Renjith R Nair, M. Rajendran Nair, Lekhar Nair v. Sruthi

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 MAT.APPEAL NO. 236 OF 2018`** ## **`AGAINST THE JUDGMENT IN OP 466/2013 OF FAMILY COURT, THIRUVANANTHAPURAM`** ## **`APPELLANTS/COUNTER PETITIONER:`** ``` 1RENJITHR.NAIR AGED33YEARS,S/O.M.RAJENDRANNAIR, RESIDINGATTHONNALLOOR,T.C.18/812(5), MUDAVANMUGHAL,POOJAPPURAP.O., - THIRUVANANTHAPURAM,PINCODE695032. 2M.RAJENDRANNAIR S/O.MADHAVANPILLAI,RESIDINGAT DO.DO. 3LEKHAR.NAIR W/O.M.RAJENDRANNAIR,RESIDINGAT DO.DO. BYADVSRI.A.D.SHAJAN ``` ## **`RESPONDENT/PETITIONER:`** ``` SRUTHI AGED26YEARS,D/O.SREEKUMAR.T., RESIDINGATSREEVILASOM,KUTHIRACHIRA, - PUNALURP.O.,KOLLAMDISTRICT691305. ``` ``` BYADV. SMT.MAJIDA.S(CAVEATOR) ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARD ON26.07.2023,THECOURTON18.08.2023DELIVEREDTHE FOLLOWING: ``` ``` Mat.AppealNo.236/2018 ``` ``` 2 ``` ## **J U D G M E N T** ## Sophy Thomas, J. The respondents in OP No.466 of 2013 on the file of Family Court, Thiruvananthapuram, are the appellants herein, assailing the judgment and decree in favour of the respondent for 743.70 grams of gold ornaments, and also against dismissal of their counterclaim. 2. The facts in brief could be stated as follows: The marriage between the 1st appellant and the respondent was solemnised on 09.04.2011 as per Hindu rites and custom. 200 sovereigns of gold ornaments were given to the respondent from her family at the time of marriage. Within one week of their marriage, the 2nd appellant/father-in-law, received her entire gold ornaments to be kept in a bank locker in SBT, Sasthamangalam, opened in the joint name of the respondent and appellants 1 and 2. Thereafter, she had never seen her gold ornaments. Matrimonial life of the respondent with the 1st ``` Mat.AppealNo.236/2018 ``` ``` 3 ``` appellant was miserable, and later their marriage was dissolved through court of law. The respondent filed OP No.466 of 2013 for getting back her 200 sovereigns of gold ornaments from the appellants. Initially that OP was decreed _ex parte_ and the appellants filed Mat Appeal before this Court and got the _ex parte_ decree set aside. While disposing that appeal, this Court directed the appellants to return the gold ornaments of the respondent from the Bank locker. Accordingly the gold ornaments in the bank locker as reported by the Advocate Commissioner were returned to the respondent as per Ext.C1 Commission Report. Therefore, as directed by this Court, the Family Court afforded opportunity to both sides to adduce further evidence. 3. The evidence consists of oral testimony of PWs 1 to 4 and Exts.A1 to A16 series documents from the side of the respondent/wife, and oral testimony of CPW1 and Exts.B1 to B4 from the side of the appellants, and also Ext.C1 Commission Report. ``` Mat.AppealNo.236/2018 ``` ``` 4 ``` 4. After hearing both sides, learned Family Court judge found that apart from the gold ornaments received from the locker, the respondent was eligible to get 743.70 grams of gold ornaments or its market value from appellants 1 and 2, and the counterclaim put forwarded by the appellants was liable to be dismissed. Aggrieved by that judgment and decree, the appellants have come up with this appeal. 5. Heard the 2nd appellant who appeared in person, and learned counsel appearing for the respondent. 6. Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment and decree, warranting interference by this Court. 7. The case of the respondent/wife is that she was given 200 sovereigns of gold ornaments from her family at the time of marriage. Within one week of marriage, her entire gold ornaments were entrusted with appellants 1 and 2, to be kept in the Bank locker which was opened in the joint name of the respondent and appellants 1 and 2. After keeping the ornaments ``` Mat.AppealNo.236/2018 ``` ``` 5 ``` in the locker, she had never seen the same. In Mat Appeal No.527 of 2017, which was filed by the appellants to set aside _ex parte_ decree, this Court directed the appellants to return the ornaments of the respondent kept in the locker, and accordingly as per Ext.C1 Commission Report, she received 877.3 grams (109.66 sovereigns) of gold ornaments from the locker. The Family Court granted a decree in her favour for the remaining 743.70 grams of gold or its equivalent value. The appellants had put forward a counterclaim for 12 sovereigns of gold ornaments and that was rejected by the Family Court. 