Lissy John v. K.J. Joseph Konkara Veettil and John Joseph

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945** **RFA NO. 85 OF 2003** **AGAINST THE JUDGMENT DTD. 13/09/2002 IN OS 57/2000 OF** **SUB-ORDINATE JUDGES' COURT, THIRUVALLA** ## **APPELLANT IN AS/PLAINTIFF IN SUIT:** **LISSY JOHN AGED 24 YEARS D/O.YOHANNAN,PUNNAMANNIL THEKKETHIL VEETTIL,VALLAMALA MURI,KUNNAMTHANAM VILLAGE, MALLAPPALLY THIRUVALLA TALUK.** **BY ADV SRI.S.V.BALAKRISHNA IYER (SR.)** ## **RESPONDENTS IN A.S./DEFENDANTS IN SUIT:** **1 K.J.JOSEPH KONKARA VEETTIL,NEAR HEAD POST OFFICE, THIRUVALLA VILLAGE AND TALUK. 2 JOHN JOSEPH, S/O.K.J.JOSEPH,KONKARA VEETTIL, NEAR HEAD POST OFFICE,THIRUVALLA VILLAGE AND TALUK. BY ADVS.SANEESH KUMAR K SRI.P.B.KRISHNAN SRI.G.UNNIIKRISHNON V.B.SANTHINI(K/700/2006)** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 17/11/2023, THE COURT ON 23/11/2023 DELIVERED THE FOLLOWING:** 2 **R.F.A.No.85 of 2003** ## **C.S.SUDHA, J.** ## **-----------------------------R.F.A.No.85 of 2003** **-----------------------------------------** ## **Dated this the 23[rd] day of November, 2023** ## **J U D G M E N T** This appeal under Section 96 read with Order XLI Rule 1 C.P.C. has been filed by the plaintiff/wife against the decree and judgement dated 13/09/2002 in O.S.No.57/2000 on the file of the Subordinate Judges' Court, Thiruvalla. The respondents herein are the defendants in the suit. The parties and the documents in this appeal will be referred to as described in the suit. 2. The case in the plaint is that the marriage between the petitioner and the second defendant was solemnised on 10/04/1986 as per the rites and customs of the community to which they belong. Before marriage, the betrothal took place on 03/04/1986. On the date of the betrothal, a sum of ₹1 lakh and 40 sovereigns of gold ornaments were entrusted as patrimony to the first and the second defendants in their capacity as trustees. At the time of marriage, the second defendant was employed in the Gulf. One year after the marriage, the second defendant resigned his job and returned home. A daughter was born in the wedlock. After the second defendant returned from 3 ## **R.F.A.No.85 of 2003** the Gulf, he started harassing the plaintiff both physically and mentally in order to coerce her to bring more dowry from her house. On 24/09/1991 she was thrown out of her marital home against which she preferred a complaint to the Thiruvalla police. On the intervention of the police, she returned to the matrimonial home. However, the harassment and torture by the defendants continued. Hence the plaintiff was constrained to file a complaint alleging the commission of the offence punishable under Section 498A IPC. The gold ornaments were taken away by the defendants alleging several reasons and thereafter they have been misappropriated. Hence, the suit for recovery of ₹1 lakh entrusted with the defendants and ₹1,60,000/-, as the value of 40 sovereigns of gold ornaments entrusted to the defendants as trustees. 3. The defendants entered appearance and filed written statement denying the allegations in the plaint. The defendants denied the allegation that a sum of ₹1 lakh and 40 sovereigns of gold ornaments had been entrusted to them on the date of the betrothal in their capacity as trustees. The defendants had never demanded any money or gold ornaments as plaintiffs' paternal share. On the date of the betrothal, the plaintiff's father had only paid ₹25,000/- to the defendants towards the marriage expenses. The stand of the defendants when the proposal came was that it was upto the parents of the plaintiff to give whatever they thought fit as her share. After 4 ## **R.F.A.No.85 of 2003** the second defendant returned from Gulf, he had joined in the business being conducted by his brothers. He had also started separate residence in a rented house along with the plaintiff. While so, the second defendant came to know that the plaintiff had developed an illicit relationship with one Joy. On 24/09/1999 he received information that the plaintiff had eloped with Joy. When the second defendant reached home he realised that the plaintiff had taken away all her dress worth more than ₹50,000/-; gold ornaments weighing 34 sovereigns including the 19 sovereigns of gold of the second defendant and certain other valuable documents including his passport. The second defendant preferred a complaint before the JFCM-Thiruvalla regarding this aspect. Because of the illicit relationship between the plaintiff and Joy, the second defendant moved a petition before this Court for dissolution of marriage in which the plaintiff preferred a counter claim for divorce on the ground of cruelty. This Court allowed the counter claim