Soji V.S. and Sumathi v. Sheeba M.S.

## **BEFORE THE LOK ADALAT ORGANISED BY THE HIGH COURT LEGAL SERVICES COMMITTEE AT ERNAKULAM BEFORE:** **SMT.K.SREELATHA DEVI (RETD.DISTRICT JUDGE) & SRI.A.K.MUHAMMEDALI (ADVOCATE) & SMT.SAIRA RAVIKUMAR (MEMBER)** ## **TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935** **Mat.Appeal.No. 139 of 2012 (B) --------------------------------------------** ## **AGAINST THE JUDGMENT IN OP 1638/2007 of FAMILY COURT, ERNAKULAM DATED 11-10-2011** ## **APPELLANTS/RESPONDENTS:-** **-------------------------------------------** **1. SOJI.V.S. AGED 37 YEARS,** - **VALLAVELIKKAKATH HOUSE, PERUMBALAM P.O. CHERTHALA TALUK, PERUMBALAM VILLAGE, ALAPPUZHA DISTRICT.** **2. SUMATHI, AGED 59 YEARS,** - **VALLAVELIKKAKATH HOUSE, PERUMBALAM P.O., CHERTHALA TALUK, PERUMBALAM VILLAGE, ALAPPUZHA DISTRICT** **BY ADVS.SRI.T.M.RAMAN KARTHA SRI.ARUN BASIL** ## **RESPONDENT/PETITIONER:** **----------------------------------------** **SHEEBA.M.S., AGED 34 YEARS, NEDUMTHOTTATHIL HOSUE, UDAYA ROAD, VYTTILA P.O.,THYKKOODAM. KOCHI - 19** **BY ADVS. SRI.C.D.DILEEP SMT.SHYLAJA VARGHESE** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR DETERMINATION BEFORE THE LOK ADALATH ON 25-06-2013, THE ADALATH ON THE SAME DAY DELIVERED THE FOLLOWING:** **MJL** K.SURENDRA MOHAN & MARY JOSEPH, JJ. ---------------------------------------- Mat.Appeal No.139 of 2012 ----------------------------------------Dated this the 1[st] day of June, 2016 ## JUDGMENT ## K.SURENDRA MOHAN, J. The respondents in O.P.No.1638/2007 on the files of the Family Court, Ernakulam are in appeal before us, challenging the judgment and decree dated 11.10.2011, allowing the original petition. As per the judgment and decree, the Family court has allowed the original petition, finding that the respondent herein was entitled to realize an amount of Rs.50,000/- with interest at the rate of 12% per annum, with effect from the date of petition, the costs of the litigation and 20 sovereigns of gold ornaments or its present market value and movable items shown in paragraph-7 of the petition from the appellants herein. 2. Facts necessary in this case are the following:- Mat.Appeal No.139 of 2012 -2- The marriage between the first appellant and the respondent took place on 22.04.2001 as per the Hindu religious rites and customs. The respondent is a B.Com graduate and according to her, the marriage was solemnized by misrepresentating her that the first appellant was a graduate and painting contractor. Later on, it turned out that he was not a graduate and was only a painter by profession. Though an amount of Rs.2,00,000/- was demanded as share, the parents of the respondent gave her only an amount of Rs.50,000/-, which was paid on the date of the engagement i.e., on 20.01.2001. According to the respondent, the said amount was entrusted to the first appellant by her father and uncle, as her share. At the time of marriage 20 sovereigns of gold ornaments were given to the respondent. According to her, she had entrusted the same to the first appellant after their marriage. The 20 sovereigns of gold included the ornaments owned by the respondent as well as 2 ½ sovereigns that were received at the time of the marriage as presentation. Mat.Appeal No.139 of 2012 -3- After the marriage, there was an attachment from bank over the property of the second appellant and for clearing the amounts due to the bank, the appellants had taken the gold ornaments and utilised them for clearing the liability to the bank. They were not given back. Apart from the above, some household articles as shown in the list appended to the petition were also given to the respondent by her father. The said articles also are in the custody of the appellants. Therefore, the respondent claimed a decree for the return of such articles. 3. The claim of the respondent was contested by the appellants by filing a joint objection. They admitted the marriage and denied that a misrepresentation to the effect that the first appellant was a graduate was made. The allegation that Rs.2,00,000/- was demanded and that Rs.50,000/- and 20 sovereigns of gold ornaments were given as the respondent's share was denied. The allegation regarding the misappropriation of the ornaments was also denied. It was Mat.Appeal No.139 of 2012 -4- stated that the appellants did not know how many sovereigns of gold ornaments were there at the time of the marriage. It is stated that the gold ornaments worn by the respondent at the time of marriage were imitation ornaments and they were still in the house of the appellants. It was also stated that on each occasion, that the respondent had gone to her house and come back home, the ornaments worn by her used to be missing. When she was questioned about the missing ornaments, she would only quarrel. The allegation regarding bank attachment over the property of the second appellant was also denied. According to the appellants, they had never taken any ornaments belonging to the respondent for any purpose. The allegation regarding the movables was also denied. It is further stated that the respondent had left the house of the appellants on her own and at that time she had taken back the items that were owned by her. Therefore, they prayed for dismissal of the petition. 