Kerala High Court
T.M.Joseph @ Sony vs Nirmala Raphael @ Mary Nirmala on 3 November, 2010
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934
Mat.Appeal.No. 167 of 2011 (B)
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AGAINST THE ORDER/JUDGMENT IN O.P.(OS)NO.693/2006 of FAMILY COURT,
ALAPPUZHA DATED 03.11.2010
APPELLANT(S)/RESPONDENTS:
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1. T.M.JOSEPH @ SONY, AGED 38 YEARS,
S/O.MICHAEL, THANNIPPILLY HOUSE, KALOOR PO
ELAMKULAM , KOCHI.
2. MICHAEL,AGED 69 YEARS,
THANNIPPILLY HOUSE, KALOOR PO, ELAMKULAM
KOCHI.
3. MARY MICHAEL @ THANKAMMA, AGED 59 YEARS,
W/O.MICHAEL, THANNIPPILLY HOUSE, KALOOR P.O.,
ELAMKULAM, KOCHI.
BY ADV. SMT.K.V.RESHMI
RESPONDENTS/PETITIONERS:
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1. NIRMALA RAPHAEL @ MARY NIRMALA, AGED 31 YEARS,
D/O.RAPHEAL, THYKOOTTATHIL HOUSE,
(VADAKKEVEMPALIL)P.O., AROOR, CHERTHALA, ALAPPUZHA.
PIN. 688 534
2. RAPHEAL, AGED 59 YEARS,
THYKOOTTATHIL HOUSE, (VADAKKEVEMPALIL)P.O., AROOR
CHERTHALA, ALAPPUZHA. PIN 688 534
3. ANNAKUTTY, AGED 58 YEARS,
W/O.RAPHAEL, THYKOOTTATHIL HOUSE
(VADAKKEVEMPALIL)(PO)AROOR, CHERTHALA, ALAPPUZHA. PIN. 688 534
R1 TO 3 BY ADV. SRI.BABU S. NAIR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MJL
PIUS C. KURIAKOSE &
BABU MATHEW P. JOSEPH, JJ.
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Mat. Appeal No.167 of 2011
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Dated this the 10th day of January, 2013
JUDGMENT
Pius C. Kuriakose, J Under challenge in this appeal preferred by respondents in OP(OS) No.693/2006 on the files of the Family Court, Alappuzha is the judgment and decree in the above OP passed in favour of the respondents. The impugned judgment is a common judgment whereunder the Family Court decided OP.693/06 filed by respondents along with OP(G&W) 1032/06 filed by the appellant. The first appellant is the husband of the first respondent who is the son of respondents 2 and 3. Appellant Nos.2 and 3 are the parents of the first appellant. The claim of the respondents was that after the betrothal ceremony respondents 2 and 3 entrusted a sum of ` 4,50,000/- with appellants 2 and 3 in the presence of appellant No.1 to hold in trust for the future Mat. Appeal No.167 of 2011 -2- welfare of the first respondent. So also, at the time of the marriage, respondents 2 and 3 gave 58 sovereigns of gold ornaments worth ` 2,27,000/- to the first respondent and after marriage in keeping with the conventions a wooden teak almirah worth ` 25,000/- was also given to the appellants. The matrimonial relationship between appellant No.1 and respondent No.1 is broken down since 08/01/2005 and first respondent along with her child is residing along with respondent Nos.2 and 3. Hence the suit for recovery of patrimony amount, ornaments and almirah.
2. The appellants filed joint written statement denying the allegations pertaining to entrustment of cash and the alleged misappropriation. It was contended that what was given at the time of marriage was ` 1 lakh and this was deposited in two deposits of ` 50,000/- in two banks. The first deposit of ` 50,000/- was withdrawn for the purchase of gold ornaments and the remaining ` 50,000/- was withdrawn and spent in connection with the delivery expenses of the Mat. Appeal No.167 of 2011 -3- first respondent. Whatever gold ornaments the first respondent had possessed except a few of them are kept in the joint locker of the first appellant and first respondent. The allegation of entrustment and misappropriation of cash, ornaments and almirah are denied. As already stated the above suit was tried along with OP(G&W) 1032/06 filed by appellant No.1 seeking permanent custody of the child and the evidence consisted of Exts.A1 to A11, oral evidence of Pws.1 to 4, Exts.B1 and B2, Rws.1 to 4 and Exts.X1 and X2. On evaluating the evidence the court below would uphold the claim of the respondents fully in respect of the patrimony amount of ` 4,50,000/-. As regards the gold ornaments it was found that whatever ornaments not in the possession of the first respondent are available in the joint locker of the first appellant and first respondent in Peoples Urban Co-operative Bank of Kathrikkadavu branch. The first respondent's claim of having received 58 sovereigns of gold ornaments was negatived and decree was passed permitting Mat. Appeal No.167 of 2011 -4- respondents to recover the ornaments available in the joint locker. Direction was issued to the Manager of the bank for release of the ornaments to the respondents in the event of the locker key not being available. The respondent's claim regarding teak wooden almirah worth ` 25,000/- was also upheld in full and decree was passed for recovery of ` 25,000/- in the event of the almirah not being returned within ten days.
3. In this appeal various grounds are raised challenging the findings entered by the Family Court and the decision taken by the Family Court. We have heard the submissions of Smt.K.V.Rashmi, the learned counsel for the appellants and those of Sri.Babu S. Nair, the learned counsel for the respondents. Very emphatic submissions were addressed before us by Smt.Rashmi mostly based on the grounds raised in the memorandum of appeal. According to her, the appreciation of evidence by the Family Court was thoroughly erroneous and as a result of this the findings entered by the Mat. Appeal No.167 of 2011 -5- court have become tainted.
4. Per contra Sri.Babu S. Nair would support the impugned judgment. According to him, there is no infirmity whatsoever to the appreciation of evidence by the court below. It is the respondent who should have been aggrieved by the court below not granting the prayers of the respondent in respect of the gold ornaments.
5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the impugned judgment. We have made a thorough re-appraisal of the entire evidence on record.
6. We must say that there is no warrant for interfering with any of the findings entered by the court below. According to us, the appreciation of the evidence oral, documentary and even circumstantial by the court below in this case has been quite proper. The findings entered are quite correct. They are only to be confirmed. We dismiss the appeal directing the parties to suffer their respective costs in Mat. Appeal No.167 of 2011 -6- the appeal.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
BABU MATHEW P. JOSEPH JUDGE kns/-
//TRUE COPY// P.A. TO JUDGE