Abdul Nafi vs Kadeeja on 25 October, 2024

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Kerala High Court

Abdul Nafi vs Kadeeja on 25 October, 2024

The petitioners allege that the learned Family Court, Paravoor, has ordered the handing over of all the gold ornaments - that were found in a bank locker in the joint names of the parties - to the respondent, without affording them necessary opportunity of establishing his case.

2. Sri.S.Sreekumar (Kollam) - learned counsel for the petitioners, contended that, even though the learned Family Court has passed an order on the afore lines, certified copy of the same has never been issued to his clients; but that this is available in the certified copy of the "B Diary" as item No.42, dated 01.10.2024.

2024:KER:79554 OP (FC) NO. 637 OF 2024 -4-

3. Sri.S.Sreekumar explained that the Original Petition was filed by the respondent - wife, seeking return of gold ornaments and making certain other claims; and that his clients had filed objections - namely Ext.P3, in which, they admitted that all the gold ornaments of the respondent are available in the bank locker, but without conceding that every article therein belongs to her. He asserted that this is because, as evident from the objections filed to the application from which the impugned order has arisen, namely Ext.P7, his clients have made it unequivocally clear that all the gold ornaments in the bank locker do not belong to the respondent and that some of it belongs to them. He, therefore, prayed that the order under challenge be set aside; conceding that, in fact, 2024:KER:79554 OP (FC) NO. 637 OF 2024 -5- the only prayer in this Original Petition is that the certified copy of the order dated 01.10.2024 be issued to the petitioners.

4. Sri.Biju C.Abraham - learned counsel for the respondent, refuted the afore submissions, saying that the facts involved in this case are not as presented by the petitioners. He pointed out that the petitioners have unequivocally admitted in Ext.P3 objections that only the gold ornaments of his client are available in the bank locker, which is in the joint name of the parties; and therefore, that the learned Court was without error in having appointed an Advocate Commissioner to open it and prepare an inventory of the articles in it. He showed us that Ext.P8 is the said inventory, which was settled as early as on 06.09.2024; but 2024:KER:79554 OP (FC) NO. 637 OF 2024 -6- that, thereafter, a submission was made at the Bar by the learned counsel for the petitioners herein that some of the said articles belong to them. He added that the learned Court, thereupon, directed the learned Advocate Commissioner to again open the locker and take photographs of the ornaments therein; and that the order dated 01.10.2024 was thereafter issued, after comparing such photographs with the marriage album, to thus find that all the ornaments belong to his client. He argued that, therefore, there can be no error attributed by the petitioners to the order dated 01.10.2024; however, conceding that a certified copy of the said order perhaps has not been issued, but is only part of the "B Diary", namely Ext.P14.

5. We must record that, when this 2024:KER:79554 OP (FC) NO. 637 OF 2024 -7- matter was considered by us on an earlier date, we asked for a report to be obtained from the learned Family Court, if the certified copy of the order dated 01.10.2024 had been issued. The office of the learned Family Court responded, saying that "copy application for order dated 01.10.2024, which forms a part of B Diary is compiled on 19.10.2024." (sic)

6. We, therefore, are of the opinion that the petitioners are right in asserting that a separate order has not been issued on 01.10.2024, but has been recorded as a part of the "B Diary".

7. Obviously, therefore, we will have to decide now whether the order in question answers the parameters of law.

8. The specific argument of the 2024:KER:79554 OP (FC) NO. 637 OF 2024 -8- learned counsel for the respondent is that there is an admission by the petitioners that the locker contains only her ornaments and nothing else. However, the contra - argument is that paragraph 5 of Ext.P3 does not say so, but only that the gold ornaments of the wife are available in the bank locker; which is not to mean that nothing else is available therein.

9. In fact, as correctly argued by Sri.S.Sreekumar - learned counsel for the petitioners, in the objections filed by his clients to I.A.No.4/2024 - filed by the respondent to direct the Advocate Commissioner to prepare an inventory of the gold ornaments - namely Ext.P7, an assertion is seen made to the effect that all the articles found by the learned Advocate Commissioner do not belong to 2024:KER:79554 OP (FC) NO. 637 OF 2024 -9- the respondent. However, there is nothing else in the said objections as to the exact ornaments that are being claimed by the petitioners.

10. In the afore scenario, it is luculent that an attempt is now being made by the petitioners to point out and claim some of the gold ornaments, as identified by the Advocate Commissioner and which are part of Ext.P8.

