Kerala High Court
Ajimol P.R vs Anju Satheesh on 5 November, 2019
Equivalent citations: AIRONLINE 2019 KER 887
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
TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941
Mat.Appeal.No.747 OF 2013
AGAINST THE JUDGMENT AND DECREE IN OP NO.1518/2011 OF FAMILY
COURT, KOTTAYAM
APPELLANT/ PETITIONER:
AJIMOL P.R.,
W/O.ANJU SANTHEESH, AGED 33, D/O.RAJU, PAPANAMCHIRA
(KARITHADATHIL) HOUSE, ATHIRAMPUZHA P O, PEROOR
VILLAGE, KOTTAYAM-686562
BY ADV. SRI.MATHEW PHILIP EDAPPALLIL
RESPONDENTS/ RESPONDENTS:
1 ANJU SATHEESH,
AGED ABOUT 36, S/O.P P SATHEESHAN, PAPALAYIL HOUSE,
KARAPUZHA P O, VELOOR VILLAGE, KOTTAYAM, PIN-686003
2 P.P. SATHEESAN,
AGED ABOUT 65, RETIRED POLICE HEAD CONSTABLE,
S/O.POOVAN, PAPALAYIL HOUSE, KARAPUZHA P O, VELOOR
VILLAGE, KOTTAYAM, PIN-686003
3 BEENA SATHEESHAN,
AGED ABOUT 56, W/O.P.P.SATHEESHAN, PAPALAYIL HOUSE,
KARAPUZHA P O, VELOOR VILLAGE, KOTTAYAM, PIN-686003
4 AJI SATHEESH,
AGED 33,S/O.P.P.SATHEESHAN, PAPALAYIL HOUSE,
KARAPUZHA P O, VELOOR VILLAGE, KOTTAYAM, PIN-686003
R1 BY ADV. ADV.K.A .HASSAN ADV.JULIA PRIYA RESHMY FOR
CAVEATORS
R1-2 BY ADV. SMT.JULIA PRIYA RESHMY
R1-4 BY ADV. ADV.K.A .HASSAN ,ADV.JULIA PRIYA RESHMY
FOR CAVEATORS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.10.2019, THE COURT ON 05.11.2019 DELIVERED THE FOLLOWING:
M.A. No.747/2013
-:2:-
Dated this the 5th day of November, 2019
J U D G M E N T
T.V.ANILKUMAR J.
Petitioner, the wife in O.P. No. 1518 of 2011 before the Family Court, Kottayam, challenges the impugned order dated 12.07.2013 by which it dismissed her original petition in part. The respondents in the original petition are husband, his parents and brother. She claimed in the original petition return of her gold ornaments, parental share, the household utensils and in the alternative the value thereof and also return of her degree certificates with alternate relief for compensation. The court below by the impugned order allowed the petitioner to recover Rs.50,000/- from the respondents towards parental share in lieu of Rs.5,00,000/- claimed and another amount of Rs.50,000/- towards compensation for causing loss to her degree certificates.
2. O.P.No.1518 of 2011 was tried along with O.P.No.1284 of 2011 filed by the 1 st respondent, husband for dissolution of their marriage, taking up the latter petition as the main case. Short M.A. No.747/2013 -:3:- facts in the pleadings presented by the parties before the court below are narrated below:
3. Appellant was married to the 1st respondent on 13.11.2005. Parties are members of Cheramar community. Appellant is a graduate in B.Sc. and B.Ed. Her case is that on 23.10.2005, when the engagement was conducted, her father entrusted an amount of Rs.5,00,000/- with the respondents 1 to 3 as her parental share on an understanding that the amount would be kept in trust for her. At the marriage, she was adorned with 19½ sovereigns of gold ornaments. In addition to this, household utensils worth Rs.63,550/- were also presented to her soon after the marriage. But without her consent, the parental share given for her benefit was utilised by the respondents 1 to 3 for renovating their building. On 02.03.2009, when she returned from school where she was working as Teacher, she was brutally manhandled by respondents 1 to 3 compelling her to part with her gold ornaments to the 3rd respondent, the mother-in-law for pledge. She resisted the demand but finally her husband forcibly took a three sovereign bangle M.A. No.747/2013 -:4:- and gave to his mother. The 3rd respondent soon thereafter snatched away a thali chain also which she was wearing. These ornaments were not returned by the respondents.
