BINOJOSEPH v NEENACHERIAN (Mat.Appeal No.179 of 2022 & connected cases)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE10[TH]DAYOFAUGUST2023/19THSRAVANA,1945 OP(FC)NO.285OF2023 AGAINSTTHEORDERDTD.27.04.2023INIA20/2023IN OP1335/2017OFFAMILYCOURT,KOTTAYAM PETITIONER/PETITIONER/RESPONDENT: ``` ``` BINOJOSEPH AGED45YEARS S/O.LATEPATHIPARAMPILVJOSEPH, PATHIPARAMPILHOUSE,CHANGANASSERYPO, VAZHAPALLYVILLAGE,CHANGANASSERYTALUK, - KOTTAYAMDISTRICT,PIN686101 ``` ``` BYADVS. K.B.GANGESH SMITHACHATHANARAMBATH ATHIRAA.MENON ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` NEENACHERIAN AGED41YEARS D/O.PJCHERIAN,HOUSENO.UP7/245, ULLOORVILLAGE,MEDICALCOLLEGEPO, THIRUVANANTHAPURAMTALUK, THIRUVANANTHAPURAMDISTRICT-695011. ``` ``` BYADVROSHEND.ALEXANDERD ``` ``` THISORIGINALPETITION(FC)HAVINGCOMEUPFORADMISSION ON06.07.2023,ALONGWITHMat.Appeal.179/2022ANDCONNECTED CASES,THECOURTON10.08.2023DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.179 of 2022 & conn. cases 2 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICEA.MUHAMEDMUSTAQUE & ``` ``` THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE10[TH]DAYOFAUGUST2023/19THSRAVANA,1945 MAT.APPEALNO.179OF2022 AGAINSTTHEJUDGMENTINOP1335/2017OFFAMILYCOURT, KOTTAYAMATETTUMANOOR ``` ## **`APPELLANT/ORIGINAL PETITIONER:`** ``` NEENACHERIAN AGED40YEARS D/O.P.J.CHERIAN,HOUSENO.7/245,ULLOOR PANCHAYATH,ULLOORMEDICALCOLLEGEP.O., - THIRUVANANTHAPURAM695011,PRESENTLY RESIDINGAT20901,INDUFORTUNEFIELDS - GARDENIA,KUKATPALLY,HYDERABAD500085. ``` ``` BYADVS. ROSHEN.D.ALEXANDER TINAALEXTHOMAS HARIMOHAN ``` ## **`RESPONDENTS/RESPONDENTS 1, 3 & 4:`** ``` 1BINOJOSEPH AGED44YEARS S/O.P.V.JOSEPH,PATHIPARAMBILHOUSE, CHANGANACHERRYP.O.,VAZHAPPALLYVILLAGE, - CHANGANACHERRYTALUK,PIN686103. ``` ``` 2VIJAYAMJOSEPH W/O.LATEP.V.JOSEPH,PATHIPARAMBIL HOUSE,CHANGANACHERRYP.O.,VAZHAPPALLY - VILLAGE,CHANGANACHERRYTALUK,PIN 686103. ``` Mat.Appeal No.179 of 2022 & conn. cases 3 ``` 3DR.MANOJOSEPH AGED49YEARS S/O.LATEP.V.JOSEPH,PATHIPARAMBIL HOUSE,CHANGANACHERRYP.O.,VAZHAPPALLY - VILLAGE,CHANGANACHERRYTALUK,PIN 686103. ``` ``` BYADVS. GANGESHKB AMALSKUMAR ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 06.07.2023,ALONGWITHOP(FC).285/2023ANDCONNECTEDCASES, THECOURTON10.08.2023DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.179 of 2022 & conn. cases 4 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ## **`& THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 MAT.APPEAL NO. 201 OF 2022 (OP 1335/2017 OF FAMILY COURT, KOTTAYAM AT ETTUMANNUR)`** ## **`APPELLANT/1ST RESPONDENT:`** ``` BINOJOSEPH,AGED44YEARS,S/O.PVJOSEPH, PATHIPARAMPILHOUSE,CHANGANACHERRYPO, VAZHAPALLYVILLAGE,CHANGANACHERRYTALUK, KOTTAYAMDISTRICT. ``` ``` BYADVS. K.B.GANGESH SMITHACHATHANARAMBATH ATHIRAA.MENON ``` ## **`RESPONDENTS/PETITIONER, 3RD RESPONDENT & ADDL.R4:`** ``` 1NEENACHERIAN AGED40YEARS,D/O.PJCHERIAN ULLOORPANCHAYATH,HOUSENO.UP7/245, MEDICALCOLLEGEPO,ULLOORVILLAGE, THIRUVANANTHAPURAMTALUK, THIRUVANANTHAPURAMDISTRICT.NOWRESIDING - AT20901WILLOWBLOCK,INDUFORTUNE - FIELDS,KUKATPALLY,HYDERABAD500085, - PIN500085 ``` ``` 2VIJAYAMJOSEPH, AGED69YEARS,W/O.LATEPVJOSEPH, PATHIPARAMPILHOUSE,CHANGANACHERRYPO, VAZHAPALLYVILLAGE,CHANGANACHERRYTALUK, - KOTTAYAMDISTRICT686101. ``` Mat.Appeal No.179 of 2022 & conn. cases 5 - `3 DR.MANO JOSEPH` ``` AGED45YEARS,S/O.LATEPVJOSEPH, PATHIPARAMPILHOUSE,CHANGANACHERRYPO VAZHAPPALLYVILLAGECHANGANACHERRY - TALUK,KOTTAYAMDISTRICT,PIN686101 ``` ``` BYADVS. ROSHEN.D.ALEXANDER TINAALEXTHOMAS HARIMOHAN ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 06.07.2023,ALONGWITHOP(FC).285/2023ANDCONNECTEDCASES, THECOURTON10.08.2023DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.179 of 2022 & conn. cases 6 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE10[TH]DAYOFAUGUST2023/19THSRAVANA,1945 MAT.APPEALNO.495OF2022 AGAINSTTHEJUDGMENTINOP1335/2017OFFAMILYCOURT, KOTTAYAMATETTUMANNUR ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` BINOJOSEPH AGED44YEARS S/O.P.VJOSEPH,PATHIPARAMPILHOUSE CHANGANACHERRYPO,VAZHAPALLYVILLAGE, CHANGANACHERRYTALUK,KOTTAYAMDISTRICT. ``` ``` BYADVK.B.GANGESH ``` ## **`RESPONDENTS/PETITIONER, 3RD RESPONDENT & ADDL. R4:`** ``` 1NEENACHERIYAN AGED40YEARS D/O.PJCHERIAN,ULLOORPANCHAYATH, HOUSENO.UP7/245,MEDICALCOLLEGEPO, ULLOORVILLAGE,THIRUVANANTHAPURAM TALUK,THIRUVANANTHAPURAMDISTRICT.NOW - RESIDINGAT20901WILLOWBLOCK,INDU FORTUNEFIELDS,KUKATPALLY,HYDERABAD, - PIN500085 ``` ``` 2VIJAYAMJOSEPH AGED69YEARS W/O.LATEP.VJOSEPH,PATHIPARAMPIL HOUSE,CHANGANACHERRYPO,VAZHAPALLY VILLAGE,CHANGANACHERRYTALUK,KOTTAYAM - DISTRICT686101. ``` Mat.Appeal No.179 of 2022 & conn. cases 7 ``` 3DRMANOJOSEPH(DELETED) AGED45YEARS,S/O.LATEPVJOSEPH, PATHIPARAMBIL(H),CHANGANACHERRYP.O, VAZHAPPALLYVILLAGE,CHANGANACHERRY TALUK,KOTTAYMDISTRICT-686101. ``` ``` (THE3RDRESPONDENTISREMOVEDFROM PARTYARRAYATTHERISKOFTHEAPPELLANT ASPERORDERDATED11/04/2023,INIA1 OF2023INMAT.APPEAL495/2022) ``` ``` BYADVS. ROSHEND.ALEXANDER TINAALEXTHOMAS(K/000532/2004) HARIMOHAN(K/000327/2018) ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 06.07.2023,ALONGWITHOP(FC).285/2023ANDCONNECTEDCASES, THECOURTON10.08.2023DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.179 of 2022 & conn. cases 8 ## **J U D G M E N T** ## Sophy Thomas, J. These appeals are against the judgment in OP No.1335 of 2017 on the file of Family Court, Kottayam at Ettumanoor and the OP(FC) is against the order in I.A No.20 of 2023. 2. Mat.Appeal No.179 of 2022 is filed by the wife, as her OP was decreed only in part, and Mat.Appeal No.201 of 2022 was filed by the husband against the decree granted in favour of the wife. He filed Mat.Appeal No.495 of 2022 against dismissal of his counterclaim, and OP (FC) No.285 of 2023 against the order in I.A No.20 of 2023 rejecting his prayer to accept the security. 3. The facts in brief could be stated as follows: The marriage between Sri.Bino Joseph and Smt.Neena Cherian was solemnised on 24.04.2004 as per Christian rites and custom. Rs.12.5 lakh was the patrimony given to the husband and his parents. Thereafter her father purchased petition schedule property in the name of the husband expending Rs.20 lakh. She was a Software Engineer and she had good savings in her Bank Account. The husband who had access to her Bank Account Mat.Appeal No.179 of 2022 & conn. cases 9 dishonestly transferred huge amounts from her account to his own account and misappropriated the same. According to her, Rs.1,46,25,270/- was misappropriated by the husband. Their matrimonial life was not smooth and on 30.04.2016, she was driven out by the husband along with her children. So she filed OP No.1335 of 2017 for recovery of patrimony of Rs.12.5 lakh, along with a claim of Rs. 1,46,25,270/being the amount misappropriated by the husband, declaration, injunction etc. etc. 4. The husband preferred a counterclaim for an amount of Rs.3,11,55,935/-, and after adjusting the amounts already paid by the wife, he limited his claim to Rs.1,65,30,665/-. 5. After formulating necessary issues by the Family Court, the parties went on trial. PWs 1 to 4 were examined and Exts.A1 to A43 were marked from the side of the petitioner/wife and RWs 1 to 5 were examined and Exts.B1 to B17 were marked from the side of the respondent/husband. Exts.X1 to X14 were marked as witness exhibits also. 6. On analysing the facts and evidence, learned Family Court partly decreed the OP in favour of the wife directing the husband Mat.Appeal No.179 of 2022 & conn. cases 10 to pay an amount of Rs.8,50,000/- being the patrimony and Rs.1,46,25,270/- as the amount misappropriated by him, with 6% interest. Her claim for Rs.4 lakh, movables, relief with respect to the petition schedule property etc. were rejected. The counterclaim put forward by the husband was also rejected. Hence these appeals. 