AS.No. 901 of 1997

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933 AS.No. 901 of 1997 ( ) ----------------------AGAINST THE JUDGMENT IN OS.543/1995 of PRL.S.C.,THALASSERY DATED 11-04-1997 APPELLANT(S): DEFENDANTS 1 TO 3 ---------------------------------------------------- 1. P.C. RAJENDRAN, S/O. KRISHNAN NAIR, KAPPUMMAL HOUSE, KELLUR, MANANTODDY. 2. K.KRISHNAN NAIR, S/O KELU NAMBIAR, KAPPUMMAL HOUSE, KELLUR, MANANTODDY. 3. P.C. LAKSHMI AKAMA, W/O. KRISHNAN NAIR, KAPPUMMAL HOUSE, KELLUR, MANANTODDY. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): ---------------------------- 1. K. RAMANI, D/O GOVINDAN NAMBIAR, RESIDING AT SHEENA NIVAS, ALANCHERRY, KOLAYAD AMSOM, KANNUR DISTRICT. 2. N. GOVINDAN NAMBIAR, S/O SANKARAN NAMBIAR, RESIDING AT -DO - -DO-. R1 BY ADV. SMT.VIDHYA. A.C THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.HEMA & A.M.SHAFFIQUE, JJ. ----------------------------------------------** A.S. No. 901 OF 1997 **-----------------------------------------------** Dated this the 1[st] day of March 2012 ## J U D G M E N T ## Hema. J. This appeal is filed against decree and Judgment passed in favour of respondent by the Sub Court in a suit for recovery of gold or its value. 2. Respondents herein (parties will be referred to as referred in the suit herein after) filed a suit before the Sub Court inter alia contending that marriage between first plaintiff and first defendant (first appellant) took place on 1.7.1993. Before the marriage, there was an agreement to pay `15,000/- and 25 sovereigns of gold ornaments as dowry. On 9.6.1993 at about 11 am `15000/- was paid as agreed and at the time of marriage, 25 sovereigns of gold was also given to first plaintiff. 3. There was difference of opinion between the couple and first plaintiff alleged that she was treated with cruelty and she was forced to leave the house on 16.12.1993 along with the mother who came to the house pursuant to a letter, Ext.A1 sent by first AS. 901/97 -2- plaintiff to the second plaintiff, who is her mother. She left the house by wearing only 'thali chain'. The gold ornaments and `15,000/- received as dowry were not returned to the plaintiff. O.P.60/1994 was filed by first plaintiff before the Sub Court seeking divorce against defendant no.1. Decree was granted dissolving the marriage. No appeal was filed. In such circumstances, the suit was filed for realisation of `15,000/- and 25 sovereigns of gold ornaments or its value @`92,400/- for 200 grams of gold with 12 % interest par annum. 4. The defendants-appellants filed joint written statement and admitted the marriage and also payment of `15,000/- to the defendants. But according to the defendants, the said amount was repaid and an agreement was prepared for that purpose but it was torn off but it was produced before the court in the divorce petition after re-fixing the same. It is not received as dowry, but as advance. According to defendants, 25 sovereigns of gold were not given to the first plaintiff and what ever gold ornaments in her possession were taken away when she left the house along with her cousin Sri.Preman. 5. One gold ring and Thali and chain were given to the first AS. 901/97 -3- plaintiff at the time of marriage and those were also taken away. Defendants are therefore not liable to return gold ornaments or its value. It is also contended that first plaintiff did not leave the house on 16.12.1993 as alleged, but she left the house along with her cousin on 19.10.1993. A letter was sent when she was in her own house. 6. As many as four issues were framed by Sub Court. PW1 to PW3 were examined and Exts. A1 to A7 series were marked on the side of plaintiff. First defendant was examined as DW1. No document was marked on defendants' side. After analysing the evidence, court below found plaintiff is entitled to get `15,000/with interest and also 25 sovereigns of gold ornaments. The story of repayment was found to be not proved. It was also held that gold ornaments were also not returned. Plaintiffs were allowed to realise value of gold ornaments, if gold ornaments are not returned, fixing the value of gold ornaments at the time of marriage, which is to be decided at the time of execution of decree. Decree was granted for a sum of `15,000/- @ 12 % per annum from the date of suit till realisation. 7. The above decree and judgment are challenged in this AS. 901/97 -4- appeal. Heard both sides. The points for determination arise in this appeal are: 1. Whether defendants-appellants are liable to return `15,000/-? 2. Whether appellants repaid `15,000/- received by them ? 3. Whether first plaintiff was given 25 sovereigns of gold ornaments as shown in the plaint schedule at the time of marriage and those were appropriated by defendants ? 4. Whether defendants are liable to return `15,000/- and gold ornaments as shown in the plaint schedule ? 5. Whether there is any ground to interfere with the decree and judgment ? ## Points: 8. Plaintiffs-respondents claimed `15,000/- from the defendants-appellants which were allegedly given at the time of fixing the marriage to the defendants-appellants. According to defendants, the said amount was returned and it will be evidenced by the agreement which was torn off and re-fixed and produced in the divorce petition. The said document is not produced in this case. On analysis of the evidence, trial court found that appellants failed to prove that amount was returned. On AS. 901/97 -5- consideration of the arguments advanced, we do not find any reason to interfere with such findings. There is only a mere assertion that amount was returned. But from the admission made by first defendant while examined as DW1, it is clear that there is absolutely no document evidencing return of `15,000/-. He deposed that a receipt was given when `.15,000/- was paid to the defendants and hence, normally when such amount is repaid also, it is probable that documents will be created. He categorically deposed in cross examination that there is no such document. 