Mat.Appeal Nos. 456/14 & 758/14 (Reji V. Joseph & Others vs Nice Amma Oommen / Nice Annam Oommen)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943** **MAT.APPEAL NO. 456 OF 2014** **AGAINST THE JUDGMENT IN OP 1228/2013 OF FAMILY COURT,** **MAVELIKKARA, ALAPPUZHA** ## **APPELLANTS/RESPONDENTS:** 1 REJI V.JOSEPH AGED 38 YEARS S/O.JOSEPH VARGHESE,VELLAPALLI HOUSE,CHENNIERKARA,P.O.MUTTATHUKONAM,KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT. 2 JOSEPH VARGHESE AGED 52 YEARS S/O.VARGHESE,VELLAPALLI HOUSE,CHENNIERKARA.P.O,MUTTATHUKONAM,KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT. 3 LEELAMMA JOSEPH AGED 45 YEARS W/O.JOSEPH VARGHESE,VELLAPALLI HOUSE,CHENNIERKARA.P.O,MUTTATHUKONAM,KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT. 4 REJANI YOHANAN @KOCHUMOL AGED 34 YEARS W/O.BABY YOHANAN,PUTHENPURACKAL,KURAMBALA,ADOOR,PATHANAMTHI TTA. BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA) Mat.Appeal Nos. 456/14 & 758/14 -:2:- ## **RESPONDENT/PETITIONER:** NICE AMMA OOMMEN AGED 23 YEARS D/O.T.D.OOMMEN,RESIDING AT THARAYIL HOUSE,KODUKULANJI.P.O,ALA VILLAGE,CHENGANNUR TALUK,ALAPPUZHA DISTRICT. REP. BY HER POWER OF ATTORNEY HOLDER T.D.OOMMEN, AGED 60 YEARS, THARAYIL (H), KODUKULANJI P.O, ALA VILLAGE, CHENGANNUR TALUK. BY ADV SMT.ASHA ELIZABETH MATHEW THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 9.09.2021, ALONG WITH Mat.Appeal.758/2014, THE COURT ON 17.09.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos. 456/14 & 758/14 -:3:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943 MAT.APPEAL NO. 758 OF 2014 AGAINST THE JUDGMENT IN OP 1228/2013 OF FAMILY COURT,** **MAVELIKKARA, ALAPPUZHA** ## **APPELLANT/RESPONDENT:** NICE ANNAM OOMMEN AGED 26 YEARS D/O.T.D.OOMMEN, THARAYIL HOUSE, KODUKULANJI P.O., ALA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA REPRESENTED BY HER POWER OF ATTORNEY T.D.OOMMEN, AGED 60 YEARS, THARAYIL HOUSE, KODUKULANJI P.O., ALA VILLAGE, CHENGANNUR TALUK. BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW ## **RESPONDENT/PETITIONER:** 1 REJI JOSEPH S/O.JOSEPH VARGHESE, VELLAPALLI HOUSE, CHENNEERKARA P.O., MUTTATHUKONAM, KOZHENCHERY TALUK, PATHANAMTHITTA-689503. 2 JOSEPH VARGHESE S/O.VARGHESE, VELLAPALLI HOUSE, CHENNEERKARA P.O., MUTTATHUKONAM, KOZHENCHERY TALUK, PATHANAMTHITTA-689503. Mat.Appeal Nos. 456/14 & 758/14 -:4:- - 3 LEELAMMA JOSEPH W/O.JOSEPH, VELLAPALLI HOUSE, CHENNEERKARA P.O., MUTTATHUKONAM, KOZHENCHERY TALUK, PATHANAMTHITTA689503. 4 REJANI YOHANNAN @KOCHUMAKAL W/O.YOHANNAN, VELLAPALLI HOUSE, CHENNEERKARA P.O., MUTTATHUKONAM, KOZHENCHERY TALUK, PATHANAMTHITTA-689503. BY ADV SRI.K.N.RADHAKRISHNAN THIRUVALLA THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 9.09.2021, ALONG WITH Mat.Appeal.456/2014, THE COURT ON 17.09.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos. 456/14 & 758/14 -:5:- J U D G M E N T Dated this the 17[th] day of September, 2021 ## Kauser Edappagath, J. Both these appeals arise from the judgment of the Family Court, Mavelikkara (for short, 'the court below') in OP No.1228/2013 dated 15/1/2014. 2. The parties are referred to as shown in the original petition unless otherwise stated. The petition was one for return of gold ornaments, recovery of money and for return of movable articles. 3. The petitioner and the first respondent are the divorced spouses now. Their marriage took place on 30/5/2009 and it was dissolved by a decree of dissolution of marriage. The second respondent is the father, the third respondent is the mother and the fourth respondent is the sister of the first respondent. It is alleged that two days prior to the marriage, i.e., on 28/5/2009, the father of the petitioner entrusted a sum of Rs.1,50,000/- to respondents 1 to 3 at their house as patrimony and the respondents 1 to 3 held the said amount as trustees. It is further alleged that at the time of marriage, 40 sovereigns of gold Mat.Appeal Nos. 456/14 & 758/14 -:6:- ornaments were given to the petitioner by her parents and out of the same, 33 sovereigns of gold ornaments were obtained by the respondents on the fourth day of marriage agreeing to return as and when demanded, but was never returned. It is also alleged that after the marriage, as per the usual custom, an almirah and other movable articles were given to the petitioner by her parents and those articles were kept in the house of the respondents. According to the petitioner, 33 sovereigns of gold ornaments and Rs.1,50,000/- cash entrusted with the respondents as trustees were misappropriated by them. The original petition has been instituted for the return of the said gold ornaments and cash, as well as the movables mentioned above. 