8. According to the appellants, the respondent never had 200 sovereigns of gold ornaments as stated in the petition. Though they are not aware of its exact weight, according to them, she was wearing approximately 90 sovereigns of gold ornaments at the time of marriage. In the original petition, in paragraph 1, the respondent has pleaded that, her parents provided 200 sovereigns of gold ornaments to her, in connection with the marriage. In paragraph 3, she has pleaded that, after the marriage reception at Thiruvananthapuram, as directed by the 3rd ``` Mat.AppealNo.236/2018 ``` ``` 6 ``` appellant, she handed over her entire gold ornaments to the 2nd appellant, and it was kept in the Bank locker in SBT, Sasthamangalam, opened in the joint name of herself and appellants 1 and 2. The key of the locker was always with the 2nd appellant, and she never operated that locker. So she had no occasion to see her gold ornaments after it was kept in the bank locker. She further pleaded that as her entire 200 sovereigns of gold ornaments were kept in the locker, she was forced to wear her thali in a thread, for one month. 9. The respondent is relying on Exts.A1 series, A2 series and A5 series documents to prove that she was having 200 sovereigns of gold ornaments at the time of her marriage. The total weight of gold ornaments purchased as per Ext A1 series is only 949.58 grams (118.75 sovereigns). The total weight of gold ornaments as per Ext.A2 series is 172.780 grams (21.6 sovereigns). Admittedly, Ext. A1 series are only estimates for purchase of gold. The dates of purchase as per that document are 29.12.2010, 28.01.2011 and 07.04.2011. Since the date of marriage was on 09.04.2011, we can assume that those ``` Mat.AppealNo.236/2018 ``` ``` 7 ``` purchases were in connection with her marriage though it is only an estimate. 10. Ext.A2 series retail invoice and estimate is in the name of the 1st appellant. The respondent would say, though that invoice and estimate were in the name of the 1st appellant, her father only paid the amount through his visa card. The payment through visa card is subsequently seen written in the printed invoice, and no sanctity could be attached for the same. If her father purchased that gold using his visa card, there was no probability for getting the invoice or estimate in the name of the 1st appellant, that too on 27.12.2010, i.e, much prior to the marriage. 11. In paragraph 3 of the original petition, towards last, the respondent has pleaded that since she was wearing thali in a thread, after putting her entire gold ornaments in the locker, the 2nd appellant purchased a chain for her, for putting her thali. In the original petition, she had no case that the appellants had given any chain to her in connection with the marriage. But in the ``` Mat.AppealNo.236/2018 ``` ``` 8 ``` replication to the counterclaim, the respondent has admitted that the appellants had gifted a long chain to her at the time of marriage along with thali. She further would say that after marriage, they disposed or rather exchanged that chain, and purchased another chain, one necklace, and one pair of studs, which are scheduled in the counterclaim. According to her, the chain was given to her for putting her thali, but the studs and necklace were under the custody of the appellants themselves. 12. Ext.A2 series documents will show purchase of a gold chain weighing 124.190 grams and a ring weighing 4.070 grams and 4 bangles weighing 44.520 grams. Since Ext.A2 series are in the name of the 1st appellant, in all probability the chain in that estimate might have been the long chain given by the appellants to the respondent, and the ring mentioned might have been the wedding ring. Moreover, Ext.A2 series documents are issued from Bhima Jewellery on a different date other than the dates mentioned in Ext.A1 series estimates. So, we could infer that those gold ornaments were purchased by the 1st appellant himself and the case of the appellants, that when the 1st ``` Mat.AppealNo.236/2018 ``` ``` 9 ``` appellant and respondent were staying together, she took custody of that document seems to be more probable. 