Bijukumar S/o Divakaran v. Roshini d/o Lilly and Prajit

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941** **Mat.Appeal.No.247 of 2014** **AGAINST THE ORDER/JUDGMENT IN OP 136/2006 of FAMILY COURT,TRIVANDRUM DATED 29-11-2013** ## **APPELLANT:** **BIJUKUMAR S/O.DIVAKARAN, BIJU BHAVAN, NELLIMOODU, MARUTHANCODE, AVANAMKUZHI, NEYYATTINKARA TALUK, TRIVANDRUM DISTRICT.** **BY ADVS. SRI.M.RAMASWAMY PILLAI SMT.PREETHY R. NAIR SRI.P.C.VIJAYAKUMAR** ## **RESPONDENTS:** **1 ROSHINI D/O.LILLY, RESIDING AT SURESH KOTTAGE, CANCORDIA LANE, PEROORKADA, KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM.** **2 PRAJIT RESIDING AT SURESH KOTTAGE, CANCORDIA LANE, PEROORKADA, KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM (REPRESENTED BY NEXT FRIEND MOTHER THE FIRST PETITIONER)** **BY ADVS. SRI.G.BIJU SRI.M.RAJAGOPALAN NAIR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.a.247/2014 2 ## **JUDGMENT** ## **K.Harilal, J.** 1.The appellant was the husband of the first respondent and the 2[nd] respondent is the son born to them in the said wedlock. This appeal has been filed challenging the judgment and decree passed against him in O.P.No.136/2006 of the Family Court, Thiruvananthapuram. The aforesaid original petition was filed by the first respondent herein seeking a declaration that title to A and B schedule landed properties absolutely belongs to the first respondent, recovery of possession of B schedule property from the appellant, recovery of 50 sovereigns of gold ornaments and recovery of a total sum of Rs.4,45,000/-, Mat.a.247/2014 3 which was given to the appellant under different heads and for a direction to pay Rs.67,500/- as past maintenance allowance to the 2[nd] respondent. 2.The averments in the original petition is that, the marriage between the first respondent and the appellant was solemnized on 13.07.1995 and the 2[nd] respondent was born out from their wedlock. At the time of marriage 50 sovereigns of gold ornaments were given to her and Rs.50,000/- was entrusted with the appellant. That apart, A schedule property was also assigned in favour of the first respondent and the appellant by a settlement deed. Subsequently, the relationship between the first respondent and the appellant has become strained, but the first respondent Mat.a.247/2014 4 continued to live along with the appellant. The appellant's intention was only to grab more money from the parents of the first respondent. While so, they have sold away 5 cents of property from the A schedule property and obtained an amount of Rs.3,75,000/-. Out of the said amount, they purchased B schedule property expending an amount of Rs.1,50,000/in the name of both the first respondent and the appellant. Thereafter, the appellant had spent the remaining Rs.2,25,000/- for the marriage of his sister. Thus, the entire sale consideration for purchasing B schedule property was spent by the first respondent alone and no amount was paid by the appellant to purchase the B schedule property. It is further averred that, B schedule property was Mat.a.247/2014 5 purchased in the joint name of first respondent and the appellant on an expectation that the appellant would change his behaviour towards the first respondent. In fact the appellant had no kind of right over the B schedule property and the entire sale consideration was spent by the first respondent alone. Immediately after the marriage, the appellant sold away the entire gold ornaments to repay his debts. But the first respondent has suffered misbehavior from the part of the appellant on the belief that he would change his character and conduct. Thereafter in the year 1996 itself the appellant and the first respondent had begun to live in the parental home of the first respondent. The appellant was not Mat.a.247/2014 6 willing to change his character and conduct and her matrimonial life with the appellant became intolerable. In the meantime while they were living in the parental home of the first respondent, the father of the first respondent purchased a motor bike for Rs.42,000/- and given to the appellant. That apart he has given Rs.78,000/- to the appellant to discharge his loan transaction. He is not paid any amount towards the maintenance of the respondents from 1999 onwards. The 2[nd] respondent is entitled to get past maintenance for 3 years @ Rs.1,500/- per month from 1999 onwards and thereby the 2[nd] respondent is entitled to get a total sum of Rs.54,000/- with interest. The appellant has sufficient means to the maintenance pay Mat.a.247/2014 7 allowance to the 2[nd] respondent as he is getting Rs.20,000/- per month as income from different sources. 