dissolving the marriage between the two. The defendants are prepared to return the sum of ₹25,000/- paid by the plaintiffs' father towards the marriage expenses. The plaintiff was having only 15 sovereigns of gold ornaments and those ornaments were taken away when she had eloped with Joy. The allegation that the defendants had misappropriated the 40 sovereigns of gold ornaments of the plaintiff is incorrect and false. The second defendant had entrusted an amount of ₹50,000/- with the plaintiff which was also taken 5 ## **R.F.A.No.85 of 2003** away by the plaintiff. Therefore the second defendant is entitled to get back the aforesaid ₹50,000/- as well as a sum of ₹76,000/- being the value of 19 sovereigns of gold ornaments taken away by the plaintiff. Hence the counter claim, seeking an amount of ₹1,26,000/- from the plaintiff and her assets. 4. On completion of pleadings, the parties went to trial. PW1 to PW3 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 to DW3 were examined and Ext.B1 was marked on the side of the defendants. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, decreed the suit in part directing the defendants to pay a sum of ₹25,000/- to the plaintiff within one month from the date of the judgment and in case of failure to pay the amount within the stipulated time, the plaintiff was held entitled to realise the said amount with interest @ 6% p.a. from the date of judgment till realisation and costs from the defendants and their assets. The counter claim moved by the second defendant has been dismissed. Aggrieved, the plaintiff/wife has come up in appeal. 5. The only point that arises for consideration is whether there is any infirmity in the findings of the trial court calling for an interference of this Court. 6. Heard both sides. 6 ## **R.F.A.No.85 of 2003** 7. According to the learned Senior counsel appearing for the plaintiff, the trial court has committed a grave mistake in rejecting the case of the plaintiff inspite of the fact that evidence has come on record that the plaintiff did have 40 sovereigns of gold ornaments. This fact is admitted by the defendants in the counter filed by them to the petition filed by the plaintiff seeking permission to sue as an indigent person. Having found that the plaintiff did have 40 sovereigns of gold ornaments, to reject her case on flimsy grounds is nothing but miscarriage of justice. There has been no proper appreciation of evidence and hence the argument advanced is that the impugned judgment is liable to be reversed. 8. _Per contra_ the learned counsel for the defendants relying on the dictum in **Binitha v. Hareendran, 2023 KHC 99** , submitted that it is not sufficient to show that the plaintiff did have 40 sovereigns of gold ornaments, on the other hand the plaintiff will have to prove on the basis of clear pleadings and cogent evidence that there had infact been an entrustment of the gold ornaments to the defendants. In this case the plaintiff has miserably failed to do so and therefore the trial court had rightly rejected her claim, contend the defendants. 9. The case of the plaintiff in paragraph 5 of the plaint is that on the date of betrothal, i.e. on 03/04/1986, an amount of ₹1 lakh and 40 sovereigns 7 ## **R.F.A.No.85 of 2003** of gold ornaments had been entrusted to the defendants in their capacity as trustees. In paragraph 13 of the plaint she has also a case that her gold ornaments were taken away by the defendants on different dates citing various reasons and thereafter they misappropriated the same. The case of the plaintiff that she had 40 sovereigns of gold ornaments, is disputed by the defendants who contend that she had only 15 sovereigns of gold ornaments. The defendants also have a case that 19 sovereigns of gold ornaments belonging to the second defendant was taken away by the plaintiff when she eloped with her paramour. Though the case of the plaintiff regarding 40 sovereigns of gold ornaments is disputed by the defendants in their written statement, in their objection to the petition filed by the plaintiff seeking permission to sue as indigent person, it was contended that the plaintiff is in possession of 40 sovereigns of gold ornaments and hence she has sufficient means to pay court fees. Therefore, the trial court was certainly right in holding that defendants cannot be allowed to approbate and reprobate and found that the case of the plaintiff that she had infact 40 sovereigns of gold ornaments is true. 10. Now coming to the question whether there has been any entrustment of the gold ornaments to the defendants as alleged by the plaintiff. In **Abubakker Labba v. Shameena K.B., 2018(3) KHC 219** the 8 ## **R.F.A.No.85 of 2003** claim was for return