7. In Mat.Appeal No.201 of 2022, stay was granted on furnishing security to the satisfaction of the Family Court. The husband filed I.A No.20 of 2023 for accepting the security furnished by him, but it was rejected. Hence the OP(FC). 8. Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment and order warranting interference by this Court. 9. Heard learned counsel for the wife as well as the husband. For the purpose of convenience, the wife shall be referred as the appellant and husband shall be referred as respondent hereinafter. 10. The appellant is impugning the judgment, as her claim for patrimony of Rs.4 lakh was rejected along with her claim for Mat.Appeal No.179 of 2022 & conn. cases 11 declaration and injunction with respect to the immovable property. Let us examine these two claims in detail. 11. PW1-the appellant deposed that, Rs.6 lakh was deposited as her patrimony in the joint account of herself and her husband even prior to the date of betrothal. Ext.X1 Bank Account statement proves that fact, and that is not disputed by the respondent also. Payment of Rs.2.5 lakh for purchase of car also stands proved by Ext.X1 Bank Account statement, and the respondent also is admitting that fact. So, learned Family Court passed a decree for Rs.8.5 lakh as evidenced by Ext.X1 Bank Account statement, and rejected her claim for Rs.4 lakh, as there was no proof for that payment. The appellant would say that, Rs.4 lakh was paid on the date of betrothal. She was not specific as to the source of that amount, or who paid that amount or with whom that amount was entrusted. If the payment of Rs.6 lakh prior to the betrothal and payment of Rs.2.5 lakh after the marriage were all made through Bank accounts, there was no reason for making payment of Rs.4 lakh in cash. The parents of both parties are well educated and well employed. So, in normal course, the financial Mat.Appeal No.179 of 2022 & conn. cases 12 transactions might have been carried out through Bank, and admittedly they did two transactions; one before marriage, and one after the marriage through Bank Account. The evidence adduced by PW1 and PW2-her father, was found insufficient to inspire confidence, and so, her claim for Rs.4 lakh was rightly rejected, by the Family Court. 12. Coming to the claim of ownership over the petition schedule property, the appellant would say that, her father expended Rs.20 lakh for purchasing the schedule property in the name of the respondent, on her behalf. The fact that the petition schedule property was lying adjacent to the property of her father was not a ground to find that he purchased that property expending his own money. The respondent would say that, since his parents wanted to stay in a calm and serene atmosphere, they purchased that property in the name of the respondent. The consideration for that transaction was paid, using the funds of the respondent and his parents. Though PWs 1 and 2 would say that, the consideration for purchasing the schedule property was paid by PW2 by withdrawing Rs.18 lakh from the Bank Account of PW2, Mat.Appeal No.179 of 2022 & conn. cases 13 and on receiving Rs.2 lakh from PW3, the total sale consideration of that property was only Rs.15,45,700/-. If that amount was expended by PW2, there was no reason, for not purchasing that property either in the sole name of the appellant, or even in the joint name of the appellant and the respondent. Exts.B11 and B12 series documents would show that the property is in possession of the respondent. Moreover, Exts.X1 and X6 would clearly show that the consideration for that property was paid by way of two cheques as deposed by RW1. The sale agreement, if any, between the vendor and the vendee was not produced and the vendors were not examined by the appellant to show that, her father purchased that property and paid its consideration. Since Exts.A6 and A7 stands in the name of the respondent, and admittedly he is in possession of that property, the appellant cannot have any claim over that property unless it is proved otherwise and so, the Family Court rightly rejected her claim for declaration, recovery of possession, injunction etc. with respect to that property. 