Salini @ Sali Sasidharan v. M.S. Krishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** **Mat.Appeal.No. 468 of 2018** **AGAINST THE JUDGMENT DATED 28.03.2018 IN OP 250/2016 of FAMILY COURT, IRINJALAKUDA** ## **APPELLANT/ PETITIONER :** **SALINI @ SALI SASIDHARAN, W/O. SASIDHARAN & D/O. A.G SANKARA NARAYANAN, AGED 48 YEARS, MUPPULLY HOUSE, KURUMBILAVU P.O, CHIRAKKAL, THRISSUR - 680 564.** **BY ADV. SRI.BIJU ABRAHAM** ## **RESPONDENTS/ RESPONDENTS :** **1 M.S.KRISHNAN, S/O. SANKARAN, AGED 94 YEARS, MUPPULLI HOUSE, KATTOOR P.O, THRISSUR - 680 702. 2 SASIDHARAN, S/O. M.S KRISHNAN, AGED 59 YEARS, MUPPULLI HOUSE, KATTOOR P.O, THRISSUR - 680 702. 3 PEETHAMBARAN, S/O. M.S KRISHNAN, AGED ABOUT 60 YEARS, MUPPULLI HOUSE, KATTOOR P.O, THRISSUR - 680 702.** **4 ARUN, S/O. RAVEENDRAN, AGED ABOUT 33 YEARS, MUPPULLI HOUSE, KATTOOR P.O, THRISSUR - 680 702.** **Mat.Appeal.No. 468 of 2018** 2 **5 DIVYA, D/O. RAVEENDRAN, AGED ABOUT 36 YEARS, MUPPULLI HOUSE, KATTOOR P.O, THRISSUR - 680 702.** **BY ADVS. SRI.C.A. CHACKO (CAVEATOR) SRI.C.A.CHACKO SRI.C.A. CHACKO CAVEATOR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **Mat.Appeal.No. 468 of 2018** 3 ## **JUDGMENT** ## **Annie John, J.** The petitioner in O.P.No.250/2016 on the files of the Family Court, Irinjalakuda is the appellant herein. Her claim for recovery of Rs.1,37,00,000/with 12% interest was dismissed by the court below. The dispute was in respect of the monetary claim in connection with the marriage taken place more than 30 years back and the appellant could able to establish her claim through her and her own witnesses (PW1 to PW6) and documentary evidence. The first respondent, after institution of the case to defeat the claim has transferred the property in favour of respondents 3 to 5 and they did not adduce any evidence to substantiate their right over the property. 2. The case of the appellant was that she has filed O.P.No.250 of 2018 for return of money and value **Mat.Appeal.No. 468 of 2018** 4 of gold ornaments along with the family share of her, invested in the property of the first respondent with the proportionate increase on the value on the investment from the first respondent's property and assets. In fact, the marriage between the petitioner and the 2[nd] respondent had been solemnized on 25.10.1987 as per Hindu Religious Rites. At the time of marriage, the 2[nd] respondent was working abroad. After the marriage, he left to gulf within a month of marriage. The case of the appellant was that at the time of marriage, 100 sovereigns of gold ornaments and Rs.2 lakhs had been given as part of the family share to the petitioner. Apart from that, Rs.2 lakhs was entrusted to the first respondent by the father of the petitioner and other relatives immediately after the engagement. Out of the 100 sovereigns of gold of the petitioner, the first respondent had taken 95 sovereigns of gold ornaments on various occasions for his personal needs. Rs.2 lakhs **Mat.Appeal.No. 468 of 2018** 5 entrusted in trust was also utilised by the first respondent as he wishes. 3. When the petitioner's father realised the fact that a large extent of property belongs to the first respondent is lying idle without any agricultural operation, the petitioner's father had developed the said property and planted Nutmeg plants and made the land to a pucca income yielding garden land. This was done by the petitioner's father on the basis of the promise and assurance given by the first respondent that the family tharavadu and property will be given to the 2[nd] respondent, who is the husband of the petitioner since other sons of the first respondent are employed and settled. 4. The life of the appellant was miserable at the residence of the first respondent. The 2[nd] respondent being an obedient son of the first respondent was not given any importance to the **Mat.Appeal.No. 468 of 2018** 6 complaints made by the appellant and he stood on the side with the first respondent. After the investments and developments of the scheduled property, the attitude of the first respondent as against the appellant was so bitter, thereby she was forced to disclose all those aspects to her father also. When the appellant's father questioned the illegal approach of the first respondent towards the appellant, the first respondent ousted the father of the appellant from his house. With the anticipation of continuity of marital relation, the appellant and her father purchased the property in the name of the 2[nd] appellant and constructed a house therein, which is situated about 2 km away from the first respondent's property and started residing therein. 5. The first respondent entered appearance and contended that he has not received any amount or gold ornaments from the appellant. The additional respondents 3 to 5 also supported the version of the **Mat.Appeal.No. 468 of 2018** 7 first respondent by a separate written statement. After framing issues and after evaluating the entire evidence, the court below held that the appellant is not entitled to get any relief as prayed for. Accordingly, the petition was dismissed. Highly aggrieved by the same, this appeal has been preferred. 