3.The appellant filed objection stating that B schedule property was purchased by him alone and the entire sale consideration was given by him alone. He also denied the allegation that the first respondent was given 50 sovereigns of gold ornaments at the time of marriage and he was entrusted with Rs.50,000/- as patrimony. He specifically opposed the plaint averment that, B schedule property was purchased by using the consideration obtained from selling 5 cents of property from A schedule property. The entire sale consideration of B schedule property was raised by him alone and the first respondent Mat.a.247/2014 8 is a name lender only. Hence, appellant is in absolute possession and enjoyment of B schedule property and he denied the allegation of cruelty alleged against him. 4.Further, it is contended that 5 cents of property was sold by the first respondent and her father and the sale consideration was appropriated by her father and no amount was given to the appellant from the consideration so received. The contention of the appellant is that 'B' schedule property was purchased with his own money and nobody has got any right over 'B' schedule property. The ornaments given to the first respondent at the time of marriage was not entrusted with the appellant. He has given a thali chain, weighing five sovereigns and a finger ring, Mat.a.247/2014 9 weighing 3/4 sovereigns to the first respondent and the same has not been returned so far. He denied the allegation that he is a drunkard. According to him, the first respondent has no right over 'B' schedule property and it absolutely vested with him. He denied the allegation that Rs.78,000/- was given to him to discharge his loan transaction. Further, he is not liable to give any amount towards maintenance allowance, as he has been paying maintenance allowance in M.C.657/2005, at the rate of Rs.750/- per month. There is no basis for the statement that income from 'B' schedule property is Rs.30,000/- per annum. 5. In the written statement, he raised a counter claim, for return of 5 sovereigns of thali Mat.a.247/2014 10 chain and a finger ring, weighing 3/4 sovereigns from the first respondent. According to him, though 14.78 Ares of property in Re.Sy.No.567/11 was settled in the joint name of himself and the first respondent, as per Document No.3385, the entire sale consideration was given by him and the said property is described as 'E' schedule in the counter claim. He for a sought declaration that the title to 'E' schedule property belongs to him. 6.The first respondent filed a written statement to the counter claim, reiterating her case advanced in the original petition. She denied the allegation that she is keeping a thali chain, weighing 5 sovereigns and a finger ring, weighing 3/4 sovereigns. According to Mat.a.247/2014 11 her, the thali chain was weighing only 3.5 sovereigns and that the appellant is not entitled to get any declaration of title to - 'E' schedule property. She prayed for dismissing the counter claim. 7. On the rival pleadings, both parties adduced evidence, which consists of the oral testimony of Pws.1 and 2 and documentary evidence of Exts.A1 to A4 from the part of the first respondent and the oral testimony of CPWs 1 to - 3 and Exts.B1 and B2 on the part of the appellant. After considering the aforesaid evidence on record, the Family Court decreed the suit in part and rejected the counter claim. A decree is passed as shown below: - "1) A decree is granted declaring the absolute title and possession of Mat.a.247/2014 12 - 'A' schedule property with the petitioner. - 1.A decree declaring that 1[st] petitioner and respondent are the title holders to petition 'B' schedule property (E schedule in the counterclaim) now in the possession of the respondent as co-owners. - 2.A preliminary decree for partition and separate possession of petition B schedule property is hereby declared. - 3.1[st] petitioner is hereby allowed to apply for passing a final decree within 2 months from the date of the decree regarding B schedule property. The quantum of mean - (sic) profit is left open for detemination in the final decree proceedings. - 4.A decree is passed directing respondent to Mat.a.247/2014 13 return 30 sovereigns of gold ornaments within 60 days from today failing which petitioner is allowed to realize the value of the gold ornaments at the prevailing market rate as on the date of the satisfaction of decree. - 5.2[nd] petitioner is allowed to realize past maintenance at the rate of Rs.1,500/- for the preceding 3 years from the date of the filing of the petition (13/02/2006) and at the same rate being future maintenance till he attains majority from respondent and his assets. - is restrained a - 6.Respondent hereby by decree of permanent prohibitory injunction from interfering with the peaceful possession and enjoyment of A schedule Mat.a.247/2014 14 property by the petitioners. - 7.1[st] petitioner is allowed to receive the amount by way of maintenance granted by this court." 