Kerala High Court
Jisha Mathew vs Sinu George on 5 March, 2021
Author: Kauser Edappagath
Bench: A.Muhamed Mustaque, Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942
Mat.Appeal.No.234 OF 2011(Y)
AGAINST THE JUDGMENT IN OP(OS) 208/2008 DATED 13-05-2010 OF
FAMILY COURT, ALAPPUZHA
APPELLANTS/PETITIONERS:
1 JISHA MATHEW, AGED 28 YEARS,
D/O.M.G.MATHEW, MALIYAKKAL HOUSE, ERAMATHOOR
P.O., CHENNITHALA, MANNAR, ALAPPUZHA,
REPRESENTED BY, POWER OF ATTORNEY HOLDER,
HER MOTHER, 2ND APPELLANT.
2 SARAMMA MATHEW AGED 54 YEARS
W/O.M.G.MATHEW, MALIYAKKAL HOUSE,
ERAMATHOOR P.O., CHENNITHALA,
MANNAR, ALAPPUZHA.
BY ADVS.
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.H.JAWHAR
SRI.V.SUNIL KUMAR (PANACHAMOODU)
RESPONDENTS/RESPONDENTS:
1 SINU GEORGE, AGED 33 YEARS,
S/O.M.GEORGE, MALIYAKKAL THEKKETHIL HOUSE,
KATTACHIRA, BHAANIKKAVU VILLAGE,
PALLICKAL P.O., ALAPPUZHA-690563.
Mat.Appeal No.234/2011
-:2:-
*2 M.G.GEORGE AGED 65 YEARS
MALIYAKKAL THEKKETHIL HOUSE,, KATTACHIRA,
BHAANIKKAVU VILLAGE, PALLICKAL P.O.,
ALAPPUZH-690563 (*DIED)
LEGAL REPRESENTATIVES IMPLEADED
**3 SMT.THANKAMMA GEORGE,
W/O M.G.GEORGE, MALIYAKKAL THEKKETHIL HOUSE,
KATTACHIRA, BHARANIKKAVU VILLAGE,
PALLICKAL P.O, ALAPPUZHA.
**4 SIBY GEORGE,
S/O M.G.GEORGE, MALIYAKKAL THEKKETHIL HOUSE,
KATTACHIRA, BHARANIKKAVU VILLAGE,
PALLICKAL P.O,
ALAPPUZHA.
(**ADDITIONAL RESPONDENTS 3 AND 4 ARE IMPLEADED
AS LEGAL REPRESENTATIVES OF THE DECEASED 2ND
RESPONDENT AS PER ORDER DATED 1/3/2021 IN
IA.NO.1/2019 IN MAT.APPEAL NO.234/2011
R1-2 BY ADV. SRI.A.K.ABDUL AZEEZ
R1-2 BY ADV. SRI.RENJIT GEORGE
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
01-03-2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:
Mat.Appeal No.234/2011
-:3:-
JUDGMENT
Dated this the 5th day of March, 2021 Dr.Kauser Edappagath, J.
This is an appeal filed u/s 19 of the Family Courts Act, 1984 against the judgment of the Family Court, Alappuzha in OP(OS) No.28/2008 dated 13/5/2010.
2. The petitioners before the Court below are the appellants. The respondents before the court below are the respondents. The parties are referred to as shown in the Original petition unless otherwise stated. The petition was one for return of gold ornaments, a refrigerator and recovery of money which were allegedly given to the respondents by the petitioners at the time of marriage.
3. The first petitioner and first respondent are divorced spouses now. Their marriage took place on 31/1/2005 as per Christian rites. The first petitioner instituted OP (Div) No.132/2006 against the first respondent and obtained a decree of divorce. The 2nd petitioner is the mother of the first petitioner. Mat.Appeal No.234/2011 -:4:- The 2nd respondent is the father of the 1 st respondent. It is alleged that after the marriage, 16 sovereigns of gold ornaments and a refrigerator were entrusted to the respondents by the petitioners and the same were misappropriated by the respondents. It is also alleged that at the time of marriage, a sum of `1 lakh was entrusted by the father of the 1 st petitioner with the respondents. The Original petition has been instituted for return of money, gold ornaments and the refrigerator mentioned above.
