Mat Appeal No. 302 of 2019, Cross Objection No. 171 of 2019 in Mat Appeal No. 302 of 2019 & O.P.(FC) Nos. 544 and 549 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945** **MAT.APPEAL NO. 302 OF 2019** **AGAINST THE ORDER DTD.29/09/2018 IN OP 497/2015 ON THE FILE OF FAMILY COURT, MALAPPURAM** ## **APPELLANTS/RESPONDENTS 1, 3 TO 6:** - **1 NIKHIL GEORGE, AGED 30 YEARS S/O. GEORGE P.J, POOVAKKODE HOUSE, KOODATHAYI BAZAR POST, KOZHIKODE, PIN 673 573, REPRESENTED BY POWER OF ATTORNEY HOLDER GEORGE P.J., AGED 61 YEARS, S/O.JOSEPH @ OUSEPH, POOVAKKODE HOUSE, KOODATHAYI BAZAR POST, KOZHIKODE PIN 673 573** - **2 GEORGE P.J,AGED 61 YEARS S/O. JOSEPH @ OUSEPH, POOVAKKODE HOUSE, KOODATHAYI BAZAR POST, KOZHIKODE PIN 673 573** - **3 JEENA,AGED 38 YEARS,D/O. GEORGE P.J., KADUMKEERIYIL HOUSE, MYKKAVU POST, KOZHIKODE 673 574** - **4 TOMY,AGED 40 YEARS S/O. DAVID @ JOY, KADUMKEERIYIL HOUSE, MYKKAVU POST, KOZHIKODE 673 574** - **5 JISHA,W/O. JOSHY THOMAS, PUTHIYEDATH HOUSE, ORAPPINKAL, KODENCHERY POST, THAMARASSERY TALUK, KOZHIKODE PIN 673 580** - **BY ADVS.P.J.MATHEW SRI.EBIN MATHEW** ## **RESPONDENT/PETITIONER:** **LIMIYA THOMAS,AGED 30 YEARS, D/O. N.J THOMAS, NELLISSERY HOUSE, SHANTHIGRAM, MANJERI POST,ERNAD TALUK, MALAPURAM DISTRICT PIN 676121** **BY ADV SRI.P.VENUGOPAL (1086/92)** **THIS MAT.APPEAL HAVING COME UP FOR FINAL HEARING ON 14/09/2023, THE COURT ON 16.10.2023, ALONG WITH CO.171/2019, OP(FC)NO.544/2023 AND 549/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL** **& THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945** **CO NO. 171 OF 2019 IN MAT.APPEAL 302/2019 AGAINST THE ORDER DTD.29/09/2018 IN OP 497/2015 ON THE FILE OF FAMILY COURT, MALAPPURAM (MAT.APPEAL NO.302/2019 WAS ADMITTED ON 8/7/2019)** ## **CROSS OBJECTOR/RESPONDENT:** **LIMIYA THOMAS,AGED 31 YEARS** **D/O.N.J.THOMAS, NELLISSERY HOUSE, SHANTIGRAM MANJERI AMSOM, DESOM AND POST ERNAD TALUK, MALAPPURAM DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER : SMT.ROSELY THOMAS, W/O.N.J.THOMAS, NELLISSERY HOUSE, SHANTIGRAM MANJERI AMSOM, DESOM AND POST ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADV P.VENUGOPAL (1086/92)** ## **RESPONDENTS/APPELLANTS:** - **1 NIKHIL GEORGE,S/O.GEORGE P.J., POOVAKKODE HOUSE, KOODATHAYI BAZAR-PO, KOZHIKODE, PIN- 673 573. REPRESENTED BY POWER OF ATTORNEY HOLDER GEORGE.P.J., AGED 61 YEARS, S/O.JOSEPH @ OUSEPH, POOVAKKODE HOUSE, KOODATHAYI BAZAR-PO, KOZHIKODE, PIN -673 573.** - **2 GEORGE.P.J.,S/O.JOSEPH @ OUSEPH, POOVAKKODE HOUSE, KOODATHAYI BAZAR-PO, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN -673 573.** - **3 JEENA,D/O.GEORGE.P.J, KADUMKEERIYIL HOUSE, MAKIKAVU-PO, KOODATHAYI AMSOM, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN - 673 573.** - **4 TOMY,S/O.DAVID @ JOY (LATE), KADUMKEERIYIL HOUSE, MAIKAVU-PO, KOODATHAYI AMSOM, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN -673 573.** - **5 JISHA,W/O.JOSHY THOMAS, PUTHIYEDATH HOUSE, ORAPPINKAL, KODENCHERY-PO, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN -673 5801.** **BY ADV P.J.MATHEW** **THIS CROSS OBJECTION HAVING COME UP FOR FINAL HEARING ON 14/09/2023, THE COURT ON 16.10.2023, ALONG WITH MAT.APPEAL 302/2019, OP(FC)NO.544/2023 AND 549/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 OP (FC) NO. 544 OF 2023** **AGAINST THE ORDER DTD 13/2/2023 IN IA 6/2022 IN IA 1198/2015 IN OP 497/2015 OF FAMILY COURT, MALAPPURAM** **PETITIONER/PETITIONER/5TH RESPONDENT:** **GEORGE P.J. AGED 64 YEARS S/O JOSEPH @ OUSEPH, POOVAKKODE HOUSE, KOODATHAYI BAZAR POST, KOZHIKIODE, PIN - 673573** **BY ADVS.EBIN MATHEW P.J.MATHEW AKHILA SHOJI** ## **RESPONDENT/RESPONDENT/PETITIONER:** **LIMIYA THOMAS** **D/O N.G THOMAS, NEELISSERY HOUSE, SANTHIGRAMAM, MANJERI, MALAPPURAM DISTRICT, PIN - 676121** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING** **ON 14/09/2023, THE COURT ON 16.10.2023, ALONG WITH MAT.APPEAL.302/2019, CROSS OBJN 171/19 AND OP(FC) 549 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **4** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 OP (FC) NO. 549 OF 2023** **AGAINST THE ORDER DTD 13/2/2023 IN IA 7/2022 IN IA 1198/2015 IN OP 497/2015 OF FAMILY COURT, MALAPPURAM PETITIONER/PETITIONER/5TH RESPONDENT:** **TOMY AGED 48 YEARS S/O DAVID ALIYAS JOYI, KADUMKEERIYIL HOUSE, MAIKKAVU P.O., THAMARASSERY TALUK, KOZHIKODE DISTRICT, PIN - 673573** **BY ADVS.EBIN MATHEW P.J.MATHEW AKHILA SHOJI** ## **RESPONDENT/RESPONDENT/PETITIONER:** **LIMIYA THOMAS D/O N.G THOMAS, NEELISSERY HOUSE, SANTHIGRAMAM, MANJERI, MALAPPURAM DISTRICT, PIN - 676121** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING** **ON 14/09/2023, THE COURT ON 16.10.2023, ALONG WITH MAT.APPEAL.302/2019, CROSS OBJN 171/19 AND OP(FC) 544 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **5** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** ## **AMIT RAWAL & C.S.SUDHA, JJ.