Mat.Appeal.No.320 OF 2013

1 Mat.Appeal.No.320 OF 2013 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942** **Mat.Appeal.No.320 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OP 755/2011 DATED 16-03-2013 OF FAMILY COURT, KOTTARAKKARA** ## **APPELLANT/S:** **1 RAJEEB KHAN, AGED 37 YEARS, S/O.MUHAMMED SALEEM, FAZEENA MANZIL KARIYARA P.O., PUNLUR, VILAKKUDI VILLAGE PATHANAPURAM TALUK, KOLLAM. 2 SHEREEFA BHEEVI, FAZEENA MANZIL, KARIYARA P.O., PUNLUR, VILAKKUDI VILLAGE PATHANAPURAM TALUK, KOLLAM (DIED) RAZEENA, AGED 43 YEARS, D/O.SHAREEFA BHEEVI NIZAM MANZIL, PANACHIVALA P.O,CHAVARIKUNNU, ANCHAL (VIA), 3 KOLLAM- 691 306** - **UMAIMUTHU, AGED 45 YEARS, W/O.RASHEED, FAZEENA MANZIL, KARIYARA P.O., PUNALUR, VILAKKUDY VILLAGE KOLLAM 691 332** - **4** **SHAHANA, AGED 22 YEARS, D/O.RASHEED, CHARUVILAPUTHEN VEEDU, VELICHIKKALA.P.O, KOLLAM 691 573.** - **5 ABU THAHIR, AGED 16 YEARS, S/O.RASHEED, FAZEENA MANZIL, KARIYARA P.O., PUNALUR, VILAKKUDY VILLAGE KOLLAM 691 332, REPRESENTED BY HIS MOTHER UMAIMUTHU, AGED 45 YEARS, W/O.RASHEED, FAZEENA MANZIL, KARIYARA P.O., PUNALUR, VILAKKUDY VILLAGE KOLLAM 691 332** - **6 (ADDITIONAL APPELLANTS 3 TO 6 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED SECOND APPELLANT AS PER ORDER DATED 5.3.2020 IN IA 1/2020 IN MA.320/2013.** ## **BY ADV. SRI.M.RAJESH** ## **RESPONDENT/S:** **SUMIMOL, W/O.REJEEB KHAN,** **MULAYIPARA VEEDU, AVENASWARAM P.O., VILAKKUDI VILLAGE, PATHANAPURAM TALUK.691 501** **R1 BY ADV. SRI.P.M.HABEEB** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal.No.320 OF 2013 **A.MUHAMED MUSTAQUE & C.S.DIAS, JJ. ====================== Mat.Appeal No. 320 of 2013 ====================== Dated this the 28[th] day of January, 2021.** ## **JUDGMENT** ## **C.S.DIAS , J.** Confronted with the judgment and decree in OP 755/2011 on the file of the Family Court, Kottarakkara, the respondents in the original petition are in appeal before this Court. The second appellant died during the pendency of the appeal. Her legal representatives are impleaded as additional respondents 3 to 6. The respondent in the appeal was the petitioner in the original petition. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The concise case of the petitioner in the original petition was that she was married to the first respondent on 25.3.2010. On the date of 3 Mat.Appeal.No.320 OF 2013 betrothal, the petitioner's parents entrusted an amount of Rs.2,00,000/- to the first respondent and his parents. The petitioner was also given 50 sovereigns of gold ornaments by her parents as her share in the parental properties, which she adorned at the time of marriage. The petitioner's father was employed in the Railways and mother was employed in the Animal Welfare Department. After the marriage, the petitioner came to learn that the first respondent had no job and he was depending on his parents for his livelihood. The first respondent had misappropriated a gold chain given to him, within a week after the marriage, for the purpose of consuming alcohol. When the respondent again demanded for the petitioner's gold ornaments, to invest in his cargo business, the petitioner informed the first respondent's mother – the second respondent - who took 30 sovereigns of the petitioner's gold ornaments and handed it over to the first respondent. The second respondent 4 Mat.Appeal.No.320 OF 2013 declared that the first respondent would sell the gold ornaments as per his whims and fancies. When the petitioner refused to accede to demand of the first respondent, the first respondent physically and mentally tortured her. The respondents 2 and 3 – the mother and sister of the first respondent - abetted the first respondent to physically assault the petitioner. The respondents had constantly tortured the petitioner demanding her to get Rs.3,00,000/from her parents. Consequent to the physical torture by the respondents, the petitioner suffered an abortion on 2.11.2010. The first respondent had not taken care of the petitioner. When the petitioner resisted the respondents from selling her movable property, the first respondent again brutally manhandled her ably supported by the respondents 2 and 3. On 4.10.2010, the first respondent left the petitioner at her natal home. He categorically declared that she need return to the matrimonial home only on payment of Rs.3,00,000/-. The 5 Mat.Appeal.No.320 OF 2013 petitioner instituted a complaint before the Judicial First Class Magistrate Court-I, Punalur. In a mediation talk, the petitioner's movable properties were returned to her. However, the respondents refused to return the petitioner's gold ornaments and money. Thus, the respondents misappropriated 30 sovereigns of the petitioner's gold ornaments and the first respondent had misappropriated Rs.2,00,000/- that was entrusted to him as a trustee of the petitioner. Hence, the original petition. 