Mat.Appeal Nos. 64 & 65/2007

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939** **Mat.Appeal.No. 64 of 2007** **----------------AGAINST THE JUDGMENT DATED 16-01-2007 IN OP 232/2006 of FAMILY COURT,KOTTARAKKARA.** **------------------** ## **APPELLANT/RESPONDENT IN OP.NO.232/2006** **DEEPA, AGED 29 YEARS, D/O.THANKAPPAN, RESIDING AT "SYAM NIVAS", EDAMON, PUNALUR, REPRESENTED BY HER POWER OF ATTORNEY HOLDER AND MOTHER, SMT.SYAMALA THANKAPPAN, W/O.THANKAPPAN, AGED 56 YEARS, SYAM NIVAS, EDAMON,PUNALUR.** **BY ADVS. SRI. GOPAKUMARAN NAIR. SRI. AJITH MURALI.** ## **RESPONDENT/PETITIONER IN OP NO.232/2006:** **SALIM, AGED 39 YEARS, S/O.DIVAKARAN, RESIDING AT SUDHA VILASAM, KAMUKUMCHERRY, KARYARA P.O., PATHANAPURAM TALUK.** **BY ADVS. SRI.K.JAYAKUMAR. SRI.P.B.KRISHNAN. SRI.R.SURAJ KUMAR.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2018 ALONG WITH MAT.APPEAL.NO.65/2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Sl.** ## **K.Harilal & A.M.Babu, JJ.** ==================================== Mat.Appeal Nos.64 & 65/2007 ==================================== Dated this the 22[nd] day of February, 2018 ## **JUDGMENT** ## **A.M. Babu, J.** 1.There were four proceedings between the same parties before the family court. One of the proceedings was a suit by the appellant for recovery of gold ornaments, arrears of maintenance et cetera. Another proceedings was a suit by the respondent to declare his title to a property. In that suit the appellant had a counter-claim to declare her title to the very same property. There are no appeals against the decisions in the remaining two proceedings. - 2.We refer to the parties as they are arrayed in the memoranda of appeals. Appellant is the exwife of the respondent. Mat.a.64&65/2007 -:2:- - 3.The case of the appellant pleaded in her suit may be briefly stated as under: She was married to the respondent on 13.09.1998. Forty sovereigns of gold ornaments, a wooden almirah worth `40,000/-, a cot worth `5,000/- and several other household articles were given to the appellant at the time of the marriage. A gold chain weighing 2½ sovereigns and a finger ring weighing one sovereign were given to the respondent. His mother and sister were given two bangles. The appellant is entitled to get back her gold ornaments. Her 'tali' chain and a finger ring were pledged by the respondent at the Canara Bank to avail of a loan of `30,000/-. The appellant was ill-treated by the respondent, his sister and mother demanding more dowry. - 4.The respondent raised the following contentions: The appellant had only a few Mat.a.64&65/2007 -:3:- ornaments at the time of her marriage. Rest of her ornaments were made of imitation gold. A wooden almirah, a cot and a few other household articles were brought by the appellant to the house of the respondent. But the almirah was worth only `2000/- and the cot, `1,000/-. The respondent did not take any gold ornament of the appellant. Nor did he sell or pledge her gold ornaments. Therefore he has no liability to return any ornament of hers. A 'tali' chain of 3½ sovereigns and a finger ring of one sovereign were given by the respondent to the appellant. She entrusted those ornaments with her mother. All the articles of the appellant were kept by her in her almirah under her lock and key. The appellant was never ill-treated by the respondent or his relatives. - 5.Admittedly a property measuring 20 cents stands in the joint names of the appellant and the Mat.a.64&65/2007 -:4:- respondent. The respondent has filed his suit for a declaration that the said property is his exclusive asset. The appellant has raised a contention that the property is hers and hers alone. She lodged a counter-claim to get a declaration to that effect. 6.The case pleaded by the respondent in his suit is stated below: He is an ex-service man. He received `3,50,000/- as his service benefits at the time of his retirement. With the same, he purchased the petition schedule property measuring 20 cents. He purchased it in the name of the appellant also, although she did not contribute any money for its purchase. The appellant was cruel and therefore the relationship went unfriendly. The respondent is entitled to get a declaration that the petition schedule property exclusively belongs to him. Mat.a.64&65/2007 -:5:- - 7.The suit of the respondent was opposed by the appellant. Her contentions go as under: The retirement benefits of the respondent were spent by him not for purchasing the petition schedule property, but for other purposes. The property was purchased not with the funds - of the respondent, but with the funds provided by the parents of the appellant. The sale proceeds of the gold ornaments of hers were also utilised for the purchase of the property. As the entire consideration for the purchase of the property was met by the appellant and her parents, she is entitled to get a declaration that the property is hers only. - 8.The respondent filed a written-statement against the counter-claim of the appellant. In the said written-statement the former reiterated his contentions. - 9.The family court tried the suit of the Mat.a.64&65/2007 -:6:- appellant along with two other proceedings. It tried the suit of the respondent separately. PWs1 to 7 were examined and Exts A1 to A10 were marked on the side of the appellant in the cases jointly tried. DWs1 and 2 were examined and Exts B1 to B6 were marked on the side of the respondent. Exts X1 to X3 were also marked. 