rest of claim in the original petition seeking to recover the value of 40 sovereigns of gold ornaments is dismissed. The parties will suffer their respective costs.
Sd/-
A.M.SHAFFIQUE,JUDGE Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy//
P.A.To Judge