4. The Family court tried the original petition on the Mat.Appeal No.139 of 2012 -5- above pleadings. Both parties let in evidence. On the side of the respondent, Ext.A1 series documents were marked and PWs 1 to 3 were examined as witnesses. The appellants examined themselves as RWs 1 and 2. 5. The Family court considered the evidence on record, placed reliance on Ext.A1 series documents produced by the respondent and the oral evidence of PWs 1 to 3, to find that 20 sovereigns of gold ornaments were available with the respondent at the time of marriage and that an amount of Rs.50,000/- had been entrusted. Placing reliance on the oral evidence, the original petition has been allowed. Aggrieved by the judgment and decree passed by the Family court, the appellants have filed this appeal. ## 6. Heard. 7. According to Adv.T.M.Raman Kartha, who appears for the appellants, proper details with respect to each item of gold ornament that the respondent had at the time of her marriage was necessary to have been furnished in the Mat.Appeal No.139 of 2012 -6- original petition, in a schedule that ought to have been appended thereto. In the present original petition, only a list of various items of gold ornaments have been given in the body of the original petition, which is grossly insufficient. In the absence of proper details regarding the ornaments, the appellants were not in a position to deny the identities of the respective ornaments and thereby, they were incapacitated from framing a proper defence against the claim. If as a matter of ornaments as claimed by the respondent had been given, there would have been photographs taken at the time of the marriage. In the absence of any such photographs it is necessary to draw an adverse inference against the availability of such ornaments. Ext.A1 series documents do not bear either date or identity of the Jewellery purchased and therefore are unreliable documents on which, the Family court has placed implicit reliance to enter findings against the appellants. 8. There is no evidence regarding the entrustment Mat.Appeal No.139 of 2012 -7- of ornaments to the appellants. There is also no evidence regarding the entrustment of any money to either the appellants or any of their relatives. With respect to the household articles also, it is contended that there is a total lack of evidence. Therefore, it is contended that the judgment and decree of the Family court requires to be interfered with and set aside. 9. Smt.Shylaja Varghese, who appears for the respondent on the other hand supports the findings of the Family court, contending that adequate details of the ornaments that were worn by the respondent at the time of marriage were given in the original petition itself. The technicality of having the same appended thereto in a schedule is now put forward by the appellants only for the purpose of denying the legitimate claim of the respondent, it is contended. With respect to Ext.A1 series, it is contended that the name of the Jewellery, from which the purchases were made has been stated in the original petition as Alappat Mat.Appeal No.139 of 2012 -8- Fashion Jewellery and that at the relevant point of time gold was being purchased on the basis of similar estimates as evidenced by Ext.A1. According to the learned counsel, PWs 1 to 3, who were examined to prove her claim, had deposed in support of her case. Nothing has been brought out in the cross examination to discredit their testimonies. Therefore, the Family court was justified in relying upon their evidence to decree the claim. 10. The original petition was filed by the respondent/wife seeking recovery of an amount of Rs.50,000/-, 20 sovereigns of gold ornaments or the market value thereof as well as 12 items of household articles listed in the petition. A perusal of the original petition shows that, in the body thereof, a list of ornaments that were worn by the respondent at the time of her marriage and entrusted to the appellants has been given. We are satisfied that sufficient details enabling a person to identify each item of ornament are available in the body of the petition itself. Each ornament has Mat.Appeal No.139 of 2012 -9- been described in the petition along with the weight and value thereof. The details of 2 ½ sovereigns of gold ornaments obtained as gift during the time of marriage were also given separately in the petition. Therefore, we do not find any substance in the objection that an omission to provide the said description in a schedule appended to the petition has caused any prejudice to the appellants. With respect to the non production of photographs in respect of the marriage ceremony, we are of the opinion that, if