Kerala High Court
Salim vs Sajitha on 19 February, 2020
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
Mat.Appeal.No.290 OF 2013
AGAINST THE JUDGMENT IN OS No.232/2005 DATED 19-04-2012 OF FAMILY
COURT, KOTTARAKKARA
APPELLANTS/DEFENDANTS:
1 SALIM,
AGED 66 YEARS,S/O.MAZOOD RAWTHER, PUTHENVILA
PURAYIDOM VEEDU, MANCHALLOOR MURI, PATHANAPURAM
VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.
2 MYTHEEN BEEVI,
AGED 64 YEARS,W/O.SALIM, PUTHENVILA PURAYIDOM VEEDU,
MANCHALLOOR MURI, PATHANAPURAM VILLAGE, PATHANAPURAM
TALUK, KOLLAM DISTRICT.
3 SADATH,
AGED 40 YEARS,S/O.SALIM, PUTHENVILA PURAYIDOM VEEDU,
MANCHALLOOR MURI, PATHANAPURAM VILLAGE, PATHANAPURAM
TALUK, KOLLAM DISTRICT.
4 SAJAD,
AGED 37 YEARS,S/O.SALIM, PUTHENVILA PURAYIDOM VEEDU,
MANCHALLOOR MURI, PATHANAPURAM VILLAGE, PATHANAPURAM
TALUK, KOLLAM DISTRICT.
BY ADV. SRI.K.V.ANIL KUMAR
RESPONDENT/PLAINTIFF:
SAJITHA
D/O.SAINABA, AMJITH BHAVAN, PATHANAPURAM VILLAGE,
PATHANAPURAM TALUK, KOLLAM DISTRICT.689695.
R1 BY ADV. SMT.ATHIRA A.MENON
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.290/2013 2
JUDGMENT
Dated this the 19th day of February 2020 SHAFFIQUE,J.
This appeal is filed by the defendants in O.S No.232 of 2005 of the Family Court, Kottarakkara challenging the judgment dated 19.04.2012 by which a decree had been passed against the appellants permitting the respondent herein to recover an amount of Rs.1,70,000/- with interest @ 6% per annum from the date of filing the suit and thereafter @ 9% per annum till the date of realization.
2. Short facts of the case would disclose that the plaintiff and the 4th defendant got married on 23.07.2000 as per the law relating to Muslim community. She made a claim for return of 30 sovereigns of gold ornaments and Rs.2,50,000/-. The Family Court granted a decree for recovering an amount of Rs.1,70,000/- against which the defendants have preferred this appeal.
3. Contention of the plaintiff/wife was that prior to the marriage Rs.2,00,000/- was paid in three installments as her parental share and that apart, a sum of Rs.50,000/- was paid to the Mat.Appeal.No.290/2013 3 4th defendant as pocket money. The defendants denied having received the aforesaid amount. According to them, only an amount of Rs.1,00,000/- was received for which claim was settled by the defendants.
4. Evidence in the case consisted of oral testimony of plaintiff as PW1. Three other witnesses were examined as PW2 to PW4. Exts. A1 to A8 were also relied upon. On the side of defendants, DW1 to DW7 were examined Exts.B1 to B9 and X1 were the documents relied upon by either side.
5. As far as the receipt of Rs.1,00,000/- is concerned, there is no dispute. But the contention urged by the defendants is that the said amount was paid to the plaintiff as per cheque for an amount of Rs.80,000/- drawn on Federal Bank Ltd. Pathanapuram on 20.11.2003. Ext.X1 is the said cheque. Ext.B9 is the Statement of account during the period from 01.01.2003 to 30.02.2006 issued by the Federal Bank Ltd, Pathanapuram. The Manager of the Federal Bank, Pathanapuram Branch was examined as DW6. He was examined to prove the account of Adv. Zeenath Beevi. The statement of account was also produced as Ext.B9 and the cheque as Ext.X1. The aforesaid evidence would show that a cheque for an amount of Rs.80,000/- in the name of Smt.Sajitha was withdrawn Mat.Appeal.No.290/2013 4 on 24.11.2003, and shown as debit in the account. In the cross examination of DW6, the thrust of the contention was that the cheque was a bearer cheque and Smt.Sajitha had not appeared before the Bank for collecting the amount and the amount was fraudulently collected by somebody else. DW6 during cross examination had stated that she does not know whether Smt.Sajitha herself had come to the Bank with Ext.X1 cheque leaf.
