Mat.Appeal Nos.180 & 304/2016 arising from OP 317/2007, Family Court, Thiruvananthapuram (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943** **Mat.Appeal.No.180 OF 2016** **AGAINST THE JUDGMENT IN OP 317/2007 DATED 06-10-2015 OF FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANT/COUNTER PETITIONER:** **MANOHAR JEFFERSON AGED 45 YEARS S/O. RASSALAM , RESIDING AT VARIVILAKOM, PARASSALA (PO),PARASSALA VILLAGE, TRIVANDRUM** **BY ADVS. SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN** ## **RESPONDENTS/PETITIONER/COUNTER PETITIONER:** **1 MINI, D/O.CHINTAMONY AGED 41 YEARS RESIDING AT CHEEN MARRY HOUSE, KONATHUVILA, KARODE VILLAGE, NEYYATTINKARA TALUK, TRIVANDRUM 695 506** Mat.Appeal Nos.180 & 304/2016 -:2:- **2 J.R PRAUADA AGED 45 YEARS** **D/O. JAGADAMMA, VAZHAVILAKOM VEEDU, VAVARA, S.T MONCAUD (PO), VALAVAN TAMIL NADU** **R1 BY ADV. SRI.C.CHANDRASEKHARAN R1 BY ADV. SMT.P.M.SWAYAM PRABHA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, ALONG WITH Mat.Appeal.304/2016, THE COURT ON 18.5.2021 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.180 & 304/2016 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943** **Mat.Appeal.No.304 OF 2016** **AGAINST THE JUDGMENT IN OP 317/2007 DATED 06-10-2015 OF FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** **MINI** **AGED 41 YEARS D/O. CHINTHAMONY, RESIDING AT CHEEN MARY HOUSE, KONATHU VILA, KARODE P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 506.** **BY ADVS. SRI.C.CHANDRASEKHARAN SMT.P.M.SWAYAM PRABHA** ## **RESPONDENTS/CR.PETITIONERS:** **1 MANOHAR JEFFERSON AGED 46 YEARS S/O. RASSAIAN, RESIDING AT "PROVIDENCE", VARIVILAKAM, PARASSALA VILLAGE & P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 502.** Mat.Appeal Nos.180 & 304/2016 -:4:- **2 SMT. J.R.PRAVADA AGED 46 YEARS D/O. JAGADAMMA, RESIDING AT VAZHAVILAKAM VEEDU, VAVARA, ST.MANGAD P.O., VILAVANCODE TALUK, KANYAKUMARI DISTRICT, TAMILNADU-629 172.** **R1 BY ADV. G. RADHAKRISHNAN R1 BY ADV. SRI.R.ANILKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, ALONG WITH Mat.Appeal.180/2016, THE COURT ON 18.05.2021 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.180 & 304/2016 -:5:- **==> picture [118 x 10] intentionally omitted <==** Dated this the 18[th] day of May, 2021 ## Dr.Kauser Edappagath, J. Both these appeals arise out of the judgment of the Family Court, Thiruvananthapuram in OP No.317/2007 dated 6[th] October, 2015. 2. The parties are referred to as shown in the Original petition unless otherwise stated. The original petition was filed by the wife for return of gold ornaments, recovery of money, recovery of furniture and household articles, past and future maintenance and also to set aside two documents on the ground of fraud. 3. The marriage between the petitioner and the first counter petitioner was solemnized on 6/2/2002 as per Christian religious rites and ceremonies. It is the case of the petitioner that her parents had given her 58 sovereigns of gold ornaments at the time of her marriage and the same had been taken away and misappropriated by the first counter petitioner. It is alleged that Mat.Appeal Nos.180 & 304/2016 -:6:- at the time of marriage, the father of the petitioner had given a sum of `2 lakhs to the counter petitioner as well as furniture worth `50,000/- and household articles worth `45,000/-. The petitioner seeks to return the above said sum of `2 lakhs and the furniture and household articles or its value. Admittedly, at the time of marriage, the parents of the petitioner had settled 24 cents of land more particularly described in Schedule A of the petition in the name of the petitioner and the first counter petitioner as per Ext.A4 settlement deed. It is also admitted that the plaint B schedule property having an extent of 3 cents was also assigned by the parents of the petitioner in her favour as per Ext.A3 document. It is the case of the petitioner that on 22/1/2003, the first counter petitioner by misrepresentation took her to SRO, Parassala and she was forced to sign on some stamp papers and later on she came to know that she was made to execute Ext.A7 sale deed assigning the petition B schedule property in the name of the first counter petitioner. Later on, the first counter petitioner transferred the petition B schedule property in favour of the second counter petitioner as per Ext.A8 document which according to her is not binding on her. The Mat.Appeal Nos.180 & 304/2016 -:7:- petitioner seeks to set aside Exts.A7 and A8 documents besides declaring her absolute title over plaint A and B schedule properties. The petitioner has also sought for maintenance, past as well as future, from the first counter petitioner @`2,000/- per month. It is in these circumstances original petition has been filed seeking the above said reliefs. 