Kurians v. Lincy Elizabeth Thomas and Vinoj Kurian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940 Mat.Appeal.No. 292 of 2009 OP 1075/2007 of FAMILY COURT, KOTTAYAM DATED 10-12-2008 APPELLANTS/2ND AND 3RD RESPONDENTS 1 KURIAN, AGED 69 YEARS, S/O.ISSAC, RESIDING AT THOTTUMANNIL HOUSE,, VAIPARKARA, KOTTAYEL VILLAGE, MALLAPALLY, TALUK, PATHANAMTHITTA DISTRICT. 2 MOLLY KURIAN, AGED 63 YEARS, W/O.KURIAN, RESIDING AT THOTTUMANNIL HOUSE, VAIPARKARA, KOTTAYEL VILLAGE, MALLAPALLY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS.SRI.THOMAS ABRAHAM SRI.DIPU.R SRI.K.S.HARIDAS SMT.MERCIAMMA MATHEW SRI.V.RENJITH KUMAR ## RESPONDENTS/PETITIONER AND IST RESPONDENT: 1. LINCY ELIZABETH THOMAS, W/O.VINOJ KURIAN, AGED 29 YEARS, RESIDING AT, KARACKATTU HOUSE, KOLLADU KARA, PUTHUPALLY VILLAGE, KOTTAYAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, JACOB C.KURUVILA. 2. VINOJ KURIAN, S/O KURIAN, AGED 36 YEARS, THOTTUMANNIL HOUSE, VAIPARKARA, KOTTAYEL VILLAGE,, MALLAPALLY TALUK, PATHANAMTHITTA DISTRICT, NOW RESIDING AT 8094 SW52ND COURT, OCALA,, FLORIDA 34476, USA. R1 BY ADV. SRI.M.P.MADHAVANKUTTY R2 BY ADV. SRI.JACOB ARACKAL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31-052018, ALONG WITH M.A.420/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HARILAL & A.M.BABU, JJ. - - - - - - - - - - - - - Mat.Appeals 292 & 420 of 2009 - - - - - - - - - - - - - - Dated : 31[st] May, 2018 - - - - - - - - - - - - - ## JUDGMENT Harilal, J 1.These appeals are filed challenging the judgment and decree passed in O.P.1075/2007 of the family court, Kottayam, filed by the 1[st] respondent against the appellants in both the appeals. M.A.292/2009 was filed by respondents 1 and 3 in the aforesaid OP and M.A.420/2009 was filed by the 1[st] respondent in the said OP. The aforesaid OP was filed by the 1[st] respondent herein against the appellants in both appeals seeking a decree for return of 82 sovereigns of gold ornaments, Rs 6,00,000/- and 5000 US dollars. The 1[st] respondent in both appeals is the wife of the appellant in M.A.420/2009. The appellants 1 and 2 in M.A.292/2009 are the father and mother of the appellants in M.A.420/2009. The appellants herein disputed the claim and denied the entrustment of money and gold ornaments with them in connection with the marriage. After considering the evidence **MA.292 & 420 of 2009** 2 on record the family court allowed the OP in part and passed decree to realize Rs 6,00,000/- with 9% interest and 82 sovereigns of gold ornaments or its approximate value of Rs 7,40,000/- with 9% interest from the appellants in these appeals and rejected the claim for realizing 5000 US dollars equal to Rs 2,00,000/-. These appeals are filed challenging the findings whereby the family court passed the impugned judgment and decree allowing the aforesaid reliefs. - 2.The brief facts of the case can be summarized as follows : The parties are referred to as in the original petition. The petitioner is the wife of the 1[st] respondent and respondents 2 and 3 are the father and mother of the 1[st] respondent. According to the petitioner, her marriage with the 1[st] respondent was solemnized on 2.11.2002 as per the christian rites at Kottayam. An amount of Rs 6,00,000/- was entrusted with the respondents on the betrothal day. That apart, the petitioner had 100 sovereigns of gold ornaments at the time of marriage. The petitioners' parents promised to **MA.292 & 420 of 2009** 3 take the 1[st] respondent to USA as the parents and the petitioner were working in USA at that time. Seven days after the marriage, the petitioner left to USA to resume her work as Nursing Assistant. At the time when she left to USA, she had entrusted her gold ornaments with the respondents, except 18 sovereigns for her personal use. After nine months she came back to India and resided together with the 1[st] respondent and after four months she returned to USA. Subsequently, the 1[st] respondent was also taken to USA and there they resided together with her parents who were working in USA. Later, the petitioner and the 1[st] respondent shifted to another rented house. However, subsequently the marital relationship between the petitioner and the 1[st] respondent has become strained and they fell apart. According to the petitioner, the 1[st] respondent treated her with cruelty and subsequently the 1[st] respondent filed an application for divorce and the petitioner demanded return of Rs 6,00,000/- and 82 sovereigns of gold ornaments and the value of household articles by the respondents. But, they were not **MA.292 & 420 of 2009** 4 willing to return the same. According to her, being the trustees of the aforesaid amount and gold ornaments, the respondents are liable to return the same. In the above circumstances, the petitioner filed the Original Petition praying for a decree to realize Rs 6,00,000/- and 82 sovereigns of gold ornaments and Rs 2,00,000/equal to 5000 US dollars. 