Sajeev S/o Parameswaran v. Sailaja D/o K.C.Dasan; Radha W/o Parameswaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** **Mat.Appeal.No.710 of 2016** **AGAINST THE JUDGMENT DATED 23-07-2015 IN OP 1553/2012 of FAMILY COURT, KOTTAYAM** ## **APPELLANT/1ST RESPONDENT:** **SAJEEV S/O. PARAMESWARAN, NIKARTHIL HOUSE, UDAYANAPURAM P.O., VADAKKEMURI VILLAGE, VAIKOM TALUK, KOTTAYAM.** **BY ADV. SRI.A.K.HARIDAS** ## **RESPONDENTS/PETITIONER & 2ND RESPONDENT:** **1 SAILAJA D/O. K.C.DASAN, CHETTIYAPURATHU HOUSE (MURUKALAYAM), MULAKKULAM SOUTH P.O., VAIKOM TALUK, KOTTAYAM-686141.** **2 RADHA W/O. PARAMESWARAN, NIKARTHIL HOUSE, UDAYANAPURAM P.O., VADAKKEMURI VILLAGE, VAIKOM TALUK, KOTTAYAM-686141.** **BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat. Appeal No.710 of 2016** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Harilal, J.**_ The appellant was the husband of the 1[st] respondent herein. He is the respondent in O.P. No.1553/2012 of the Family Court, Kottayam filed by the 1[st] respondent herein. The aforesaid Original Petition was one for recovery of patrimony and other amounts from the appellant herein. The appellant herein also filed a counter claim and after considering the Original Petition and the counter claim, the court below decreed the Original Petition and counter claim in part. The legality and correctness of the findings whereby the Family Court decreed the suit in part are challenged in this appeal. The parties are referred to as in the Original Petition. **Mat. Appeal No.710 of 2016** **3** 2. Brief facts averred in the Original Petition can be summarised as follows:- According to the petitioner, the marriage between the petitioner and the 1[st] respondent was solemnised on 08.11.2002 and they lived together till 2004. In the meantime, a child was born on 27.04.2004. Now, the marriage between the petitioner and the 1[st] respondent stands dissolved by a decree granting divorce. According to the petitioner, at the time of marriage, she was given 28 sovereigns of gold ornaments and ₹50,000/- in cash as patrimony from her family. After marriage, the petitioner and the 1[st] respondent went to Mumbai where the 1[st] respondent was working and at that time, the cash and gold ornaments were entrusted with the 1[st] respondent and his parents as her trustees. Within a few days of marriage, the 1[st] respondent asked her gold ornaments for pledging. When the petitioner informed that matter to her father, he gave ₹15,000/- to the 1[st] respondent on 27.11.2002 to avoid pledging of her gold ornaments. Thereafter, her father gave a cheque for ₹1 lakh **Mat. Appeal No.710 of 2016** **4** to the 1[st] respondent on 04.11.2004 for purchasing a flat at Mumbai. The 1[st] respondent misused and misappropriated the gold ornaments and the cash given from her family, for his own purposes. The marital life of the petitioner was miserable since the 1[st] respondent ill-treated her physically and mentally. In 2004, the petitioner and the 1[st] respondent returned from Mumbai in connection with the delivery of the child and thereafter, she has not gone back to Mumbai. On an assurance given by the 1[st] respondent that a flat will be purchased at Mumbai in the joint name of the petitioner and the 1[st] respondent, her father gave ₹1 lakh to him on 04.11.2004 by way of cheque. But, the 1[st] respondent purchased the flat in his own name. Eventually, the marital relationship between the petitioner and the 1[st] respondent got more strained and they fell apart. The petitioner filed O.P. No.721/2004 for restitution of conjugal rights and C.C. No.410/2007 before the Judicial First Class Magistrate's Court, Vaikom, for prosecuting the 1[st] respondent for the offence committed against her by him. With the aforesaid **Mat. Appeal No.710 of 2016** **5** averments, the petitioner prayed for a decree directing the 1[st] respondent to return ₹16,17,784/- as money given to the 1[st] respondent and value of gold ornaments, with interest. 3. The 1[st] respondent filed a counter statement resisting the claim for money and gold ornaments from him. According to him, the patrimony amount of the petitioner was only ₹30,000/- and it was not ₹50,000/-, as alleged by her. He does not know the weight of gold ornaments owned by her at the time of marriage. The petitioner's gold ornaments are still with her. He never demanded the petitioner's ornaments for pledging. It is not correct to say that her father has given ₹15,000/- on 27.11.2012 to avoid pledging of her gold ornaments. It is true that on 04.11.2004, her father had given a cheque for ₹1 lakh for purchasing a flat. He was told by the petitioner and her father that the said amount was raised by pledging her gold ornaments. The 1[st] respondent has given a _thali_ chain weighing 5.25 sovereigns to the petitioner at the time of marriage and still she is possessing the same. He admitted the institution of the criminal case **Mat. Appeal No.710 of 2016** **6** against him. With the aforesaid contentions, the 1[st] respondent prayed for dismissing the Original Petition and to allow his counter claim for the _thali_ chain weighing 5.25 sovereigns of gold or its equivalent value. 