Ramya Sunildas v. Sunildas and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** **Mat.Appeal.No.552 OF 2017** ## **AGAINST THE ORER IN OP 1308/2014 DATED 07-04-2017 OF FAMILY COURT,THRISSUR** ## **APPELLANT/PETITIONER:** **RAMYA SUNILDAS AGED 30 YEARS,W/O. SUNILDAS AND D/O. RAMESH PALAZHY,PALAZHY HOUSE, PALAKKAL AVINISSERY P.O. AND VILLAGE,THRISSUR DISTRICT, PIN CODE 680 306.** ## **BY ADV. SRI.C.CHANDRASEKHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SUNILDAS AGED 43 YEARS, KIZHUVEETTIL HOUSE,P.O ERUMPANAM, CHITRAPUZHA, THIRUVANKULAM VILLAGE,ERNAKULAM TALUK, PIN 682 309** - **2 K. PRABHAKARAN AGED 73 YEARS,KIZHUVEETTIL HOUSE P.O ERUMPANAM, CHITRAPUZHA, THIRUVANKULAM VILLAGE, ERNAKULAM TALUK, PIN 682 309** **3 MRS. PADMINI PRABHAKARAN AGED 68 YEARS, W/O. PRABHAKARAN KIZHUVEETTIL HOUSE, P.O ERUMPANAM CHITRAPUZHA, THIRUVANKULAM VILLAGE, ERNAKULAM TALUK, PIN 682 309.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2021, ALONG WITH Mat.Appeal.739/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.552 & 739/2017** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** ## **Mat.Appeal.No.739 OF 2017** **AGAINST THE ORDER IN OP 1308/2014 DATED 07-04-2017 OF FAMILY COURT,THRISSUR** ## **APPELLANTS/RESPONDENTS:** **1 SUNILDAS AGED 43 YEARS KIZHUVEETTIL HOUSE,P.O.ERUMBANAM, CHITHRAPPUZHA, THIRUVAMKULAM VILLAGE,ERNAKULAM TALUK, PIN 682 309. 2 K.PRABHAKARAN AGED 72 YEARS,KIZHUVEETTIL HOUSE, P.O.ERUMBANAM, CHITHRAPPUZHA, THIRUVAMKULAM VILLAGE, ERNAKULAM TALUK, PIN: 682 309. 3 PADMINI PRABHAKARAN AGED 67 YEARS W/O.K.PRABHAKARAN,KIZHUVEETTIL HOUSE, P.O.ERUMBANAM, CHITHRAPPUZHA, THIRUVAMKULAM VILLAGE,ERNAKULAM TALUK, PIN: 682 309.** **BY SUNILDAS(PARTY IN PERSON)** ## **RESPONDENT/PETITIONER:** **RAMYA SUNILDAS, AGED 30, W/O.SUNILDAS, D/O.RAMESH PALAZHY, PALAZHY HOUSE, PALAKKAL AVINESSERY P.O. & VILLAGE,THRISSUR DISTRICT, THRISSUR DISTRICT, PIN: 680 306.** **R1 BY ADV. SRI.C.CHANDRASEKHARAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2021, ALONG WITH Mat.Appeal.552/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.552 & 739/2017** **3** ## **JUDGMENT** ## **Dated this the 9th day of February 2021 C.S.Dias,J.** As these appeals arise out of a common judgment in O.P. No.1308/2014 and M.C 425/2014 of the Family Court, Thrissur, between the same parties, they are being disposed of by this common judgment. 2. Ramya Sunildas (the appellant – the wife of Sunildas (the 1[st] respondent) and the daughter-in-law of K.Prabhakaran and Padmini Prabhakaran (respondents 2 and 3) – had filed O.P. No.1308/2014 against the respondents, seeking a decree for return of money and gold ornaments. She had also filed M.C 425/2014 seeking an order for maintenance from Sunildas. The Family Court by the impugned common judgment allowed O.P. No.1308/2014, in part, and allowed M.C No.425/2014 by ordering Sunildas to pay an amount of Rs.6,000/- per month to Ramya Sunildas **Mat.Appeal.No.552 & 739/2017** **4** as monthly maintenance. 3. Ramya Sunildas, being aggrieved by the rejection of certain claims has filed Mat.A 552/2017 and Sunildas and his parents, being aggrieved by the partial allowing of O.P.No.1308/2014, have filed Mat.A No.739/2017. For the sake of convenience, the parties are being referred to as per their status in O.P.No.1308/2014. 4. The concise case of the petitioner is that she is the wife of the 1[st] respondent. The respondents 2 and 3 are the parents of the 1[st] respondent. The parties are Hindus. The marriage between the petitioner and the 1[st] respondent was solemnised on 20.4.2011. A male child was born in the wedlock on 26.3.2012. At the time of marriage, the petitioner was given 31 sovereigns of gold ornaments by her parents and 19 sovereigns of gold ornaments by her relatives. She was also given Rs.3,00,000/- as her share in her parental properties. The gold ornaments **Mat.Appeal.No.552 & 739/2017** ## **5** and patrimony were entrusted to the respondents as the petitioner's trustees. The respondents ill-treated the petitioner on the ground that she had not brought sufficient dowry. The petitioner returned to her natal home on 6.7.2014. Hence, the petitioner is entitled for a decree for return of her money and gold ornaments. 5. The original petition was resisted by the respondents, who filed a written objection, inter alia, refuting the allegations in the original petition. The marriage as well as the paternity of the child are admitted. The respondents bluntly denied that the petitioner had entrusted money and gold ornaments to them. They stated that the petitioner might have had 25-30 sovereigns of gold ornaments. At the time of marriage, the petitioner's parents were residing in a rented building. After the marriage, they desired to buy a residential building for which they took the petitioner's gold ornaments. There were marginal ## **Mat.Appeal.No.552 & 739/2017** **6** differences between the couple due to the fear psychosis of the petitioner. She was suffering from epilepsy. She used to abuse the 1[st] respondent and his relatives for no reason. She assaulted the 2[nd] respondent and threw various household articles in the matrimonial home. The petitioner attempted to commit suicide. On the advice of the Police, the couple started residing in a rented house. The petitioner was acting on the dictates of her mother. She had filed a complaint before the Hill Palace Police Station and Crime No.1064/2014 was registered against the respondents, alleging that they committed an offence under Section 498A of the Indian Penal Code. The respondents secured an order of anticipatory bail. The respondents are not liable to return any gold ornaments or money as claimed in the petition. Hence the original petition may be dismissed. 