4. The counter petitioners entered appearance and filed separate written statement. The first counter petitioner denied the case set up by the petitioner that the parents of the petitioner had given 58 sovereigns of gold ornaments to her and that furniture and household articles worth `95,000/- were given to him at the time of marriage. The first counter petitioner has admitted receipt of `2 lakhs from the parents of the petitioner. But it is contended that he had given the said amount to the petitioner later on. It is also contended that the petitioner voluntarily assigned the plaint B schedule property in his favour for consideration as per Ext.A7 document and he in turn assigned the same in favour of the 2[nd] counter petitioner for consideration as per Ext.A8 document. In so far as the claim for maintenance is concerned, the contention of the first counter petitioner is that Mat.Appeal Nos.180 & 304/2016 -:8:- the petitioner is taking tuition classes and getting attractive income. It is also contended that he is working as salesman in a stationery store and drawing a salary of `3,000/- per month. In the written statement filed by the second counter petitioner, she contended that she is a bonafide purchaser of the plaint B schedule property for valuable consideration. According to her, she is the absolute owner in possession of the plaint B schedule property. 5. The parties went on trial. On the side of the petitioner, PWs 1 to 4 were examined and Exts.A1 and A22 were marked. On the side of the counter petitioners, CPW1 and 2 were examined and Exts.B1 to B6 were marked. After trial, the Court below allowed the petition in part as per the impugned judgment. All the reliefs except the relief sought to set aside Exts.A7 and A8 documents were granted. 58 sovereigns of gold ornaments or its equivalent value as well as `2 lakhs and `95,000/- being the value of furniture and household articles with interest @6% per annum were ordered to be given by the first counter petitioner to the petitioner. The petitioner's title and possession over A schedule property also was declared. The Mat.Appeal Nos.180 & 304/2016 -:9:- maintenance, past and future, @ `1,000/- per month was also ordered. Aggrieved by the said judgment, the first counter petitioner preferred Mat.Appeal No.180/2016. Aggrieved by the dismissal of the prayer to set aside Exts.A7 and A8 documents and dissatisfied with the rate of maintenance ordered, the petitioner preferred Mat.Appeal No.304/2016. 6. We heard both sides. 7. We will consider the claim of the petitioner regarding the return of 58 sovereigns of gold ornaments first. The definite case of the petitioner is that at the time of marriage, her parents gave her 58 sovereigns of gold ornaments and the same has been misappropriated by the first counter petitioner. To prove the fact that petitioner was having 58 sovereigns of gold ornaments as well as its entrustment and misappropriation by the first counter petitioner, the petitioner relies on the oral testimony of PWs 1 to 3 and Exts.A5 estimate and A6 photograph. PW1 is the petitioner. PW2 is the father of the petitioner. PW3 is the uncle of the petitioner. They gave evidence in tune with the pleadings. Their evidence would show that the petitioner was wearing 58 sovereigns of gold ornaments at the time of marriage. That apart, Mat.Appeal Nos.180 & 304/2016 -:10:- the first counter petitioner has also admitted that the parents of the petitioner had given 20 sovereigns of gold ornaments to the petitioner at the time of marriage. Ext.A5 is the estimate for the purchase of 343.260 grams of gold ornaments in connection with the marriage of the petitioner. Ext.A6 is the photograph of the petitioner and the first counter petitioner which has been produced mainly to support the case of the petitioner that she was wearing 58 sovereigns of gold ornaments at the time of her marriage. Ext.A5 estimate issued from Alapatt Jewellery shows that 343.260 grams of gold ornaments corresponding to 42.907 sovereigns of gold were purchased by the petitioner's parents. PW2, father of the petitioner, gave evidence to prove the same. PW1 had also clearly deposed that apart from the purchase made as per Ext.A5, she was also having some old gold ornaments and together she was having 58 sovereigns of gold ornaments at the time of her marriage. PWs1 to 3 clearly gave evidence that the entire gold ornaments belonging to her were taken away and misappropriated by the first counter petitioner. The Division Bench of this Court in _**Jubairiya M.K. v. Abusalih and Another**_ (2013 (2) KHC 304) has held that in matrimonial cases, it is Mat.Appeal Nos.180 & 304/2016 -:11:- difficult to get documentary evidence to prove money transaction and exchange of gold and oral evidence of the parties, if found believable, can be relied upon by the Court to prove payment of money and gold. In _**Leelamma N.P. v. M.A.Moni**_ (2017 (3) KHC 340), the Division Bench of this Court 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 happened to the gold ornaments. It is further held that if it was taken by the wife when she left the matrimonial home, the same has to be proved by the husband. Again, the Division Bench in _**Pankajakshan Nair v. Shylaja and Another**_ (2017 (1) KHC 620) held that it is quite natural that once the marriage is over and the bride has come to the house of in-laws, there is possibility of ornaments being entrusted to the elders as a trustee for keeping the articles during the subsistence of the marriage and the duty is cast on the husband to disprove this fact and also to prove the fact that it was taken by the wife at the time she left the matrimonial home. 8. The evidence of Pws 1 to 3 coupled with Exts.A5 and A6 clearly prove that the petitioner was having 58 sovereigns of Mat.Appeal Nos.180 & 304/2016 -:12:- gold ornaments and the same have been taken away and misappropriated by the first counter petitioner. Thus, we are of the view that the Court below was absolutely justified in directing the first counter petitioner to return the said gold ornaments or its value to the petitioner. 