3.The respondents filed an objection with a counterclaim, denying the entire claim and prayed for dismissal of the original petition. The respondents admitted the marital relationship between the petitioner and the 1[st] respondent; but according to them, Rs 30,000/- alone was given to them in connection with the marriage to purchase dress materials. It is specifically contented that the respondents are not aware of the particulars of the ornaments owned by the petitioner at the time of marriage and they do not know what happened to those ornaments. No ornaments had been entrusted with the respondents. But on the other hand, the 1[st] respondent has given nine sovereigns **MA.292 & 420 of 2009** 5 of gold ornaments to the petitioner and the 2[nd] respondent has spent money for the journey of the 1[st] respondent to USA. They denied the allegation that the petitioners' parents had spent 5000 US dollars for purchasing household articles. According to the 1[st] respondent, the petitioner never resided separately with the 1[st] respondent in USA. The 1[st] respondent was also working in USA and his income was also entrusted with the parents of the petitioner. According to them, the petitioner treated him with cruelty. Respondents 2 and 3 filed counter-claim for getting back nine sovereigns of gold ornaments or its value from the petitioner. - 4.On the aforesaid pleadings both parties adduced evidence. The power of attorney holder of the petitioner was examined as PW1 and another witness was examined as PW2 and Exts A1 to A9 were marked. RWs 1 and 2 were examined for the respondents and Exts.B1 to B10 were marked. On appraisal of the aforesaid evidence, the family court passed the impugned judgment and decree allowing the OP in **MA.292 & 420 of 2009** 6 part as referred above. - 5.Heard the learned counsel for the appellants and the respondent. - 6.In view of the argument at the bar the question to be considered is whether the family court is justified in arriving at the findings whereby the family court passed the impugned judgment and decree to realize Rs 6,00,000/- and 82 sovereigns of gold ornaments or its value from the respondents. - 7.The marital relationship between the petitioner and the 1[st] respondent is admitted. It is the specific case of the petitioner that an amount of Rs 6,00,000/- was entrusted with the respondents on the betrothal day in connection with the marriage and she had worn 100 sovereigns of gold ornaments at the time of marriage. Seven days after the marriage she left to USA to resume her work as Nursing Assistant and at that time, she had entrusted her gold ornaments with the **MA.292 & 420 of 2009** 7 respondents except 18 sovereigns for her personal use. Subsequently the 1[st] respondent also went to USA and they resided together. Eventually the marital relationship became strained and they fell apart. Further, according to her, the respondents are trustees of the above said amount and gold ornaments and they are liable to return the same to them. But the respondents denied the entrustment of money and gold ornaments. According to the respondents, they are not aware of the exact quantity of ornaments which were given to the petitioner in connection with the marriage and the petitioner has not entrusted the ornaments or money with the respondents. But at the same time they admitted that in connection with the marriage Rs 30,000/- was given to the respondents for purchasing dress materials. Except the aforesaid Rs 30,000/- they have denied the entrustment of money and gold ornaments. - 8.It is needless to say, the entire burden of proof is on the petitioner. It was incumbent on the petitioner to prove by sufficient evidence that **MA.292 & 420 of 2009** 8 the aforesaid amount of Rs 6,00,000/- was entrusted with the respondents on the betrothal day and she was wearing 100 sovereigns of