6. According to the appellant's counsel, the lower court has failed to evaluate the pleadings and evidence before arriving in the proper conclusion in this case. In fact, 95 sovereigns of gold ornaments and Rs.2 lakhs was entrusted with the first respondent for 30 years back. So, there is no chance for producing any documentary evidence to establish this fact. According to the counsel, he has adduced oral evidence to substantiate this fact. On these grounds, the appellant counsel prays for interfering the judgment of the court below and set aside the same and grant the relief as prayed for. **Mat.Appeal.No. 468 of 2018** 8 7. The marriage between the appellant and the 2[nd] respondent is not disputed. In fact, the 2[nd] respondent entered appearance and filed objection to this. But, he has not contested the matter. Now the main allegation against her father-in-law is that he has misappropriated 95 sovereigns of gold ornaments and Rs.2 lakhs, which was entrusted at the time of marriage. It was further alleged that the first respondent was having six acres of agricultural land and the 2[nd] respondent was spending money for doing entire agricultural operation over the property. Apart from the income utilized from her husband, the first respondent had collected her 95 sovereigns of gold ornaments on various occasions and utilised for reclamation of 4 acres of barren land into an agricultural land by planting 200 nutmeg trees over 2.5 **Mat.Appeal.No. 468 of 2018** 9 acres of land by the year 1988. According to PW1, around Rs.5 lakhs was utilised for converting the land into pucca agricultural land. It has also the case of the appellant that immediately after the marriage, the 2[nd] respondent has left to gulf country and she was alone in the house of the 2[nd] respondent. When there is an allegation that the appellant has entrusted 95 sovereigns of gold ornament and Rs.2 lakhs, at the time of marriage and engagement, it is the burden upon her to establish that the same was entrusted with the first respondent alone. When the appellant was examined as PW1, she has deposed that she has left matrimonial residence only because of the cruel behaviour of the first respondent. In order to prove the case, the appellant has adduced evidence to the effect that the appellant's father had given gold ornaments and cash at the tune of Rs.2 lakhs only for the welfare of herself and minor children and the **Mat.Appeal.No. 468 of 2018** 10 present market value of 95 sovereigns of gold ornaments would come to nearly Rs.25 lakhs and she could have purchased around 2 acres of land by utilising Rs.2 lakhs given by her father at the time of marriage. 8. Per contra, the first respondent has expressed unaware of the details of the gold ornaments received by the appellant at the time of marriage and according to him, entire gold ornaments were in the custody of the appellant and the 2[nd] respondent. The averments of the appellant that her father had entrusted Rs.2 lakhs with the first respondent before solemnization of the marriage is also denied. There was no oral understanding before the solemnization of the marriage of the appellant that the entire tharavadu properties are to be enjoyed by the 2[nd] respondent. The 2[nd] respondent never utilised his income upon the agricultural property of this respondent. He never **Mat.Appeal.No. 468 of 2018** 11 collected the alleged 95 sovereigns of gold ornaments from the appellant. He also denied that the father of the appellant had developed the land into a pucca agricultural and by planting nutmeg plants and expended money for making irrigation facilities to the properties. He has also denied that around Rs.5 lakhs expended for the improvement of the agricultural land as her share of property. The respondent had planted arecanut trees, coconut trees and nutmeg trees upon the property. Now the respondent has developed the properties into a pucca agricultural land. In fact this respondent was working as an employee of Hindustan Uniliver Ltd. Company and was earning very attractive income. 9. Now the only question to be considered is whether 95 sovereigns of gold ornaments and Rs.2 lakhs alleged to have entrusted with the first respondent was misappropriated by him and whether **Mat.Appeal.No. 468 of 2018** 12 the appellant is entitled to get back the same from the first respondent. She has no allegation against her husband, who was arrayed as the 2[nd] respondent in this case. It is very interesting to note that though the 2[nd] respondent entered appearance and filed objection, he has not contested the case. He has not entered into the box and deposed that the appellant has entrusted 95 sovereigns of gold ornaments and Rs.2 lakhs with the first respondent and he has misappropriated the same. In fact, he is a silent spectator and he has silently supported the case of the appellant. According to the first respondent, now the appellant has filed the present OP without any _bona fides_ in colluding with her husband, who was arrayed as the 2[nd] respondent herein. She was not at all interested to reside along with her husband in the tharavadu house. She was behaving towards the first respondent and his deceased wife in a very impolite manner. The appellant **Mat.Appeal.No. 468 of 2018** 13 and her husband had picked up quarrel with the first respondent and they left tharavadu house in the year 1991. Thereafter, they were living together. It is the case of the first respondent