** **-------------------------------------------------------** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** **-------------------------------------------------------------** **Dated this the 16[th] day of October, 2023** ## **C O M M O N J U D G M E N T** ## **C.S.Sudha, J.** ## **Mat Appeal No.302 of 2019** This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed by respondents 1 and 3 to 6 in O.P.No.497/2015 on the file of the Family Court, Malappuram. The respondent herein is the petitioner/wife in the original petition. By the impugned judgment, the prayer of the respondent for return of gold and diamond ornaments and money has been decreed. Aggrieved, the husband and in-laws have come up in appeal. The parties will be referred to as described in the proceedings before the family **6** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** court. 2. The facts in brief in O.P.No.497/2015 filed by the petitioner/wife are as follows – The marriage between the petitioner and first respondent (R1), who are Christians, was solemnized on 02/02/2015. The second respondent, the mother of R1, passed away during the pendency of the proceeding. The third respondent (R3) is the father of R1; the fourth respondent (R4) is the sister of R1; and the fifth respondent (R5) is the husband of R4. The proposal for the marriage came in October 2014, at which time the respondents demanded as dowry an amount of ₹35 lakhs as well as gold and diamond ornaments worth ₹25 lakhs. They also demanded that an amount of ₹25 lakhs must be handed over at the time of betrothal. The betrothal took place on 24/01/2015, on which day an amount of ₹25 lakhs was handed over to R1/husband at the residence of the petitioner/wife by way of five demand drafts of the value of ₹5 lakhs each. Gold and diamond ornaments worth ₹25 lakhs were purchased and the same were worn by the petitioner at the time of her marriage. After the marriage, on 11/02/2015 the ornaments were deposited in a locker taken in the joint name **7** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** of the petitioner and R1. The key to the locker was handed over to R3, the father of R1. On 12/03/2015 R1 left for his employment abroad and returned on 23/05/2015. The respondents demanded that the balance amount of ₹10 lakhs out of the total amount of ₹35 lakhs demanded was to be given by 04/02/2015. However, the petitioner's father was unable to pay the amount. Hence, all the respondents physically and mentally harassed the petitioner to coerce her to bring the amount from her home. In addition to the above articles, a teak almirah worth ₹35,000/- as demanded by the respondents was also given. As the respondents continued to harass the petitioner demanding the payment of the balance amount of ₹10 lakhs, left with no other option, the petitioner's father on 07/02/2015 gave an amount of ₹2 lakhs which has been deposited by R1 on 09/02/2015 in his account with SBI, Mukkom. Thereafter on 15/02/2015 an amount of ₹7 lakhs was also given by the petitioner's father due to the continued harassment of the petitioner by the respondents, which amount has been deposited in the joint name of the petitioner and R1 by way of 10 fixed deposit receipts each to the tune of ₹7 lakhs. However, the harassment continued as ₹1 lakh remained to be paid. As the entire amount **8** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** demanded by the respondents had not been paid, R3 demanded that the ornaments in the possession of the petitioner be handed over to him and when the petitioner refused to do so, R1 severely manhandled her. Due to the constant harassment by the respondents, left with no other option, the petitioner on 15/05/2015 handed over ornaments worth ₹6,89,529/- to R3 to R5. All the ornaments of the petitioner had been kept in the locker in the joint name of the petitioner and R1 and the key had been handed over to R3. It was as demanded by R3, the petitioner had opened the locker and handed over the aforesaid ornaments to R3 to R5. The petitioner was told by R1 that ₹24 lakhs out of ₹25 lakhs given to him has been handed over to R3, his father. The continued harassment by the respondents was informed by the petitioner to her parents who came to her matrimonial home on 24/05/2015. On the said day, the petitioner and parents were abused by the respondents and the petitioner was badly manhandled by R1 as time was sought for payment of the balance dowry amount. Fearing further danger to life and property, the petitioner's parents took her back to their home. Hence, the petition seeking return of the money, the ornaments, and the value of the teak **9** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** almirah given to the respondents. 