4. When the 1st respondent caught ill, he went along with the appellant to her parental house on 20.11.2010 and stayed there till 04.12.2010 under medical advice of a doctor who treated him. When he left for her house, he locked the almirah in which the gold ornaments and her other belongings were kept and entrusted the key with co- respondents. After a short stay, he left her on 04.12.2010, promising to take her shortly back to the matrimonial house, but it did not materliase. He telephoned on 15.09.2011 asking her to reach the matrimonial house on 24.09.2011 and on the day when she arrived, she was brutally manhandled for which a crime was registered by West Police Station, Kottayam, under Section 498A of the Indian Penal Code.
5. The gold ornaments scheduled as item No.1 in the original petition and weighing 21½ sovereigns and her valuable certificates were M.A. No.747/2013 -:5:- stated to be in the almirah. The dresses belonging to her as well as the household utensils presented to her by the parents are other assets which were said to be in possession of the respondents. Therefore, she wanted all these items of assets to be recovered from respondents or in the alternative their equivalent value as claimed in the original petition. She also wanted the respondents to be directed to return an amount of Rs.5,00,000/- received as her parental share.
6. The respondents filed joint objection denying all the allegations raised against them and contended that the gold and cash amount as claimed by the appellant were not entrusted with them. It was stated that at the time of the engagement on 23.10.2005, only an amount of Rs.50,000/- was entrusted and it was later returned also to the father of the appellant when he was in urgent need of money. It was denied that the appellant was adorned with 19½ sovereigns of gold ornaments at the time of marriage. It was contended that only a few household utensils were brought to the house of the respondents and they were still available in M.A. No.747/2013 -:6:- their house. There was no occasion for renovating the house of the respondents with the alleged money entrusted with them. There was no incident on 02.03.2009 as alleged by the appellant and no gold ornaments of the appellant were taken by the respondents on the day. In fact, the appellant deserted the husband in month of January,2009 and later did not return to the matrimonial house at all. On 24.09.2011, it is stated that, when she trespassed into the house, police were called and she was removed from the house with police aid. The degree certificates or other valuables belonging to the appellant were never taken by the respondents and they were not available in the house also. Same denial was made with respect to dress materials also, which she alleged having been kept in the house. On the whole, the respondents sought all the reliefs claimed in the original petition to be turned down.
7. The court below on the side of the appellant examined PWs.1 to 7 and marked Exts. A1 to A3 and RWs.1 to 6 on the side of the respondents and admitted Exts.B1 to B18 in evidence on their side. M.A. No.747/2013 -:7:- Commission report submitted by the RW.2, Advocate Commissioner was admitted in evidence as Ext.C1 and C1(a).
8. The court below after the considering the entire evidence and circumstances on record came to a conclusion that the appellant was not entitled to any order for return of gold ornaments, since she failed to prove that her ornaments were ever entrusted with the respondents. Rejecting her claim that she possessed 19½ sovereigns and also a few more sovereigns gifted by her parents, the court below held that the evidence on record did not satisfy that she had more than 10 sovereigns of gold ornaments, as borne out from the marriage register itself. As regards entrustment of Rs.5,00,000/- towards parental share, it was held that appellant's claim was not convincing and Rs.50,000/- admitted by the respondents as received from her father was later returned to him, when he was in need of money. An Advocate commissioner, who was deputed to visit the matrimonial house and prepare inventory of household articles belonging to the appellant and also her dresses scheduled in M.A. No.747/2013 -:8:- the original petition, after visit of the house on 14.12.2011, reported in Ext.C1 that her utensils, the dresses and clothes taken from the house were handed over to the appellant on proper acknowledgement of receipt obtained from her. Finding that the appellant was satisfied with what was received under Ext.C1(a) list prepared by RW2, the court below did consequently not proceed to grant any reliefs in that respect. We also find that her claims stand satisfied in so far as they were made for recovery of household articles and her costumes. Even otherwise also, there is no evidence to prove that she had any other items of dresses and household articles kept in the matrimonial home other than those ascertained and reported by the Commissioner in Exts.C1 and C1(a).
9. As regards her claim for issue direction to the respondents to return the degree certificates, the court below found that she was entitled to compensation of Rs.50,000/-, since she was deprived of job opportunities on account of loss caused to the original degree certificates. This part of the order granting compensation to appellant is not M.A. No.747/2013 -:9:- under challenge at the instance of the respondents. That order has become final and conclusive and is binding on the respondents.