10. In the suit of the respondent, - O.P.No.232/2006, which was tried separately, PWs 1 and 2 were examined and Ext A1 was marked on the side of the respondent. CPW1 was examined and Exts B1 to B3 were marked on the side of the appellant. 11. O.S.No.458/2005, the suit of the appellant, was decreed partly. The decree directed return of the wooden almirah, cot and other household articles of the appellant to her. `1,200/- was allowed to be recovered from the respondent as Mat.a.64&65/2007 -:7:- - arrears of maintenance. The respondent did not - appeal against the decree he suffered in O.S.No.458/2005. 12. In O.P.No.232/2006 the family court granted a decree declaring the title of the respondent to the petition schedule property. The counterclaim of the appellant was dismissed. 13. Heard Sri.C.S.Dias and Sri.Sooraj Kumar, the - learned counsel for the appellant and the respondent respectively. 14. The learned counsel for the appellant submitted that the family court committed an error. O.S.458/2005 and O.P.232/2006 were not tried jointly, but disposed of by a common order. That was the error pointed out by the learned counsel. We are in agreement with the learned counsel since the two cases were tried separately. They should have been disposed of separately. But the family court chose to Mat.a.64&65/2007 -:8:- dispose of the cases by a common judgment. What was done by the family court cannot be undone. The family court was very careful in discussing the evidence. The judge did not read the evidence in O.S.458/2005 to decide - O.P.232/2006 or vice versa. Therefore no prejudice is seen to have been caused to any of the parties. 15. Since O.S.458/2005 and O.P.232/2006 were disposed of by a common judgment, we also propose to dispose of the two appeals by a common judgment without reading the evidence in one case in the other. 16. Of the two appeals, we consider Mat.Appeal - 64/2007 first. The same is filed against the decree in O.S.458/2005. That appeal was filed against the refusal of the family court to decree the claim for 45½ sovereigns of gold ornaments. Out of 45½ sovereigns of gold Mat.a.64&65/2007 -:9:- ornaments, two bangles were those allegedly given to the mother and sister of the respondent. The appellant can seek recovery of those ornaments only from the persons to whom they were given. The mother and sister of the respondent were not made parties to the suit filed by the appellant. Therefore there cannot be any decree against the respondent directing him to return the two bangles allegedly given to his mother and sister. 17. The appellant contends that she wore 40 sovereigns of gold ornaments at the time of her marriage. According to her, those ornaments were entrusted with the respondent. The family court did not accept the case of the appellant that she brought 40 sovereigns of gold ornaments to her nuptial home. The learned counsel for the appellant assailed the said finding of the family court. We shall decide ## Mat.a.64&65/2007 ## -:10:- the issue. 18. Ext A2 is the trump card of the learned counsel for the appellant. The same is the marriage register pertaining to the marriage of the appellant and the respondent. The same is a register maintained by the local branch of the SNDP. Ext A2 recites that the bride had approximately 40 sovereigns of gold ornaments. PWs 5 and 6 were examined by the appellant to prove Ext A2 and the entry therein regarding the weight of the gold ornaments. PWs 5 and 6 were the office bearers of the SNDP sakha yogam. There is nothing for or against any of the parties in the evidence of PW6. It was elicited from PW5 by the appellant in the reexamination that the bridegroom's party objected then and there the entry in Ext A2 that the bride wore about 40 sovereigns of gold ornaments. That means the entry made in Mat.a.64&65/2007 -:11:- Ext A2 regarding the weight of the gold ornaments of the bride was a disputed fact. DW1, the respondent, also spoke to the objection raised on his side against the entry in Ext A2 pertaining to the weight of the gold ornaments. The evidence of PW5 suggests that it was decided that the ornaments would be weighed and the matter would be reported. But nothing that sort was done. DW1 spoke that after negotiation it was decided not to pursue the matter. In such a circumstance, the entry in Ext A2 regarding the weight of the ornaments cannot be given due weight. There must be better evidence to prove that the appellant had - 40 sovereigns of gold ornaments at the time of her marriage. 