gold ornaments and out of that, she had entrusted 82 sovereigns with the respondents when she left to USA. In order to prove the aforesaid fact, PW1, the power of attorney holder of the petitioner, was examined in evidence. That apart, they have produced Ext.A5 savings passbook to prove that the parents of the petitioner had sufficient source for giving money to the respondents in connection with the marriage. In order to prove the gold ornaments Ext.A7 to A7(d) are produced. Ext.A7 to A7(c) are the estimate of gold ornaments and Ext.A7(d) is the sales invoice of the gold ornaments issued from a jewellery. PW1 is a power of attorney holder only and he was examined in lieu of the petitioner. Neither the petitioner nor her father who is said to have given money to the respondent was examined in evidence to prove the payment of money and grant of gold ornaments to the petitioner in connection with the marriage. Prima facie, we find that PW1, the power of **MA.292 & 420 of 2009** 9 attorney holder, is not a competent witness to swear about the payment of money and grant of gold ornaments as he has a hearsay knowledge only about the same. The payment of money and grant of gold ornaments are matters exclusively within the knowledge of the bridegroom and her parents. It is a case of the petitioner that Rs 6,00,000/- was given to the respondents on the betrothal day. The said fact could have been proved by the examination of the petitioner or her father who is said to have entrusted the money with the respondents. We further find that the nonexamination of the petitioner or her father who is said to have given money to the respondents in connection with the marriage and granted gold ornaments to the petitioner is fatal to the petitioner's case as the same is a fact in issue within their personal knowledge. What has been spoken to by the power of attorney holder with respect to money and gold ornaments is hearsay evidence only. The aforesaid view is fortified by the decision of this court in Dr.A.Rekharani v. K.C.Prabhu (2007 (3) KHC 254). **MA.292 & 420 of 2009** 10 9.The cumulative effect that can be drawn from cross-examination is that he has hearsay knowledge only with respect to the payment of Rs 6,00,000/and he does not know the date on which the said payment was effected. Coming to the evidence of PW2, he also admitted in his cross-examination that he does not have any direct knowledge with respect to the payment of Rs 6,00,000/- and grant of gold ornaments to the petitioner and he has hearsay knowledge only. He admitted that he did not go to purchase the gold ornaments. On an analysis of evidence of PW1 and 2 we find that their evidence is unbelievable and that cannot be relied on to grant a decree as prayed for. We further find that as regards the entrustment of gold ornaments, the petitioners' case is that when she left to USA he entrusted 82 sovereigns of gold ornaments with the respondents. We are of the opinion that she alone is the competent witness to swear about such an entrustment and nobody can be a substitute for her in this respect. The person who made entrustment is the best and competent **MA.292 & 420 of 2009** 11 witness to give evidence prove entrustment. The above view is supported by the decision of this court in …... In this decision, this court held as follows : ## …............... - 10.Thus, we find that the petitioner miserably failed to discharge the initial burden of proof to claim Rs 6,00,000/- and 82 sovereigns of gold ornaments from the respondents. - 11.But, we are of the opinion that an opportunity can be given to the petitioner to prove her case by adducing sufficient evidence. It is just and equitable for the interest of justice. Needless to say, the counter-claim raised by the respondent also will stand opened. - 12.Consequently, the impugned judgment and decree are set aside and the OP and the counter-claim are remitted back to the family court, Kottayam, for fresh consideration and disposal after affording **MA.292 & 420 of 2009** 12 sufficient opportunity to both parties to adduce further evidence. It is also made clear that the decree suffered by the respondent/petitioner by the rejection of the claim of 5000 US dollars which is equal to Rs 2,00,000/- will not stand opened, as she has not preferred an appeal against it. Sd/- K.HARILAL Judge Sd/A.M.BABU Judge Mrcs/31.5. /True copy/ P.S.To Judge