8. Heard the learned counsel for the appellant and the respondents. - 9.The points to be considered are; - 1.whether the family court is justified in declaring absolute title and possession of - 'A' schedule property with the petitioner/first respondent. - 2.Whether the family court is justified in dismissing the counter claim and declaring that the appellant and the first respondent are the title holders to petition 'B' schedule property. - 3.Whether the family court is justified in Mat.a.247/2014 15 passing a preliminary decree for partition and separate possession of petition 'B' schedule property. 4.Whether the family court is justified in directing the appellant to return 30 sovereigns of gold ornaments or its prevailing market value. 5.Whether the family court is justified in granting maintenance allowance at the rate of Rs.1,500/- to the second respondent for the preceding three years from the date of filing of the petition and granting future maintenance at the same rate till he attains majority. Whether the family court is justified in passing a permanent prohibitory injunction against the appellant from interfering Mat.a.247/2014 16 with the possession and enjoyment of 'A' schedule property. 10. It is the specific case of the first respondent that her marriage with the appellant was solemnised on 13.7.1995 and in connection with the marriage, on 22.6.1995, 12 ½ cents of property was assigned in the name of both the appellant and the first respondent, by her parents, by Ext.A1 settlement deed. We have examined Ext.A1 and we find that Ext.A1 is a settlement deed executed by the parents of the first respondent in connection with the marriage of the appellant with the first respondent, without consideration. receiving any Moreover, there is a specific recital in Ext.A1 to the effect that the settlement deed Mat.a.247/2014 17 was executed in consideration of love and affection to the appellant and the first respondent, whose marriage stands fixed. It is pertinent to note that Ext.A1 was executed on 22.6.1995 and the marriage between the and the first was appellant respondent solemnized on 13.7.1995. The proximity of the date of execution of the settlement deed and the date of marriage assumes much relevance and It rise to an significance. gives inference that there is no possibility to purchase 'A schedule property in the name of both the appellant and the first respondent before the marriage, by spending money by the appellant. On the other hand, it gives rise to an inference that the property covered by Ext.A1 was given to the first respondent as Mat.a.247/2014 18 her patrimony in connection with the marriage, though the name of the appellant also finds a place in Ext.A1 document. So, it could be reasonably presumed that the said settlement, under Ext.A1 was a settlement in favour of the first respondent as patrimony from her parents and the appellant is a namelender only. In the absence of any material to arrive at a contrary view, the family court is justified in granting a declaration that the absolute title and possession of 'A' schedule property vests with the first respondent, though the appellant's name also finds a place in Ext.A1. 11. As regards 'B' schedule property, it is the specific case of the first respondent that out of the property covered under Ext.A1 settlement deed, five cents of property was Mat.a.247/2014 19 sold for Rupees 3.75 lakhs and out of that money, 'B' schedule property extending 14.75 cents was purchased spending Rupees 1.5 lakhs from Rupees 3.75 lakhs. Though the property was purchased in the joint name of the appellant and the first respondent, no money was paid by the appellant and the entire consideration was paid by the first respondent from the consideration obtained from the sale of her property. Though she contended that the sale consideration amounting to Rupees 1.5 lakhs for purchasing 'B' schedule property was given from Rupees 3.75 lakhs obtained from the sale of five cents of property from 'A' schedule property, no document has been produced to prove the sale of five cents of property. Thus, the 1[st] respondent has failed Mat.a.247/2014 20 to prove that the entire consideration for purchasing 'B' schedule property was taken from the consideration obtained from selling of her 5 cents of property. Moreover, the consideration shown in Ext.A2 (B1) sale deed is Rs.30,000/- only. 12. Coming to the counter claim raised by the appellant, according to the appellant, the 1[st] respondent is a namelender in Ext.B1 sale deed and the entire consideration was given by him from his own account. He denied the case of the 1[st] respondent that B schedule property was purchased by utilizing the fund obtained from selling five cents of property from the property obtained by Ext.A1 settlement deed. Did he succeed in proving the said claim. It is true that he had produced Ext.B2 Mat.a.247/2014 21 certificate evidencing his bank account issued by Avanakuzhi Service Co-operative Bank and examined CPW1 to the certificate. prove According to Ext.B2, on 9.4.1994, he had deposited Rs.36,000/- and he had withdrawn