9. Learned counsel for appellant argued that under the provisions of Dowry Prohibition Act, a suit for return of dowry will not be maintainable. It is pointed out that as per the pleadings in the plaint, amount and gold ornaments are given as dowry on demand allegedly made by defendants. Therefore, in the light of the decision reported in **1975 KLT 86, Thomas Vs. Sarakutty** the suit itself is not maintainable. 10. Learned counsel for plaintiff-respondent argued that there are subsequent decisions of Division Benches decisions of this court wherein it is clearly held that provisions of Dowry AS. 901/97 -6- Prohibition Act will not be a bar to file suit for recovery of amount or gold ornaments which are given as dowry because it is paid in trust and the wife is entitled to seek recovery of the said amount and gold ornaments. He also cited decisions reported in **1991(2) KLT 71 Scariah Varghese vs. Marykutty** . 11. On going through the above decision and also **1980 KLT 353 Mary Vs Cherchi and Others** , it is clear that present suit will not be barred in the light of dictum laid down in the said decision. It is also seen that the decisions cited by learned counsel for appellant is overruled in **1980 KLT 353** . There is also another Division Bench decision of this court reported in **2006(4)** **KLT 106 Aliyamma Vs. Thomas** which was also go to show that suit of this nature is not barred by the provisions of Dowry Prohibition Act. Hence, argument raised regarding maintainability of the suit can only be rejected and we do so. 12. Now the crucial aspect is what is the quantum of gold ornaments which were given to the first plaintiff at the time of marriage. The details are shown in the plaint schedule. No witnesses were examined on behalf of the plaintiff to give details of gold ornaments. There is only an assertion that 25 sovereigns AS. 901/97 -7- of gold ornaments were given without stating any details regarding the description or the weight. However, specific questions were put to DW1 in cross examination referring to the weight of the gold ornaments and the description. To prove that first plaintiff was given certain gold ornaments, Ext.A6 photograph was produced. 13. DW1 admitted that it is the photograph taken at the time of marriage. In cross examination, with reference to the photographs and gold ornaments, DW1 deposed that ten bangles are seen in the right hand and when a suggestion was made that bangles were having one sovereign each, he could not deny the same. He only pleaded ignorance. Therefore, it has to be held that ten bangles having one sovereign each had been given at the time of marriage as seen from ExtA6 photograph. 14. Though DW1 deposed in cross examination that in the left hand there are no bangles, but it looked like bracelet. When questions were put in reference to necklace, chain, the details of sovereigns of necklace, two chains and the bracelet DW1 could not deny the same, but only stated he did not know the details. From the evidence given by DW1 in cross examination, it appears AS. 901/97 -8- that first plaintiff was given ten gold bangles each having one sovereign and also necklace having 1[1] /2 sovereigns and 'Karimani' chain having two sovereigns and another chain having five sovereigns, bracelet having three sovereigns and another chain having ½ sovereign, altogether gold ornaments have 22 sovereigns in total. 15. Apart from the details brought out in the cross examination of DW1, no independent evidence is adduced by plaintiff to establish whether any other details of gold ornaments were given. In such circumstances, we find that plaintiffsrespondents are entitled to get the following : 10 gold bangles 1 sovereign each - 1 necklace 1[1] /2 sovereigns - 1 'Karimani' chain 2 sovereigns - 1 chain 5 sovereigns 1 bracelet 3 sovereigns 1 chain ½ sovereign ------------------------ - TOTAL : 22 sovereigns 16. Plaintiff has claimed `92,400/- as value of 200 gms of gold Jewellery. There is no dispute on the value of gold jewellery AS. 901/97 -9- and hence we accept the claim at the above rate. Plaintiffs are entitled to get the value of gold jewellary for 22 sovereigns from the appellants, in case they are not returning the gold ornaments as stated above. The interest awarded seems to be on the higher side, since the case does not involve commercial transaction. Since there is no dispute regarding the value of the gold ornaments, we find that value assessed by plaintiff can be granted and it is not necessary to fix the value at the time of execution of decree. Hence the decree is to be modified and the following decree is passed: 1. Plaintiffs are allowed to realise `15,000/- with 6% interest per annum from defendant nos.1 and 2 from the date of suit till realisation. 2. Defendants shall return 22 sovereigns of gold ornaments as detailed in the judgment. 3. On failure to comply with the above, defendants shall pay `.92,400/- as value of gold ornaments with 6% interest per annum from the date of decree till realisation to the plaintiffs within one month from the date of AS. 901/97 -10- this decree. 4. Defendant nos.1 and 2 are jointly and severally liable to return 22 sovereigns of gold ornaments or the value at `.92,400/- to the plaintiffs and they shall do so within one month from the date of receipt of this decree. This appeal is partly allowed. Sd/- **K.HEMA, JUDGE.** Sou. Sd/- **A.M. SHAFFIQUE, JUDGE.** // True copy //