Ajesh K. Cheriyan & K.N. Cherian & Mary An Varghese v. Rosamma

1 Mat.Appeal.No.442 OF 2014 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942** **Mat.Appeal.No.442 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OP 760/2011 DATED 31-12-2013 OF FAMILY COURT, PALAKKAD** ## **APPELLANT/S:** **1 AJESH K. CHERIYAN, S/O. K.N. CHERIYAN, PUZHAVATHU KOCHUTHAZHATHU VEEDU, (ANUGRAHA), CHANANGASSERY, KOTTAYAM DISTRICT.(REPRESENTED BY THE POWSER OF ATTORNEY HOLDER SRI. K.N. CHERIAN, AGED 64 YEARS, S/O. NINAN, KOCHUTHAZHATHU (ANUGRAHA) HOUsE, ANGADI ROAD, CHANGANACHERRY.P.O., CHANGANACHERRY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT AS PER POWER OF ATTORNEY DATED 5-10-2011) 2 K.N. CHERIAN, AGED 64 YEARS, S/O. NINAN, DO3 MARY AN VARGHESE, AGED 59 YEARS, W/O. K.N.CHERIYAN, DOBY ADVS. SRI.MILLU DANDAPANI SRI.PREMCHAND R.NAIR** ## **RESPONDENT/S:** **ROSAMMA, AGED 30 YEARS, D/O. PIOUS, KUZHITHODE VEEDU, MANIKKASSERY, KONGAD, PALAKKAD TALUK, (PRESENT ADDRESS), ROSHIN PIUS, W/O. TITO VARGHESE AKKARA, ELIXER VILLAS AND APARTMENTS "THE ORCHID", GRUND FLOOR, BELOW SBI,KUTTANELLUR BRANCH, KUTTANELLUR.P.O., THRISSUR680014.** **R1 BY ADV. SRI.BABU KARUKAPADATH R1 BY ADV. SMT.M.A.VAHEEDA BABU R1 BY ADV. SRI.P.U.VINOD KUMAR R1 BY ADV. SRI.AVINASH P RAVEENDRAN R1 BY ADV. SMT.ARYA RAGHUNATH R1 BY ADV. SMT.ANJALY N.S. R1 BY ADV. SMT.KADIJA JASMINE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal.No.442 OF 2014 **A.MUHAMED MUSTAQUE & C.S.DIAS, JJ. ====================== Mat Appeal No.442 of 2014 ====================== Dated this the 19[th] day of February, 2021.** ## **JUDGMENT** ## **C.S.DIAS , J.** The respondents in OP No.760/2011 on the file of the Family Court, Palakkad are the appellants. The petitioner in the above original petition is the respondent in the appeal. The respondent is the wife of the first appellant. The appellants 2 and 3 are the parents of the first appellant. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The compendious facts in the original petition, for the determination of the appeal, are: The petitioner married the first respondent on 7.1.2010. The parties are Christians. The petitioner and the first respondent are Engineers by profession. The second respondent was employed in the United States of America. The 3 Mat.Appeal.No.442 OF 2014 third respondent is working at State Bank of Travancore. On the date of betrothal, the petitioner’s father entrusted an amount of Rs.20,00,000/- to the second respondent at the petitioner’s paternal uncle’s house at Pala. There was a mutual understanding between the parties that out of the money entrusted, gold ornaments worth Rs.10,00,000/- would be purchased. As per the understanding, the parties purchased 80 sovereigns of gold ornaments for an amount of Rs.9,00,000/-. The remaining Rs.11,00,000/was with the respondents. From the date of marriage itself, the behaviour of third respondent caused mental agony to the petitioner. The third respondent called the petitioner to the bedroom and asked her to hand over all the gold ornaments. She was only given bangles studed with beads, the wedding ring, a pair of ear rings and the Thali with a chain. The remaining gold ornaments were kept in the custody of the third respondent. The petitioner was permitted to wear the gold ornaments for two to three days after the 4 Mat.Appeal.No.442 OF 2014 marriage, during the customary visits to their family and friends. While so, the first respondent wanted to throw a party for his friends. So the first respondent took a bangle of the petitioner and sold it. He purchased two bangles of less weight and utilized an amount of Rs.10,000/- with the balance of the money received from the sale of the bangles. The petitioner was having certain amounts in HDFC Bank, which were also given to the first respondent. The respondents harassed the petitioner to get more dowry from her parents. Unable to bear the harassment, the petitioner’s father withdrew an amount of Rs.5,00,000/from the Punjab National Bank and entrusted the same to the first respondent. The respondents are in possession of Rs.16,00,000/- apart from the gold ornaments of 72.2 sovereigns. The third respondent treated the petitioner worse than a maid-servant. Even though several rounds of mediation talks were held, the respondents were not amenable to return the petitioner's belongings. The petitioner was constrained 5 Mat.Appeal.No.442 OF 2014 to file a complaint under Sec.498 of the Indian Penal Code against the respondents. From the behaviour and attitude of the respondents, the petitioner is fully convinced that they will not return her money and gold ornaments. Hence, the original petition. 