4. The respondents entered appearance and filed objection statement. The respondents denied the case set up by the petitioners that gold, money and refrigerator were entrusted to them at the time of marriage. It was stated that the first petitioner herself had held her ornaments as well as patrimony.
5. Parties went on trial. The 2nd petitioner was examined as PW1. Two witnesses were examined as PWs 2 and 3 and Exts.A1 to A10 were marked. The 2nd respondent was examined as RW1. Exts.B1 to B4 were marked on the side of the respondents. The plea of the respondents that no ornaments or cash was liable to be returned was accepted by the Court below. However, the Court below found that the case set up by the Mat.Appeal No.234/2011 -:5:- petitioners that refrigerator was entrusted with the respondents is true and the Original Petition was allowed in part granting the first petitioner a decree to realise an amount of `9,600/- being the value of the refrigerator. The rest of the claims were declined. Challenging the said judgment, the petitioners have preferred this appeal.
6. We heard the learned counsel for the appellants as well as the respondents.
7. The learned counsel for the appellants/petitioners assails the impugned judgment on the ground that the court below was unreasonable and unrealistic in the appreciation of oral evidence. The learned counsel submitted that the oral evidence let in by the petitioners would prove the entrustment of gold ornaments as well as cash with the respondents and as such, the Court below ought to have allowed the petition in toto. The learned counsel for the respondents, on the contrary, contends that in as much as the petitioners were claiming a decree for return of money and gold ornaments, the burden rests squarely on them to prove the claim satisfactorily and the petitioners miserably failed to discharge the said burden. Mat.Appeal No.234/2011 -:6:-
8. We will first consider the claim of the petitioners regarding return of money. As already stated, the definite case of the petitioners is that, at the time of marriage, `1 lakh was entrusted with the respondents by the father of the first petitioner as patrimony. To prove the same, the petitioners rely on the oral testimony of Pws1 to 3 and Ext.A6 passbook. PW1 is the 2nd petitioner, who is the mother of the first petitioner. PW1 gave evidence that the engagement ceremony of the marriage between the first petitioner and the first respondent took place on 29/1/2005 at Marthoma Parish Hall and on the said date, the father of the first petitioner named M.G.Mathew entrusted `1 lakh with the respondents. Father of the first petitioner is no more. It is true that the wife, the first petitioner was not examined. But, the exchange of the said amount is between the parents of the bride and groom. PW1 stated that she had witnessed the handing over of the money. Hence, she is a competent witness to depose about the entrustment of money. The evidence of PW1 gets corroboration from the evidence of PW2 and PW3. PW2 is brother of the father of the first petitioner. He deposed in tune with the evidence tendered by PW1. He deposed that, on 29/1/2005, at Mat.Appeal No.234/2011 -:7:- the time of engagement, he was present and he had witnessed the handing over of `1 lakh by the father of the first petitioner to the 2nd respondent. PW3 is an independent witness. He also deposed in tune with the evidence tendered by PWs 1 and 2. He stated that he had witnessed the handing over of `1 lakh on 29/1/2005 by the father of the first petitioner to the 2 nd respondent. Even though PWs 1 to 3 were cross-examined in length, nothing tangible has been extracted from their evidence to discredit the testimony. That apart, the respondents in paragraph 4 of the objection statement admitted that there was payment of patrimony amount, but it was entrusted with the first petitioner and she alone held it.
9. The petitioners have also adduced evidence to prove the source of `1 lakh. Ext.A6 is the passbook in respect of the account which stands in the name of the second petitioner at SBT. In the 3rd page of Ext.A6 passbook, there is an entry regarding deposit of `99,973/- in the year 2004 and an amount of `10,000/- and `85,000/- were withdrawn on 24/1/2005 and 27/1/2005. This clearly shows that the parents of the first petitioner had sufficient amount of money with them at the time Mat.Appeal No.234/2011 -:8:- of entrustment of money.
