Mohammed Jaffar v. K.V. Safreena

**Mat.Appeal.No.161 OF 2012** **1** **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 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942** **Mat.Appeal.No.161 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP 747/2010 OF FAMILY COURT,KOZHIKODE** ## **APPELLANT/RESPONDENT:** **MOHAMMED JAFFAR** **S/O.K.P.ALIKKOYA, POOVIL PARAMBA, MORIKKARA P.O., KAKKODI VIA, KOZHIKODE. REPRESENTED BY PA HOLDER ARSHAD.M.P. S/O.MOIDEEN KOYA, RESIDING AT BAITHUL AMAMI, KOOVIL PARAMBA,.P.O., MOORIKKARA, KAKKODI, KOZHIKODE THALUK.** ## **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/RESPONDENT:** **K.V.SAFREENA D/O.IMBICHAMMU, K.V.HOUSE, KANNATHIL PARAMBA, NALLALAM, KOZHIKODE-673027.** **R1 BY ADV. SRI.C.M.MOHAMMED IQUABAL** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.161 OF 2012** **2** ## **JUDGMENT** **Dated this the 11th day of February 2021** ## **C.S.Dias,J.** Confronted with the judgment and decree in O.P. No.747/2010 of the Family Court, Kozhikode, the respondent in the original petition is in appeal. The petitioner in the original petition is the respondent in the appeal. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The case of the petitioner, in brief, in the original petition is that she was married to the respondent on 25.5.2008. The parties are Muslims. A child was born in their wedlock on 25.10.2009. The petitioner was given 30 sovereigns of gold ornaments, as her share in her parental properties. The respondent was given a two sovereign gold chain as mahar. The respondent mentally and **Mat.Appeal.No.161 OF 2012** **3** physically ill-treated and harassed the petitioner after consuming alcohol. The respondent took away four bangles of the petitioner weighing one sovereign each and misappropriated the same. He demanded for more dowry. The petitioner was taken to her natal home for the delivery of the child. Even after the birth of the child, the respondent or his family members have never gone to see the mother and the child. The respondent had borrowed an amount of Rs.5,000/- from the mother of the petitioner, but he returned only Rs.3,000/-. Hence, the respondent is liable to return four sovereigns of gold ornaments or its market value of Rs.56,000/-, the two sovereigns chain or its value of Rs.28,000/- and Rs.2,000/borrowed by the respondent from the petitioner's mother. 3. The respondent filed a written objection, inter alia, refuting the allegations in the original petition. He denied that he had misappropriated four ## **Mat.Appeal.No.161 OF 2012** ## **4** bangles of the petitioner as alleged in the original petition. He stated that he never ill-treated or harassed the petitioner as alleged. According to him, the petitioner went to her natal home when she was two months pregnant. The respondent sent all the petitioner's gold ornaments which were lying in the matrimonial home through his neighbour – Naveen. The respondent has not borrowed any money from the petitioner's mother as alleged. The respondent is not liable to pay any amount as claimed in the original petition. 4. The petitioner had also filed M.C 295/2010 against the respondent, seeking an order of maintenance for herself and their child. 5. The Family Court consolidated and jointly tried M.C 295/2010 and O.P.7472010. 6. The petitioner and two witnesses were examined as PW1 to PW3 and Exts.A1 and A2 were marked through them. The respondent was examined **Mat.Appeal.No.161 OF 2012** **5** as RW1 and Ext.B1 series was marked through him. 7. The Family Court, after evaluating the pleadings and materials on record, by the impugned judgment and decree allowed the original petition permitting the petitioner to realise six sovereigns of gold ornaments or its market value of Rs.1,04,000/and also realise an amount of Rs.2,000/- from the respondent and his assets. 8. Heard the learned counsel appearing for the appellant/respondent and the learned counsel appearing for the respondent/petitioner. 9. The sole question that emerges for consideration in this appeal is whether the impugned judgment and decree passed by the Family Court is correct or not. 10. 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** **Mat.Appeal.No.161 OF 2012** **6** **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. 11. The specific case of the petitioner is that she had 30 sovereigns of gold ornaments, out of which the respondent misappropriated four sovereigns of gold ornaments. The respondent was also given a two sovereign gold chain as Mahar. She also contended that the respondent had borrowed an amount of Rs.5,000/- from her mother, but he returned only an amount of Rs.3,000/-. So the petitioner is entitled to recover the remaining amount of Rs.2,000/-. **Mat.Appeal.No.161 OF 2012** **7** 12. In order to substantiate the pleadings in the original petition, the petitioner and two witnesses were examined. The petitioner was given four sovereigns of gold ornaments from the Yatheem Fund, as evidenced by Ext.A1 document. The two sovereign gold chain was given as Mahar. It is substantiated that as per Ext.A2, the Mosque Committee had conducted a mediation proceedings. PW3, the Secretary of the Yatheem Fund corroborated the oral testimony of PW1- the petitioner. He had proved that the petitioner was given 74.8 gms of gold ornaments purchased from Malabar Gold, which is reflected in Ext.A1. PW2, the President of Ansarudheen Sangham Palli Madrassa Paripalana Committee, who knows both the petitioner and the respondent, also deposed that there were marital disputes between the parties and he is aware of all that had transpired. The respondent attended to the mediation proceedings and offered to **Mat.Appeal.No.161 OF 2012** **8** return the gold ornaments, but did not turn up. The respondent refused to mount the box. It was his Power of Attorney Holder who gave evidence as RW1. On going through the oral testimony of RW1, it is seen that he is totally in the dark regarding the entrustment and misappropriation of the gold ornaments. However, the case of the respondent in the written objection is that he returned the gold ornaments to the petitioner, through his neighbour Naveen. Hence, the fact that the gold ornaments were in the respondent's possession stands substantiated. The onus of proof was on the respondent to prove that he had returned the gold ornaments, which he has not rebutted. We do not find any material to discredit the oral testimonies of PW1 to PW3, pertaining to the entrustment and misappropriation of gold ornaments. 13. Now coming to the question of misappropriation of money. Going by the ratio in ## **Mat.Appeal.No.161 OF 2012** **9** **Alphonsa** and **Royson Mathew** (supra), the allegation that the mother of the petitioner had entrusted an amount of Rs.5000/-, out of which the respondent had misappropriated Rs.3,000/- is without any proof. The petitioner's mother, who was the best witness, was not examined. Hence, we are of the opinion that the direction of the Family Court permitting the petitioner to realise an amount of Rs.2,000/- from the respondent is without any foundation and is, therefore, liable to be set aside. 14. On a re-appreciation of the pleadings and materials on record, we are of the definite opinion that the petitioner has proved that the respondent has misappropriated six sovereigns of gold ornaments and that the Family Court has rightly decreed the original petition holding that the respondent is liable to return the six sovereigns or its market value of Rs.1,04,000/-. In light of our findings on the misappropriation of money by the respondent, the **Mat.Appeal.No.161 OF 2012** **10** ## decree to pay an amount of Rs.2,000/- is set aside. In the result, the Mat.Appeal is allowed, in part, as follows: (i) The respondent/petitioner is permitted to realise an amount of Rs.1,04,000/- from the appellant/respondent within a period of two months from today, failing which the appellant would be liable to pay interest at the rate of 6% per annum from 21.5.2011, i.e, the date of decree till the date of realisation. (ii) The decree for payment of Rs.2,000/by the appellant/respondent to the respondent/petitioner is set aside. (iii) In the facts and circumstances of the case, the parties are directed to bear their respective costs. ## **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** ma/12.02.2021 **C.S.DIAS JUDGE** **/True copy/**