4. On the rival pleadings, both parties adduced evidence. The evidence consists of the oral testimony of PW1 and PW2 and Exts.A1 to A4 on the part of the petitioner and oral testimony of RW1 from the part of the respondents. After considering the aforesaid evidence and records, the Family Court decreed the Original petition as well as the counter claim in part. The 1[st] respondent was directed to return ₹50,000/- and 24 sovereigns of gold ornaments or ₹4,60,800/- as its equivalent value, with interest to the petitioner. The counter claim was allowed in part directing the petitioner to return _thali_ chain weighing 3 sovereigns or ₹57,600/- as its equivalent value to the 1[st] respondent. The legality and correctness of the finding whereby the Family Court decreed the suit as well as the counter claim in part are challenged in this appeal. **Mat. Appeal No.710 of 2016** **7** 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the petitioner has miserably failed to prove the entrustment of money and gold ornaments with the appellant. According to the learned counsel for the appellant, the Family Court has drawn inferences as regards the entrustment of money and gold ornaments, where there are no pleadings or evidence in this respect. 7. On the other hand, the learned counsel for the respondents advanced arguments justifying the findings whereby the Original Petition stands decreed in part. According to the learned counsel for the respondents, the oral testimony of PW1 and PW2 are sufficient to prove the entrustment of money and gold ornaments, particularly when the 1[st] respondent has not chosen to mount the witness box to rebut the evidence of PW1 and PW2. The nonexamination of the 1[st] respondent is fatal and no reliance can **Mat. Appeal No.710 of 2016** ## **8** be placed on the evidence of RW1, the Power of Attorney Holder of the 1[st] respondent, when the respondents were entrusted with money and gold ornaments. RW1 is not competent to swear in evidence when the claim raised against the respondents pertains to facts within the special knowledge of the respondents alone. 8. In view of the arguments at the Bar, the question to be considered is whether the Family Court is justified in decreeing the Original Petition in part. 9. In view of the specific argument that the petitioner has failed to plead and prove the facts alleged against the respondents, we have meticulously gone through the pleadings and evidence, more particularly the evidence of PW1. It is the case of the petitioner in paragraph 3 of the Original Petition that 28 sovereigns of gold ornaments and ₹50,000/- were given to her as patrimony from her family at the time of her marriage. The cash as well as gold ornaments were entrusted with the 1[st] respondent and his parents as her trustees. Needless to say, as rightly observed **Mat. Appeal No.710 of 2016** **9** by the Family Court, her pleadings do not show when the gold ornaments were entrusted or with whom it was entrusted or the period in which the entrustment was made. Coming to the oral evidence of PW1 and PW2, we find that PW1 and PW2 have reiterated the very same sentence in the chief affidavit also and nothing more or nothing less. That apart, according to the pleadings, the entire 28 sovereigns were entrusted with the respondents. But in evidence, PW1 has admitted that she is having 2 sovereigns of gold ornaments with her and the claim was reduced to 26 sovereigns only. No independent evidence either oral or documentary has been produced in evidence to prove the entrustment of gold ornaments with the respondents. The learned counsel invited our attention to Ext.A2 series of photographs and submitted that the said photographs would undoubtedly probabulise the case of the petitioner that she was given 28 sovereigns of gold ornaments at the time of marriage. We have gone through the photographs. We are of the view that even if the photographs are admitted and its **Mat. Appeal No.710 of 2016** **10** face value is taken in confidence, it cannot be held