13. Now coming to the monetary claim by the appellant, the Family Court found that, she was eligible to get back Mat.Appeal No.179 of 2022 & conn. cases 14 Rs.1,46,25,270/- from the respondent with 6% interest. The respondent also is admitting the fact that, she had paid Rs.55,12,770/- to him in February, 2016, and Rs.91,12,500/- in May, 2016 amounting to Rs.1,46,25,270/- in total. But, his counterclaim was for Rs.3,11,55,935/-. After adjusting the amount paid by the appellant, he has limited his claim to Rs.1,65,30,665/-. 14. Now let us have a glance of the schedule attached to the counterclaim put forward by the respondent. ## **Schedule** Calculation of net amount the petitioner owed to respondents as on April 2016 |**Description**|**Original amount**|**Value including**<br>**interest as at**<br>**April 2016**| |---|---|---| |Taken by petitioner’s father in 2010 to<br>build house in Kuttampuzha|42,00,000|78,33,366| |Bank transfers to Petitioner's account|1,26,73,972|1,69,29,955| |Cash & other credits to Petitioner’s<br>account|19,69,245|26,98,310| |Taken by Petitioner’s father in 2008 at<br>the time of birth of 1st daughter|1,50,000|3,50,935| |Taken by petitioner’s father in 2011 at<br>the time of birth of 2nd daughter|2,50,000|4,40,585| Mat.Appeal No.179 of 2022 & conn. cases 15 |Price of the household goods bought<br>by petitioner’s father in 2014|2,35,000|2,94,784| |---|---|---| |Petitioner’s father’s dubai trip<br>expenses in 2015|1,20,000|1,34,400| |Taken by petitioner’s father in dubai in<br>2015|1,80,000|2,01,600| |Lease amount for Respondent-1’s<br>land in 2015|1,00,000|1,12,000| |Taken by Petitioner in Dubai, in 2016,<br>at the time of shifting back to India|21,60,000|21,60,000| |**Total amount owed**||**3,11,55,935**| |Description|Value as at April 2016| |---|---| |Total amount owed as above|3,11,55,935| |Paid back in Feb 2016|55,12,770| |Paid back in May 2016|91,12,500| |**Net amount owed to Respondent-1 by**<br>**petitioner**|**1,65,30,665**| 15. The first item in the above schedule is Rs.42 lakh taken by the appellant's father in the year 2010, and its interest alone comes to Rs.78,33,366/-. Item Nos.4 5, 6, 7, 8 and 9 are also amounts either taken by appellant’s father or expended for him. Respondent has no case that those amounts were taken by the appellant. From the schedule itself, it is clear that his claims are Mat.Appeal No.179 of 2022 & conn. cases 16 fanciful. Moreover, even if there was any kind of transaction between the respondent and his father-in-law, in connection with a contract for construction of a house for the respondent, that cannot be treated as part of patrimony, as such transaction could not be brought under explanation (d) to Section 7(1) of the Family Courts Act, ‘as circumstances arising out of a marital relationship’. 16. According to the respondent, he entrusted Rs.42 lakh with the father of the appellant, for constructing a house in the schedule property, and some documents were also signed for that purpose. So, it will amount to a commercial transaction between the son-in-law and father-in-law, and it cannot be termed as a suit or proceedings for an order or injunction in circumstances arising out of a marital relationship, as held by this Court in _**Philipose** vs_ _**Sunil Jacob**_ (2022 (2) KLT 234). Moreover, the amounts expended by the appellant or respondent for their day-to-day life, or amounts expended in connection with the visit of their parents etc. cannot be termed as entrustment by one spouse to the other, to be returned on demand. Mat.Appeal No.179 of 2022 & conn. cases 17 17. The appellant would submit that she was