Jose Joseph @ Sojan and P.J. Jose v. Telsha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 27TH DAY OF JANUARY 2017/7TH MAGHA, 1938 Mat.Appeal.No. 206 of 2011 (G) ------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 217/2009 of FAMILY COURT, THODUPUZHA DATED 30-12-2010 APPELLANTS/RESPONDENTS: ---------------------- 1. JOSE JOSEPH @ SOJAN, AGED 29, S/O.JOSE, JOSE VILLA,, PLATHOTTAM HOUSE, MANGANAM P.O., KOTTAYAM DISTRICT. 2. P.J.JOSE, AGED ABOUT 67, S/O.JOSE, JOSE VILLA, PLATHOTTAM HOUSE, MANGANAM P.O., KOTTAYAM DISTRICT. BY ADVS.SRI.GEO PAUL SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.C.R.PRAMOD SRI.K.V.REJANISH SRI.SANU MATHEW SRI.M.B.SANDEEP RESPONDENT(S)/PETITIONER: ------------------------- TELSHA, AGED 29, D/O.MICHAEL, IDASSERY HOUSE,, KODIKULAM P.O., KODIKULAM VILLAGE,, THODUPUZHA, PIN-685582. CAVEATOR BY ADV. SMT.JASMIN M. M CAVEATOR BY ADV. SRI.NIDHI SAM JOHNS CAVEATOR BY ADV. SRI.G.SHRIKUMAR (CAVEATOR) BY ADV. SRI.A.V.THOMAS THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27-012017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** ## *** * * * * * * * * * * * * *** Mat.Appeal No.206 of 2011 ---------------------------------------Dated this the 27[th] day of January 2017 ## **J U D G M E N T** ## **Shaffique, J** The respondents in O.P.No.217/2009 of the Family Court, Thodupuzha are the appellants. The original petition is filed by the respondent herein for return of money and gold ornaments. The respondents also filed a petition for dissolution of marriage as O.P.No.101/2008. The first appellant also filed O.P.(Divorce) 18/2010 for dissolution of marriage. All the cases were jointly heard and by a common judgment dated 30/12/2010, while directing dissolution of marriage in the petition filed by the respondent, allowed O.P.No.217/2009 by which a decree has been granted for recovery of 49 sovereigns of gold ornaments or its equivalent value as on the date of order, that is Rs.1930/- per gram and a further amount of Rs.2,00,000/- as her share amount with interest at 6% from the date of decree till realisation against the respondents and their assets. 2 Mat.Appeal No.206/2011 2. In the appeal, the appellants contended that there is no evidence to prove that 49 sovereigns of gold were misappropriated by the appellants and there is no basis for granting a decree for Rs.2 lakhs. The contention was that the Family Court was not justified in granting a decree without any basis at all, especially when the materials relied upon by the Family Court was not sufficient enough to prove entrustment of the gold articles and also for grant of decree for Rs.2,00,000/-. 3. On the other hand, learned senior counsel appearing for the respondent supported the judgment and it is contended that the Family Court had acted upon sufficient material to grant the decree and therefore there is no reason to take a different view in the matter. 4. The Family Court, considered mainly three issues in O.P.No.217/2009 in regard to the factual dispute that had arisen in the case. The issues were as under: _“1. Whether the father of the petitioner had handed over 2 lakh rupee to the 2[nd] respondent?_ _2. Whether the petitioner has taken the entire gold ornaments to her house?_ Mat.Appeal No.206/2011 3 _3. Whether the petitioner is entitled to get 49 sovereigns of gold ornaments or its equivalent value and 2 lakh rupees from the respondent.”_ 5. The question to be considered in this appeal is whether the Family Court was justified in deciding the aforesaid issues in favour of the respondent. 6. Now, coming to the short facts involved in the original petition, the first appellant married the respondent on 16/4/2007. Both were abroad during the relevant time. It is alleged that the marriage was fixed by the parents of both the parties. On 09/04/2007, respondent purchased 52½ sovereigns of gold from Bhima Jewellery, Kottayam, the price of which was paid by her father. Betrothal was held on 12/04/2007, on which date, a sum of Rs.2,00,000/- was entrusted by the respondent's father to the 2[nd] appellant, by way of her family share. Respondent received 5 sovereigns of gold as gift from her relatives on the day of marriage. As requested by the 2[nd] appellant, she handed over all other ornaments except certain ornaments weighing 8½ sovereigns with the 2[nd] appellant. The first appellant joined the respondent on 08/05/2007 in Manchester. She alleged that she 4 Mat.Appeal No.206/2011 was physically and mentally tortured during the stay together. 7. Objection was filed by the appellants alleging that gold ornaments were purchased by them on 09/04/2007 and donated to the petitioner. They also denied receipt of Rs.2,00,000/-. They also denied the fact that the gold ornaments were entrusted with the 2[nd] appellant to be kept in a bank locker. It is contended that when the respondent left the matrimonial home on 12/04/2007, she had taken all her ornaments. 