3. R1 and R3 to R6 filed counter in which they denied the allegation of physical and mental harassment of the petitioner demanding dowry. The respondents admitted receipt of ₹25 lakhs but contended that the same had been voluntarily given by the petitioner's father as her share and also to cover the expenses for the purchase of dress and gold for the marriage. Out of ₹25 lakhs given, ₹13 lakhs was given to the petitioner for purchase of ornaments for the wedding. The dress of the petitioner for the marriage was purchased by R1 using his funds. The petitioner wore ornaments for the marriage. But the respondents are unaware of its weight, worth or value. According to the respondents, the ornaments were purchased before the marriage by the petitioner and her family by avoiding R1. The ornaments were deposited in a locker taken in the joint name of the parties. However, the allegation that the key to the locker was entrusted to R3 is incorrect. The respondents never demanded a teak almirah worth ₹35,000/- as alleged by the petitioner. The allegation that due to the constant harassment, the petitioner's father had given an amount of ₹2 lakhs and ₹7 lakhs on 07/02/2015 and **10** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** 15/02/2015 respectively is incorrect and false. No such amount had been given to R1. Out of the ₹25 lakhs given by the petitioner's father, ₹2 lakhs has been deposited as F.D. on 09/02/2015 to open a locker in the joint name of the petitioner and R1. ₹7 lakhs was deposited on 20/02/2015 in the joint name of the petitioner and R1. Other than the aforesaid ₹25 lakhs, no amount(s) had been given by the petitioner or her father to the respondents. The allegation of handing over of ornaments worth ₹6,89,529/- is false and incorrect. R1's mother, i.e. R2, was admitted in the hospital on 12/05/2015 due to liver cirrhosis. Hence R1 on 23/05/2015 came home from his place of employment. On 24/05/2015, the parents of the petitioner came to their residence and demanded that the family property in the name of R3 should be transferred in the name of R1 and if the same is not done, the petitioner would not continue to cohabit with R1. The petitioner apprehended that deposits in the joint name of the petitioner and R1 would be used for the treatment of R1's mother, R2. The petitioner and her parents were also under the impression that R1's share in the family property would be reduced as the property may have to be disposed, as substantial amounts was required for **11** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** the treatment of R1's mother, R2. It was under such an apprehension; they had demanded the family property standing in the name of R3 to be transferred in the name of R1. The reason for the petitioner leaving the matrimonial home was because of the aforesaid apprehension and not because the respondents had physically or mentally harassed her to force her to bring more dowry from her home. 4. Before the family court, PW1 to PW6 were examined and Exts.A1 to A17 were marked on the side of the petitioner. RW1 and RW2 were examined and Exts.B1 to B8 were marked on the side of the respondents. Exts.X1 to X3 were also marked. The family court on an appraisal of the oral and documentary evidence and after hearing both sides, by the impugned judgment, allowed the original petition by which R1 and R3 to R5 have been directed to return the gold and diamond ornaments referred to in the 'C' schedule of the petition or its market value of ₹6,89,529/- along with interest @6% per annum from the date of petition till realization; to return ₹34 lakhs to the petitioner with interest @6% p.a. from the date of petition till realization and an amount of ₹35,000/- as the value of the teak **12** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** almirah with interest @ 6% p.a. from the date of petition till realization. The amounts have been directed to be paid within two months from the date of the order. Aggrieved, the respondents have come up in appeal. 5. The point that arises for consideration is whether there is any infirmity in the findings of the family court calling for an interference by this Court. 6. Heard both sides. 