19. The learned counsel for the appellant relied on the decision of this court in _**Leelamma N.P.**_ - _**v. M.A.Moni**_ **[2017 (3) KHC 340].** The decision ## Mat.a.64&65/2007 -:12:- is relied on by the learned counsel to contend that the entry regarding the weight of gold ornaments contained in the marriage register maintained by the SNDP sakha yogam is a good piece of evidence. We do not say that the entry in the marriage register should be discarded or eschewed. We also remind ourselves that the entry in such a register should be considered since such an entry is usually made when the parties are not at dispute. But that is not the case in the present case. Here, the entry in Ext A2 was opposed then and there. It is true that the objection was not pursued after negotiation. That is not much material. In the decision referred to above, what this court considered was a similar entry in the marriage register maintained by the SNDP sakha yogam. No dictum is seen laid in the said decision that such an ## Mat.a.64&65/2007 -:13:- entry is positive evidence to decide the quantum of gold ornaments the bride had. That was a case where the marriage register was exhibited and it was proved by examining its custodian. He was not cross-examined by the adverse party. Therefore the entry in the register was considered as one of the items of evidence to find in favour of the lady that she had gold ornaments as contended by her. Situation is entirely different in the present case. We have referred to the said situation. The appellant cannot get a decree for 40 sovereigns of gold ornaments on the strength of Ext A2 and Ext A2 alone. 20. We shall discuss the remaining evidence. PWs - 2 and 3 are respectively the mother and father of the appellant. Both the parents asserted in the witness-box that the bills evidencing purchase of 40 sovereigns of gold ornaments Mat.a.64&65/2007 -:14:- were available. PW2 spoke that those bills were handed over to the appellant. The appellant did not produce the bills. Her evidence is silent on the bills. PW3, the father, spoke that the bills were given to the respondent. No such suggestion was put to DW1. The appellant did not invoke section 66 of the Indian Evidence Act to call upon the respondent to produce the bills, if any, with him. What was done by the appellant was to produce a few estimates obtained from a jewellery. Those estimates were produced after completion of the evidence. Those estimates were not marked as exhibits. Estimates are not bills and cannot be equated with bills. When the definite evidence of the parents was that bills were available, it is not known how the bills became just estimates after completion of the evidence. It is also not explained how the ## Mat.a.64&65/2007 -:15:- bills alleged to have been handed over to the respondent could be produced by the appellant herself in the shape of estimates. We are unable to accept the case of the appellant in view of the inconsistency or discrepancy in evidence highlighted by the family court and repeated by us. 21. Exts A8 to A10 and B1 are the photographs of the appellant in her bridal dress and costumes. The family court said that the ornaments worn by the bride did not appear to have a total weight of 40 sovereigns. It may not be possible to ascertain the precise weight of gold ornaments by just looking at the photographs of the bride. But, it may be possible to have an approximate assessment. We are in complete agreement with the judge of the family court that Exts A8 to A10 and B1 do not support the claim of the appellant that she as ## Mat.a.64&65/2007 -:16:- a bride wore 40 sovereigns of gold ornaments. 22. The appellant failed to prove that she had 40 sovereigns of gold ornaments at the time of her marriage. What the appellant should prove is not only the total weight of the ornaments she had, but also the entrustment of the same with the respondent and the appropriation by him. The appellant contended that her ornaments were sold by the respondent in intervals for discharging his debts. This was the only pleading of the appellant so far as the appropriation of the gold ornaments is concerned. Pws 1 to 3 spoke that 15 sovereigns of gold ornaments of PW 1 were sold by the respondent on the very next day of the marriage. It was not pleaded so. The said inconsistency in the pleadings and evidence was considered by the family court in the right perspective. Mat.a.64&65/2007 -:17:- 23. The discussion we had would go to the conclusion that the appellant failed to prove her case that she had 40 sovereigns of gold ornaments and that her ornaments were appropriated by the respondent. We therefore find little scope for interference with the findings of the family court on the claim of the appellant for 40 sovereigns of gold ornaments. Mat.Appeal 64/2007 deserves to be dismissed. 