13. Ext A1 series estimates clearly indicate that those ornaments were purchased from KLM Jewellery and not from Bhima Jewellery, that also probabilises the case of the appellants, that Ext.A2 series invoice and estimates were for the gold purchased by the 1st appellant from Bhima Jewellery. It is true that, four bangles were also purchased as per Ext.A2 invoice. There is every probability that in connection with the marriage of a son, gold ornaments might have been purchased for other family members like mother, sister etc. So only because four bangles were seen purchased as per Ext.A2 invoice, we cannot jump into a conclusion that those ornaments were purchased for the respondent, and its price was paid by her father. The receipt of the amount through visa card is a subsequent entry made in ink, in the printed invoice, and since those documents were in possession of the respondent, and she herself produced it before court, we cannot rule out the possibility of a subsequent manipulation. So Ext.A2 series cannot be taken as a document to ``` Mat.AppealNo.236/2018 ``` ``` 10 ``` show purchase of gold ornaments by the father of the respondent, in connection with her marriage. 14. Now coming to Ext.A5 series documents, it will show purchase of gold ornaments from Gulf countries during the period 1990. According to the appellants, during the period of that purchase the respondent might have been aged only 2 years or so. We are aware of the fact that parents may purchase gold ornaments, for their daughters, even when they are young, in anticipation of their marriage. As far as Ext.A5 series are concerned, we are not sure whether those ornaments were purchased by the father of the respondent, and if at all her father purchased the same, there is no proof that those ornaments were given to her at the time of marriage. It is a usual practice that old gold ornaments may be exchanged to purchase new ones in connection with the marriage. Ext.A1(b) shows old gold return and Ext. A1(a) shows sales return. If at all gold ornaments as per Ext.A5 were purchased by the father of the respondent, since her marriage was after 21 years of that purchase, it might have been exchanged earlier, or at the time of purchase of gold as per ``` Mat.AppealNo.236/2018 ``` ``` 11 ``` Ext.A1 document in connection with her marriage. So we are not inclined to accept Ext.A5 series to find that those ornaments were given to the respondent at the time of her marriage. 15. Since Ext.A1 series purchases were made within 3-4 months prior to the marriage, we can accept that document to find that 949.58 grams (118.75 sovereigns) of gold ornaments were purchased in connection with her marriage. According to PW1, her grandfather had gifted her a gold chain weighing 10 sovereigns. PW3-the grandfather was examined to say that he had purchased a gold chain weighing 10 sovereigns, from Kollam Josco and it was given to PW1 on the date of marriage. Even if the bill was not available, photographs might have been taken when the grandfather gifted such a big chain to his granddaughter at the time of marriage. But no such proof is there, except the interested testimony by PW3. 16. From the pleadings and evidence of the respondent, what we could gather is that she was given 200 sovereigns of gold ornaments from her family and she was wearing the same at the ``` Mat.AppealNo.236/2018 ``` ``` 12 ``` time of marriage. Ext A3 photographs clearly show the ornaments worn by her at the time of marriage. It clearly shows that she was wearing 9 chains and 19 bangles. Ext. A1 series estimates also tallies with the number of chains purchased as per that estimates, which is only 9. The Commissioner returned gold ornaments to the respondent, which were available in the Bank locker. As reported by the Commissioner, the description of ornaments in the schedule were different from the actual weight of the ornaments taken from the locker. But those ornaments were identified by the respondent with the help of wedding photograph and it was returned to the respondent on the basis of such identification. 17. PW1-the respondent admitted during cross examination that except the chain in Ext.A3(b) all other chains and necklaces were received back. Obviously what she intended was Ext.A2(b) estimate, as Ext.A3(b) was only the wedding photograph. As we have seen, the chain mentioned in Ext.A2(b) was the long chain admittedly given by the appellants to the respondent, and she would say that the said chain was exchanged for a chain, ``` Mat.AppealNo.236/2018 ``` ``` 13 ``` necklace, stud etc., and the chain was given to her for putting her thali. So by receiving the chains and necklaces from the bank locker, she had received all her chains and necklaces, which she was having at the time of her marriage. 