7. The case of the petitioner/wife that ₹25 lakhs had been given to R1 out of ₹35 lakhs demanded as dowry was disputed before the trial court. The petitioner to substantiate her claim relied on Exts.A5, A6 and A12 series. However, now it is admitted that ₹25 lakhs had in fact been received by R1. The petitioner has a further case that out of the remaining ₹10 lakhs, an amount of ₹7 lakhs had been paid to R1 on two occasions, i.e., on 07/02/2015 an amount of ₹2 lakhs and thereafter on 15/02/2015 an amount of ₹7 lakhs. This is disputed by the respondents, who contend that out of the ₹25 lakhs given, ₹2 lakhs was deposited as fixed deposit in the name of R1 when a locker was taken in the joint name of the petitioner and R1. ₹7 lakhs out of **13** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** the remaining ₹23 lakhs, has been deposited as fixed deposit in the joint name of the petitioner and R1. Reference was made to Exts.A13, A14, B4 and B8 to substantiate this contention. Ext.A13 letter issued by the Manager, SBI, Mukkom branch, says that on 29/01/2015 an amount of ₹25 lakhs had been credited to the SB account of R1. On 09/02/2015 an amount of ₹2 lakhs was deposited as fixed deposit in the name of R1. Ext.B4, again a letter of the Branch Manager of SBI, Mukkom branch, says that on 09/02/2015 a locker had been taken in the joint name of the petitioner and R1 and that a fixed deposit account for ₹2 lakhs had been opened on the said date in the name of R1. Ext.B8, a copy of the statement of account of R1, shows that on 29/01/2015 an amount of ₹25 lakhs had been credited to the account of R1. Thereafter on 09/02/2015 an amount of ₹2 lakhs is seen withdrawn. Apart from the oral testimony of PW1 and her father, namely PW6, no documents have been produced by the petitioner to substantiate her case that an amount of ₹7 lakhs had also been paid to R1. The case of the petitioner is that her father had taken a loan of ₹25 lakhs at exorbitant interest to meet the demand of the respondents. Ext.A5 has been produced to substantiate the said **14** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** allegation. The loan was apparently taken by the petitioner's father as he did not have the necessary resources at his disposal to meet the demand of the respondents. The petitioner and her father when examined before the court claimed that ₹7 lakhs had been paid to R1 by way of cash. Where was this money kept? Was it withdrawn from any bank? PW6 says that the said amount is from the income derived from his business. If that be so, there would certainly be documents to establish the same. However, no documents have been produced to substantiate the same. Therefore, the case of payment of ₹7 lakhs to R1 has not been substantiated. That being the position the trial court was wrong in concluding that the petitioner has established her case that in addition to ₹25 lakhs an amount of ₹7 lakhs had also been given to R1. 8. The respondents admit that ₹2 lakhs that has been deposited in fixed deposit in the name of R1 and ₹7 lakhs that has been deposited in the joint name of the petitioner and R1 is out of ₹25 lakhs given by the petitioner's father to R1. Therefore, the petitioner is certainly entitled to return of the amount of ₹ 25 lakhs with reasonable interest. 9. The petitioner also alleges that a teak almirah worth ₹35,000/- **15** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** had been given to the respondents. To substantiate the said allegation, she relies on Exts.A9 and A10 documents. The marking of these documents was never objected to by the respondents. On going through the testimony of PW1, we find no challenge to Ext.A9 and Ext.A10 documents. R3 when examined as RW1 admits that there is a teak almirah in his house. However, his case is that the said almirah had been purchased by R1 after the marriage. Though such a stand has been taken by R1, no evidence has been adduced to substantiate the same. On the other hand, the petitioner has produced Exts.A9 and A10, which have not been disputed or discredited by the respondents. Therefore, it can only be concluded that the finding of the trial court that the petitioner has substantiated her case of giving a teak almirah worth ₹35,000/- is correct and so needs no interference. 10. Now coming to the claim for return of gold/diamond ornaments from the respondents. As stated earlier, the case of the petitioner is that gold and diamond ornaments worth ₹25 lakhs was demanded by the respondents. The same were purchased and worn by the petitioner at the time of marriage. According to her, the ornaments were purchased as per Ext.A2 series to **16** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** Ext.A4 bills. It is pertinent to note that the petitioner has no case that the entire ornaments worth ₹25 lakhs had been entrusted to the respondents. On the other hand, her case is that only ornaments worth ₹6,89,529/- had been entrusted to respondents 3 to 5 as demanded by them. No doubt the burden is on the petitioner to establish her claim that she had entrusted the gold ornaments to R1. Section 101 of the Indian Evidence Act, 1872 defines 'burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed based on weakness of