24. We shall pass on to O.P.232/2006. The subject-matter of the said suit is 20 cents of property. Admittedly the same stands in the joint names of the appellant and the respondent. We may refer to two decisions of this court before considering the evidence. The decisions are _**Shaju P.L. v. Anitha**_ **[2014 (4) KHC 917]** and _**Ajithakumari v. K.D.Jayasekharan**_ **[2016 (5) KHC 664].** _**Shaju**_ Mat.a.64&65/2007 -:18:- _**P.L.**_ (supra) holds that the act of deposit of money in a joint account in a bank does not confer legal title proportionately over the money to the joint account holders. It is also held that either of the parties of the joint account is at liberty to establish his or her absolute and exclusive or proportionate title to the money pending in the joint account. That means any of the parties is entitled to prove that the property absolutely belongs to him or her even if it stands in the names of both. In the other decision ( **Ajithakumari** ) what is held is that when a property stands in the joint names of the spouses and in the absence of cogent evidence indicating that the sale consideration has been paid by any of them, the relief of declaration in favour of any of them cannot be granted. That means, despite the fact that a property stands in the Mat.a.64&65/2007 -:19:- - joint names of the spouses, one of them is entitled to prove that he or she is the exclusive owner of it. We may also refer to _**Muhammed Basheer v. Jameela P.S.**_ **[2012 (4) KHC 920].** The decision holds that even if a property is acquired in the name of one spouse, the other can establish his or her title to the property by proving that he or she was the person who contributed fully for the purchase of the property. 25. The question therefore is as to who did spend money for the purchase of the petition schedule property. If there is no evidence on the point, the property should be taken to be owned by both the parties. 26. The respondent has a definite case that the property was acquired with the funds he had in his hands. According to him, the source of his funds was his retirement benefits. He would Mat.a.64&65/2007 -:20:- - contend that 3.5 lakhs of rupees was received by him at the time of his retirement from the military service and that out of the same he purchased the property in question. According to the appellant, the amount received as retirement benefits by the respondent was less than `3,50,000/-. The appellant would contend - how the respondent spent his retirement benefits. Spending of the amount received as retirement benefits by the respondent as contended by the appellant is without any evidence. 27. The respondent had a source to purchase the property by himself. Any such source was not available for the appellant. The respondent had his retirement benefits with him for the purchase of the property. He examined in his suit the vendor of the property as PW 2. PW 2 spoke that he was paid by three cheques by the Mat.a.64&65/2007 -:21:- respondent. The respondent proved that he had the source to purchase the property by himself without any contribution from anybody. He proved further that he paid the consideration by cheques. 28. The source of the appellant to purchase the property was not proved. She did not produce any evidence to prove that she could shell out money for the purchase of the property. In the attempt to prove the source, she went against her own case. She had a contention that her gold ornaments were appropriated by the respondent for his needs. Retaining the said contention as such, the appellant contended that the proceeds of the sale of her ornaments were utilized for the purchase of the petition schedule property. Those two contradictory contentions of the appellant cannot go hand in hand and therefore cannot be accepted at all. Mat.a.64&65/2007 -:22:- This is a case where the respondent could prove his means to purchase the property by himself and could establish that the appellant did not have the means to purchase the property. We therefore find no scope for interference with the decree of declaration granted by the family court. 29. Both the appeals fail. We therefore dismiss the appeals. In the circumstances of the case, we do not tax the appellant with costs. Sd/- ## **K.Harilal, Judge** Sd/- **A.M.Babu, Judge** sl/26.2. //True copy// P.S. To Judge