Kerala High Court
Mukesh Das vs Smitha Nath.S on 8 March, 2017
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938
Mat.Appeal.No. 557 of 2008 ( )
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OP 481/2007 OF FAMILY COURT, KOTTAYAM AT EATTUMANOOR.
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APPELLANTS/RESPONDENTS:
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1. MUKESH DAS, ELANJICKAL HOUSE,
MANGARAM,KONNI, PATHANAMTHITTA.
2. N THULASIDAS,ELANJICKAL HOUSE,
MANGARAM,KONNI, PATHANAMTHITTA.
3. RADHAMANI, ELANJICKAL HOUSE,
MANGARAM,KONNI,PATHANAMTHITTA.
BY ADV. SRI.JACOB P.ALEX
RESPONDENT:
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SMITHA NATH.S, MANALEL HOUSE
CHENGALAM SOUTH PO, CHENGALAM KARA
& VILLAGE, KOTTAYAM
BY ADV. SRIR.AZAD BABU
BY ADV. SRI.MADHAVANKUTTY(CONCILIATOR )
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 20-01-2017, THE COURT ON 08-03-2017 DELIVERED
THE FOLLOWING:
mbr/
A.M.SHAFFIQUE, J
&
A.M.BABU, J
* * * * * * * * * * * * * *
Mat.Appeal No.557 of 2008
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Dated this the 8th day of March 2017
J U D G M E N T
Shaffique, J This appeal is filed by the respondents in O.P.No.481/2007 by which the Family Court granted a decree in favour of the respondent/wife to realise Rs.1,50,000/- with interest @ 9% from the date of suit or 80 sovereigns of gold ornaments or its present value of Rs.7 Lakhs with interest @ 9% from respondents 1 to 3.
2. The short facts involved in the appeal would disclose that the 1st appellant married the respondent on 28/12/2006. On the allegation that the consent for marriage was obtained by making false representations, the respondent has filed O.P.No.480/2007 for declaring the marriage null and void. She also filed a separate original petition O.P.No.481/2007 alleging that at the time of marriage, an amount of Rs.1,50,000/- and gold ornaments weighing 103 sovereigns were given to her which was entrusted to the appellants. The appellants filed their objection denying the entrustment of gold ornaments and also the amount M.A.No.557/2008 2 of Rs.1,50,000/-. According to her, the respondent was wearing some ornaments, but it was kept in her custody only and she had not entrusted any amount. Further, it is contended that the respondent had tied a thali chain weighing 10 sovereigns, which is still with the appellant and she is bound to return the same. The 1st appellant further submits that a chain weighing 32 grams is with him and he is willing to return the same.
3. Both cases were jointly tried and PWs 1 to 8 were examined on the side of the respondent and RW1 was examined on the side of the appellants. Respondent relied upon Exts.A1 to A10 and Exts.X1 to X3 were marked as Court exhibits. In regard to the claim for return of gold ornaments and money, the Family Court relied upon Exts.A6 copy of marriage register to indicate that at the time of marriage, she was wearing 80 sovereigns of gold ornaments. Reliance was again placed on Ext.A4 invoice for purchase of 402 grams of gold ornaments from Kunnathukalathil Jewellers and another 183 grams from the same jewelery. PW4, the Secretary of SNDP Sakha produced A6 marriage register and gave evidence stating that the entries in the marriage register was recorded as per the version of both the parties. The Manager M.A.No.557/2008 3 of South Malabar Gramin Bank was examined as PW6. He, along with PW8, had given evidence stating that the 1st appellant has taken a locker with the bank on 11/11/2007. The Family Court observed that when the 1st appellant has taken a locker facility within 10 days of the marriage, it clearly shows that he was in custody of the gold ornaments of the wife. Therefore, Family Court came to the conclusion that the respondent had 80 sovereigns of gold at the time of marriage and she had parted with Rs.1,50,000/- to the appellants which the appellants are bound to return.