the other party. ( **Rangammal v. Kuppuswami, (2011)12 SCC 220: AIR 2011 SC 2344** ). **17** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** 10.1. Further, there is an essential distinction between burden of proof under Section 101 and onus of proof under Section 103 of the Evidence Act. Burden of proof always lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. S.101 deals with the former and S.102 with the latter. The first remains constant but the second shifts. When evidence had been adduced by both the parties, the question of burden of proof pales into insignificance and the Court will have to decide the question in controversy in the light of the evidence on record. ( **A.Raghavamma v. A.Chenchamma, AIR 1964 SC 136; Rebti Devi v. Ram Dutt, 1997 KHC 1299: AIR 1998 SC 310** and **Jagan Nath v. Jagdish Rai, AIR 1998 SC 2028** ). 11. In the case on hand, both parties have adduced evidence in support of their respective stand. Now the question is, who can be believed, and whose version is probable? As stated earlier, the petitioner has no case **18** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** that her entire ornaments had been entrusted to the respondents or given to them. Her only case is that ornaments worth ₹6,89,529/- had been entrusted. Here the testimony of PW4, a pastor/vicar of St. Joseph Church, Manjeri, is quite relevant. The fact that PW4 had mediated in the disputes between the parties is admitted by the respondents also in their counter. PW4 when examined deposed that about 3 months after the marriage had been solemnized, R1 had sought his intervention to bring back the petitioner from her house. He summoned the petitioner and her father and enquired about the matter. He was then told by the petitioner and her father that the petitioner had left the company of R1 as the latter had brandished a knife and threatened the petitioner. PW4 further deposed that when he asked R1 about this incident, the latter replied that it was just a prank/joke. According to PW4, he then realized that R1 is an immature person. PW4 deposed that during the mediation talks, it was admitted by R3 that ornaments worth about ₹7 and odd lakhs is in his custody. PW4 also deposed that to his knowledge, the said ornaments have not been returned to the petitioner till date. There is no cross examination on the said point deposed by PW4. There is only a general **19** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** suggestion that PW4 was deposing in favour of the petitioner as her father had contributed amounts for the construction of a church. It is quite pertinent to note that there is no cross examination or challenge to the facts spoken to by PW4 that R3 had admitted to him during the mediation talks that ornaments of the petitioner worth ₹7 and odd lakhs is in his possession. The respondents have no case that PW4 is in any way in inimical terms with them. Therefore, there is no reason to disbelieve or discard the version of PW4. Hence the trial court was right in ordering return of gold ornaments of the petitioner referred to in the 'C' schedule of the petition or its worth coming to ₹6,89,529/-. 12. The petitioner has filed Cross Objection No.171 of 2019 aggrieved by the interest that has been granted by the trial court. According to her, 6% interest granted is too low. The petitioner's father had raised the amount of ₹25 lakhs given to the respondents by availing a loan from the Cooperative Urban Bank Ltd, Manjeri at an interest payable @ 14% p.a. The grant of interest @ 6% has caused serious prejudice and financial loss to the petitioner. Therefore, her prayer is to allow the cross objection and to grant **20** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** interest @ 14% p.a. for ₹25 lakhs ordered to be returned. 13. The petitioner relies on Ext.A5 to substantiate her case that the amount of ₹25 lakhs was raised by availing a loan at an exorbitant interest. Ext.A5, a certificate issued by the Manager, Manjeri Co-operative Urban Bank Ltd., says that PW6 had availed a cash credit of ₹25 lakhs on 22/01/2015 and that he has remitted an amount of ₹1,30,549/- being the interest up to 30/06/2015. To a query by us as to the basis on which a claim for interest @14% is made, the learned counsel for the petitioner submitted that when the amount of ₹25 lakhs due to the petitioner is refused to be returned by the respondents without cogent reasons and when the petitioner's father is compelled to pay exorbitant interest for the same, the respondents should be made liable for the same. On going through the petition, we find no pleadings as to the rate of interest at which the loan had been availed. In the prayer portion, the claim of the petitioner is for return of ₹25 