9. Next we will consider the claim regarding return of `2 lakhs as well as the furniture and household articles or its value. In the written statement filed by the first counter petitioner, he has admitted that he has received `2 lakhs from the parents of the petitioner and out of the same, `1.5 lakhs was deposited in the name of the petitioner herself. He contended that the amount so deposited was withdrawn by the petitioner. However, the first counter petitioner could not adduce any positive evidence to substantiate his contention that the amount was taken back by the petitioner. Thus, the only conclusion possible is that he had appropriated the said amount. Hence, the petitioner is entitled to recover back the said sum of `2 lakhs from the first counter petitioner which was rightly granted by the Court below. In so far as the claim regarding furniture and household articles is concerned, PW1 to 3 clearly gave evidence that furniture and Mat.Appeal Nos.180 & 304/2016 -:13:- household articles worth `95,000/- were given to the first counter petitioner by the parents of the petitioner at the time of marriage. The details of the furniture and household articles were given in evidence. There is nothing to disbelieve the said evidence. It is true that no bills have been produced to prove the purchase of the furniture or household articles. The parents of the petitioner cannot be expected to keep the bills for a pretty long period. PW2 and 3, father and uncle of the petitioner, gave positive evidence regarding the handing over of the furniture and household articles. The said evidence was not effectively challenged in cross-examination. The evidence given by PW1 to PW3 in this regard is quite convincing. Hence, we are of the view that the Court below was justified in granting the said relief as well. 10. It is not in dispute that the petition A schedule property was settled in the name of the petitioner and the first counter petitioner by the parents of the petitioner at the time of marriage. It has been settled in their joint name for the welfare and benefit of the petitioner. From the entire evidence on record and facts and circumstances of the case, it is evident that the intention of the parents of the petitioner at the time of settling Mat.Appeal Nos.180 & 304/2016 -:14:- the property was to give the property to the petitioner as a gift at the time of her marriage for her benefit and welfare. First counter petitioner is only a name lender. Therefore, I am of the view that the Court below was justified in declaring that the plaint A schedule property absolutely belongs to the petitioner. In so far as the B schedule property is concerned, the case of the petitioner is that, on 22/1/2003, by misrepresentation, she was taken to the Sub Registrar's office to execute Ext.A7. In short, her case is that Ext.A7 happened to be executed by exercising fraud on her. But, there is absolutely no evidence to substantiate the same apart from the mere allegation. That apart, Ext.A8 would show that first counter petitioner assigned the property to the second counter petitioner. The evidence on record would further show that B schedule property is in exclusive possession of the 2[nd] counter petitioner. The 2[nd] counter petitioner has also given evidence. No relief has been sought to recover possession of the plaint B schedule property. In these circumstances, the Court below was correct in declining the relief sought for by the petitioner in so far as B schedule property is concerned. 11. The maintenance sought for by the petitioner is Mat.Appeal Nos.180 & 304/2016 -:15:- @2,000/- per month. The court below awarded `1,000/- per month. It has come out in evidence that as per Ext.A12 order, the Magistrate Court has awarded `2,000/- as maintenance to the petitioner which has been reduced to `1,500/- by the appellate Court. The evidence on record would show that the first counter petitioner is working as a Medical Representative. The case of the petitioner is that he is earning `25,000/- per month. Nothing has been produced by the 1[st] counter petitioner to prove his income. Being a medical representative, at least there must be documentary evidence to prove his income. In the absence of any documentary evidence produced by the first counter petitioner, the oral evidence given by the petitioner has to be believed. It has also come out in evidence that the petitioner is jobless and has no steady income. `1,000/- awarded by the Court below appears to be very meagre. It is not at all possible for a lady to pull on life with `3,500/- per month. It is the legal and moral responsibility of the first counter petitioner to maintain the petitioner. We are of the view that the Court below without any justification cut short the maintenance awarded to `1,000/- as against `2,000/- per month claimed. We are of the view that the Mat.Appeal Nos.180 & 304/2016 -:16:- maintenance ordered by the Court below has to be enhanced from `1,000/- per month to `2,000/- per month. The impugned judgment requires modification to that extent. In the result: - (I) Mat.Appeal No.180/2016 is dismissed. - (II) Mat.Appeal No.304/2016 is allowed in part. - (a) The maintenance amount awarded by the Court below is enhanced from `1,000/- to `2,000/- per month. (b) The impugned judgment is sustained in respect of all other reliefs. - (c) The parties shall bear their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **DR. KAUSER EDAPPAGATH** Rp True Copy PS to Judge **JUDGE**