SANTHA KANNAN v. GANGA RENJU

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939** **Mat.Appeal.No. 355 of 2007 ( ) -------------------------------** **AGAINST THE JUDGMENT IN OP 301/2006 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 09-05-2007** **APPELLANT/2ND RESPONDENT IN OP:** **---------------------------------** **SANTHA KANNAN, AGED 57 YEARS, W/O.LATE A.K.KANNAN, PODUVAL, RESIDING AT, A-15, SREEKOVIL, K U NAGAR, MOOLAVATTOM P.O., PANACHIKKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.R.JAYACHANDRAN** **RESPONDENTS/PETITIONER & IST RESPONDENT IN OP:** **------------------------------------------------** **1. GANGA RENJU, AGED 26 YEARS,** - **D/O.G.GANGADHARAN, AMRUTHA BHARATHI HOUSE,, S H M P O,** - **KOTTAYAM 686 006, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK.** **2. K.HARIKRISHNAN, AGED 35 YEARS, S/O.LATE A.K.KANNAN, PODUVAL, A-15, SREEKOVIL, K U NAGAR, MOOLAVATTOM P.O, PANACHIKKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DIST.** **R1 BY ADV. SMT.BINDU GOPINATH R1 BY ADV. SMT.M.J.RAJASREE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.3.2017, THE COURT ON 09-06-2017 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.** ....................................... Mat.A.No.355 of 2007 ........................................ Dated this the 9[th] day of June, 2017. ## **JUDGMENT** ## **K. Ramakrishnan, J:** The above appeal was filed by the second respondent in O.P.No.301/2006 on the file of the Family Court, Kottayam at Ettumanoor. The original petition was filed by the first respondent herein as petitioner against the second respondent herein and the appellant for recovery of gold ornaments or its value and the amount paid as patrimony. The case of the first respondent in the court below was that, her parents noticed a matrimonial advertisement in Mathrubhoomi daily published at the instance of the appellant and second respondent, who is her son seeking suitable bride for the second respondent. On that basis, they approached the appellant and enquired about the background and character of the second respondent and the appellant assured them that he was of good character, a Post Graduate and coming from a reputed aristocratic family having properties. It is on that basis, the parents of the first respondent decided to proceed with the marriage proposal. Accordingly the marriage was solemnised between the respondents herein on 10.07.2003 at Indraprastham Auditorium, Kottayam and it was later registered with N.S.S. Karayogam, Nattassery. At the time of marriage, Rs.2,00,000/- in cash and 100 sovereigns of gold ornaments were given to the first Mat.A.No.355 of 2007 2 respondent by her parents, which she carried to the matrimonial home. They resided together at Moolamattom in the house of the appellant and the second respondent for two months and during the first week of August 2003, he had taken the first respondent to Vadodara in Gujarat where he was working in a medical company. They lived there in a rented house for four months. During that time, first respondent became pregnant and second respondent did not want to continue the job there as he was not getting liquor which was prohibited there. After resigning the job, they stayed for another ten days at Vadodara and during middle of December 2003, they came to the house of the appellant. On the next day of their arrival, she came to her parental home as her mother was leaving to Abudabi to help her sister as she delivered twin children. The second respondent was visiting her house and she was also visiting the matrimonial home frequently and this continued for another 11 months. The second respondent was sitting idle without any job. As insisted by the first respondent, he got a job in the field of medical transcription at Acusis software India Pvt. Ltd., a company at Bangalore. Originally he went alone and joined the job during first week of 2004. He stayed there along with his friends for some time and the first respondent stayed in her parental home as she was in the advanced stage of pregnancy. She delivered a female child on 13.08.2004 at Matha Hospital, Thellakom and thereafter she went to her parental house where she stayed along with the child till first week Mat.A.No.355 of 2007 3 of 2004. Second respondent got a rented house at Banavaswadi in Bangalore and took the first respondent there along with the child. The appellant also came to Bangalore with reluctance as insisted by the second respondent and stayed with them for about two weeks. During that period, the relationship strained and so she came back to Moolamattom and living with her unmarried daughter. On 15[th] September, 2005, she had to leave Bangalore leaving the furniture worth Rs.75,000/- which were also gifted by her parents. Later she came to know that the second respondent had sold the furniture and other articles kept there and quit the job. First respondent was asked to reside in her parental house and not to go to the matrimonial home. Again the first respondent alone went to Bangalore and got a job, but he did not continue in that job also. Later she came to understand that at the time of marriage, he was not a Post Graduate in History as claimed and he was having bad character and he was not having good relationship with his mother or sister. But in order to continue the relationship, she suffered all the harassment met by her at the hands of the second respondent. He used to come fully drunk and even questioned the integrity and morality of the first respondent. Within one month of the marriage, as directed by the second respondent, she had entrusted 90 sovereigns of gold ornaments and Rs.2,00,000/- with the appellant on 20[th] July, 2003, on the undertaking that, it will be returned to her whenever she wants. The relationship between them Mat.A.No.355 of 2007 4 had been irretrievably broken down. It is later understood that, the amount entrusted was misappropriated by the appellant and the second respondent and they pledged the gold ornaments entrusted as well. The appellant had made a complaint before the Kerala State Commission for Women, seeking police protection against her son, the 2[nd] respondent. The child as well as the first respondent has without any income. The second respondent is unheard from 7[th] March, 2008. So the first respondent filed the petition for return of Rs.2,00,000/- and gold ornaments of 90 sovereigns or its value or Rs.7,07,760/- against the appellant and the second respondent. 