4. While challenging the impugned judgment, the learned counsel for the respondent submits that there was no evidence to substantiate the aforesaid fact of entrustment of Rs.1,50,000/- and the gold ornaments. It is contended that, even according to the respondent, the locker was opened in the name of the 1st appellant and she along with the 1st appellant, had gone to the bank on 11/11/2007 and she had kept all the ornaments in the locker. It is contended that the entire ornaments were not kept in the locker and it is without verifying the same that she has approached this Court. It is further contended that marriage M.A.No.557/2008 4 certificate can be relied upon as evidence only to show that the respondent was wearing gold ornaments which does not indicate that those ornaments were handed over to the appellants. It is also contended that there is no evidence of payment of RS.1,50,000 to the appellants.
5. On the other hand, learned counsel appearing for the respondent supported the stand taken by the Family Court. It is contended that enough evidence is available to prove entrustment of money and gold ornaments to the appellants and there is no reason to set aside the judgment.
6. The short question to be considered in this appeal is whether there is justification on the part of the Court below to grant the decree for recovery of money as well as return of gold ornaments.
7. In the original petition, it is stated that, as agreed between the parents of the parties to the marriage on 20/02/2016, the respondent's father, along with his brother and son, went to the appellants' residence and entrusted Rs.1,50,000/- to the appellants as paternal share. Further, it is pleaded that at the time of marriage, the respondent was given M.A.No.557/2008 5 103 sovereigns of gold ornaments. The marriage was on 28/12/2006. It is stated that, from 07/01/2007 onwards, the 1st appellant was forcing the respondent to open a locker facility to keep the gold ornaments in safe custody. The respondent was willing to keep the gold ornaments in the locker, provided it is in their joint names. However, the appellants together did not permit and she was forced to accompany the 1st appellant to keep the gold ornaments in the locker which was in the name of the 1st appellant. She was not made a co-applicant for the locker facility. She gave all her gold ornaments to be kept in the locker except an ear ring weighing 6.680 grams, 3 rings weighing 3.540 grams, anklets weighing 20.200 grams, a pearl chain weighing 28.600 grams and two bangles weighing 17.540 grams. On 13/01/2007, the 1st appellant and the respondent proceeded to Delhi. It is further stated that when disputes arose between the parties, her parents approached SNDP Sakha for settlement of gold and money. But, nothing happened in the matter.
8. In the objection filed, the appellants denied the aforesaid facts. The 1st appellant, however, admits the fact that the locker was taken in his name in the hope that the gold M.A.No.557/2008 6 ornaments will be kept safe. He further submits that though the SNDP Sakha, Pathanamthitta had interfered in the matter, on enquiry, they were satisfied that the complaint of the respondent was false. He further contends that he had not operated the locker facility and no gold ornaments were put in the locker. It is stated that none of the ornaments of the respondent is with the appellants or in the locker.
9. It is, based on the aforesaid pleadings, that the evidence has been appreciated. The Bank Manager was examined, who deposed to the effect that a locker was opened. There is no dispute regarding opening of the locker. Even according to the respondent, locker was opened for keeping the gold ornaments. The time at which the locker was opened further indicates that the locker was opened only for the purpose of keeping the gold ornaments of the respondent. Therefore, the contention of the appellants that the gold ornaments were not kept in the locker, cannot be believed. All the witnesses have spoken to the aforesaid fact and even the evidence of the SNDP Sakha supports the stand taken by the respondent. There is enough evidence to prove the fact of entrustment of money as M.A.No.557/2008 7 well as the gold ornaments and the evidence relied upon by the Court below in regard to appropriation of the said amount as well as ornaments is rather clear. In the said circumstances, the appellants are liable to return the gold ornaments and the money entrusted to them. We do not find any perversity in the appreciation of evidence made by the Family Court, to take a different view to invoke the appellate jurisdiction.
The appeal is therefore dismissed. Parties shall bear their own costs.
(sd/-) (A.M.SHAFFIQUE, JUDGE) (sd/-) (A.M.BABU, JUDGE) jsr