4. The respondents entered appearance and filed a joint objection statement. The respondents denied the case set up by the petitioner that the gold ornaments and Rs.1,50,000/- were entrusted to them. It is contended that when the petitioner went to the house of the first respondent on the next day of the marriage, she was not wearing the gold ornaments and all the gold ornaments she was having were handed over by her to her parents. In so far as the allegation regarding the entrustment of movables are concerned, the respondents admitted that an Mat.Appeal Nos. 456/14 & 758/14 -:7:- almirah worth Rs.10,000/- was brought to their house. They contended that they were prepared to return the said almirah to the petitioner. 5. The parties went on trial. On the side of the petitioner, PW1 to PW4 were examined and Exts.A1 to A12(a) were marked. On the side of the respondents, RW1 to RW4 were examined and Exts.B1 and B2 were marked. After trial, the court below allowed the original petition in part and directed respondents 1 to 3 to return Rs.1,50,000/- with interest @6% per annum from the date of the petition till realisation. The respondents 1 to 3 were also directed to return the almirah or its value of Rs.10,000/-. The relief sought for by the petitioner for the return of 33 sovereigns of gold ornaments was disallowed. Aggrieved by the relief granted in favour of the petitioner, the respondents preferred Mat.Appeal No.456/2014 and aggrieved by the rejection of the claim for return of gold ornaments, the petitioner preferred Mat.Appeal No.758/2014. 6. We have heard Sri.Rinny Stephen Chamaparambil, the learned counsel for the petitioner and Sri.K.N.Radhakrishnan, the learned counsel for the respondents. 7. The learned counsel for the petitioner submitted that Mat.Appeal Nos. 456/14 & 758/14 -:8:- the oral and documentary evidence let in by the petitioner would clearly prove the entrustment of the gold ornaments with the respondents and its misappropriation by them and as such, the court below ought to have allowed the petition in toto. The learned counsel for the respondents, on the other hand, argued that inasmuch as the petitioner was claiming a decree for return of money and gold ornaments, the burden rests squarely on her to prove the claim satisfactorily and she miserably failed to discharge the said burden. The counsel submitted that the court below went wrong in granting a decree for return of money. 8. We will first consider the claim of the petitioner regarding the return of gold ornaments. As stated already, the definite case of the petitioner is that at the time of marriage, 40 sovereigns of gold ornaments were given to her by her parents and on the 4[th] day of marriage, 33 sovereigns of gold ornaments out of it were collected by the respondents from her under the pretext of safe custody and later on misappropriated it. In order to prove the possession, entrustment and misappropriation of the gold ornaments, the petitioner relied on her own oral testimony, the oral testimony of PW2 to PW4 and Exts.A6 and A7 series. The petitioner gave evidence as PW1 in tune with the pleadings. She Mat.Appeal Nos. 456/14 & 758/14 -:9:- positively gave evidence that 40 sovereigns of gold ornaments were gifted to her by her parents at the time of marriage and 33 sovereigns of gold ornaments out of it were collected from her by the respondents on the fourth day of marriage agreeing to return the same as and when demanded. PW4 is the father of PW1. He gave evidence to corroborate the evidence given by PW1. Exts.A6 series and A7 series were marked through him. Ext.A6 series are the bills for the purchase of gold ornaments issued by Bhima Jewellery, Ernakulam. Ext.A7 series are the photographs taken on the wedding day. He gave evidence that Ext.A6 series were issued when he purchased 40 sovereigns of gold ornaments from Bhima Jewellers. Ext.A6 series would clearly show that PW4 purchased 284 grams of gold ornaments on 27/5/2009. The date of marriage was on 30/5/2009. PW3 is the photographer. He took Ext.A7 series photographs. Ext.A7 series photographs stand proved through PW3. Those photographs would show that gold ornaments were worn by the petitioner at the time of her marriage. The evidence of PW1, PW3 and PW4 as well as Exts.A6 and A7 series would clearly prove that 40 sovereigns of gold ornaments were purchased by PW4, four days prior to the marriage and the same were given to the petitioner and she wore Mat.Appeal Nos. 456/14 & 758/14 **==> picture [44 x 10] intentionally omitted <==** it on the date of marriage. PW1 clearly gave evidence that 33 sovereigns of gold ornaments were collected from her by the respondents on the fourth day of marriage and never returned. PW4 also gave evidence in support of the evidence given by PW1 regarding entrustment of gold ornaments. Even though PW1 and PW4 were cross-examined in length, there is nothing to doubt their evidence. Their evidence appears to be credible and trustworthy. The respondents contended that when the petitioner went to the matrimonial home on the next day of marriage, she did not take with her any of the gold ornaments. There is nothing to substantiate the said contention. It is a common practice that when the bride moves to the house of the groom after the marriage, she takes all her ornaments and