Biju James v. Julie Chacko

Mat.Appeal.No.972/2017 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** **Mat.Appeal.No.972 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OP 117/2013 DATED 31-01-2017 OF FAMILY COURT, THODUPUZHA** ## **APPELLANT/S:** **BIJU JAMES, AGED 45 YEARS,S/O. CHACKO, VADAKKEKARA HOUSE, MELPURAPUZHA P.O, PURAPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **BY ADVS. SRI.P.FAZIL SMT.JAYASREE MANOJ SRI.SAJU THALIYATH SRI.V.S.SREEJITH SRI.SONNYMON K.MATHEW SRI.A.C.THOMAS ADHIKARAM** **RESPONDENT/S:** **JULIE CHACKO, AGED 40 YEARS, D/O. CHACKO, VENGALIL HOUSE, ERAVINMANGALAM KARA, ERAVIMANGALAM P.O, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **R1 BY ADV. DR.THUSHARA JAMES R1 BY ADV. SRI.M.S.AMAL DHARSAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal.No.972/2017 2 ## **JUDGMENT** ## **Dated this the 9[th] day of February, 2021** ## **C.S.Dias, J.** The respondent in O.P.No.117 of 2013 of the Family Court, Thodupuzha is the appellant. The petitioner in the above original petition is the respondent in the appeal. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The concise case of the petitioner in the original petition was that she is the wife of the respondent. Their marriage was solemnized on 27.12.1999. Petitioner was financially sound, as her father was employed in Dubai for 15 years prior to 1995. At the time of marriage, the petitioner's mother entrusted an amount of 3,00,000/- and 55 sovereigns₹ of gold ornaments as the petitioner's share in her parental property. The petitioner's maternal grandfather gave 2,25,000/- to the respondent on₹ Mat.Appeal.No.972/2017 3 18.12.1999, i.e., on the date of betrothal. Respondent received the amount as the trustee of the petitioner. A fixed deposit of 75,000/-₹ of the State Bank of Travancore, Kaduthuruthy branch, in the name of the petitioner, was also handed over to the respondent. The amount was entrusted to the respondent at the Parish Hall of St.Mary's Forane Church, Kaduthuruthy. A thali chain of 2.5 sovereigns was given by the respondent to the petitioner and it is with her. Out of 55 sovereigns of gold ornaments, only 11¾ sovereigns of gold ornaments are now in the custody of the petitioner. The remaining 43.25 sovereigns of gold ornaments were misappropriated by the respondent and the same is described as 'A' schedule in the petition. The house where the couple was living, was constructed by availing a housing loan of 2,00,000/-₹ and a gold loan of 1,50,000/-. Certain gold ornaments₹ of the petitioner and the child were sold by the respondent, which is described in 'C' schedule of the original petition. The marital relationship between the Mat.Appeal.No.972/2017 4 couple got estranged and the couple started living separately. Hence, the respondent is liable to return an amount of ₹3,00,000/-, the gold ornaments described in petition 'A', 'B' and 'C' schedule having a total weight of 43¼ sovereigns or its market value thereof at the rate of 22,000/- per sovereign, and 12₹ sovereigns of gold ornaments mentioned in 'A' and 'C' schedule property or its value thereof at the same rate. Similarly, the petitioner sought for return of her house hold articles entrusted to the respondent or its value of ₹1,41,000/-. 3. The respondent filed a written objection refuting the allegations in the original petition. According to him, as theirs was a love marriage, only an amount of 50,000/- was given to the respondent, as₹ the petitioner's family share on the date of betrothal. An amount of 75,000/- was given in the name of the₹ petitioner by fixed deposit and the same was not entrusted to the respondent. Although the petitioner was not wearing 55 sovereigns of gold ornaments, she Mat.Appeal.No.972/2017 5 seemed to be wearing about 45 sovereigns of gold ornaments. At the time of marriage, the respondent was employed abroad and he was earning more than ₹15,000/- per month. The respondent had purchased a 'thali chain' weighing 5 sovereigns and had also given her dress material. He, hence, prayed that the original petition be dismissed. 4. Along with original petition, the petitioner also filed O.P.No.180 of 2013, seeking a decree for dissolution of the marriage with the respondent on the ground of cruelty. The Family Court consolidated and jointly tried O.P.No.117 of 2013 and O.P.No.180 of 2013. 5. The petitioner and three witnesses were examined as PWs1 to 4 and Exts.A1 to A6 series were marked in evidence. Respondent and three witnesses were examined as RWs 1 to 4 and Exts. B1 to B11 were marked through them. C1 to C2 series were marked as court exhibits. 