lakhs with interest @ 18% p.a. Therefore it is clear that there is no pleadings as to the rate of interest at which the loan is alleged to have been taken and there is also no evidence or the materials on record to show the actual rate of interest **21** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** that was being paid by the petitioner's father. Hence in the said circumstance, the trial court was certainly right in awarding interest @ 6% p.a. 14. Now coming to the liability of R4 and R5. The decree of the family court reads thus - _“(1) The respondents 1, 3 to 5 are jointly and severally are directed to return gold/diamond ornaments mentioned in the 'C' schedule of the petition or its market value of Rs.6,89,529/- (Rupees six lakh eighty nine thousand five hundred and twenty nine only) to the petitioner within two months from today with interest at the rate of 6% per annum from the date of petition till the date of realisation._ _(2) The respondents 1, 3 to 5 are jointly and severally are directed to return cash of Rs.34,00,000/- (Rupees thirty four lakh only) to the petitioner within two months from today with interest at the rate of 6% per annum from the date of petition till the date of realisation._ _(3) The respondents 1, 3 to 5 are jointly and severally are directed to return cash of Rs.35,000/- (Rupees thirty five thousand only) the value of the teak almirah to the petitioner within two months from today with interest at the rate of 6% per annum from the date of petition till realisation._ _(4) Petitioner is entitled to cost.”_ We find that R4, the sister of R1 and R5, the husband of R4, have also been **22** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** made liable as per the decree. Even according to the petitioner, R4 and R5 were residing separately. But her case is that they used to come daily to the house of R1 and R3 and join the former in physically and mentally harassing her. From the materials on record, what is made out is that the entrustment of the money as well as ornaments was made to R1 and R3 only and therefore R4 and R5 cannot be held liable for the amounts due to the petitioner. To that extent also, the decree needs to be modified. In the result, the appeal is partly allowed, and the decree is modified to the following extent - (a) Respondents 1 and 3 are directed to return the gold/diamond ornaments mentioned in the 'C' schedule of the petition or its market value of ₹6,89,529/- (rupees six lakh eighty-nine thousand five hundred and twenty-nine only) to the petitioner with interest at the rate of 6% per annum from the date of petition till date of realization. (b) Respondents 1 and 3 are directed to return an amount of ₹25,00,000/- (rupees twenty-five lakhs only) to the petitioner with **23** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** interest at the rate of 6% per annum from the date of petition till the date of realisation. (c) Respondents 1 and 3 are directed to pay an amount of ₹35,000/(rupees thirty-five thousand only) being the value of the teak almirah to the petitioner with interest at the rate of 6% per annum from the date of petition till realisation. (d) All the aforesaid amounts shall be paid within two months from the date of this judgment. - (e) The petitioner is entitled to costs. ## **O.P.(FC)No.544 of 2023** 15. This petition under Article 227 of the Constitution of India has been filed by the petitioner in I.A.No.6/2022 in I.A.No.1198/2015, that is, the third respondent (R3) in O.P.No.497/2015 against Ext.P11 order dated 13/02/2023. The respondent herein is the petitioner in O.P.No.497/2015 and the respondent in I.A.No.6/2022. The parties will be referred to as described in O.P.No.497/2015. **24** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** 16. O.P.No.497/2015 was filed by the petitioner/wife for return of gold ornaments and cash from the respondents, who are her husband and inlaws. In the said proceedings, she had moved I.A.No.1198/2015 for attachment of the property of the respondents. The said petition was allowed. Thereafter as per order dated 29/09/2018, O.P.No.497/2015 was decreed in favour of the petitioner. The said order has been challenged by the respondents in Mat. Appeal No.302/2019. As per Ext.P4 order dated 08/07/2019 in the appeal, the decree in O.P.No.497/2015 has been stayed on furnishing security for the decree amount to the satisfaction of the family court. According to the respondents, security as directed in Ext.P4 order has been produced and the same has been accepted by the family court as per Ext.P6 order dated 06/09/2022. Hence, the attachment ordered in I.A.No.1198/2015 may be raised. This request of the respondents was rejected by Ext.P11 order and hence R3 aggrieved by the said order, has challenged the same. 17. The petitioner in O.P.No.497/2015 and the respondent in I.A.No.6/2022 filed objections contending that the location sketch of the **25** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** property offered as security has not been produced in spite of specific directions of the Court ; that the property offered as security is not valuable or sufficient to meet the decree debt and hence the attachment ordered in I.A.No.1198/2015 is not liable to be raised. 