6. The Family Court consolidated and jointly tried O.P. No.1308/2014 with M.C 425/2014. The **Mat.Appeal.No.552 & 739/2017** **7** petitioner was examined as PW1 and Exts.A1 to A13 were marked through her in evidence. The respondent and two witness were examined as RW1 to RW3 and Exts.B1 to B13 were marked through them. 7. The Family Court, after evaluating the pleadings and materials on record, by the impugned judgment, allowed O.P. No.1308/2014 by directing the respondents 1 to 3 to return 21 sovereigns of gold ornaments or to pay the value of the same at the rate of Rs.21,500/- per sovereign with 6% interest from the date of the order till date of realisation. 8. Heard. 9. The sole question that emerges for consideration in these appeals 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** **Mat.Appeal.No.552 & 739/2017** **8** **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. 11. The case of the petitioner is that she had 50 sovereigns of gold ornaments at the time of marriage and the parents had entrusted an amount of Rs.3,00,000/- as her share in her parental properties. The gold ornaments as well as the money were entrusted to the respondents as her trustees. However, the respondents misappropriated the gold ornaments as well as patrimony. The petitioner produced Exts.A3 to to A6 to prove the purchase of **Mat.Appeal.No.552 & 739/2017** **9** 256.70 grams equivalent to 32.09 sovereigns of gold ornaments, Exts.A7 and A8 insurance certificate with respect to the ornaments and Ext.A13 marriage album to establish that she had adorned gold ornaments at the time of marriage. However, the respondents produced Ext.B8 F.I.R, wherein the petitioner had stated that the petitioner had only 42 sovereigns of gold ornaments at the time of marriage. There was no allegation regarding the alleged entrustment of Rs.3 lakh to the respondents. Even in Ext.B9 final report, there is no charge regarding entrustment of Rs.3,00,000/- and 50 sovereigns of gold ornaments. 12. On re-appreciation of the oral testimonies of PW1, RW1 to RW3, Exts.A1 to A13 and Exts.B1 to B13, particularly Ext.B1 which proves that 131 gms of gold ornaments were pledged with the Union Bank of India, Ext.B2 cheque which establishes that the petitioner withdrew an amount of Rs.2,56,000/- from **Mat.Appeal.No.552 & 739/2017** **10** her bank account on 5.10.2012, Exts.B5 to B7 series, proved by RW1 and RW2, which establish that 27gms of gold ornaments were pledged with the Muthoot Fincorp Limited and an amount of Rs.60,455/- was obtained from the said institution, it substantiates that the petitioner's gold ornaments were pledged in financial institutions Likewise, it is on record that the bank account in Union Bank of India, where the money was credited, was opened by the petitioner and the 1[st] respondent made arrangements to introduce the petitioner to the bank. The address shown in the bank is the address of the matrimonial home. 13. Although the respondents attempted to set up a case that the money that was obtained by the petitioner by mortgaging her gold was used for the construction of her parental home, the said fact was rejected by the Family Court on finding that the petitioner's parents had sufficient money and further **Mat.Appeal.No.552 & 739/2017** ## **11** that their house was constructed much later after the gold ornaments were mortgaged. According to us, the Family Court has rightly arrived at the conclusion that 21 sovereigns of gold ornaments were pledged in the financial institutions for the purpose of the respondents, and that the respondents are liable to return 21 sovereigns of gold ornaments or its value thereof. Similarly, the Family Court on finding that there was no evidence with regard to the entrustment of Rs.3,00,000/-, rightly rejected the claim of the petitioner. 14. Going by the law laid down by this Court in **Alphonsa v. Neetha** and **Royson Mathew** v. **Minimol** (supra) and on a re-appreciation of the pleadings and materials on record, particularly Exts.B1 to B9, we are of the considered opinion that there is no error or illegality in the impugned judgment and decree passed by the Family Court in **Mat.Appeal.No.552 & 739/2017** ## **12** O.P. No.1308/2014. In the result: (i) The judgment and decree in O.P No.1308/2014 are confirmed. (ii) Mat.A Nos.552/2017 and 739/2017 are dismissed. (iii) In the facts and circumstances of the case, the parties shall bear their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **C.S.DIAS** ma/10/02/2021 **JUDGE** ## **/True copy/**