6. The Family Court, after evaluating the Mat.Appeal.No.972/2017 6 pleadings and materials on record, by the impugned judgment and decree allowed O.P.117 of 2013 by decreeing the original petition and permitting the petitioner to realize an amount of 3,00,000/- with 6%₹ interest, 43¼ sovereigns of gold ornaments or its present value @ 22,200, the house hold articles₹ valued at 1,41,000/- and also 12 sovereigns of gold₹ ornaments or its market value also @ 22,200/-. The₹ original petition filed by the petitioner seeking dissolution of marriage was dismissed. 7. Aggrieved by the impugned judgment and decree in O.P.No.117 of 2013, respondent is in appeal. 8. Heard Sri.P.Fazil, learned counsel for the appellant/respondent and Dr.Thushara James, learned counsel for the respondent/petitioner. 9. The question that emerges for consideration in this appeal is whether the impugned judgment and decree passed by the Family Court allowing the original petition as prayed for is correct or not. 10. It is no longer res-integra, in view of the Mat.Appeal.No.972/2017 7 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 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. 11. Going by the materials on record, it is seen that the petitioner had produced Ext.A1 marriage certificate, Ext.A2 album and Ext.A3 series photographs in order to substantiate that she was wearing gold ornaments. Ext.A4 sale deed was produced to prove that the petitioner's father had sold his landed property in order to raise the necessary funds for the purpose of purchasing the gold ornaments. However, the above materials are Mat.Appeal.No.972/2017 8 insufficient to prove that the respondent had misappropriated the gold ornaments, which is the pivotal aspect. 12. Nevertheless, on a perusal of Ext.B4 document, it is seen that the respondent had on 17.09.2009 pledged gold ornaments having a gross weight of 154.28gm before the State Bank of India, Vaikom Road, Thodupuzha branch. The ornaments were redeemed on 04.02.2011. Ext.B4 has clinched the issue that the respondent had appropriated the petitioner's gold ornaments and pledged the same in the bank. Thus, the onus of proof has shifted to the respondent. The respondent has not rebutted the onus of proof that he had returned the gold ornaments to the petitioner. Therefore, it is established that the gold ornaments weighing 154.28 gm of gold ornaments equivalent to 19.28 sovereigns was appropriated and pledged by the respondent, which he is liable to return. 13. In addition to the above finding, the respondent has admitted that at the time of marriage, Mat.Appeal.No.972/2017 9 the petitioner's family members had entrusted him an amount of 50,000/- as the petitioner's share in her₹ parental properties. Also, the respondent has admitted that the mother of the petitioner had gifted the respondent household articles, except a sofa set and kitchen utensils. The petitioner had valued the household articles at 1,41,000/-. Respondent has not₹ denied the said valuation. Hence, the respondent has accepted the valuation of the movable property and kitchen utensils. 14. On a re-appreciation of the pleadings and materials on record, especially the oral testimony of PWs 1 to 4 and RWs 1 to 4, we find that even though the petitioner had sought for return of 3,00,000, 55.15₹ sovereigns of gold ornaments and household articles at the rate 1,41,000/-, there is only material on record,₹ as laid down in **Alphonsa** and **Royson Mathew** (supra) to substantiate that the respondent had appropriated 19.25 sovereigns of gold ornaments from the petitioner; that the respondent had received an Mat.Appeal.No.972/2017 10 amount of 50,000/- and household articles worth₹ ₹1,41,000/-. In light of the above factual and legal analysis, we modify the impugned judgment and decree and hold that the petitioner is only entitled to a decree to recover from the respondent 19.25 sovereigns of gold or its value thereof as on the date of petition, i.e., 22,200/-₹ per sovereign, totaling to ₹4,21,800/-, 1,41,000/-₹ towards the value of the household articles and 50,000/- that was entrusted at₹ the time of marriage, totaling to an amount of ₹6,12,800/-. In the result, the appeal is allowed in part as follows: i) The judgment and decree in O.P.No.117 of 2013 is modified. ii) In supersession of the impugned judgment and decree, we permit the respondent/petitioner to realize from the appellant/respondent an amount of ₹6,12,800/- with interest @ 6% per annum Mat.Appeal.No.972/2017 11 from the date of petition till the date of realization, within a period of two months from today. iii) In the eventuality of the appellant/respondent/judgment debtor failing to the decree amount within the pay stipulated time period of two months, the Family Court shall resurrect and proceed with the execution proceedings in E.P.No.16 of 2017 from the present stage and bring it to its conclusion, as expeditiously as possible. - iv) 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 JUDGE** DG