10. The Division Bench of this Court in Bexy Michael v. A.J.Michael [2010 (4) KHC 376] has held that it is a known practice among Christians that properties/money is exchanged at the time of marriage from parents of the bride to the parents of the groom. It was also held in the said decision that it would be unreasonable for a Court to insist for documentary evidence regarding ornaments and money that had changed hands at the time of marriage and that in most of the cases, such claim will have to be decided on the basis of oral evidence. The Court below disbelieved the case set up by the petitioners regarding the entrustment of money relying on certain discrepancies in the pleadings and the evidence. In the original petition for divorce filed by the first petitioner against the first respondent, it was contended that the quantum of amount entrusted by the father of the first petitioner to the 2 nd respondent at the time of marriage was `75,000/- only. PW1 deposed that in fact the amount of `1 lakh was entrusted by her karanavar George on behalf of her husband with the 2nd respondent at his house. But, in the Original petition for divorce, it was stated that it was the father of the first Mat.Appeal No.234/2011 -:9:- petitioner who entrusted the amount with the respondents. These were highlighted as vital contradictions by the Court below. These are only minor discrepancies and not materials to the case. It is to be noted that the Court below has found that it is undisputed and known that among Christians, marriage is preceded by payment of patrimony amount by parents of the bride to the parents of bride groom and further found that the 1 st respondent admitted that there was payment of patrimony amount to the first petitioner. Still, the Court below disallowed the claim regarding the patrimony. We see no reason to disbelieve the oral testimony tendered by PW1 to PW3 regarding the entrustment of `1 lakh. Evidence of PW1 to 3 gets corroboration from the documentary evidence, Ext.A6. That apart, there is an admission on the part of the respondent in the objection statement that the patrimony money was entrusted with the first petitioner. Their only case is that she alone held it. For all these reasons, we hold that the Court below went wrong in rejecting the claim of the petitioners for return of `1 lakh. We set aside the said finding of the Court below.
11. So far as the return of gold ornaments is concerned, Mat.Appeal No.234/2011 -:10:- the case set up by the petitioners is that 16 sovereigns of gold ornaments were handed over by the petitioners to the respondents after the marriage and the same were misappropriated by them. Since the said gold ornaments were allegedly handed over after the marriage, wife is the competent person to depose about the entrustment as well as the misappropriation. But the first petitioner was not examined. In the pleadings, there was no mention about how much gold the first petitioner was wearing at the time of marriage. The only averment in the original petition is that the first petitioner had entrusted 16 sovereigns to the respondents after the marriage. The year, date or time of such entrustment was not pleaded. For the fist time, PW1 deposed in chief examination that her daughter was wearing 20 sovereigns of gold ornaments at the time of marriage. There are contradictions in the evidence of PWs 1 to 3 regarding the entrustment of the gold ornaments as well as the alleged misappropriation. There is nothing on record to show that the gold ornaments worn by the first petitioner at the time of marriage were taken away or misappropriated by the first respondent. Even though the case set up by the petitioners is Mat.Appeal No.234/2011 -:11:- that 16 sovereigns of gold ornaments were entrusted with respondents which were misappropriated by the respondents, PW2 and PW3 stated that first petitioner was wearing 20 sovereigns of gold ornaments. This is against the version of PW1. For all these reasons, we hold that the Court below was absolutely justified in finding that the petitioners failed to prove satisfactorily the entrustment of gold ornaments as well as misappropriation. No interference is called for on the said finding of the Court below.
12. For the reasons stated above, we set aside the finding of Court below that the petitioners failed to prove the entrustment and misappropriation of `1 lakh with the respondent and we sustain the finding of the Court below that the petitioners failed to prove the entrustment and misappropriation of 16 sovereigns of gold ornaments with the respondents. The petitioners are entitled to get back `1 lakh from the respondents.
In the result, the appeal is allowed in part. The impugned judgment to the extent it rejected the claim for return of money is set aside. The respondents are directed to pay to the petitioners a sum of `1,00,000/- (Rupees One lakh only) with interest at the Mat.Appeal No.234/2011 -:12:- rate of 6% per annum from the date of the petition till the date of payment within one month. The parties shall bear their respective costs.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
Dr.KAUSER EDAPPAGATH
Rp True Copy JUDGE
PS to Judge