entrust the same, except few required for her daily wear, to her husband or in-laws for safe custody. Since such entrustment takes place at the matrimonial home, normally there will not be any other eye witness. Hence, the unshaken evidence given by PW1 in this regard can very well be relied on. The court below disallowed the claim for return of gold ornaments only on the ground that the details and description of the gold ornaments were not scheduled in the original petition. It is true that there is no Mat.Appeal Nos. 456/14 & 758/14 -:11:- schedule in the original petition. But there is no requirement to give a separate schedule in a suit/petition for return of movable items. Order VII Rule 3 of Code of Civil Procedure is applicable to a suit for immovable property only. When the description and details of the gold ornaments sought to be recovered can be made out from the pleadings and evidence, the failure to furnish the description of the gold ornaments in a tabular form or in a separate schedule is not at all fatal. Here is a case where the petitioner has produced Ext.A6 series bills to prove the purchase of the gold ornaments. It stands proved through the oral evidence of PW1 and PW4. The details and description of each and every item of gold ornaments have been mentioned in Ext.A6 series. The oral and documentary evidence given by the petitioner clearly prove that the petitioner was having 40 sovereigns of gold ornaments with her on the date of marriage and 33 sovereigns out of it were entrusted to the respondents on the fourth day of marriage. Once such entrustment is made, a trust gets created. Being trustees, the respondents are liable to return the same. In these circumstances, the court below ought not have disallowed the claim for return of gold ornaments on a technical ground that gold ornaments were not scheduled in the Mat.Appeal Nos. 456/14 & 758/14 -:12:- petition. The finding of the court below in this regard is liable to be set aside and we do so. The petitioner is entitled to get back 33 sovereigns of gold ornaments or its equivalent value from the respondents 1 to 3. 9. The next claim is regarding return of money of Rs.1,50,000/-. The definite case of the petitioner is that two days prior to the marriage, i.e., on 28/5/2009, PW2 gave a sum of Rs.1,50,000/- to the respondents 1 to 3 as patrimony. To prove the same, petitioner has relied on the oral testimony of PW1, PW2, PW4 and Ext.A5. PW1 gave evidence that her father along with her relative viz., John Joseph went to the house of the respondents on 28/5/2009 and entrusted an amount of Rs.1,50,000/- as patrimony in connection with her marriage. Sri.John Joseph was examined as PW2. He deposed that he along with PW4 went to the house of the respondents on 28/5/2009 and entrusted Rs.1,50,000/- with the respondents. PW4, the father of PW1 gave evidence that he withdrew an amount of Rs.1,50,000/from his bank account on 26/5/2009 and the same was entrusted with the respondents on 28/5/2009. We perused the evidence of PW1, PW2 and PW4 in this regard. There is absolutely nothing to doubt their version regarding the entrustment of Rs.1,50,000/-. Mat.Appeal Nos. 456/14 & 758/14 -:13:- Ext.A5 is the statement of account of the bank account of PW4. It would show that a sum of Rs.1,50,000/- was withdrawn on 26/5/2009. PW4 deposed that he entrusted the said amount with respondents 1 to 3 on 28/5/2009. The evidence of PW2 would show that he also accompanied PW4 to the house of the respondents on 28/5/2009. The Division Bench of this Court in _**Bexy Michael v. A.J.Michael**_ (2010 (4) KHC 376) took note of the practice among Christians and held that it is a known practice among Christians that properties/money is exchanged at the time of marriage from parents of the bride to the parents of the groom. We see no reason to disbelieve the oral evidence tendered by PW1, PW2 and PW4 regarding the entrustment of Rs.1,50,000/-. The oral evidence gets corroboration from Ext.A5. Hence, we endorse the finding of the court below that the petitioner is entitled to get back the patrimony amount of Rs.1,50,000/-. 10. In so far as the claim regarding movables are concerned, the respondents have admitted that after the marriage, the petitioner had brought one almirah worth Rs.10,000/- and they are prepared to return the same. Hence, the finding regarding the return of almirah or its value of Rs.10,000/- does not warrant any interference. Mat.Appeal Nos. 456/14 & 758/14 -:14:- For the reasons stated above, we allow Mat.Appeal No.758/2014 and dismiss Mat.Appeal No.456/2014. Over and above the reliefs granted by the court below, we direct the respondents 1 to 3 to return 33 sovereigns of gold ornaments or its equivalent value of Rs.4,29,000/- with interest @6% per annum from the date of the petition till realisation to the petitioner. The parties shall bear their respective costs in both the appeals. Sd/- ## **A.MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** Rp