that as a vengeance, the 2[nd] respondent in colluding with the appellant, filed the present OP as an experimental one. It is also the case of the first respondent that on 18.01.2016, he executed an agreement for sale of 20½ cents of property to one Mrs. Leela, W/o.Manjiparambil Somasundaran, Kattoor. After the execution of the sale agreement, he received an advance sale consideration of Rs.10 lakhs from the vendee. But, due to the pendancy of the OP, he could not be able to execute the sale deed and due to that he has sustained irreparable financial loss. At present, the respondent is aged 94 years old. The appellant as well as the 2[nd] respondent are residing together from the year 1991 onwards. In fact the first respondent is a senior citizen **Mat.Appeal.No. 468 of 2018** 14 of 94 years old and he has got absolute title over the properties. 10. Let us discuss the evidence adduced by the appellant as well as the respondent before the court below. Ext.A1 is the marriage certificate. The specific case of the appellant is that during the time of her marriage, she had received 100 sovereigns of gold ornaments and Rs.2 lakhs by way of share from her parents. Apart from that, her relatives had gifted 8 sovereigns of gold ornaments. The appellant had produced 5 wedding photos without negatives, which were marked as Ext.A3 series. When the appellant was examined as PW1, she has deposed that her husband had come from abroad around one month's back before the solemnization of the marriage. It was also deposed that fixation ceremony was conducted on 05.10.1987 and at the time of proposal of marriage, parents of the 2nd respondent had informed that entire tharavadu **Mat.Appeal.No. 468 of 2018** 15 properties would be given to the 2[nd] respondent. On the basis of such assurance only, he had given her consent to marry the 2[nd] respondent. After the 2[nd] respondent has left abroad, she started residing at the tharavadu house of her husband along with the first respondent and the mother-in-law (deceased Janaki). 11. During cross examination, PW1 has stated that her husband had come from abroad and settled at his native place in the year 1996 and there is no dispute that the appellant was residing separately along with her husband since 1996 onwards. During cross examination, the learned counsel for the first respondent had marked two photographs as Exts.B1 and B2. Ext.B1 is a photograph which shows that the appellant along with her husband had participated in a wedding ceremony on 03.05.2009. Ext.B2 is another photograph which shows that the appellant along with her husband had participated in a wedding ceremony **Mat.Appeal.No. 468 of 2018** 16 held on 29.03.2013. Further, during cross examination she had deposed that she has filed a suit against her neighbour named Kulasegharan as OP.No.1823/2016. The suit was filed in connection with a path dispute. He has produced Ext.B3 Caveat. That would prove that the appellant and her husband was residing separately. Apart from that, the petitioner has produced Ext.A1 photocopy of the marriage register. Column No.7 of the marriage register is kept blank. According to her, entire gold ornaments were made by her father and one Goldsmith made the ornaments. Only one gold chain and a pair of ear rings were directly purchased from jewellery shop and those ornaments were already taken away by her husband. As per the pleadings of the appellant, Rs.2 lakhs was entrusted by her father with the first respondent. Such entrustment was made prior to the solemnization of the marriage. It was also pleaded that the first respondent had collected her 95 **Mat.Appeal.No. 468 of 2018** 17 sovereigns of gold ornaments on various occasions. During cross examination, she had deposed that the scheduled property is a self acquired property of father-in-law. Brothers of her husband are well educated. Herself as well as her sister and brother are having school education. She deposed that, she is having hearsay evidence regarding the cash utilised by husband for improving the scheduled property. The petitioner examined her father as PW2. He has deposed that he had obtained 5 acres of ancestral property and out of which, 2 acres of land were sold even prior to 1976. That property was sold for raising money for conducting the marriage of his children. According to him, at the time of selling of the property PW1 was aged 14 years. PW2 had further deposed that he had given 90 sovereigns of gold ornaments to the Goldsmith for making new gold ornaments for her daughter. He had also deposed that he had purchased **Mat.Appeal.No. 468 of 2018** 18 old gold ornaments from 20 persons. But he could not able to recollect the name of those persons. During cross examination, PW2 had deposed that he did not know whether there were paddy cultivation upon the south-eastern portion of the item No.2 property. PW3 had deposed that along with the father of the appellant, he had conducted brick manufacturing business for a period of 25 years. His yearly income was Rs.1.2 lakhs. 