3. Even though the first respondent was served with notice, he remained absent and was set ex parte. 4. The second and third respondents filed a joint written objection, inter alia, refuting the allegations in the original petition. They denied the entrustment of Rs.20,00,000/- to the second respondent on the date of engagement. The respondents 2 and 3 contended that they were unaware of the gold ornaments worn by the petitioner at the time of marriage. According to them, the petitioner’s gold ornaments were under her lock and key. On 19.5.2011, the petitioner along with her father and relatives went to the matrimonial home and took away all her belongings. The respondents have not received any amount from the father of the 6 Mat.Appeal.No.442 OF 2014 petitioner. The respondents are not in possession of the petitioner’s valuables or belongings as alleged in the original petition. The key of the almirah, where the gold ornaments were kept, was returned to the third respondent only on 19.5.2011, after the petitioner took her belongings. The petitioner to change some of the ornaments which could not be used on usual basis, purchased gold ornaments of her choice. The petitioner was residing at her natal home after the first respondent returned to United States of America. The petitioner insisted the first respondent to construct a house at Palakkad and stay along with her parents. As per the knowledge of the respondents, the petitioner had only 47 sovereigns of gold ornaments, which were purchased by the petitioner from Joy Alukkas Jewellery, Kottayam. The respondents are well educated and well employed and never harassed the petitioner at any point of time. The petitioner is living separately without any reasonable cause. Hence, the original petition may be dismissed. 7 Mat.Appeal.No.442 OF 2014 5. The petitioner was examined as PW1 and Exts A1 series were marked on her side in evidence. The second appellant was examined as RW1 and Exts B1, B2 and B4 to B12 were marked through him. 6. The Family Court, after evaluating the pleadings and materials on record, by the impugned judgment and decree allowed the original petition by directing the respondents to return 65¾ sovereigns of gold ornaments or its value of Rs.14,46,500/- and also an amount of Rs.16,00,000/- with 9% interest per annum from the date of decree till the date of payment. The respondents were directed to jointly and severally pay the decree amount and a charge was created over the properties of the respondents. 7. Aggrieved by the above judgment and decree that the respondents are before this Court in appeal. 8. Heard Smt.Sumathi Dandapani, the learned Senior Counsel appearing for the appellants/respondents, and Sri.Babu Karukapadath, 8 Mat.Appeal.No.442 OF 2014 the learned Counsel appearing for the ## respondent/petitioner. 9. The questions that emanate for consideration in this appeal are: (i) Whether the petitioner’s father had entrusted an amount of Rs.5,00,000/- to the first respondent as alleged in the original petition. (ii) Whether the petitioner’s father had handed over an amount of Rs.20,00,000/- to the second respondent on the date of engagement. (iii) Whether the balance amount of Rs.11,00,000/- is with the respondents. (iv) Whether the gold ornaments were purchased from the amount entrusted by the petitioner's father. ## **Question No.(i)** 10. The specific case of the petitioner was that the petitioner’s father paid an amount of Rs.5,00,000/to the first respondent on 30.10.2010. In order to substantiate the withdrawal of the above said amount from the Punjab National Bank, the petitioner 9 Mat.Appeal.No.442 OF 2014 produced and marked in evidence. Ext A1,which establishes that the said amount was withdrawn from the Bank on the said date. Ext A1 stands corroborated with the oral testimony of the petitioner - PW1. Moreover, as observed above, the first respondent, despite receipt of summons, absented himself and was consequently set ex parte. Undisputedly, the first respondent has not filed any written statement to refute the allegations in the plaint. RW1-the father of the first respondent – in his cross-examination admitted that he was unaware of the entrustment. Even though he attempted to state that his son told him that no amount was entrusted, the said statement is