10. The only two questions that hereafter survive to be considered in this appeal is, whether (1) the appellant's claim for return of petition scheduled 21½ sovereigns of gold ornaments as item No. 1 and (2) the claim for return of parental share of Rs.5,00,000/- alleged to have been entrusted with the respondents are true and genuine.
11. The court below was not prepared to accept the case of the appellant that the respondents ever appropriated her gold ornaments since, according to it, she failed to prove by any convincing evidence that ornaments were entrusted with the respondents. The total weight of gold ornaments as scheduled in item No.1 in the original petition amounts to 21.5 sovereigns and the value thereof claimed in the alternative is Rs.4,67,400/-. In any view of the matter, the whole claim for gold as such appears to be not tenable on the very face of it. She testified as M.A. No.747/2013 -:10:- RW.1 that she was adorned with 19½ sovereigns of gold ornaments at the time of marriage and after marriage, her parents gave a few more ornaments as their gift to their daughter. Even assuming that she had aggregate 21½ sovereigns of gold ornaments also, going by her own averments in the original petition, her claim for ornaments scheduled as Item No.1 in the original petition cannot be held to be genuine and sustainable. In paragraph No.5 of the original petition she narrated an incident that occurred as on 02.03.2009, in which respondents 1 to 3 were alleged to have mentally and physically harassed her demanding gold for pledge and the 1st respondent/her husband took away a bangle of three sovereigns from the almirah, where she was keeping her ornaments, under his mother/the 3rd respondent's insistence. There is further averment that as part of the incident, the 3rd respondent snatched away a thali chain also which she was wearing. And in paragraph No.6 of the original petition, she further alleged that on 20.11.2005 while she along with 1st respondent was leaving for her parental home for a short stay in M.A. No.747/2013 -:11:- connection with a treatment for his illness under advice of a Doctor attached to Matha Hospital, she was wearing two bangles, earrings, one ring and a thali, after keeping the remaining ornaments locked in the almirah. There is no statement anywhere in the pleadings or her evidence as to the exact weight of the ornaments which she had been wearing besides a bangle of three sovereigns and a thali chain alleged to have been taken by the 3rd respondent. By all means, therefore, if at all she had kept any ornaments in the almirah, they could only fall far short of 21.5 sovereigns claimed as item No.1 scheduled in the Original Petition.
12. There is serious dispute between parties as to the actual weight of gold ornaments which the appellant was wearing at the time of marriage. She claimed to have been adorned with 19 ½ sovereigns where as the respondents claimed that she had only 10 sovereigns which she always possessed with her. Ext.A1 copy of marriage register kept in the office of Akhila Kerala Chermar Hindu Mahasaba, Changanachery and Ext.B1 M.A. No.747/2013 -:12:- kept with Kerala Hindu Cheramar Association were produced before the court below. The office bearers of both the unions were examined as witnesses in court. The registers were signed by the spouses as well as their parents. It is entered in these registers that the bride was given 19.5 sovereigns of gold ornaments. But on a closer look at the relevant entry in the registers, correction made in the weight of ornaments could be noticed. This correction was brought out through witnesses who sought to prove the documents.
13. According to the appellant, the true weight was 19.5 sovereigns whereas according to the respondents, the original entry showed only 10 sovereigns. The respondents sought to contend and also to prove that a general practice continues to exist among Cheramar Hindus to the effect that cash amount given to the bridegroom is converted into equivalent value of gold and added to the actual sovereigns of gold ornaments and consequently what the marriage Registers ordinarily reflect is not the actual weight of the M.A. No.747/2013 -:13:- ornaments. This practice seems to be followed by the community as is evident from the testimonies of the office bearers of the caste associations examined before the court. Anyhow, the court below after appreciating the whole evidence came to a definite finding that the bride had been adorned only with 10 sovereigns of gold ornaments. Be that as it may, the core question that emerges in the case on hand is with respect to the entrustment of the ornaments. According to the court below, there was nothing to prove that the ornaments belonging to the appellant were entrusted with the respondents.