3. The first respondent had filed a written statement for and on behalf of himself and the respondents 2 and 3 also. He, inter alia, contended that the third respondent had been unnecessarily impleaded as a party in the original petition. The third respondent was married 12 years before the marriage between the petitioner and the first respondent. The petitioner had only 10 sovereigns of gold ornaments. Apart from the above 10 6 Mat.Appeal.No.320 OF 2013 sovereigns of gold ornaments, the remaining ornaments were imitation gold. The first respondent was working as a Sales Executive and Cashier in a furniture shop till 2011. He was drawing a monthly salary of Rs.5,000/- per month. The petitioner got entangled in a love affair with a third person. It was due to the said relationship, she aborted the fetus in a private hospital, without the consent and knowledge of the first respondent. The respondents have returned all the movable properties of the petitioner on 12.2.2011 at Kunnikkodu Police Station as demanded by the petitioner. Hence, there is nothing more to be returned to the petitioner as claimed in the original petition. The original petition was filed at the instigation of the petitioner's relatives and her paramour. The original petition may be dismissed. 4. The petitioner and a witness were examined as PWs 1 and 2 and Exts A1 to A5 were marked through them. The first respondent was 7 Mat.Appeal.No.320 OF 2013 examined as DW1 and Exts B1 to B8 were marked through him. 5. The Family Court, after considering the pleadings and materials on record, by the impugned judgment and decree partly allowed the original petition by directing the respondents 1 and 2 to return 25 ½ sovereigns of the gold ornaments of the petitioner or its market value and also pay an amount of Rs.2,00,000/- to the petitioner with interest. The original petition as against the third respondent was dismissed. 6. Heard the learned counsel appearing for the appellants/respondents and the learned counsel appearing for the respondent/petitioner. 7. The sole question that emerges for consideration in this appeal is whether the judgment and decree passed by the Family Court in directing the appellants/respondents 1 and 2 to return 25½ sovereigns of gold ornaments or its value and Rs.2,00,000/- is correct or not. 8 Mat.Appeal.No.320 OF 2013 8. It is no longer res-integra, in view of the categoric declaration of law by this Court in **Alphonsa v. Neetha** [2019 (4) KLT 846] and **Royson Mathew** v. **Minimol [** 2020 (3) KLT 280], that the initial burden to prove the entrustment of gold and money is on the person who claims the decree for recovery of money, and unless there are pleadings/evidence on record to suggest that the entrustment was for a specific purpose or that the entrustment was in the nature of trust or under the specific understanding that the amounts will be returned, an action for recovery of money may not succeed. 9. The marriage between the first respondent and the petitioner is not disputed. The Family Court relying on Exts A2 and A5 photographs and Exts A3 and A4(b) estimates came to the conclusion that the respondent had 50 sovereigns of gold ornaments. The pertinent aspect to be looked into in a suit for recovery of gold ornaments is not the 9 Mat.Appeal.No.320 OF 2013 amount of gold ornaments the petitioner had adorned at the time of marriage, but is whether the respondents had misappropriated the same. 10. The case of the petitioner was that the respondents had misappropriated 30 sovereigns of gold ornaments and Rs.2,00,000/-, which was entrusted to the first respondent. The petitioner/respondent while she was examined as PW1, deposed that out of her 50 sovereigns of gold ornaments, a chain weighing 2 sovereigns was given to the first respondent at the time of betrothal, one bangle weighing 1 sovereign was given to the second respondent and a bangle weighing 1 sovereign and a ring weighing half sovereign totaling 1½ sovereigns was given to the third respondent. Going by the pleadings in the original petition, there is a conspicuous absence of an averment in the original petition that the second respondent was given a bangle weighing 1 sovereign and the third respondent was given a bangle and a 10 Mat.Appeal.No.320 OF 2013 ring weighing 1½ sovereigns. Nevertheless, the first respondent had categorically admitted that, at the time of marriage the petitioner adorned 10 sovereigns of gold ornaments and he had sold a chain, which was given to him by the petitioner. This averment has also not been denied by the first respondent in the written objection. 