spending amounts for their day to day life, using her ATM card and the husband used to refund the same by transferring amounts to her account. That is a common affair in a family life for which no one is going to keep accounts as in a trust, to return it later. The respondent would admit that the bank transfer for an amount of Rs.1,26,73,972/shown as 2[nd] item in the schedule of counterclaim was covering the period 2008 to 2016. He would further admit that monthly expenses of their family was around Rs.1 lakh. So, the case of the appellant seems to be more probable, regarding that amount. The respondent failed to prove that he had entrusted any amount with the appellant as a trust for him. Whereas the respondent is admitting that the appellant had transferred an amount of Rs.55,12,770/to his account as advance amount for purchasing a flat, but that flat was not purchased. So, definitely that amount is liable to be returned to her. Likewise the respondent is admitting that, on 02.05.2016, an amount of Rs.91,12,500/- was transferred from the account of the appellant to the respondent. He failed to prove that those Mat.Appeal No.179 of 2022 & conn. cases 18 transfers were made by the appellant as repayment of the amount which was due to him, from the appellant. So, the Family court rightly found that the respondent was liable to return those amounts to the appellant and so granted a decree in her favour accordingly. 18. We find no reason to interfere with the impugned judgment and so, it is only to be confirmed. 19. The respondent filed OP(FC) No.285 of 2023 against dismissal of I.A No.20 of 2023 by the Family Court, rejecting his prayer to accept the mutual fund statement of his mother as security for getting stay against execution. The impugned order shows that, the mutual fund statement of the mother for an amount of Rs.1,67,77,856/- was subject to market risk and there was possibility of its value being reduced. So, the security furnished was not sufficient and hence that I.A was dismissed. 20. In Mat.Appeal No.201 of 2022, stay was granted on furnishing security for the relief granted, to the satisfaction of the Family Court within a period of two months from 17.03.2022. Only the mutual fund statement of the mother was furnished as Mat.Appeal No.179 of 2022 & conn. cases 19 security which was subject to market fluctuations, and so, the Family Court was not satisfied with that security and so his petition was dismissed. Even if he had furnished security to the satisfaction of the Family Court, the stay would have been in force only till the disposal of the Mat. Appeal. Mat. Appeal No.201 of 2022 stands disposed of today, and so, there is no scope for furnishing security, any more. Hence the OP (FC) also is liable to be dismissed. In the result, the Mat.Appeals and the OP(FC) stand dismissed, and no order as to costs. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp Mat.Appeal No.179 of 2022 & conn. cases 20 ## **`APPENDIX OF OP (FC) 285/2023`** ``` PETITIONEREXHIBITS ``` ``` ExhibitP1TRUECOPYOFTHEINTERIMORDEROFTHIS HON'BLECOURTINIANO.1/2022INMAT.APPEAL NO.201/2022DATED17.03.2022 ``` ``` ExhibitP2TRUECOPYOFORDERDATED07.07.2022INIANO. 18/2022INOPNO.1335/2017PASSEDBYFAMILY COURT,KOTTAYAMATETTUMANNUR ``` ``` ExhibitP3TRUECOPYJUDGMENTOFTHISHONOURABLECOURT DATED23.01.2023INOP(FC)NO.38/2023 ``` ``` ExhibitP4TRUECOPYOFIANO.20/2023INOPNO. 1335/2017BEFOREFAMILYCOURT,ETTUMANNUR DATEDNILAPRIL,2023 ``` - `Exhibit P5 TRUE COPY OF OBJECTION TO EXT. P4 FILED BY THE RESPONDENT DATED 22.04.2023` - `Exhibit P6 TRUE COPY OF THE REPLICATION FILED BY THE PETITIONER DATED 26.04.2023` ``` ExhibitP7TRUECOPYOFORDERDATED27.04.2023PASSEDBY FAMILYCOURT,KOTTAYAMATETTUMANNURINIA NO.20/2023INOPNO.1335/2017 ``` ``` ExhibitP7(a)TRUECOPYOFEPNO.100031/2022BEFORETHE FAMILYCOURTKOTTAYAMATETTUMANNURDATED 06/09/2022 ``` ## RESPONDENTS’ EXHIBITS: NIL. True Copy P.S to Judge smp