18. Pursuant to Ext.P4 order directing the respondents in O.P.No.497/2015 to furnish security, they produced a title deed relating to three acres of land belonging to R3. The respondents filed I.A.No.1071/2019 to accept the said property as security pursuant to Ext.P4 order. However, the family court, finding that the property to be not sufficient security for the decree amount, dismissed the petition by Ext.P5 order dated 02/02/2021. Thereafter the respondents moved I.A.No.3/2021 for receiving security. The said I.A. was disposed of by Ext.P6 order dated 06/09/2022, the relevant portion of which reads- _“xxx xxx xxx_ _2. The petitioners are the respondents in O.P.497/2015. A decree was passed against them on 29.09.2018. They filed Matrimonial Appeal before the Hon'ble High Court as Matrimonial Appeal No.302/2019. The Hon'ble High Court had passed a conditional order in I.A.2/2019_ **26** ## **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** _staying the execution of the decree on condition of furnishing security to the satisfaction of the court. Previously petitioners had filed I.A.1071/2019 to receive 3 acres of land as security. It was dismissed as insufficient. They had claimed that properties were not worth Rs 60,00,000/- which is approximate amount payable under the decree. Now the petitioners have produced fixed deposit receipts in the name of second petitioner in a nationalized Bank. The fixed deposit receipts are for Rs.14,00,000/-. It is prayed that the 3 acres of land and fixed deposits receipts received as security._ _3. xxx xxx xxx_ _4. The 3 acres of land is valuable. Whatever deficiency is there in the value of the said property is compensated by the fixed deposits. Confirmation of fixed deposits has been obtained from bank concerned. Therefore it is ordered as follows:-_ _The property offered and fixed deposit receipts will be received as security provided the owners of the property and the fixed deposit holders execute and produce before court security bonds as required by law.”_ Ext.P6 order makes it clear that the 3 acres of land offered by the respondents along with the fixed deposit receipt of ₹14 lakhs as security, has been found sufficient by the family court to satisfy the decree debt. It is submitted on **27** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** behalf of the respondents that the property attached as per the order in I.A.No.1198/2015 is different from the 3 acres of property offered as security by way of I.A.No.1071/2019, which aspect is not disputed by the petitioner. It is submitted by the learned counsel for the respondents that 3 acres of land furnished as security as per I.A.No.1071/2019 is comprised in re-survey No.54/12, Koodathai village, Thamarassery taluk, Kozhikode, whereas the property attached as per order in I.A.No.1198/2015 moved by the petitioner in O.P.No.497/2015 is 97 cents of property comprised in re-survey No.57/2 and re-survey No.41/1. The 'A' schedule in I.A. No.1198/2015 consists of two items of property. Item no.2 is 12 cents of property comprised in re-survey no.41/1, Koodathai village, Koduvalli, Kozhikode stands in the name of R3 and the first item comprising 85 cents in re-survey No.57/2, Koodathai village, Koduvalli taluk, Kozhikode, stands in the name of R5. As the 3 acres of property and an amount of ₹14 lakhs as fixed deposit offered as security in I.A,No.1071/2019 and I.A.No.3/2021 has been accepted as sufficient security by way of Ext.P6 order and as the 97 cents of property attached in I.A.No.1198/2015 is a different property, the family court ought to have **28** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** allowed the prayer of the third and the fifth respondents in lifting the attachment ordered in I.A.No.1198/2015. As the property offered as per Ext.P5 and the deposits offered as per Ext.P6, have been found to be sufficient security for the satisfaction of the decree debt, the attachment ordered in I.A.No.1198/2015 is liable to be raised. In the result, Ext.P11 order is set aside. The order of attachment passed as per order in I.A.No.1198/2015 is raised. ## **O.P.