2. The second respondent remained absent. 3. The appellant entered appearance and filed objection contending as follows: The petition is not maintainable and it is barred by limitation. She admitted that, her son had made a matrimonial advertisement in Mathrubhoomi daily and parents of the petitioner had responded to the same. The allegation that they enquired with the appellant and she gave a good certificate about her son etc., are not correct. The marriage preparations and enquiries were conducted between her son and parents of the first respondent. According to her, he was a prodigal son, causing difficulties to her and her daughter. He was making problem from his school days and he was staying away from home. After the death of his father, he was demanding money and Mat.A.No.355 of 2007 5 quarrelling with the appellant. He used to visit the appellant only rarely whenever he required money. She denied the allegation that the first respondent was given Rs.2 lakhs and 100 sovereigns of gold ornaments and that was taken to the matrimonial home, later it was misappropriated as false. The respondents were residing in the parental house of the first respondent and they never resided in the appellant's house at Moolamattom. She pleaded ignorance about the employment of her son at Vadodara in Gujarat and taking the first respondent there and coming back to Kerala. She admitted the birth of the female child to the first respondent in the wedlock on 13.08.2004 at Matha Hospital, Thellakom. She had admitted that she happened to reside at Bangalore for sometime, but they were cruel to her and they did not even take her to doctor when she was ill. She was not even allowed to fondle the grand child stating that she being a widow, it was inauspicious to touch the child. She was compelled to eat non-vegetarian food though she was a pure vegetarian. She had to leave Bangalore on account of the harassment met by her at the hands of the respondents. The first respondent was aware of the strained relationship of the appellant with her son and she had no information regarding the respondents till January, 2006. She was not aware of the furnitures taken to Bangalore by the first respondent. During January, 2006, the second respondent came fully drunk and abused her and her daughter and caused hurt to her and a criminal case was registered in respect of the same and he Mat.A.No.355 of 2007 6 was arrested and taken on bail by the first respondent's father. After investigation, final report was filed and it is pending as C.C.No. 222/2006 before the Judicial First Class Magistrate Court, Kottayam. She denied the allegation that she had misappropriated the gold ornaments and she was liable to return the same etc. In fact she filed a complaint before the Kerala State Women's Commission seeking police protection against her son. She has been impleaded in the case only to harass her and make a bargain to get the assets of her husband in collusion with the second respondent, her son. She prayed for dismissal of the application. 4. In order to prove the case of the petitioner, Pws 1 to 3 were examined and Exts.A1,A2, A3 series, A4 series, A5, A6 series, A7 series, A8 series, A9 and A10 were marked. In order to prove the case of the 2[nd] respondent, RWs1 and 2 were examined and Exts.B1 to B3 were marked. After considering the evidence on record, the Court below found that the petitioner has proved her case and granted a decree permitting the petitioner to realise Rs.2 lakhs with 6% interest from the date of petition (9.5.2006) and 90 sovereigns of gold ornaments or its present approximate value of Rs.5,50,000/with 6% interest from the date of judgment from the respondents and also permitted to realise cost of Rs.2,000/- from the respondents. Aggrieved by the same, the above appeal has been filed by the appellant/second respondent before the Court below. Mat.A.No.355 of 2007 7 5. Heard learned counsel for the appellant and the first respondent. 6. The learned counsel for the appellant argued that there is no acceptable evidence adduced on the side of the petitioner to prove that Rs.2 lakhs and 100 sovereigns of gold ornaments were given to her and except 10 sovereigns, the cash as well as the remaining gold ornaments were entrusted to the second respondent as directed by the first respondent in the Court below. Further, merely because PWs 1 to 3 were not cross examined is not a ground for believing their evidence, if there are other materials available on record which probablise the case of the appellant that there was no possibility for entrusting the gold ornaments with the appellant. Further the value fixed by the Court below for the gold ornaments is also not proper. So under such circumstances, the Court below was not justified in granting the decree against the appellant. He had relied on the decisions reported in _**Panna Lal v. State of Bombay and others**_ (1963 KHC 648), _**Mohammedali v. Rahiyanath**_ (2016 (1) KLT 757) and _**Thomas M. Varghese and Another v. Sonia Susan Thomas**_ (2014 (3) KHC 500) in support of his case. 7. On the other hand, the learned counsel for the respondents argued that Pws 1 to 3 were not cross examined and their evidence is unchallenged. Further the documents produced by the first respondent will go to show that though the appellant Mat.A.No.355 of 2007 8 claims strained relationship with her son, that is not correct and he was sending money to her and it was being used by her. So according to the learned counsel, the Court below was perfectly justified in granting the decree against both the respondents. 