AS.No. 93 of 2000 (D) Against the Judgment in OS.No.82/1997 of Sub Court, Thiruvalla dated 27-02-1999

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 16TH DAY OF SEPTEMBER 2014/25TH BHADRA, 1936 ## **AS.No. 93 of 2000 (D)** AGAINST THE JUDGMENT IN OS.NO.82/1997 OF SUB COURT, THIRUVALLA DATED 27-02-1999 ## APPELLANT: PLAINTIFF T.A.JAYAPRABHA, W/O.VIJAYAN, RESIDING AT KAVIRAYIL VEEDU, MEENTHALAKKARA MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) ## RESPONDENT: DEFENDANT: P.K.VIJAYAN, RESIDING AT PUTHUPARAMBIL., AMALLOOR MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.SATHISH NINAN BY ADV. SRI.SANTHOSH MATHEW THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.M.P.NO.6294/1999 IN A.S.NO.93/2000** DISMISSED 16/09/2014 SD/- **K.T.SANKARAN, JUDGE** SD/- **P.D.RAJAN, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN & P.D.RAJAN, JJ.** **---------------------------------------------------A.S. NO. 93 OF 2000 (D)** **---------------------------------------------------Dated this the 16[th] day of September, 2014** ## **JUDGMENT** ## **K.T.Sankaran, J.** The plaintiff in O.S.No.82 of 1997 on the file of the Court of the Subordinate Judge of Thiruvalla is the appellant. The suit was filed by the appellant for realisation of the value of 342 grams of gold ornaments and `50,000/- from the defendant. 2. The marriage between the plaintiff and the defendant took place on 16.3.1983 and two children were born in that wedlock. The case of the plaintiff is that she was given ornaments weighing 35 sovereigns at the time of her marriage. Thereafter, on different occasions, gold ornaments were given to her either by way of gift or by purchase. The defendant took all the ornaments making her believe that the same should be deposited in a bank locker. According to the plaintiff, the gold ornaments were misappropriated by the defendant. The plaintiff also alleged that on the demand ## **A.S. NO. 93 OF 2000 (D)** :: 2 :: made by the defendant, a sum of `50,000/- was paid by the plaintiff to the defendant on 6.6.1990, she having obtained the amount from her father. It was alleged in the plaint that the amount was given by the plaintiff's father as her share. 3. The defendant disputed the case of the plaintiff that ornaments weighing 35 sovereigns were given at the time of marriage. He also contended that he did not misappropriate the gold ornaments. He also stated that he did not receive `50,000/from the plaintiff as alleged. The defendant contended that a few days before the marriage, the plaintiff's father had borrowed from the defendant a sum of `30,000/- towards marriage expenses. The defendant also contended that the plaintiff's father had no financial capability to provide 35 sovereigns of gold to his daughter at the time of marriage. 4. After Ext.A9 was caused to be produced at the instance of the plaintiff, the defendant admitted that ornaments were given to the plaintiff at the time of marriage. It is also proved and it is not ## **A.S. NO. 93 OF 2000 (D)** :: 3 :: disputed now that `30,000/- borrowed by the plaintiff's father was duly repaid to the defendant. 5. Before the court below PW1 to PW5 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. DW1 to DW4 were examined and Exts.B1 to B6 were marked on the side of the defendant. Ext.X1 was marked as third party exhibit. 6. The court below did not arrive at any specific finding as to whether the defendant misappropriated the gold ornaments belonging to the plaintiff. However, the court below held thus: “Assuming that the plaintiff is entitled to recover the value of ornaments, she had to act within limitation. Under Article 91 clause (b), the limitation of 3 years has to be reckoned from the date when the ornaments is wrongfully taken.” The court below held that the plaintiff knew that the ornaments were misappropriated by the defendant in 1992 and therefore, the suit filed in 1996 is barred by limitation. ## **A.S. NO. 93 OF 2000 (D)** :: 4 :: 7. On a fair reading of the pleadings and evidence, it is clear that the case of the plaintiff is that the gold ornaments were given as dowry. It is well settled by the decisions of this Court in **Scariah Varghese** v. **Marykutty (1991 (2) KLT 71)** ; **Chacko** v. **Annamma** ( **1993 (1) KLT 675)** and **Swapna** v. **Thankavelu (1990 (2) KLT 604)** that suit for return of dowry would not be barred by any period of limitation. 