(FC)No.549/2023** 19. This petition under Article 227 has been filed by the fifth respondent (R5) in O.P.No.497/2015. He has also challenged Ext.P11 order dated 13/02/2023 in I.A.No.7/2022 in I.A.No.1198/2015 in O.P.No.497/2015. In Mat. Appeal No.302/2019, we have already found that respondents 4 and 5 are not liable for the decree amount. That being the position, the property of R5 is not liable to be attached. Moreover, for the reasons stated in O.P. (FC)No.544/2023, Ext.P11 order needs to be set aside. In the result, Mat. Appeal No.302/2019 is partly allowed and the decree **29** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** is modified as follows- (a) Respondents 1 and 3 are directed to return the gold/diamond ornaments mentioned in the 'C' schedule of the petition or its market value of ₹6,89,529/- (rupees six lakh eighty-nine thousand five hundred and twenty-nine only) to the petitioner with interest at the rate of 6% per annum from the date of petition till date of realization. (b) Respondents 1 and 3 are directed to return an amount of ₹25,00,000/- (rupees twenty-five lakhs only) to the petitioner with interest at the rate of 6% per annum from the date of petition till the date of realisation. (c) Respondents 1 and 3 are directed to pay an amount of ₹35,000/- (rupees thirty-five thousand only) being the value of the teak almirah to the petitioner with interest at the rate of 6% per annum from the date of petition till realisation. (d) All the aforesaid amounts shall be paid within two months from the date of this judgment. **30** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 &** **O.P.(FC)No.544 and 549 of 2023** - (e) The petitioner is entitled to costs. O.P.(FC)No.544/2023 and O.P.No.549/2023 are allowed. Ext.P11 order is set aside, and the order of attachment passed in I.A.No.1198/2015 in O.P.No.497/2015 is raised. Interlocutory applications, if any pending, shall stand closed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/ **31** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** ## **APPENDIX OF OP (FC) 544/2023** **PETITIONER EXHIBITS** **Exhibit P1** **A TRUE COPY OF THE OP NO 497/2015 IN THE FILE OF FAMILY COURT MALAPPURAM** **Exhibit P2 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS IN OP NO 497/2015** - **Exhibit P3 A TRUE COPY OF THE ORDER DATED 29/09/2018 IN OP 497/2015, MALAPPURAM FAMILY COURT** **Exhibit P4 A TRUE COPY OF THE ORDER DATED 08/07/2019, IN IA NO 2/2019 IN MAT APPEAL NO 302/2019 OF HON'BLE HIGH COURT OF KERALA** **Exhibit P 5 A TRUE COPY OF THE ORDER DATED 02/02/2021 IN IA NO 1071/2019 IN OP 497/2015, FAMILY COURT MALAPPURAM** - **Exhibit P6 A TRUE COPY OF THE ORDER DATED 06/09/2022 IN IA NO 3/2021 IN OP NO 497/2015, FAMILY COURT, MALAPPURAM** **Exhibit P 7 A TRUE COPY OF IA 6/2022 IN IA 1198/2015 IN OP 497/2015** **Exhibit P8 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IA NO 6/2022 IN IA 1198/2015 IN OP 497/2015** **Exhibit P 9 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 28/02/2022 IN MAT APPEAL 46/2022 REPORTED IN 2022(3)** **32** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** **KHC 145 ( SYAMINI S NAIR VS SREEKANTH R) Exhibit P 10 A TRUE COPY OF THE CROSS OBJECTION FILED BY THE RESPONDENT IN MAT APPEAL 302/2019 Exhibit P 11 A TRUE COPY OF THE ORDER DATED 13/02/2023 IN IA NO 6/2022 IN IA 1198/2015 IN OP 497/2015** **33** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** ## **APPENDIX OF OP (FC) 549/2023** **PETITIONER EXHIBITS** - **Exhibit P1** - **A TRUE COPY OF THE OP NO 497/2015 IN THE FILE OF FAMILY COURT MALAPPURAM** **Exhibit P 2** - **A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS IN OP NO 497/2015** - **Exhibit P3 A TRUE COPY OF THE ORDER DATED 29/09/2018 IN OP 497/2015, MALAPPURAM FAMILY COURT** - **Exhibit P4 A TRUE COPY OF THE ORDER DATED 08/07/2019, IN IA NO 2/2019 IN MAT APPEAL NO 302/2019 OF THE HON'BLE HIGH COURT OF KERALA** - **Exhibit P5 A TRUE COPY OF THE ORDER DATED 02/02/2021 IN IA NO 1071/2019 IN OP 497/2015, FAMILY COURT MALAPPURAM** - **Exhibit P6 A TRUE COPY OF THE ORDER DATED 06/09/2022 IN IA NO 3/2021 IN OP NO 497/2015, FAMILY COURT MALAPPURAM** - **Exhibit P7 A TRUE COPY OF IA 7/2022 IN IA 1198/2015 IN OP 497/2015** - **Exhibit P8** - **A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IA NO 7/2022 IN IA 1198/2015 IN OP 497/2015** **ExhibitP 9** **A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 28/02/2022 IN MAT APPEAL 46/2022 REPORTED IN 2022(3)** **34** **Mat Appeal No.302 of 2019, Cross Objection No.171 of 2019 in Mat Appeal No.302 of 2019 & O.P.(FC)No.544 and 549 of 2023** **KHC 145 ( SYAMINI S NAIR VS SREEKANTH R)** **Exhibit P 10 A TRUE COPY OF THE CROSS OBJECTION FILED BY THE RESPONDENT IN MAT APPEAL 302/2019** **Exhibit P 11 A TRUE COPY OF THE ORDER OF FAMILY COURT, MALAPPURAM DATED 13/02/2023 IN IA NO 7/2022 IN IA 1198/2015 IN OP 497/2015**