Rs.41,530/- on 25.3.1996 with maturity value. But, the date of purchase of B schedule property is 30.9.1996. So, it cannot be believed that the entire amount which had been withdrawn by the appellant before six months was utilized for purchasing B schedule property. No other evidence had been adduced by the appellant to prove that he had enough money in his possession, either in cash or in bank account, to purchase B schedule property, just before the purchase. The absence of evidence to prove the source of fund for Mat.a.247/2014 22 paying the entire consideration of B schedule property is fatal to the case set up by the appellant in the counter claim. Though he has examined CPW3 to prove the particulars of the transaction under Ext.B1, no reliance can be placed on his evidence as he is an interested witness only. In Ext.B1 it is specifically stated that the consideration was received from both the appellant and the 1[st] respondent. But, CPW3 has spoken against the specific recital in Ext.B1 as regards the source of consideration. Therefore, no reliance can be placed on the oral evidence of CPW3. More importantly, Ext.B1 does not say anything about the source of consideration. When both parties miserably failed to prove that the entire consideration for purchasing B schedule Mat.a.247/2014 23 - property was taken from own fund, the family court is justified in arriving at a finding that the entire consideration was given by both the appellant and the 1[st] respondent and B - schedule property belongs to both the appellant and the 1[st] respondent. 13. Thus, the family court is justified in dismissing the counter claim and granting a decree, declaring that the appellant and the first respondent are the title holders to - petition 'B' schedule property ('E' schedule - counter claim property) and they are in possession of the same as co-owners. The court is in a family justified passing preliminary decree for partition and separate possession of 'B' schedule property. 14. As regards the claim for 50 sovereigns of Mat.a.247/2014 24 gold ornaments, it is the case of the first respondent that at the time of marriage, she was given 50 sovereigns of gold ornaments and the same was entrusted with the appellant and he has not returned the same so far. There is no documentary evidence to support the aforesaid claim and the only available evidence is the oral testimony of Pws1 and 2. 15. In the objection filed by the appellant, there is no specific contention to the effect that the 1[st] respondent was not having any ornaments at the time of marriage. On the other hand, the appellant would state that the first respondent is in possession of the entire ornaments, which were given to her at the time of her marriage. That apart, he raised a counter claim to the effect that he Mat.a.247/2014 25 has given a thali chain, weighing five sovereigns and a finger ring, weighing 3/4 sovereigns to the first respondent. Though in cross-examination PW 1 has deposed that she is ready and willing to produce the album, containing the photographs to show the ornaments, which she had worn at the time of marriage, she has not chosen to produce the same, when she was examined. When the appellant was examined as CPW1, he admitted that the parents of the first respondent had agreed to give 30 sovereigns of gold ornaments to the first respondent in connection with the marriage and he also agreed the said offer. The family court went wrong in finding that since there was an offer to give 30 sovereigns of gold ornaments to the 1[st] respondent and the Mat.a.247/2014 26 appellant accepted the same, the appellant is liable to account 30 sovereigns of gold ornaments. We are unable to agree with the said finding, because, merely on the reason that there was an agreement to give 30 sovereigns of gold ornaments, it cannot be held that 30 sovereigns of gold ornaments were given to the 1[st] respondent and the appellant has mis-appropriated the same. It is to be borne in mind that no evidence was adduced to prove the purchase of 30 sovereigns of gold ornaments or the entrustment of the same with the appellant, after the marriage. 16. In the above context, it is pertinent to note that the pleadings in respect of the gold ornaments are very vague. The facts disclosing the entrustment are not disclosed in the Mat.a.247/2014 27 pleadings. The only averment is a statement that after the marriage the appellant sold away her gold ornaments for repaying his debt. The date on which or the month or the year in which the gold ornaments were entrusted with the appellant or he sold away the gold ornaments, is not disclosed in the pleadings. Similarly, the manner, in which the appellant allegedly obtained the gold ornaments from the 1[st] respondent, is also kept in dark. Whether the gold ornaments were given by her or taken by force from her for selling it, nothing has been pleaded to show the manner in which