11. Pertinently, Sri.S.Sreekumar - learned counsel for the petitioners, concedes that his clients do not have a case that the inventory mentioned in Ext.P8 is in error. His only argument - impelled on the edifice of the additional affidavit filed by his client, dated 24.10.2024 - is that the ornaments mentioned therein belongs to the petitioners. The 2024:KER:79554 OP (FC) NO. 637 OF 2024 -10- averments relevant are available in paragraph No.4 of the above said affidavit, which is as follows:

"Out of these gold ornaments three bangles are seen in the locker and described as item No.2, 3, and 4 in the commission report. The necklace is also in the locker which is scheduled as item No.13 in the commission report. The right also seen in the locker and described as item No.23 in the commission report. But the bracelet and the diamond ornaments are not seen in the locker. After the marriage function the 2nd petitioner has adorned a gold bangle having 1.5 sovereigns to the respondent. This gold bangle is also in the custody of the respondent and not placed in the locker. The item No. 22 and 23 in the commission report was not mentioned in the scheduled of the Exhibit-P2 original petition. But after the commission report the respondent filed additional affidavit stating that the item No. 22 and 23 also 2024:KER:79554 OP (FC) NO. 637 OF 2024 -11- belong to the respondent."

12. It is thus ineluctable that, as matters now stand, the petitioners can, at the best, stake claim or raise a dispute only as against the afore articles, and not the rest. In fact, this is unequivocally conceded by Sri.S.Sreekumar, their learned counsel; and he affirmed that all other ornaments can be released to the respondent.

In the afore circumstances, with the consent of both sides, we order this Original Petition in the following manner:

(a) The order dated 01.10.2024 is confirmed, except qua articles Nos. 2,3,4, 13 and 23 of Ext.P8 inventory.

(b) As regards the above said articles, the parties will be given necessary 2024:KER:79554 OP (FC) NO. 637 OF 2024 -12- opportunities to establish their ownership and title on it as per law, during trial or earlier, as the learned Court may deem fit.

Sd/-

DEVAN RAMACHANDRAN JUDGE Sd/-

                                  M.B.SNEHALATHA
akv                                    JUDGE
                                              2024:KER:79554
OP (FC) NO. 637 OF 2024

                          -13-



              APPENDIX OF OP (FC) 637/2024

PETITIONER EXHIBITS

EXHIBIT P1        THE TRUE ATTESTED COPY OF THE POWER OF

ATTORNEY OF THE 1ST PETITIONER EXHIBIT P2 THE TRUE COPY OF THE ORIGINAL PETITION IN OP (OTHERS) 869/2023 PENDING BEFORE THE FAMILY COURT PARAVOOR EXHIBIT P3 THE TRUE COPY OF THE OBJECTION FILED BY THE PEITTIONERS IN THE EXHIBIT- P2 ORIGINAL PETITION EXHIBIT P4 THE TRUE COPY OF THE PETITION IN IA NO. 1/2022 IN OP 389/2022 OF THE FAMILY COURT, KOLLAM AND WHICH WAS RENUMBERED AS IA 1/2023 IN OP (OTHERS) 869/2023 EXHIBIT P5 THE TRUE COPY OF THE ORDER IN IA NO.

1/2022 IN OP (OTHERS) 389/2022 OF THE FAMILY COURT, KOLLAM DATED 20.08.2022 EXHIBIT P6 THE TRUE COPY OF THE COMMISSION APPLICATION IN IA 4/2024 OF THE FAMILY COURT, PARAVOOR EXHIBIT P7 THE TRUE COPY OF THE OBJECTION FILED AGAINST THE COMMISSION APPLICATION BY THE PETITIONERS' IN IA 4/2024 OF THE FAMILY COURT, PARAVOOR EXHIBIT P8 THE TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN 2024:KER:79554 OP (FC) NO. 637 OF 2024 -14- IA 4/2024 OF THE FAMILY COURT, PARAVOOR DATED 9.9.2024 EXHIBIT P9 THE TRUE COPY OF THE PETITION IN IA 6/2024 IN OP (OTHERS) NO. 869 /2023 BEFORE THE FMILY COURT, PARAVOOR TO KEEP THE ORDER IN ABEYANCE IN I.A.NO. 4 OF 2024 EXHIBIT P10 TRUE COPY OF THE IA NO. 5/2024 IN OP (OTHERS) NO. 869 /2023 BEFORE THE FMILY COURT, PARAVOOR FOR REVIEWING THE ORDER IN IA 4/2024 EXHIBIT P11 TRUE COPY OF THE IA NO. 3/2023 IN OP (OTHERS) NO. 869 /2023 BEFORE THE FMILY COURT, PARAVOOR FOR SANCTIONING THE PETITIONERS TO FILE EXT.P3 OBJECTION EXHIBIT P12 TRUE COPY OF THE IA NO. 2/2023 IS FOR ACCEPTING THE POWER OF ATTORNEY HOLDER OF THE 1ST PETITIONER EXHIBIT P13 TRUE COPY OF THE E-COURT STATUS OF THE FAMILY COURT, PARAVOOR IN OP (OTHERS) NO. 869 /2023 EXHIBIT P14 THE TRUE ATTESTED COPY OF THE COURT PROCEEDINGS IN OP (OTH) 869/2023

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