MANOJ and THANKAMANI v. SAJEESHA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940** **Mat.Appeal.No.17 of 2014** **(AGAINST THE ORDER IN OP 1892/2010 OF FAMILY COURT, THRISSUR DATED 30-11-2013)** ## **APPELLANTS/RESPONDENTS:** - **1 MANOJ, 37 YEARS, S/O. LATE KESAVAN, CHAVARATTIL HOUSE, NETAJI ROAD, P.O., PAZHANJI, THRISSUR DISTRICT.** - **2 THANKAMANI, AGED 65 YEARS, W/O. LATE KESAVAN, CHAVARATTIL HOUSE, NETAJI ROAD, P.O., PAZHANJI, THRISSUR DISTRICT.** **BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** ## **RESPONDENT/APPELLANT:** **SAJEESHA, AGED 24 YEARS, D/O. SUDHAKARAN, ATHRAPULLI HOUSE, P.P.QUARTERS, PAZHANJI P.O., CHERUTHURUTHY, THRISSUR DISTRICT, PIN 680 542.** ## **BY ADV. SRI.K.I.SAGEER** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2018, THE** **COURT ON 06.08.2018 DELIVERED THE FOLLOWING:** ss ## **C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ.** **----------------------------------------------------Mat. Appeal No.17 of 2014 -----------------------------------------------** _Dated this the 6[th] day of August, 2018_ ## **JUDGMENT** ## _R. Narayana Pisharadi, J_ This appeal is filed by the respondents in O.P.No.1892/2010 on the file of the Family Court, Thrissur challenging the decree passed against them by that court in that case. 2. The respondent in the appeal is the wife of the first appellant. The second appellant is the mother of the first appellant. The respondent filed O.P. No.1892/2010 against the appellants for granting a decree for realisation of the value of 61 sovereigns of gold ornaments and also the household articles allegedly entrusted with them. She also prayed for granting a decree for realisation of an amount of Rs.1,00,000/- allegedly given to the appellants at the time of her marriage. The appellants filed counter statement in the original petition and resisted the claim of the respondent refuting the allegation _**Mat. Appeal No.17 of 2014**_ 2 regarding entrustment of money, gold ornaments and household articles with them by her. 3. The parties shall be hereinafter referred to as they figure in the original petition filed before the Family Court. 4. During the trial of the case, PW1 and PW2 were examined and Exts.A1 and A2 series documents were marked on the side of the petitioner. RW1 and RW2 were examined on the side of the respondents. No documentary evidence was adduced by them. 5. After appreciating the evidence adduced by the parties, the Family Court found that the petitioner had entrusted gold ornaments weighing 61 sovereigns and an amount of Rs.1,00,000/- with the respondents. Accordingly, the Family Court passed a decree directing the respondents to return the gold ornaments weighing 61 sovereigns or their equivalent value of Rs.9,07,680/- to the petitioner. The Family Court also directed the respondents to refund the amount of Rs.1,00,000/to the petitioner. Aggrieved by the decree passed against them, the respondents have filed this appeal. _**Mat. Appeal No.17 of 2014**_ 3 6. There are four schedules given in the original petition filed before the Family Court. Petition 'A' Schedule contains the details of the gold ornaments allegedly received by the petitioner from her family at the time of the marriage and entrusted by her with the respondents. Petition 'B' Schedule contains the details of the gold ornaments allegedly given to the elder child from the family of the petitioner on the 90[th] day of her birth and Petition 'C' Schedule contains the details of the gold ornaments allegedly given to the younger child from the family of the petitioner and entrusted with the respondents. Petition 'D' Schedule contains the value of the household articles allegedly given to the respondents from the family of the petitioner and also the amount of Rs.1,00,000/- mentioned earlier. 7. The plea in the original petition is that at the time of the marriage of the petitioner, an amount of Rs.1,00,000/- was given to her from her family and on the next day of the marriage, she gave this amount to the first respondent. When examined as PW1, the petitioner has given evidence to that _**Mat. Appeal No.17 of 2014**_ 4 effect in examination in chief (proof affidavit). However, on cross examination, she would say that the amount of Rs.1,00,000/- was entrusted with the second respondent, the mother of her husband. The sister of the petitioner was examined as PW2. Her evidence is also to the effect that the amount of Rs.1,00,000/- was entrusted with the mother of the first respondent. The evidence given by PW1 and PW2 that the amount of Rs.1,00,000/- was given to the second respondent is inconsistent with the specific plea in the original petition that the amount was given to the first respondent. Moreover, PW1 has stated on cross examination that it was in the presence of one Sasi that the amount of Rs.1,00,000/- was given to the mother of her husband. The petitioner did not examine Sasi to prove this fact. In these circumstances, the claim of the petitioner that she entrusted Rs.1,00,000/- to the first respondent or his mother cannot be accepted. 