that those gold ornaments were entrusted with the respondents, after the marriage merely on the reason that the bride had worn the gold ornaments at the time of marriage. It cannot be said that all those gold ornaments were entrusted with the respondents without a specific pleading and proof of the same. More importantly, in pleadings, it is the case of the petitioner that the gold ornaments were entrusted with the 1[st] respondent and his parents, but in evidence when she was cross examined, she deposed that she entrusted the gold ornaments with the 1[st] respondent. That apart, she further added that she left to Mumbai after leaving the gold ornaments in the house of the respondents. As regards the circumstances under which the gold ornaments were pledged, the petitioner has given evidence to the effect that the gold ornaments were pledged for purchasing a flat in Mumbai. It has come out in evidence that the flat was purchased in 2004 after her departure from Mumbai and while she was residing in the house of the respondents **Mat. Appeal No.710 of 2016** **11** awaiting the delivery of the child. Thus, it stands proved that there was no occasion to pledge or sell the gold ornaments by the respondents when the petitioner was at Mumbai and the gold ornaments were with the petitioner in the year 2004 after returning from Mumbai. No evidence has been adduced to prove the case of the petitioner that the gold ornaments were pledged or sold for raising money to purchase a flat at Mumbai. In the above analysis, we find that there are no sufficient pleadings or evidence to prove the entrustment of gold ornaments with the respondents, as alleged in the Original Petition. Needless to say, unless the entrustment is proved by sufficient evidence, the petitioner is not entitled to get a decree for the same. 10. The learned counsel for the petitioner invited our attention to Section 14 of the Family Court Act and submitted that in the matter of appreciating of family court cases, liberal view must be taken in the light of Section 14 of the Family Court Act. We are unable to accept the said argument. According to Section 14, a Family Court may receive as **Mat. Appeal No.710 of 2016** **12** evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act. What is intended by Section 14 of the Act. In our view, by Section 14 of the Family Court Act, the Family Court is allowed to liberally admit report, statement, documents, information or matter that may assist it to deal effectually with a dispute, without insisting yardstick provided under the Indian Evidence Act for admitting those things. Liberal view is confirmed to reception of report, statement, documents or information, in evidence only. It does not amount to any kind of dilution in the standard of proof which is required to 'prove' a fact in issue contemplated under Section 3 of the Indian Evidence Act. In family court cases also, a fact is said to be 'proved' when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists, as contemplated under Section 3 of **Mat. Appeal No.710 of 2016** **13** the Act. In other words, in the Family Court matters, there cannot be a liberal view in the standard of proof so long as the provisions under the Indian Evidence Act are not specifically excluded by specific provisions. In the above view, we are unable to take a different yardstick to test the standard of proof in the Family Court case. 11. The above view is supported by the decision of this Court in _**Abubakker Labba v. Shameena** [2018 (3) KLT 196]._ In this decision, this Court held as follows:- _“ In the case of the claim of return of movables, more specifically, money and gold ornaments, which were allegedly given to the wife in connection with the marriage, from the parents of the husband, there cannot be a constructive or presumptive entrustment, without actual physical delivery of the same to them and it must be specifically pleaded and proved by sufficient evidence, by the claimant wife. Merely on the evidence that the bride had worn gold ornaments, at the time of marriage, it cannot be held that the ornaments, which were worn at the time of marriage, were entrusted with the father_ **Mat. Appeal No.710 of 2016** **14** _and mother of the bridegroom. Unless there is sufficient evidence from the wife, to prove the entrustment of gold ornaments with the parents of the husband, after the marriage, the parents of the husband cannot be held liable to return the same. Normally there cannot be a joint entrustment of money or gold ornaments with three persons, the husband and his parents, without disclosing the mode of entrustment or the identity of the person to whom the money or gold ornaments were actually handed over. The absence of specific pleadings and sufficient evidence to prove the manner in which the entrustment of money and gold ornaments were made with the parents of the husband will be fatal, to the claim for returning the same by them.”