of money and gold ornaments that were alleged to have been given to the wife in connection with the marriage. It has been held that there cannot be any constructive or presumptive entrustment, without actual physical delivery of the same to the parents of the husband or the inlaws and it must be specifically pleaded and proved by sufficient evidence by the plaintiff/wife. Merely on the evidence that the bride had worn gold ornaments at the time of the marriage, it cannot be held that the said ornaments were entrusted to the husband or the parents of the husband. In **Binod v. Sophy, 2019 KHC 5624** this Court has held that the wife while making a claim for gold ornaments, will have to prove the entrustment of gold ornaments. In **Leelamma N.P. v. M.A.Moni, 2017(3) KHC 340** , it has been held that once it is proved that gold ornaments were entrusted by the wife to the husband, the burden is on the husband to prove as to what had happened to the gold ornaments. Therefore the question now to be considered is whether there has been an entrustment of 40 sovereigns of gold ornaments to the defendants as alleged by the plaintiff. 11. The plaintiff while examined as PW1 and her father examined as PW2, have a different case than what is pleaded in the plaint. As stated earlier, the allegation in paragraph 5 of the plaint is that ₹1 lakh and 40 sovereigns of gold ornaments had been entrusted with the defendants at the 9 ## **R.F.A.No.85 of 2003** time of betrothal which took place on 03/04/1986. PW1 when examined has a case that the decision regarding the payment of ₹1 lakh and 40 sovereigns of gold ornaments was taken in a secret meeting between her close relatives and the close relatives of the defendants towards the latter half of March 1986. PW2, the father of the plaintiff on the other hand has a case that this decision had been taken during the course of the discussion that took place in the middle of March 1986. In the plaint she says that the money as well as the gold ornaments were entrusted to the defendants on 03/04/1986. PW1 when examined deposed that she was infact wearing the 40 sovereigns of gold ornaments at the time of her marriage. Her explanation as to what she meant by the allegation in paragraph 5 of the plaint was that it was agreed to be worn by her at the time of the marriage. PW2, the father, also deposed that she was wearing 40 sovereigns at the time of the marriage. Therefore in the evidence the plaintiff has given up her case that 40 sovereigns of gold ornaments had been entrusted on the date of the betrothal, i.e., on 03/04/1986. In the evidence, PW1 has two versions, i.e., the second defendant had used her ornaments in his money lending business. She has also a case that the second defendant had pledged her ornaments in banks and had obtained loans on the basis of the same. Though such a contention was taken up, absolutely no evidence has been let in to substantiate the same. Therefore the trial court rightly held that the case of entrustment had not been 10 ## **R.F.A.No.85 of 2003** established in the light of the inconsistent case in the pleadings and evidence. 12. Now coming to the case of the plaintiff regarding payment of ₹1 lakh. The defendants admit receipt of ₹25 lakhs from the father of the plaintiff for meeting the expenses of the marriage. The plaintiff relies on Ext.P3 passbook which would show that her father had withdrawn an amount of ₹40,000/- on 02/04/1986. But this itself is not sufficient to prove that an amount of ₹1 lakh had been entrusted to the defendants. The plaintiff has a further case that the remaining ₹40,000/- had been given by her brother who is alleged to have withdrawn the same from his account maintained in the bank. However the plaintiff did not adduce any evidence to substantiate the said aspect also. Further, there was discrepancies in the evidence let in regarding the date and time at which the amount was alleged to have been entrusted. According to PW1, the decision to pay ₹1 lakh was taken in a secret meeting between her relatives and the relatives of the defendants. However, PW3 a close relative says that the amount was given in the presence of all the guests that were present on the date of the betrothal. As per the version of PW1, a vicar/priest was also present at the time of betrothal. However the said person was also not examined to substantiate the case of the plaintiff. In these circumstances, the trial court found no 11 ## **R.F.A.No.85 of 2003** satisfactory evidence to prove the payment of ₹1 lakh also. I do not find any infirmity in the well reasoned judgment of the trial court calling for an interference by this Court. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ami/