the appellant got possession of the gold ornaments and the lack of pleadings in this respect is fatal. In _**Abubakker Labba v. Shameena**_ **[2018 (3) KLT 196]** this court in paragraph 11 held Mat.a.247/2014 28 ## as follows: “ _11. In the case of the claim of return of movables, more specifically, money and gold ornaments, which were allegedly given to the wife in connection with the marriage, from the parents of the husband, there cannot be a constructive or presumptive entrustment, without actual physical delivery of the same to them and it must be specifically pleaded and proved by sufficient evidence, by the claimant wife. Merely on the evidence that the bride had worn gold ornaments, at the time of marriage, it cannot be held that the ornaments, which were worn at the time of marriage, were entrusted with the father and mother of the bridegroom. Unless there is sufficient evidence from the wife, to prove the entrustment of gold ornaments with the parents of the husband, after the marriage, the parents of the husband cannot be held liable to return the same. Normally there cannot be a joint entrustment of money or gold ornaments with three persons, the husband and his parents, without disclosing the mode of_ Mat.a.247/2014 29 _entrustment or the identity of the person to whom the money or gold ornaments were actually handed over. The absence of specific pleadings and sufficient evidence to prove the manner in which the entrustment of money and gold ornaments were made with the parents of the husband will be fatal, to the claim for returning the same by them.”_ 17. Coming to the evidence, as regards the entrustment of gold ornaments with the the sole evidence available on appellant, record is the oral testimony of the 1[st] respondent as PW1. We have gone through the oral assertion of PW1 and we find that the same is not trustworthy and it requires corroboration, by supporting evidence, which is lacking. The evidence of PW2 does not give any support to the evidence of PW1, in respect of the alleged entrustment. The entrustment Mat.a.247/2014 30 of gold ornaments with the appellant is the fact in issue, and not the quantity of gold ornaments given at the time of marriage. It is not and to decree just proper pass directing the husband to return 30 sovereigns of gold ornaments, on the basis of a finding that there was an understanding to give 30 sovereigns of gold ornaments at the time of marriage. It is to be borne in mind that there is no reliable evidence to prove that 30 sovereigns of gold ornaments were actually given at the time of marriage on the basis of that understanding. 18. In the above analysis, we find that the 1[st] respondent miserably failed to prove that the she was given 30 sovereigns of gold ornaments and the same was entrusted with the appellant Mat.a.247/2014 31 and he sold away the same for discharging his liabilities. We are of the view that unless the entrustment of gold ornaments with the appellant is proved with the standard of preponderance of probability, no decree can be passed directing the appellant to return told ornaments. In the above view, the family court is not justified in passing a decree directing the appellant to return 30 sovereigns of gold ornaments or its value, on a mere finding that there was an agreement to give 30 sovereigns of gold ornaments, at the time of marriage. Consequently, the said finding and that part of the decree directing the appellant to return 30 sovereigns of gold ornaments or its value would stand set aside. 19. Coming to the challenge against the Mat.a.247/2014 32 granting of maintenance allowance, the case of the appellant is that in the earlier MC 657/2005, the family court directed him to pay maintenance allowance at the rate of Rs.750/per month to the 2[nd] respondent. So, he is not liable to pay any amount more than that. No evidence has been produced by the Appellant to show that the maintenance allowance granted in M.C.No.657/2005 is at the rate of Rs.750/- per month; on the other hand, impliedly admitted that enhanced maintenance allowance is at the rate of Rs.1500/- per month. In the above circumstance, the Family Court is justified in fixing the maintenance allowance at the rate of Rs.1500/- per month with a rider that the 1[st] respondent is entitled to only the balance amount due being the past maintenance Mat.a.247/2014 33 allowance, after adjusting the amount received by way of maintenance allowance in M.C.No.657/2005. The maintenance allowance at the rate of Rs.1500/- per month is just and reasonable. 20. In the result, that part of the decree, whereby the appellant was directed to return 30 sovereigns of gold ornamnets, failing which the 1[st] respondent is allowed to realise the market value of the said gold ornaments alone, is set aside. All the rest will stand undisturbed. 21. The appeal is allowed in part. **Sd/K.Harilal, Judge** **Sd/- Annie John, Judge** sl.