12. During cross examination, PW3 deposed that he is a close relative of PW2. There was no partnership deed for conducting the business. However, PW3 has not produced any supporting document to show that, he along with PW2 had conducted brick manufacturing business from the year 1983 to 2007-2008 period. The appellant has also examined PW4, who is alleged to have conducting the work in the property of the first respondent. According **Mat.Appeal.No. 468 of 2018** 19 to him, he had worked upon the tharavadu property of the first respondent from the year 1971 to 1994. During cross examination, he has stated that he is getting 'Karshakathozhilali' pension. The first respondent had dedicated landed property for the establishment of an Anganwady and SNDP Branch Office. But, from the evidence it is clear that he is an interested witness. There was an attempt on the part of the appellant that the property belongs to the first respondent was retained herself and by her father. But no document was produced to support her case. Even though she has examined some of the witnesses, they have not supported the case of the appellant. Even though the appellant has alleged that she has entrusted 95 sovereigns of gold ornaments in different occasions and Rs.2 lakhs which was entrusted at the time of solemnization of the marriage was not proved beyond reasonable doubt. The learned counsel for the **Mat.Appeal.No. 468 of 2018** 20 first respondent contended that this is a false and foisted by the appellant in colluding with her husband, the 2[nd] respondent. Further, the parents of the appellant had no financial capacity to give 100 sovereigns of gold ornaments or Rs.2 lakhs as patrimony to the appellant about 30 years back. The appellant has not sought for the relief against the 2[nd] respondent, who is her husband. 13. On going through the evidence, it is proved that the appellant has not adduced any cogent and clear evidence regarding the entrustment of gold ornaments with the first respondent. In fact, her husband is residing along with her since 1996 onwards. According to RW1, the first respondent, he had already taken a decision not to give any share of his property to his younger son, the 2[nd] respondent. Because of filing of the petition by PW1, he could not fulfil the sale agreement regarding 20 ½ cents of property. **Mat.Appeal.No. 468 of 2018** 21 14. The learned counsel for the appellant has argued that since the transaction was entered into about 30 years back, the appellant could not able to produce any document to prove the same. Moreover, she started living along with the 2[nd] respondent, her husband since 1996 onwards. The present OP was filed in the year 2016 i.e. nearly a lapse of 20 years, she has approached the court below by stating that the first respondent had misappropriated her 95 sovereigns of gold ornaments and Rs.2 lakhs. The 2[nd] respondent, who is the husband of the appellant has not supported the case of PW1. According to him, he had purchased 87 sovereigns of gold ornaments from around 20 persons. Thereafter, those ornaments were made with the aid of Goldsmith. Further, PW2 has stated that he has sold 2 acres of land in the year 1976. But, no evidence was forthcoming to prove the same. Thirdly, **Mat.Appeal.No. 468 of 2018** 22 PW2 has stated that he is having a brick manufacturing unit along with PW3. But, no evidence was produced to prove the same. Apart from the oral testimony of PW1 to PW6, no evidence was forthcoming to prove that the entrustment of 95 sovereigns of gold ornaments and Rs.2 lakhs was made on a particular date. 15. In this connection, the respondent counsel has cited a ruling held in _**Abubakker Labba v. Shameena [2018 (3) KLT 196]**_ wherein it has held that merely on evidence that bride had worn gold ornaments, at the time of marriage, it cannot be held that ornaments which were worn at the time of marriage, were entrusted with father and mother of bridegroom – unless there is sufficient evidence from wife to prove entrustment of gold ornaments with parents of husband, they cannot be held liable to return the same. **Mat.Appeal.No. 468 of 2018** 23 16. There is absolutely no evidence to prove that 95 sovereigns of gold ornaments and Rs.2 lakhs were entrusted with the first respondent. The 2[nd] respondent, who is none other than the husband of the appellant has not contested the case. That itself shows that he is a person, who has instigated the appellant to file the case against the first respondent so as to grab the property, which stands in the name of the first respondent. 17. After evaluating the entire evidence, we have no hesitation to hold that the suit is of collusive suit filed by the appellant with the aid of the 2[nd] respondent against the age old father-in-law so as to grab the property which stands in the name of him. We do not find any ground to interfere with the judgment of the court below. The learned counsel for the appellant has submitted that a compensatory cost **Mat.Appeal.No. 468 of 2018** 24 was awarded against the appellant and that may be reduced in considering the relationship of the appellant with the first respondent. We find that it is just and proper to modify the judgment of awarding compensation of Rs.10,000/- to the first respondent. Accordingly this appeal is allowed in part. The decree and judgment of the court below is modified to the extend that the compensatory cost awarded to the first respondent is hereby set aside. Rest of the part of judgment of the court below is upheld. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM