Sathi Devi v Ramadas 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** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** **Mat.Appeal.No.141 OF 2012** **AGAINST THE JUDGMENT IN O.P.(O.S.)NO.70/2007 DATED 28-02-2011 OF FAMILY COURT, ALAPPUZHA** **---------** ## **APPELLANT/S:** **SATHI DEVI, D/O.GOMATHI PANIKKATHI, KAMALALAYYATHU VEEDU, KANICHANALLOOR MURI, CHEPPAD VILLAGE, MUTTAM.P.O, KARTHIKAPPALLY TALUK.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENT/S:** **1 RAMADAS, S/O.VALSALAN, KULANJIYIL VEEDU, KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA-690508. 2 VALSALAN, S/O.KESAVAN, KULANJIYIL VEEDU, KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA-690508. 3 LEKSHMI, D/O.KUNJIKA, KULANJIYIL VEEDU, KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA-690508. R1, R3 BY ADV. SMT.HYMA.S R1, R3 BY ADV. SMT.LISHA.M.G. R1, R3 BY ADV. SRI.M.K.SHAJI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.01.2021, ALONG WITH Mat.Appeal NO.1138/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal Nos.141/2012 & 1138/2017 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** **Mat.Appeal.No.1138 OF 2017** **AGAINST THE JUDGMENT IN OP(OS)NO.70/2007 DATED 28-02-2011 OF FAMILY COURT, ALAPPUZHA** **-----** ## **APPELLANT/S:** **RAMADAS, S/O.VALSALAN, KULANJIYIL VEEDU, KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM, KARITHIKAPPALLY TALUK.** **BY ADVS. SMT.HYMA S. SMT.LISHA.M.G. SRI.M.K.SHAJI** ## **RESPONDENT/S:** **1 SATHI DEVI, D/O. GOMATHI PANIKKATHI, KAMALALAYYATHU VEEDU, KANICHANALLOOR MURI, CHEPPAD VILLAGE, MUTTAM P.O., KARTHIKAPPALLY TALUK-690 508. 2 VALSALAN, S/O. KESAVAN, KULANJIYIL VEEDU, KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM, KARTHIKAPPALLY TALUK-690 508 (DELETED). 3 LEKSHMI, D/O. KUNJIKA, KULANJIYIL VEEDU, KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM, KARTHIKAPPALLY TALUK-690 508 (DELETED).** **(RESPONDENT NOS.2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 03.11.2017 IN I.A.NO.3958/2017).** **Mat.Appeal Nos.141/2012 & 1138/2017 3** **R1 BY ADV. SMT.BHAVANA VELAYUDHAN R1 BY ADV. SRI.S.SANAL KUMAR R1 BY ADV. SMT.T.J.SEEMA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.01.2021, ALONG WITH Mat.Appeal.141/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal Nos.141/2012 & 1138/2017 4** ## **JUDGMENT** **[ Mat.Appeal.141/2012, Mat.Appeal.1138/2017 ] Dated this the 27th day of January 2021** ## **A.Muhamed Mustaque, J.** These appeals were filed challenging the decree and judgment in O.P.(OS) No.70/2007 on the file of the Family Court, Alappuzha. The said original petition was filed by Sathi Devi claiming recovery of 40 sovereigns of gold ornaments or the value of the same and for recovery of Rs.1,00,000/- from Ramadas and his parents. 2. Sathi Devi was married to Ramadas on 26.11.1995. Pending O.P.(OS)No.70/2007, Ramadas filed O.P.(HMA)No.723/2008 seeking divorce. Both matters were tried together and disposed of by a common judgment. O.P.(OS)No.70/2007 was allowed partly granting relief to Sathi Devi to recover Rs.2,88,000/- being the value of 40 sovereigns of gold ornaments from all the respondents jointly. Her claim for recovery of Rs.1,00,000/- from respondents is negatived. Challenging this, Sathi Devi **Mat.Appeal Nos.141/2012 & 1138/2017 5** filed Mat.Appeal No.141/2012. Ramadas filed Mat.Appeal No.1138/2017 challenging the decree granted in favour of Sathi Devi. There is no challenge against the divorce granted in O.P.(HMA) No.723/2008. 3. The Family Court, Alappuzha relied on Ext.A1 series and Ext.A2. Respondents 2 and 3 in the original petition, who are the parents of Ramadas. The finding of the Family Court is that Ramadas and his parents took away the entire 40 sovereigns of gold ornaments and sold them for their personal needs. Ext.A2 is the vivaha register issued from SNDP Branch No.202, Avoor North. It is revealed from Ext.A2 that 40 sovereigns of gold were given to Sathi Devi at the time of marriage. Ext.A1 series is the copy of Pawn Tickets and copies of memo issued by Kandalloor Farmers Service Co-operative Bank. As evident from the Pawn tickets, the Family Court came to the conclusion that the gold ornaments belonging to Sathi Devi were pledged with the aforesaid bank by Ramadas and his parents. There was no proof before the Family Court that those gold ornaments were entrusted **Mat.Appeal Nos.141/2012 & 1138/2017 6** back to Sathi Devi. In the absence of any other evidence, the Family Court came to the conclusion that those gold ornaments were appropriated by Ramadas and his parents Accordingly, the Family Court granted a decree for Rs.2,88,000/- being the value of 40 sovereigns of gold ornaments from Ramadas and his parents. 4. Sathi Devi is not satisfied with the denial of decree for Rs.1,00,000/-. Accordingly, she filed the appeal at the time of hearing. The learned counsel for Sathi Devi also argued that she is entitled for interest atleast for the decreetal amount. Ramadas appealed against the judgment on the ground that there was no evidence before the Family Court to prove the entrustment of gold belonging to Sathi Devi to Ramadas and his parents. It is contended before this Court that Sathi Devi had no case before the Family Court that gold ornaments were taken away by Ramadas and his parents. 5. We perused the records. We are satisfied with the evidence and finding of the Family Court in regard **Mat.Appeal Nos.141/2012 & 1138/2017 7** to appropriation of 40 sovereigns of gold ornaments by Ramadas and his parents. In the absence of any other contra evidence to prove that Ramadas and his parents returned the gold ornaments, the irresistible conclusion will have to be drawn that gold ornaments have been appropriated by Ramadas and his parents respectively as there was proof of pleading ornaments by them. We, accordingly, affirm the finding of the Family Court. 6. The learned counsel for Sathi Devi would argue that Sathi Devi is entitled to the value of the gold ornaments at the time of the decree. It is to be noted that the claim itself was filed for recovery of Rs.2,88,000/-. Therefore, Sathi Devi could not have claimed anything more than what is claimed in the original petition before the Family Court. Further, the Division Bench of this Court in **Thomas M. Varghese v. Sonia Susan Thomas [2014(3) KLT 487]** held that where the petitioner makes a definite claim for return of gold, either in kind or in alternative in its value on the date of application, the petitioner cannot subsequently **Mat.Appeal Nos.141/2012 & 1138/2017 8** claim for return of the value of the gold on the date of actual return. Therefore, we are of the view that Sathi Devi cannot claim the value of the gold ornaments other than what she claimed in the original petition. However, we are of the view that the claim being a monetary claim, the Family Court was not justified in not granting interest to Sathi Devi _pendente lite_ and also future interest. We assess 6% interest on the claim. Accordingly, we partly allow the appeal filed by Sathi Devi granting 6% interest from the date of institution till recovery. The judgment and decree, accordingly, are modified to the above extent. 7. It is to be noted that the decree was joint decree as against Ramadas and his parents. The parents had not chosen to challenge the decree against them. The appeal filed by Ramadas is only to be dismissed. Accordingly, it is dismissed. Mat.Appeal No.141/2012 is partly allowed modifying the impugned judgment directing awarding of 6% interest to the appellant from the date of institution of **Mat.Appeal Nos.141/2012 & 1138/2017 9** O.P(OS).No.70/2007 till realisation. Mat. Appeal No.1138/2010 is dismissed. There will be no order as to costs. All pending interlocutory applications are closed. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **C.S.DIAS JUDGE** ln **Mat.Appeal Nos.141/2012 & 1138/2017 10** ## **APPENDIX OF MAT.APPEAL NO.1138/2017** ## **PETITIONER'S/S ANNEXURES:** |**ANNEXURE-A**|**TRUE PHOTOCOPY OF THE DEATH CERTIFICATE OF**| |---|---| ||**PETITIONER'S FATHER DATED 19.07.2017.**| |**ANNEXURE-B**|**TRUE PHOTOCOPY OF THE DISCHARGE CARD ISSUED TO**| ||**THE PETITIONER FROM P.K.KUNJU SAHIB MEMORIAL**| ||**TALUK HOSPITAL, KAYAMKULAM.**| |**ANNEXURE-C**|**TRUE PHOTOCOPY OF THE DISCHARGE CARD ISSUED FROM**| ||**MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA.**| |**ANNEXURE-D**|**TRUE COPY OF THE DISCHARGE CARD ISSUED FROM**| ||**PUSHPAGIRI MEDICAL COLLEGE HOSPITAL, THIRUVALLA.**| |**ANNEXURE-E**|**PHOTOCOPY OF THE CERTIFICATE ISSUED BY MEDICAL**| ||**BOARD OF PUSHPAGIRI MEDICAL COLLEGE HOSPITAL,**| ||**THIRUVALLA DATED 08.08.2007.**| RESPONDENTS ANNEXURES:NIL. //TRUE COPY// P.A.TO JUDGE