8. The fact that the 2[nd] respondent herein is the son of the appellant and on the basis of the matrimonial advertisement given for a bride for him, the parents of the first respondent enquired about the 2[nd] respondent and thereafter the marriage was conducted on 10.7.2003 at Indraprestam auditorium and a female child by name Anamika was born to them in that wedlock on 13.8.2004 etc is not in dispute. It is also in a way admitted that the 2[nd] respondent was working at Vadodara in Gujarat for sometime and he had taken the 1[st] respondent also there and after sometime, he resigned the job and came back and later got employment in Bangalore and it is not seriously in dispute that after the delivery of the child, he had taken both the appellant and the 1[st] respondent to a rented house at Bangalore and after a short stay, due to their strained relationship, the appellant had to return from there. It is also in a way admitted that after sometime, the 1[st] respondent also left the matrimonial home and now residing in her parental house with the child. 9. The case of the petitioner in the lower court was that at the time of marriage, Rs.2 lakhs and 100 sovereigns of gold ornaments were given which includes presentation of gold ornaments by the Mat.A.No.355 of 2007 9 relatives and she had brought the amount as well as the gold ornaments to the matrimonial home and after a month of their marriage, as instructed by the second respondent, she had entrusted the same to the appellant retaining only 10 sovereigns for her personal use and according to her, the gold ornaments and the cash were misappropriated by the appellant and 2[nd] respondent jointly. These allegations were denied by the appellant and the 2[nd] respondent remained absent. 10. The 1[st] respondent herein relies on Ext.A2 marriage photo album and Ext.A7 and A8 series, the bills obtained from the jewellery and the estimate obtained for proving this fact. PW1 is the petitioner herself, PW2 is her father and PW3 is a relative, who helped PW2 in arranging the marriage and participated in conduct of the marriage. Pws 1 to 3 were not cross examined. Pws.1 and 2 have filed proof affidavit in tune with the allegations made in the petition. No attempt was made to recall the witnesses for cross examination by the appellant though she herself was examined as RW1 and her unmarried daughter was examined as RW2. Further Ext.A2 marriage photo album shows that the first respondent was wearing large number of gold ornaments at the time of marriage. 11. In the decision reported in _**Bexy Michael v. A.J. Michael**_ (2010 (4) KHC 376) a Division Bench of this court has held that: Mat.A.No.355 of 2007 10 _“In a claim for return of gold ornaments and cash given at the time of marriage, it will be unreasonable for a court to insist for documentary evidence regarding the ornaments and money that had changed hands at the time of marriage and the petition cannot be dismissed merely because no documentary evidence has been produced and in such cases, such claims will have to be decided on the basis of the oral evidence and appreciation of evidence will be on the standard of a prudent man are paramount in the appreciation of evidence._ 12. That was a case of christian marriage where court has also taken note of the fact that in christian community, there is a practice of change of hands of property on the occasion of marriage and court cannot ignore such fact. ## 13. In the same decision it has been held that: _If the value of the gold ornaments has not been mentioned in the petition, then it is the duty of the court to fix the value of the gold ornaments in the alternative for non return of the same taking into account the value of the gold ornaments available as on the date of judgment._ ## 14. But in the decision reported in _**Mohammedali v.**_ _**Rahiyanath**_ (2016 (1) KLT 757) a learned Single Judge of this court held that: _It is extremely unsafe to blindly accept the photograph ornaments as pure gold ornaments and making conclusion_ 11 ## Mat.A.No.355 of 2007 _regarding the weight of each of such gold ornaments for the purpose of finding the veracity of the claim made for return of gold ornaments given to the bride at the time of marriage without any other reliable proof._ ## 15. In the decision reported in _**Thomas M. Varghese and another v. Sonia Susan Thomas**_ (2014 (3) KHC 500), another Division Bench of this court has held that: _“When the wife seeking return of gold ornaments as on the date of petition from the husband, the wife cannot ask that she is entitled to get the value of the gold ornaments as determined as on the date of actual return, but that can be decided only on the basis of the claim made by the petitioner in the petition and she cannot make higher claim for current market value of the gold at a later stage._ ## 16. Further in the same decision it has been held that: _“Ordinarily appellate court must not vary or reverse a decree or order in favour of the party who has not preferred an appeal and this rule holds good notwithstanding Order 41 Rule 33 of Code of Civil Procedure. However in exceptional cases, it enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary, should not be declined to be exercised merely on the ground that the party has not filed any appeal._ 17. This view was taken following the decision reported in _**Panna Lal v. State of Bombay and others**_ (1963 KHC 648) on this Mat.A.No.355 of 2007 12 aspect. 