14. Going by the case of the appellant, as is evident from the allegations made in the Original Petition, one would find it hard to come across any specific allegation that till 04.12.2010, there was ever any entrustment of ornaments with the respondents. The mention of an incident alleged to have taken place on 2.3.09 in which she alleges to have been manhandled, itself would imply that the ornaments were in her sole custody kept under her lock and key. M.A. No.747/2013 -:14:- Otherwise, there appears no point in her alleging that she was manhandled by the respondents compelling her to part with all ornaments of her to the 3rd respondent mother-in-law for pledging. She averred in the original petition that her husband took a bangle weighing three sovereigns without her consent from her almirah and gave it to his mother. This impliedly brings out a self assertive statement that she alone held custody of her ornaments. There is serious doubt as to whether the incident of harassment alleged itself was true or not. The 1st respondent has denied this incident in his oral evidence as PW1. Whatever that may be, there has been no definite allegation to the effect that she ever entrusted ornaments with the respondents.
15. Of course, she set up a case that on 04.12.2010, when she and her husband left for her parental home, her ornaments were locked in the almirah by her husband and the key was then handed over to the other respondents. It is not specifically mentioned to which of the respondents, the key was handed over by the M.A. No.747/2013 -:15:- husband. This allegation has been denied by the respondents and according to them, after she left the house in the month of January, 2009, she had never been back to the matrimonial home. In Ext.C1 report the Advocate Commissioner stated that he opened the almirah with the key given by the respondents and after the almirah was opened and the articles available taken out, key was handed over to the appellant. This may be a circumstance to indicate that the respondents might have been holding custody of almirah and all whatever contained therein.
16. But the larger question is still whether the respondent have kept any gold ornaments claimed to be belonging to her when she alleges that her husband locked almirah and handed over the key to other respondents on 4.12.2010. According to the court below, there is serious doubt as to the reliability of her verbal assertion that she had left for parental house along with the 1st respondent after keeping the ornaments in the almirah on 21.12.2010, especially when she was allegedly a victim of M.A. No.747/2013 -:16:- manhandling at the hands of the respondents on a previous occasion. It is difficult to believe the version of the appellant that she would ever have left the ornaments in the almirah and allowed her husband to keep them under his lock and key, especially when, according to her, he was very cordial enough in accompanying her to the parental house for treatment under the medical advice of the doctor. It is insensible to assume that a husband in such an amicable atmosphere would ever have taken the risk to leave the ornaments in his house and entrust the key with the co-respondents, especially when his wife had no faith in her in-laws residing in the matrimonial home.
17. The court below after appreciating the evidence and circumstances of the case, in our view, rightly found that appellant failed to prove by reliable evidence that the ornaments were entrusted with any of the respondents and further the case set up by her was improbable also. The Advocate Commissioner was not able to find out from the almirah any gold ornaments, M.A. No.747/2013 -:17:- except some imitation ornaments. In the absence of convincing evidence to substantiate the appellant's case, we hold that there is nothing which can justify our interference with the finding of the court below in this respect.
18. There is no dispute between parties with regard to the entrustment of parental share and the core dispute centers only around the amount of money alleged having been paid to the respondents. According to the appellant, her father entrusted an amount of Rs.5 lakhs with the respondents 1 to 3 on 23.10.2005 in connection with the engagement conducted at the house of the respondents. On the other other hand, according to the respondents only an amount of Rs.50,000/- was paid by her father and received by them. The only two witnesses examined on the side of the appellant to prove entrustment of cash are her father who is RW4 and a money lender-RW6 who helped him by advancing a loan amount of Rs.3 lakhs. Appellant being a bride, did not participate in the engagement ceremony and is not a direct witness to the payment of amount. Even M.A. No.747/2013 -:18:- then she said that she had seen her father taking cash amount of Rs.5 lakhs in a school bag for proceeding to the house of the respondents on the date of engagement ceremony. RWs.4 and 6 spoke in uniform voice that Rs.5 lakhs were entrusted with respondents 1 to 3 on 23.10.2005 in a ceremony arranged in their rented house.