18. The respondent put forward a new case that though she was given 200 sovereigns of gold ornaments from her family, she was not wearing the entire ornaments at the time of marriage. Some of the ornaments, which were not matching, were not worn by her as decided by the beautician. Those ornaments which were not worn by her were kept in a box, and it was separately given to the appellants. But she has no such case in her petition. Moreover, she has not stated when that box was taken to the house of the appellants or with whom it was entrusted. Normally makeup of the bride and wearing of ornaments will be done in her house or in a beauty parlour near to her house. So if at all the beautician returned some of the ornaments which were not matching, it would have been with her parents only, and unless and until it is taken to the house of the bride-groom, and is entrusted with them, we cannot blindly accept her case that, she ``` Mat.AppealNo.236/2018 ``` ``` 14 ``` subsequently entrusted the remaining ornaments with the appellants. There is no pleading or proof to substantiate that contention. At the best, we can accept Ext.A1 series documents to find that she was having around 119 sovereigns of gold ornaments, and she was wearing the same at the time of marriage. As per Ext.C1 Commission Report she received back 877.3 grams of gold which is around 110 sovereigns. It is difficult to believe that a girl who was gifted with 200 sovereigns of gold ornaments from her family, was not permitted to wear a single gram of gold, even to wear her thali. The case of the respondent is that since no gold ornaments were given to her for about one month, she had to wear the thali in a thread. That statement is unbelievable and exaggerated, and we are not inclined to accept that statement. As we have seen she was having around 119 sovereigns of gold ornaments, out of which, around 110 sovereigns were kept in the locker which she received back as per Ext.C1 Commission Report. So obviously, she was keeping around 9 sovereigns of gold ornaments with her for her daily use, and that is quite probable in normal human conduct. ``` Mat.AppealNo.236/2018 ``` ``` 15 ``` 19. PW1 admitted that for her 2nd marriage, she was given 100 sovereigns of gold ornaments. That marriage was even prior to the receipt of gold ornaments as per Ext.C1 Commission Report. So the version of the appellants is that, if at all she was having some ornaments which she did not wear at the time of marriage, she might have been keeping the same at her house, and it might have been used for her 2nd marriage. Moreover, the 2nd appellant submitted before us that, as soon as the 1st appellant and respondent fell apart, they were eager to return the gold ornaments of the respondent, for which he filed a petition before the Assistant Commissioner of Police, Condonement, to summon the petitioner and her parents to settle the matter amicably, and to return the gold ornaments of the respondent. Ext.A7 the locker details will show that it was opened on 11.04.2004, i.e., on the 2nd day of the marriage. The 2nd appellant admitted that gold ornaments of his wife were also kept in that locker and so he used to operate the same. Ext.A7 will show that he had operated that locker on several days including ``` Mat.AppealNo.236/2018 ``` ``` 16 ``` 20.03.2013 and 22.03.2013. According to the 2nd appellant, he had taken the ornaments of the respondent from the locker on 20.03.2013 for handing it over to her, before the Commissioner of Police, but since she did not come, he kept it back in the locker on 22.03.2023. The last operation of that locker by the 2nd appellant seems to be on 22.03.2013 as per Ext A7 document. 