the appellants had a case that the respondent had not worn any of the ornaments that were listed in the original petition, photographs could have been produced by them also and an omission to produce the marriage photographs can therefore be construed as a circumstance against the case of the appellants also. Therefore, we are satisfied that nothing turns on the said aspect also. 11. Apart from the above, the respondent had produced Ext.A1 series, which are invoices for the purchases Mat.Appeal No.139 of 2012 -10- of the gold ornaments. We have compared the list of ornaments mentioned in Ext.A1 with the list given in the original petition and find that, the list in both the documents tally. Though, it is true that the invoices do not bear the name of the Jewelery, from which the the purchase was made, a perusal of Ext.A1 shows that it is a computer generated invoice. The name of the Jewelery has been provided by the respondent and she was examined as PW1. Further, the oral evidence in the case collaborates and establishes the case that was pleaded by the respondent. PW1 is the respondent herself. Despite her cross examination, nothing has been brought out to discredit her testimony. PW2 is the respondent's mother's sister and PW3 is her uncle. Both the witnesses have supported the case pleaded by the respondent. The Family court had the benefit of seeing the witnesses, watching and assessing their demeanour. The Family court has placed implicit reliance upon the testimonies, treating them as truthful witnesses. Nothing has been brought to our Mat.Appeal No.139 of 2012 -11- notice to take a different view of the matter. Therefore, we are satisfied that there are no grounds for interference with the findings of the Family court. 12. With respect to the entrustment of an amount of Rs.50,000/- also, the oral evidence is convincing and nothing has been brought out in the cross examination to discredit the testimonies of the witnesses. 13. We also notice that, the appellants had not consistent case regarding either the ornaments or the money that is claimed. The appellant's claim is that the respondent did not have any ornaments at all. In his objections his case is that, the ornaments worn by her were imitation ornaments. In the cross examination of PW1 also a suggestion that the ornaments worn by her were imitation ornaments is seen to have been made. The said suggestion is against the case put forward earlier that, she had no ornaments as claimed. The Family court has considered the above aspects and found that the appellants had no consistent case regarding the ornaments Mat.Appeal No.139 of 2012 -12- or the money. When the first appellant was examined as a witness, he had stated that he was ready to produce documents to show that there where no liabilities on his property or that of the second appellant. However, nothing has been produced. Considering the totality of the circumstances, we are satisfied that the Family court was justified in rejecting the case of the appellants. We find no grounds to interfere with the judgment and decree. 14. The counsel for the appellants has placed reliance on the decision of a Division Bench of this Court in Shinu v. Dhanya Madhavan reported in 2013 (4) KLT SN.19 (C.No.16). In the said decision, placing reliance on Sections 101 and 102 of Evidence Act, it has been laid down that, there are two types of burden of proof :- - (i) Where the 'burden of proof' which will never shift in - any manner and, - (ii) 'Onus of proof', which shifts from party to party. In any case, in the first instance, the party who Mat.Appeal No.139 of 2012 -13- asserts a fact has the burden to establish the case that is pleaded. In the absence of any evidence establishing the said fact, the suit can only be dismissed for, the burden would not shift to the other party. In a case where the burden is initially discharged, the onus would shift to the other party who would have to introduce evidence disproving the initial proof that has been produced. If the defendants succeed, the onus would again shift to the plaintiff. Relying on the above proposition it is contended by the learned counsel for the appellants that in the present case, there is no evidence to show that the respondent had gold ornaments. We have already discussed the above aspect in the earlier part of our judgment. The fact that the respondent had gold ornaments is proved by Ext.A1 series of invoices, corroborated by the oral evidence of PWs 1 to 3. Though the appellants had contended that the ornaments worn by the respondent were imitations, there is no evidence or material to substantiate the said fact. Therefore, the initial burden that has been established by the respondent Mat.Appeal No.139 of 2012 -14- is accepted. In view of the above, we find no grounds to admit this appeal or to grant any of the reliefs sought for and therefore this appeal is dismissed. vs Sd/K.SURENDRA MOHAN, JUDGE Sd/MARY JOSEPH, JUDGE /TRUE COPY/ PA TO JUDGE