_ Further, the learned counsel for the petitioner cited _**Pankajakshan Nair v. Shylaja and another** [2017 (1) KHC 620]_ and contended that it could be presumed that there is a possibility of ornaments being entrusted to the respondents as trustees for keeping the articles during the subsistence of marriage. Going by the aforesaid decision itself, we find that **Mat. Appeal No.710 of 2016** **15** in the very same judgment, this Court unequivocally held that the initial burden of proving the entrustment of gold ornaments and the amount is on the plaintiff and once initial burden is discharged, there is an implied trust created between the plaintiff and the defendants and then the onus shifts to the defendants and it is for the defendants to prove that they have returned the gold ornaments. 12. When applying the aforesaid provision to the instant case, we find that the petitioner has miserably failed to discharge the initial burden of proof. There is no reliable evidence to prove the entrustment of gold ornaments with the respondents. Thus, the aforesaid decision will not help the petitioner to justify the impugned judgment and on the other hand, the said decision would justify our findings referred above. 13. Coming to the entrustment of money, it is the case of the petitioner that at the time of marriage, she was given ₹50,000/- as patrimony and thereafter, ₹15,000/- was given to the 1[st] respondent when the 1[st] respondent demanded her **Mat. Appeal No.710 of 2016** ## **16** gold ornaments for pledging. Eventually, the father of the petitioner has given ₹1 lakh to the 1[st] respondent for purchasing a flat at Mumbai. The 1[st] respondent has admitted that the petitioner was given ₹30,000/- as patrimony and he is liable to return the same. As regards the claim of ₹1 lakh given by the father of the petitioner by way of cheque to the 1[st] respondent, he admitted the same. But, he contended that the said amount of ₹1 lakh was raised by pledging the gold ornaments of the petitioner. As regards the claim for ₹15,000/-, the respondents denied it. Thus, the entrustment of ₹1,30,000/- stands admitted by the respondents. 14. Though the 1[st] respondent contended that ₹1 lakh was raised by pledging of the gold ornaments of the petitioner, no evidence has been adduced to substantiate the said contention. More importantly, the respondents did not mount the witness box so as to deny the entrustment of ₹15,000/- or the pledging of gold ornaments of the petitioner to raise ₹1 lakh. The 1[st] respondent could have mounted the **Mat. Appeal No.710 of 2016** **17** witness box and offered himself for cross examination to prove the _bona fide_ of the denial. On the other hand, the Power of Attorney Holder was examined as RW1. It stands settled by judicial precedents that Power of Attorney is not competent to speak as to the special facts within the knowledge of the principle and he is competent to speak about the facts within his knowledge only. Therefore, no reliance can be placed on the evidence of RW1 in respect of the receipt of money alleged by the petitioner. On the other hand, PW1 and PW2 have sworn chief affidavit and they have testified as to the entrustment of ₹50,000/- as patrimony and thereafter, ₹15,000/- and ₹1 lakh with the 1[st] respondent, by the father of the petitioner. Though they have cross examined in evidence at length, nothing has been brought out to discredit their evidence. Thus, the evidence of PW1 and PW2 with respect to the amount of ₹50,000/- as patrimony and thereafter, ₹15,000/- and ₹1 lakh, stands unrebutted by the respondents. In the above analysis, we find that the petitioner has succeeded in proving that the **Mat. Appeal No.710 of 2016** **18** petitioner and her father have entrusted ₹1,65,000/- with the 1[st] respondent and he is liable to return the same with interest. In the above analysis, the impugned judgment and decree will stand modified directing the respondents to pay ₹1,65,000/- with interest at the rate of 9% to the petitioner from the date of filing of the Original Petition. The claim for return of gold ornaments or its value will stand rejected. The appeal will stand allowed in part. Sd/- **K. HARILAL, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/26.03.2018