8. The plea in the original petition is that 50 sovereigns of gold ornaments were given to the petitioner from her family at the time of the marriage and that she entrusted 20 _**Mat. Appeal No.17 of 2014**_ 5 sovereigns of gold ornaments to the first respondent on the next day of the marriage. PW1 has given evidence to this effect. There is no sufficient ground to disbelieve her evidence in this regard. Ext.A2 series photographs are produced by the petitioner to prove the quantity of the gold ornaments worn by her at the time of the marriage. The exact weight of the gold ornaments worn by her at the time of marriage cannot be ascertained from these photographs. However, considering the number of the gold chains and bangles worn by the petitioner, as seen from the photographs, it can be safely concluded that they had a weight of not less than 20 sovereigns. 9. The plea in the original petition is that the petitioner entrusted the remaining 30 sovereigns of gold ornaments with the respondents on completion of a period of one month after the marriage. PW1 has given evidence to this effect in examination in chief (proof affidavit). However, on cross examination, she has stated that 30 sovereigns of gold ornaments were given to the respondents at the time when the sister of her husband was returning to her matrimonial home on _**Mat. Appeal No.17 of 2014**_ 6 the 90[th] day of her delivery. There is no such plea made in the original petition. The evidence of PW1 in this regard is not consistent with the plea in the original petition that 30 sovereigns of gold ornaments were entrusted with the respondents on completion of a period of one month after the marriage. PW1 has also stated in the cross examination that 30 sovereigns of gold ornaments, which were received by the respondents from her, were pledged by them in the Canara Bank at the place Pazhanji. The petitioner could have summoned the documents relating to the pledging of gold ornaments from the bank. No such step was taken by her. It is also to be noted that the petitioner has got no specific case as to whom the gold ornaments were entrusted, whether it was the first respondent or the second respondent. In these circumstances, the plea of the petitioner that she had entrusted 30 sovereigns of gold ornaments with the respondents after one month of the marriage is not proved. 10. Recently, a Division Bench of this court in _**Abubakker Labba v. Shameena**_ : _**(2018 (3) KHC 219)**_ , has held as _**Mat. Appeal No.17 of 2014**_ 7 ## 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 entrustment of 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”._ 11. If the plea of the petitioner along with the evidence adduced by her in the case is appreciated on the principles mentioned above, it can be found that she could not succeed in _**Mat. Appeal No.17 of 2014**_ 8 proving entrustment of the money and 30 sovereigns of gold ornaments with the respondents. 12. The plea in the original petition is that seven sovereigns of gold ornaments were given to the elder child from the family of the petitioner and the respondents misappropriated those gold ornaments. When examined as RW1, the first respondent has admitted the fact that there is a custom of giving gold ornaments to the child from the family of the mother on the 90[th] day after the birth of the child. At the same time, he has not disclosed the quantity of gold ornaments given to the elder child from the family of the petitioner. Therefore, it can be safely concluded that seven sovereigns of gold ornaments were given to the elder child from the family of the petitioner. 13. However, the suggestion made to RW1 in the cross examination is that the aforesaid seven sovereigns of gold ornaments were used by him for the purpose of meeting the expenses of the celebrations and rituals conducted on the 90[th] day of the birth of the elder child. If that be so, receipt of the seven sovereigns of gold ornaments of the elder child by the _**Mat. Appeal No.17 of 2014**_ 9 respondents was not as trustees to be kept by them for the benefit of the petitioner. In such situation, the petitioner is not entitled to realise the value of the seven sovereigns of gold ornaments given to the elder child from the respondents. 14. The plea in the original petition is that four sovereigns of gold ornaments were given to the younger child from the family of the petitioner and they were entrusted with the first respondent. PW1 has given evidence to this effect. The first respondent has not disclosed the quantity of the gold ornaments given from the family of the petitioner to the younger child. He has admitted the existence of the custom in that regard. In such circumstances, it can be safely concluded that four sovereigns of gold ornaments were given to the younger child from the family of the petitioner. There is also no sufficient ground to disbelieve the evidence of PW1 that the aforesaid gold ornaments were taken by the first respondent. 15. The discussion above leads to the conclusion that the petitioner is entitled to realise the value of only 24 sovereigns of gold ornaments, that too, only from the first respondent. The _**Mat. Appeal No.17 of 2014**_ 10 value of 24 sovereigns of gold ornaments, as stated in the original petition, would come to Rs.3,57,120/-. The petitioner is entitled to realise this amount from the first respondent. 16. Consequently, the appeal is allowed in part. The decree passed by the Family Court, Thrissur in O.P.No.1892/2010 is modified to the effect that the petitioner is entitled to realise an amount of Rs.3,57,120/- from the first respondent with interest at the rate of 6% per annum from the date of the petition till the date of realisation. The parties shall suffer their respective costs throughout. _Sd/-_ ## **(C.K. Abdul Rehim, Judge)** _Sd/-_ ## **(R. Narayana Pisharadi, Judge)** _//True Copy//_ ss _P.A. To Judge_