20. Admittedly, 877.3 grams (109.66 sovereigns) of gold were returned to the respondent from the locker as per Ext.C1 Commission Report. The respondent has no case that the appellants ever misused her gold ornaments. Her definite case in the petition was that, her entire gold ornaments were kept in the locker and thereafter, she had not seen the same. So she prayed for an injunction also against the appellants not to operate that locker. As we have seen, Ext.A1 series documents will prove that the respondent was having about 119 sovereigns of gold ornaments, out of which, around 110 sovereigns were available in the locker and it was returned to her. Normally, 9 sovereigns might have been kept with her for her daily use. So there is nothing to suggest that the appellants ever misused or ``` Mat.AppealNo.236/2018 ``` ``` 17 ``` misappropriated her gold ornaments kept in the locker. Admittedly, she was also present along with the appellants when she put the gold ornaments in the locker. Though she filed an additional affidavit for the remaining gold ornaments to be returned to her, the Family Court found that the additional schedule contained the ornaments mentioned in the original petition itself. The ornaments found in the locker were not tallying with the schedule given by the respondent in the original petition. The respondent failed to show that the appellants misused any of the gold ornaments, and there is nothing to show that apart from the gold ornaments worn by her at the time of marriage, she had brought any other ornaments to her matrimonial home and entrusted the same with the appellants to be kept in the locker. So the Family Court went wrong in finding that after returning 877.3 grams of gold as per Ext.C1 Commission Report, still the respondent was entitled to get back 743.70 grams of gold or its value from appellants 1 and 2. So the impugned judgment granting a decree for 743.70 grams of gold to the respondent is liable to be set aside. ``` Mat.AppealNo.236/2018 ``` ``` 18 ``` 21. Now coming to the counterclaim put forward by the appellants, the Family Court found that, earlier the OP was decreed ex parte, and then the counterclaim was dismissed. Though the appellants preferred Mat.Appeal No.527 of 2017 before this Court against the ex parte judgment, they did not prefer any petition to restore the counterclaim which was dismissed for default. So the Family Court found that the order dismissing the counterclaim became final, and so the appellants were not entitled to get any relief as per the counterclaim. In the present appeal also, though in the appeal memorandum, the appellants have got a prayer for allowing the counterclaim, no separate appeal has been preferred against dismissal of the counterclaim. In **Girija v. Rajan** [2015 (1) KLT 695], a Single Bench of this Court held that ‘if a defendant, who raised a counterclaim in a suit, fails both in the suit and in the counterclaim, will have to file separate appeals challenging the decree in the suit and the counterclaim.’ But a Division Bench of this Court in **Abdul Nazer v. Lakshmana Das** [2016 (3) KLT ``` Mat.AppealNo.236/2018 ``` ``` 19 ``` 450] held that where case and counterclaim are disposed of by a judgment in the same suit, followed by a composite decree, there is only one decree and not separate decrees, and insisting for separate appeals for a suit and counterclaim by the same party, will cause unnecessary hardship and create unnecessary procedural hurdle to advance justice. So the Division Bench held that single appeal will lie against case and counterclaim, but separate court fee will have to be paid for the respective claims and that will be sufficient. 22. In the case on hand, the OP was filed by the respondent in the year 2013. The appellants filed objection to the OP in the year 2013 itself. The counterclaim was incorporated by way of an amendment in the year 2016, i.e., after 3 years of filing the written statement. It is true that the respondent had admitted receipt of a chain given by the 2nd appellant for putting her thali. But since no court fee has been paid for that claim in the appeal, it cannot be entertained by this Court. Moreover, the Family Court found that when the suit was decreed ex parte, the counterclaim was dismissed. In the appeal, though the ex parte decree was set ``` Mat.AppealNo.236/2018 ``` ``` 20 ``` aside, the counterclaim was not restored and so it has become final. For that reason also, the counterclaim put forward by the appellants is liable to be rejected. 23. In the result, the appeal is liable to be allowed in part, setting aside the judgment and decree to the extent of directing appellants 1 and 2 to return 743.70 grams of gold ornaments or its value to the respondent. Hence the appeal is allowed in part to the extent as above, and no order is made as to costs. ``` Sd/- ``` ## **A.MUHAMED MUSTAQUE JUDGE** ``` Sd/- ``` **SOPHY THOMAS JUDGE** DSV/-