11. The Family Court after analysing the pleadings and evidence came to the conclusion that even though the petitioner had 30 sovereigns of gold ornaments, she could have only parted with 25½ sovereigns of gold ornaments. Accordingly, the Family Court held that the respondents had misappropriated 25 ½ sovereigns of gold of the petitioner. Accordingly, the Family Court decreed the original petition by directing the respondents 1 and 2 to return 25 ½ sovereigns of gold ornaments . 12. On a reappreciaton of the pleadings and materials on record, especially the oral testimonies of PWs 1 and 2 and Exts A1 to A5 and B1 to B8, we 11 Mat.Appeal.No.320 OF 2013 find that even though the petitioner had put up a plea that the respondents had misappropriated 30 sovereigns of her gold ornaments, and the Family Court arriving at a conclusion that the respondents 1 and 2 had misappropriated 25½ sovereigns of gold ornaments, we do not find any cogent evidence for arriving at the said conclusion, as there is no material on record to substantiate the finding as required to be proved in **Alphonsa** and **Royson Mathew** (Supra). 13. However, in view of the admission made by the first respondent that the petitioner had 10 sovereigns of gold ornaments and his silence with regard to the assertion in the original petition that he had misappropriated the gold chain that was adorned by the petitioner, we are of the considered opinion that the first respondent is liable to return 10 sovereigns of gold ornaments or its value thereof as claimed in the original petition. Accordingly, we modify the decree by directing the first respondent 12 Mat.Appeal.No.320 OF 2013 to return 10 sovereigns of gold ornaments or its value thereof to the petitioner, as claimed in the original petition. 14. Now coming to the question regarding return of money that was allegedly entrusted at the time of marriage. Even though PW2 had deposed that he had seen an amount of Rs 2,00,000/- being entrusted by the petitioner's elder sister's husband to the first respondent, no material has been produced before the Court to substantiate the source from which the amount was garnered. In the said circumstances, the finding of the Family Court that the petitioner's brother-in-law had entrusted an amount of Rs.2,00,000/- to the first respondent cannot be accepted. From the evidence on record, it is seen that during the cross-examination of PW1, the counsel for the respondents had made a suggestion to the petitioner that only an amount of Rs.1,00,000/- was received by the first respondent at the time of marriage. This suggestion tantamounts 13 Mat.Appeal.No.320 OF 2013 to an admission on the part of the respondents. In the said circumstances, taking the suggestion put forth in the cross-examination of PW1, as an admission, we are of the considered opinion that the first respondent had received an amount of Rs.1,00,000/- as the petitioner's share in her parental properties. Thus the first respondent is liable to return the aforesaid amount of Rs.1,00,000/- to the petitioner. 15. On an overall reappreciation of the pleadings and the materials on record, and in light of our aforesaid findings and the law laid down in **Alphonsa** and **Royson Mathew** (supra), we are of the considered opinion that the impugned judgment and decree has to be modified in tune with findings arrived by us. Accordingly, the appeal is allowed in part as follows: - (i) The judgment and decree in OP 755/2011 is set aside in part. - (ii) The first appellant/first respondent is directed to return 10 sovereigns of gold ornaments or its 14 Mat.Appeal.No.320 OF 2013 market value as on the date of the original petition to the respondent/petitioner, within three moths from today. - (iii) The first appellant/first respondent is also directed to return an amount of Rs.1,00,000/- to the respondent/petitioner within three months from today. - (iv) In case the first appellant/first respondent fails to return the gold ornaments or its value thereof and an amount of Rs.1,00,000/within three months from today, the respondent/petitioner would be entitled to realise the aforesaid amounts with interest at the rate of 6% per annum from - the date of petition till the date of realisation, personally and from the assets of the first respondent. - (v) The judgment and decree as against the second respondent is set aside. - (vi) In the facts and circumstances of the case, the parties shall bear their respective costs. ## **Sd/-** **A.MUHAMED MUSTAQUE** ## **JUDGE** ## **Sd/-** ## **C.S.DIAS** **JUDGE** **Sks/1.2.2021**