only hearsay and without any foundation in the pleading. Hence, the same is only be shunned. Therefore, on the basis of the uncontroverted oral evidence of PW1 corroborated with Ext A1, it stands proved that an amount of Rs.5,00,000/- was handed over to the first respondent. In the said circumstances, we are of the considered opinion that the Family Court has rightly 10 Mat.Appeal.No.442 OF 2014 decreed the original petition by permitting the petitioner to realize an amount of Rs.5,00,000/-. Nevertheless, the Family Court has committed an error by directing the respondents 1 to 3 to return the aforesaid amount. The specific case of the petitioner was that the amount was entrusted to the first respondent. Therefore, there can only be a decree permitting the petitioner to realize an amount of Rs.5,00,000/- from the first respondent instead of respondents 2 and 3. With the above modification, question No.(i) is answered in favour of the petitioner. ## **Question No.(ii)** 11. It is no longer res-integra, in view of the categoric declaration of law by this Court in **Alphonsa v. Neetha** [2019 (4) KLT 846] and **Royson Mathew** v. **Minimol [** 2020 (3) KLT 280], that the initial burden to prove the entrustment of gold and money is on the person who claims the decree for recovery of money, and unless there are pleadings/evidence on record to 11 Mat.Appeal.No.442 OF 2014 suggest that the entrustment was for a specific purpose or that the entrustment was in the nature of trust or under the specific understanding that the amounts will be returned, an action for recovery of money may not succeed. 12. In light of the categoric enunciation of law in the aforecited decisions, the onus of proof to prove that the money was entrusted to the respondents and that the respondents misappropriated the gold ornaments is on the petitioner. The precise case of the petitioner was that, on the date of the betrothal an amount of Rs.20,00,000/- was entrusted to the second respondent (RW1) at the petitioner’s paternal uncle’s house at Pala. Other than for the interested oral testimony of the petitioner, there is no material to prove the entrustment of the aforesaid amount. The petitioner has not examined the paternal uncle as a witness in the case, which has turned fatal. True, the petitioner's father is no more. In the above analysis of the pleadings and materials, we set aside the finding of 12 Mat.Appeal.No.442 OF 2014 the Family Court and answer Question No.(ii) against the petitioner. ## **Question No.(iii)** 13. In light of our answer on Question No.(ii), Question No.(iii) is also answered against the petitioner. ## **Question No.(iv)** 14. The petitioner has placed heavy reliance on Ext A2 series photographs to establish that the petitioner was wearing gold ornaments at the time of marriage. Wearing of the gold ornaments is not sufficient to establish the case of the petitioner, that the respondents have misappropriated her gold ornaments. Therefore, we have to decide the case on the basis of preponderance of evidence, which is permitted in matrimonial matters of this nature, instead of the rigour of reasonable doubt. 13 Mat.Appeal.No.442 OF 2014 15. The respondents 2 and 3 have admitted in their written statement that 47 sovereigns of gold ornaments were purchased for the petitioner from Joy Alukkas Jewellery, Kottayam. The respondents have also admitted that the petitioner's gold ornaments were kept in the almirah in the matrimonial home. It is their case that on 19.5.2011, the petitioner along with family members went to the matrimonial home and took all her the away belongings including gold ornaments. However, on an appreciation of the crossexamination of RW1, he has admitted that he and his wife had filed OS No.178/2011 on 4.6.2011 before the Court of the Munsiff, Changanachery, inter lia, seeking a decree of permanent prohibitory injunction, to restrain the petitioner from forcefully entering the matrimonial house. There is not even a whisper in the plaint regarding the allegation that the petitioner had entered the matrimonial home and taken away her belongings including the gold ornaments. The pleading at the first instance does not contain the defence build 14 Mat.Appeal.No.442 OF 2014 up in the written objection filed before the Family Court. Hence, the Family Court has rightly discarded the oral testimony of RW1 on the said aspect. We fully endorse the view taken by the Family Court. 