8. In **Scariah Varghese** v. **Marykutty** (1991 (2) KLT 71), it was held thus: “7. Counsel for the appellant submitted that the suit is barred by limitation. This aspect of the matter also has been considered in 1980 KLT 353 ( _Mary v. Cherchi & others_ ). The Court said thus:-- “The character of the Streedhanam being in the nature of a payment in trust and a suit for recovery of that amount is not governed by any specific article of the Limitation Act, the residuary Art.113 will apply. The period starts from the time the right to sue accrues. A right to sue in this case is equivalent to the cause of action”. :: 5 :: ## **A.S. NO. 93 OF 2000 (D)** Of course, in the Full Bench case reported in 1972 KLT 24 ( _Commissioner of Incometax, Kerala v. P.M.Paily Pillai_ ) the Court has found that the residuary Article is applicable and also found that the starting point of limitation is the cause of action itself and the cause of action is the demand for the dowry by the wife. Counsel submitted that there was no previous demand. Even if there was no previous demand, the plaint itself can be considered as a demand and if I calculate the period for limitation from the date of suit, there is absolutely no difficulty to say that the suit is not barred by limitation. But I feel that it is not a correct statement that the dowry would only part take the nature of a trust amount. True under the Trust Act, there are certain obligations which are in the nature of trust and certainly without any other statutory provision the amount given as dowry will legitimately assume the character and nature of trust in the hands of any person other than the person entitled to the amount, viz., the wife. Of course for recovery of a trust amount no period of limitation is prescribed. But I feel that by virtue of the Dowry Prohibition Act, the statute itself says that the amounts in the hands of the husband or the husband's parents for and on behalf of the wife is a trust amount and so there is no difficulty to ## **A.S. NO. 93 OF 2000 (D)** :: 6 :: say that the obligation is not only in the nature of a trust, but the obligation is one under trust to return the amount by virtue of the statutory provision and so there is no limitation for such a suit. So I find that there is absolutely no merit in the contention advanced by counsel on the basis that the suit is barred by limitation. I reject that contention.” In view of the settled legal position, the finding of the court below that the suit is barred by limitation is unsustainable. 9. The case of the plaintiff that the defendant took `50,000/from the plaintiff, was not accepted by the court below. The evidence of the plaintiff as PW1 and the evidence of PW4 were considered by the court below in paragraph 9 of the judgment and it was held that the claim for return of `50,000/- is unsustainable. We have gone through the averments in the plaint and written statement as well as the oral evidence of PW1 and PW4 in this regard. We are of the view that the court below was right in holding that the plaintiff is not entitled to get a decree for return of `50,000/- as claimed in the plaint. ## **A.S. NO. 93 OF 2000 (D)** :: 7 :: 10. On the finding that the suit is not barred by limitation, we are of the view that the matter requires a remand to the court below for a fresh disposal. The court below having not arrived at any specific finding as to the case of the parties with respect to the alleged misappropriation of gold ornaments, we do not think it proper to examine that question for the first time in this appeal. Therefore, we remand the case to the trial court for fresh disposal on the question whether the plaintiff is entitled to get a decree for the value of the gold ornaments allegedly misappropriated by the defendant. Since the parties have adduced oral evidence, it is not necessary to allow them to adduce further evidence in the matter. It is made clear that we have confirmed the finding of the trial court in paragraph 9 of the judgment with respect to the claim for `50,000/- made by the plaintiff. 11. Accordingly, the appeal is allowed in part, the judgment and decree of the court below to the extent indicated above are set aside and the case is remanded to the trial court for fresh disposal ## **A.S. NO. 93 OF 2000 (D)** :: 8 :: with respect to the matters mentioned above. Since the suit is a very old one, the trial court shall dispose of the suit on or before 15.1.2015. Proportionate court fee with respect to the matter now remanded (court fee with respect to item 1 shown in the valuation in the plaint) shall be refunded to the appellant. The parties shall appear before the court below on 27.10.2014. **(K.T.SANKARAN) Judge** **(P.D. RAJAN) Judge** ahz/