6. DW7 is the Senior Manager, Federal Bank, Pathanapuram Branch who in chief examination identified the plaintiff and stated that she had come to the Bank. To a leading question asked by the counsel for defendants, he stated that it is a bearer cheque and it was brought by the plaintiff on 24.11.2003 but in cross examination, he stated that he had not seen her. Therefore, the contention that Rs.80,000/- was withdrawn by the plaintiff has not been proved. It was just a bearer cheque and anyone could have gone to the Bank and collected the amount.
7. The evidence of DW6 and DW7 does not support the case of the defendants that the amount was collected by the plaintiff. The cheque was sent for expert opinion to the State Forensic Science Laboratory, Thiruvananthapuram. The report is filed before the Court and the Assistant Director Forensic Science Mat.Appeal.No.290/2013 5 Laboratory in the report dated 19.11.2008 stated that the signature on the back side of the cheque is not identifiable with that of the admitted signature of the plaintiff. Therefore, the contention of the appellants that Rs.80,000/- has been paid in discharge of the liability of Rs.1 lakh may not be correct. But still the Family Court proceeded on the basis that the said amount had to be adjusted from the amount payable to the plaintiff.
8. The question to be considered is whether the plaintiff's family had paid Rs.2 lakh prior to the marriage and Rs.50,000/- after the marriage. The specific contention of the plaintiff is that Rs.2 lakh was paid in three installments prior to the marriage. The defendants heavily relied upon an earlier suit filed by the plaintiff as O.S No.135 of 2002 before the Munsiff Court, Punalur. In the plaint(Ext.B1) in O.S No.135 of 2002, plaintiff had made an averment that the 1st defendant in the case who is the father of the 4th defendant has agreed to return Rs.1 lakh within three years, for which, he executed an agreement on 24.11.2000. If the amount is not paid, he had offered to permit the plaintiff to remain in possession of 1 cent of land described as 'C schedule' to the plaint. In the suit, her contention was that on account of matrimonial issues, she is being forced to remain away from the matrimonial Mat.Appeal.No.290/2013 6 home and therefore, she sought for an injunction to restrain the defendant, who is the father of her husband from violating the terms of agreement and forcefully evicting her from the building in the property. One contention urged by the defendants/appellants is that when there is no reference to payment of Rs.2 lakh in O.S No.135 of 2002, the contention that an amount of Rs.2 lakh had been paid cannot be believed. Learned counsel also points out to the evidence tendered by the plaintiff as well as her mother, who was examined as PW3. According to the plaintiff, the money was paid by her mother prior to the marriage. Whereas when PW3 was examined, she deposed that the amount was paid by her brother. PW1's uncle had been examined as PW4. He deposed regarding the payment of the said amount. Apparently, the plaintiff may only know that her mother had made arrangements for the amounts and her mother has given evidence stating that money was paid by her uncle by PW4. It is quite usual that when there is a financial transaction in the form of parental share or dowry, the payment is affected by the senior most male member of the family and it was done in the presence of her mother. The plaintiff also had a case while in evidence that her previous marriage was settled and she received a sum of Rs.2 lakh as refund of her parental share, which Mat.Appeal.No.290/2013 7 amount was paid. Ext.A3 is the compromise filed in M.C 72 of 1999 between the plaintiff and her former husband. As per the said compromise, former husband had agreed to pay Rs.2 lakh. This agreement was executed on 18.09.1999. The Family Court after considering the evidence of PW1 to PW4 had arrived at a finding that there is evidence to prove payment of Rs.2,50,000/-. Though the petitioner had proved some source with reference to receipt of Rs.2 lakh in the form of Ext.A3, there is no material to indicate that they had the source to pay Rs.50,000/-. PW4 had deposed that he had paid Rs.50,000/- on his own, but, other than his oral testimony, there is no material produced to prove that he had the source to pay such an amount. To that extent, we are of the view that the Family Court erred in believing the version of PW1, PW3 and PW4.
9. DW1 is the 4th defendant in the case, who is the husband of the plaintiff. DW2, is his father. Evidence of DW3, DW4 and DW5 has nothing to do with the claim for amount involved in the case. Having regard to the aforesaid findings, we are of the view that the claim for Rs.2 lakh was sustainable. However, Family Court had decreed only for an amount of Rs.1,70,000/-, though on different grounds.
Mat.Appeal.No.290/2013 8
10. In the above circumstances, we deem it appropriate to sustain the decree passed by the Family Court though on different grounds and grant interest at uniform rate. The amount decreed shall carry interest at the rate of 6% per annum from the date of petition till realization.
Mat Appeal stands disposed of, accordingly.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH JUDGE JJ //TRUE COPY// Sd/-
PA TO JUDGE