16. Moreover, subsequent to the filing of the suit, the petitioner had filed Ext B1 complaint before the Superintendent of Police, Kottayam and, thereafter, Ext B2 FIR was registered against the respondents for an offence under Sec.498A of the Indian Penal Code. In Ext B1 complaint, the petitioner has categorically stated that her entire gold ornaments and belongings are in the possession of the respondents in the matrimonial home. She also has made a reference to the civil suit filed. The above sequence of events, pleadings and materials probablise that the gold ornaments were in the matrimonial home and the petitioner was prevented by an order of injunction from entering the matrimonial home to take her gold ornaments and belongings. 15 Mat.Appeal.No.442 OF 2014 17. Now, we are left to decide the quantity of gold ornaments that were purchased and what was the quantity of gold ornaments misappropriated by the respondents. The case of the petitioner is that she had purchased 80 sovereigns of gold ornaments. The Family Court after considering the value of the gold ornaments on the date of purchase, the making charge, tax and the discount given to the petitioner, held that the petitioner had purchased only 70 sovereigns of gold ornaments @ Rs.12,000/- per sovereign. The remaining gold ornaments which were admittedly given to the petitioner for daily use was found to be 4.25 sovereigns. Accordingly, the Family Court found that 65¾ sovereigns of gold ornaments were left in the matrimonial home. We find the said finding to be cogent and based on preponderance of evidence. The fact finding Court, having had the opportunity to see the demeanor of the witnesses, has accepted the case of the petitioner in this regard on finding a ring of truth in the petitioner's case and the defence version of the 16 Mat.Appeal.No.442 OF 2014 respondents to be unbelievable. Therefore, we accept the findings of the Family Court with regard to the gold ornaments left in the matrimonial home i.e., 65¾ sovereigns. 18. On an overall reappreciation of the pleadings and materials on records, particularly the oral testimonies of PW1 and RW1, we are of the considered opinion that the petitioner is entitled for a decree for recovery of an amount of Rs.5,00,000/- from the first respondent and a decree for recovery of 65¾ sovereigns of gold ornaments or its value as calculated by the Family Court at Rs.14,46,500/- from the respondents 2 and 3. The said amount shall bear interest at the rate of 9% per annum from the date of petition till the date of realization. 19. It is seen from the records that the appeal has been preferred by all the respondents (appellants). At the time of admission of the appeal, the petitioner had already filed EP No.19/2015 before the Family Court, 17 Mat.Appeal.No.442 OF 2014 Palakkad. This Court by order dated 22.6.2015 stayed all further proceedings in EP 19/2015 on condition that the appellants/respondents furnish security to the satisfaction of the Execution Court. It was reported before this Court on 20.11.2015, that the appellants have complied with conditions stipulated in the interim order dated 22.6.2015. In the result, the appeal is allowed in part, as follows: - (i) The judgment and decree in OP 760/2011 is modified. - (ii) The respondent/petitioner is permitted to realize an amount of Rs.5,00,000/from the first appellant/first respondent and his assets with interest at the rate of 9% per annum from the date of petition till the date of realization. - (iii) The appellants 2 and 3/respondents 2 and 3 are directed to return to the respondent/petitioner 65¾ sovereigns of gold ornaments or its value of Rs.14,46,500/- with interest at the rate of 9% per annum from the date of petition till 18 Mat.Appeal.No.442 OF 2014 ## the date of realization. (iv) The appellants/respondents shall pay the aforesaid amounts as directed above within a period of two months from today, failing which, the Family Court shall resurrect EP No.19/2015 and proceed with the execution proceedings as against the properties that have been furnished by the appellants as security, pursuant to the orders of this Court. (v) In the facts and circumstances of the case, the parties are directed to bear their respective costs. **Sd/A.MUHAMED MUSTAQUE JUDGE Sd/C.S.DIAS** Sks/22.2.2021 **JUDGE** 19 Mat.Appeal.No.442 OF 2014 ## **APPENDIX** ## **PETITIONERS ANNEXURES** **A- TRUE COPY OF ORDER DATED 3.8.2017 IN CRLMC 5292/14** **B- TRUE COPY OF THE ORDER DATED 28.2.2019 IN CMP 4172 OF 2017 IN CC 897 OF 2014**