18. There is no dispute regarding the proposition of law laid down in the above cases. The case of the 1[st] respondent was that she was given 100 sovereigns of gold ornaments and Rs. 2 lakhs which includes the gold ornaments given by her relatives as presentation and according to her, she had brought the same to the matrimonial home and within one month of marriage, she had entrusted the same to the appellant as instructed by the first respondent and it was misappropriated by them. The case of the appellant was that her son, the second respondent is a prodigal son and a problem maker and their relationship was not cordial and he was not an obedient son even at the time when her husband was alive and after the death of the husband, he was harassing her demanding money and not looking after her affairs. The fact that the relationship between the appellant and her son was not cordial and there used to be quarrel between them is in a way admitted by PW1 in her petition itself. Even in the proof affidavit this was reiterated. Further it is seen from the evidence of Rw1 and Rw2 that after the relationship strained between the respondents, during January 2006, the 2[nd] respondent came fully drunk and attacked the appellant and a crime was registered and after investigation, final report was filed, which is evident from Exts.B1 and B2. It is in a way admitted by PW1 also in her petition that the appellant filed Ext.B3 petition before Kerala Mat.A.No.355 of 2007 13 State Women's Commission alleging misbehaviour and cruelty of her son, the 2[nd] respondent and seeking protection. It is also admitted in the petition itself that the whereabouts of the 2[nd] respondent is not known. So under such circumstances, it is highly improbable that the 2[nd] respondent will be insisting the petitioner to handover the gold ornaments and cash to the appellant for safe custody. 19. The court below as well as the petitioner relied on Ext.A4 series counterfoil of demand draft applications and Exts.A5 and A6 series courier receipts to show that the 2[nd] respondent was sending amount to the appellant and those documents were of the year 2004. But that alone is not sufficient to come to the conclusion that their relationship was cordial so as to entrust the gold ornaments and money with her. The evidence of PW's 2 and 3 will be helpful only to prove that Rs.2 lakhs and 100 sovereigns of gold ornaments were given to the petitioner at the time of marriage. Even PW1 had no case that the amount was entrusted to the respondents at the time of marriage. But her case was that the amount as well as the gold ornaments said to have been entrusted were done within one month of their marriage, which for the reasons mentioned above, by preponderance of possibilities unbelievable. 20. Further the petitioner had relied on Ext.A3 series pledge token issued from North Malabar Gramin Bank, Kottayam branch for pledging certain gold ornaments in the name of the first Mat.A.No.355 of 2007 14 respondent. These were dated 18.4. 2005 and 29.4.2005 respectively. If gold ornaments were pledged by the appellant, then the pledge token would have been issued in the name of the appellant and not in the name of the second respondent herein as seen from these documents. Further there is no evidence adduced on the side of the petitioner as to how the petitioner had come into possession of the original pledge token of gold ornaments issued in the name of the 2[nd] respondent or her husband. All these probablises the case of the appellant that the gold ornaments would have been taken by the husband of the 1[st] respondent, the 2[nd] respondent herein, and she cannot be mulcted with the liability. So under the circumstances, there is some force in the submission made by the counsel for the appellant that the appellant cannot be mulcted with liability either for return of gold ornaments or the money which even if Pw's 1 to 3 were not cross examined on the basis of the allegations and material available on record probablises the case of the appellant and as such the Court below was not justified in making the 2[nd] respondent liable for the amount as well as the gold ornaments. So the judgment passed by the Court below making the second respondent, who is the appellant herein, liable for the return of amount and gold ornaments is unsustainable in law and the same is liable to be set aside and the appellant is entitled to get exoneration from the liability. We do so. So the appeal is allowed. The decree and judgment passed Mat.A.No.355 of 2007 15 by the Court below to the extent directing the appellant also liable for the return of amount of Rs. 2 lakhs and 90 sovereigns of gold ornaments or its value with interest and cost are hereby set aside and the claim made against the appellant, who is the second respondent before the Court below, is dismissed. Considering the circumstances of the case, parties are directed to bear their respective costs in the appeal. **Sd/-** **A.M. SHAFFIQUE, JUDGE.** **Sd/-** **K. RAMAKRISHNAN, JUDGE** /true copy/ P.S to Judge ss/cl