19. In order to prove the source from where the money was raised, appellant examined RW5 also who is an advocate of Kottayam Bar under whom her father had been working as an advocate clerk. Besides these testimonies on record, RW4 produced Ext.B2 loan token issued from Service Co- operative Bank, Ettumanoor, which shows that his wife had raised a loan of Rs.50,000/- on 22.1.2005 in connection with the marriage of appellant after encumbering 5 cents of land in her name. This appears to be true and there is no reason to disbelieve RW4's evidence in this respect at all. RW4 produced Ext.B4 cash cheque dated 21.10.2005 to prove that he had received donation of Rs.10,000/- drawn on ICICI Bank, Kottayam Branch, from a senior lawyer at Kottayam M.A. No.747/2013 -:19:- Bar by name Mr.C.N.Balakrishnan Nair in connection with the engagement ceremony of his daughter. But there is no reliable and independent evidence other than RW4 himself to show that the cheque was issued to RW4 since copy of Ext.B4 shows that it was only a cash cheque.
20. The appellant produced Ext.B5 sale deed by which her father sold 4½ cents in her name. RW4 said that property was sold for an amount of Rs.6,60,000/- and prior to the said sale, he had received from the Vendee an advance amount of Rs.1 lakh on 19.9.2005 for the purposes in connection engagement ceremony. But there is nothing to show that there existed any oral or other agreement as on 19.9.2005 since there is neither any reference about the agreement in Ext.B5 sale deed nor evidence of Vendee or any witness proving that any advance amount was paid before the execution of sale deed, was brought on record.
21. RW6 who is cited as a direct witness to payment of cash to the respondents said that he too helped RW4 by lending an amount of Rs.3 lakhs M.A. No.747/2013 -:20:- after taking Ext.B3 promisory note in his name as on 21.10.2005. The promisory note contains an endorsement that the amount was repaid and the transaction was closed as on Ext.B5 date itself. But it is quite possible that a document like Ext.B3 could be easily brought into existence at any time to project a past loan transaction by way of collusion between a purported debtor and creditor. RW5 is an advocate of Kottayam Bar who came and said that on 21.10.2005, he helped PW4 by advancing a loan amount of Rs.1½ lakhs towards conduct of marriage of his daughter. According to the respondents, the evidence let in by the appellant to prove the above sources of funds is quite artificial and therefore not reliable.
22. The respondents on the other hand, examined PW2 a marriage broker and PW7 the paternal uncle of the 1st respondent as direct witnesses to prove that parental share entrusted was only Rs.50,000/-. PW1, the 1st respondent also said that what was paid towards parental share was only Rs.50,000/-. PW3, a member of Akhila Kerala Hindu Cheramar Maha Sabha who claimed to M.A. No.747/2013 -:21:- be one of the participants in the ceremony, said that he too witnessed payment of only Rs.50,000/-. PW7 testified that he being the paternal uncle of PW1, attended the function where he witnessed appellant's father entrusting PW1 with cash amount of Rs.50,000/-. Immediately he handed down the amount to PW7 who then passed it over to the 2nd respondent-father.
23. On going through the rival evidence let in by the parties as regards the source from where the money was allegedly raised by the appellant's father, it appears that the evidence on the side of the respondents is more probable than that of the appellant. Even assuming that there was sufficient source available with the appellant's father to raise the amount, it is doubtful as to how he could have raised a large amount of Rs.5 lakhs very urgently before the date of the engagement ceremony. The total amount raised by RW4 as proved by evidence of witnesses was Rs.6,10,000/-. He himself admitted that he had to spend an amount of Rs.2 lakhs towards marriage expenses. If this could be true, the M.A. No.747/2013 -:22:- balance available with him must be far insufficient for payment towards parental share as claimed by him. Further, it is quite natural that some more amount may have been required for purchasing gold out of the total amount raised as loan.
24. Therefore by all means, the probability is in favour of respondents' case that they were given only Rs.50,000/- as parental share. The court below also accepted their case as being trustworthy but disbelieved their case that the amount received was paid back to RW4 himself when he demanded the amount for meeting his urgent needs. Agreeing with the court below, we also maintain the same view that there is no convincing evidence on record to prove that Rs.50,000/- was paid back to the father of the appellant on any subsequent occasion. In short, the finding in the impugned order that the respondents are liable to return Rs.50,000/- to appellant does not require any interference and it is therefore confirmed.
M.A. No.747/2013-:23:-
In the result, the impugned order of the Family Court, Kottayam, dated 12.7.2013 is confirmed and the appeal is dismissed without costs.
Sd/-
A.M.SHAFFIQUE,JUDGE Sd/-
T.V.ANILKUMAR,JUDGE
DST/ami //True copy//
P.A.To Judge