8. Respondent was examined as PW1. She spoke in tune with her allegations. Pws 2 to 5 were also examined on behalf of the respondent. They relied upon Exts.A1 to A6. The appellants relied upon the evidence of RW1 and RW2 and relied upon Exts.B1 to B10 documents. 9. PW2, brother of respondent, in his evidence, stated that a sum of Rs.1,00,000/- was withdrawn by him from his bank account and another brother had withdrawn Rs.2,29,000/-. Their father had Rs.50,000/- as cash with him and from the said amount Rs.3,67,500/- was paid to Bhima Jewellery for purchasing jewelery. PW3 is one of the neighbours of the respondent. According to him, he was present at the time when the 5 Mat.Appeal No.206/2011 respondent's father had given Rs.2,00,000/- to the 2[nd] appellant. PW4 is another brother of respondent who had withdrawn Rs.2,29,000/- from the Bank on 09/04/2007 which was also utilised for purchasing gold. He also deposed that he had withdrawn Rs.2,50,000/- on 12/04/2007 from which Rs.2,00,000/was paid to the 2[nd] appellant. 10. The 1[st] appellant had a case that the gold ornaments were purchased by him. According to him, he was having Rs.3,98,500/- with him. He was working in America till 15/03/2007 and he relied upon Ext.B3 bill issued by Bhima Jewelers. According to him, he had withdrawn the amount for purchasing gold from the account of his mother on 20/03/2007 and it was kept in his house till 9/4/2007. The court below did not believe the version of the appellant and had come to a conclusion that the case set up by the respondent is more probable. 11. We have heard the learned counsel on either side and have perused the records. 12. In regard to the purchase of gold ornaments, there is clear evidence from the side of the respondent that they were in Mat.Appeal No.206/2011 6 possession of sufficient funds for purchasing gold ornaments. The respective bank statements have also been produced. It is also in evidence that sufficient amounts were withdrawn for payment of Rs.2,00,000/-. Hence we do not find anything wrong on the part of the Trial Court to have come to the conclusion that the family members of the respondent were having sufficient funds for purchasing gold ornaments and also for payment of Rs.2,00,000/at the relevant time. The said evidence cannot be impeached in any manner. 13. Whereas the contention and evidence of the appellants are not at all probable. According to the appellants, the 1[st] appellant had purchased the gold ornaments and given it to the respondent. This is not at all a probable case. This cannot be believed especially taking into consideration the custom and practice being followed in the State among the members in the community. Appellants, however, placed reliance upon the bills issued by Bhima Jewellers on 09/04/2007. The respondent has a contention that it was a false bill especially since the second bill is a fake one. Further, no attempt had been made claiming back the gold ornaments alleged to have been given by the 1[st] Mat.Appeal No.206/2011 7 appellant. This, itself is a strong circumstance to indicate that the case set up by the appellants cannot be accepted. 14. As far as the entrustment of Rs.2,00,000/- is concerned, it was denied by the 1[st] appellant. However, the evidence of witnesses examined on behalf of the respondent clearly indicate the entrustment of Rs.2,00,000/- and there is no reason to disbelieve the said evidence. 15. Simillarly, in respect of the sovereigns as well, according to the respondent, the gold ornaments were entrusted to the appellants and it was kept in the locker in a Co-operative Bank. In cross-examination of respondent RW1, he admits the fact that his father had a locker in the Co-operative bank It is settled law that a strict evidence is not contemplated under Section 14 of the Family Courts Act. This position has been held so in the judgment in **Sithara v. Harikrishnan Nair** _[2011(4) KLT 492]_ . It is further held in the judgment in **Sunitha v. Ramesh** _[2010(3) KLT 501]_ that the husband is bound in a fiduciary capacity to account to the wife for the cash and gold ornaments etc. Taking into consideration the overall aspects of the case and the manner in which evidence is adduced by the 8 Mat.Appeal No.206/2011 parties, the case set up by the respondent is more probable and we are not satisfied from the evidence that a different view could be taken in the matter. When the Trial Court had relied upon the evidence adduced upon either side and had arrived at a finding which is probable and since we do not find any perversity in the finding, there is no reason to interfere. In the result, this appeal is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(K.RAMAKRISHNAN, JUDGE)** jsr