High Court of KeralaDivision Bench2018-10-01Partly allowed

Sreeya P. Sreenivas v. Bijoy T. V. and others

Case / Petition Number:Mat.Appeal Nos. 740/09 and 231/10

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Shaffique
Mary Joseph
Judgment Date: 2018-10-01
Court Decision / Holding: Mat.Appeal Nos.740/09 and 231/10 are partly allowed and the decree shall stand modified as under: (i) The petitioner/wife shall be entitled to recover an amount of Rs 7,00,000 (Rupees Seven lakhs only) with interest at 6% per annum from the date of petition till realisation from the respondent/husband.
Final Disposition: Partly allowed

Parties to the Case

Appellants / Petitioners

Sreeya P. Sreenivas, d/o P. G. Sreenivasan, Pambumkatt'il House, Poolani Meloor, Chalakudy, Thrissur District

Respondents

Bijoy T. V., S/o T. R. Vijayaran, Thaivalappil House, Porathissery, Irinjalakuda North P.O., Thrissur District
T. R. Vijayaran, Thaivalappil House, Porathissery, Irinjalakuda North P.O., Thrissur District
Komalavally, w/o T. R. Vijayaran, Thaivalappil House, Porathissery, Irinjalakuda North P.O., Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. V. Asokan (Sr.)
• Sri. K. S. Sajeev Kumar

Counsels for Respondents

• Sri. K. S. Bharathan

Case Synopsis & Summary

This is a matrimonial appeal from Kerala High Court concerning a wife’s claim for the return of gold ornaments and money given at marriage, and the consequences of matrimonial disputes leading to separation. The petitioner-wife, Sreeya P. Sreenivas, alleged that 80 sovereigns of gold ornaments were provided at the time of her marriage on 4 November 2001 and kept in a joint locker at a bank in Irinjalakuda. After separation, she contends that the ornaments were not returned, and also claims Rs 50,000 paid at marriage. The Family Court, Thrissur, while granting a divorce against the husband, partly allowed the OP by directing return of the ornaments’ value, directing Rs 3,00,000 with interest. The wife appeals, seeking either return of the ornaments themselves or their enhanced value given the rising price of gold; the husband appeals against the decree for recovery of money, arguing he did not misappropriate the ornaments and that only a thali chain (9½ sovereigns) and a bangle (2½ sovereigns) were given to the wife, which should be deducted from any recovery. The High Court examined evidence and found the locker opened by the husband and the ornaments misappropriated. It held that 80 sovereigns were in question, with some ornaments already accounted for, but ultimately modified the decree, directing payment of Rs 7,00,000 with 6% interest, instead of the earlier monetary relief. The decision was rendered by a Division Bench on 01 October 2018, partly allowing the appeals and disposing of them with a modified decree while maintaining divorce.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-wife contends that she had 80 sovereigns of gold ornaments kept in a jointly opened locker for her use at the time of marriage, which were not returned after the couple began living separately. She seeks either the return of the ornaments or their current value. She also sought to account for significant appreciation in gold value and argued that the court should direct the ornaments’ return rather than monetary compensation alone; the alternate relief claimed in the memorandum of appeal was for the ornaments or their value.

Contentions of Respondents

The husband denies misappropriation, claiming he did not take the ornaments and that the only items given to the wife were a thali chain weighing 9½ sovereigns and a bangle weighing 2½ sovereigns, with Rs 50,000 spent on her education. He attributes the locker operations to his wife or to an arrangement without admitting misappropriation. He challenges the decree for money as relief and argues the evidence does not establish ownership of the ornaments by the wife or improper retention by him.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Thomas M. Varghese v. Sonia Susan Thomas	2014 (3) KLT 487	Distinguished	The judgment cites this case as a precedent but distinguishes its factual posture (appeal by the husband seeking return of value rather than ornaments) and notes it has no application to the present case, where the wife sought ornaments or their value and the appellate posture differs.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940** ## **Mat.Appeal.No. 740 of 2009** **AGAINST THE ORDER IN OP 136/2004 of FAMILY COURT,THRISSUR DATED 19-05-2009** ## **APPELLANT/PETITIONER:** **SREEYA P.SREENIVAS D/O. P.G.SREENIVASAN, PAMBUMKATTIL HOUSE, POOLANI MELOOR, CHALAKKUDY, THRISSUR DIST.** **BY ADVS. SRI.V.V.ASOKAN (SR.) SRI.K.S.SAJEEV KUMAR** ## **RESPONDENTS/RESPONDENTS:** |**1**|**BIJOY.T.V, S/O T.R.VIJAYARAJAN,**| |---|---| ||**THAIVALAPPIL HOUSE, PORATHISSERY, INRINJALAKUDA**| ||**NORTH.P.O., THRISSUR DIST.**| |**2**|**T.R.VIJAYARAJAN THAIVALAPPIL HOUSE**| ||**PORATHISSERY, IRINJALAKUDA NORTH.P.O., THRISSUR**| ||**DIST.**| |**3**|**KOMALAVALLY W/O. T.R.VIJAYARAJAN**| ||**THAIVALAPPIL HOUSE, PORATHISSERY, IRINJALAKUDA**| ||**NORTH.P.O., THRISSUR DIST.**| ||**BY ADV. SRI.K.S.BHARATHAN**| **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2018, ALONG WITH Mat.Appeal.231/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal Nos.740/09 & 231/10 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ These two appeals have been filed by the petitioner and respondents in OP No. 136/2004 of the Family Court, Thrissur. The OP is filed by the petitioner wife claiming return of 80 sovereigns of gold ornaments and money. The contention urged by the petitioner is that the petitioner and 1[st] respondent got married on 4/11/2001. On account of matrimonial disputes, they are living separately. Her contention is that, at the time of marriage, her parents have given her 80 sovereigns of gold ornaments. It is alleged that the gold ornaments were kept in a locker maintained in their joint names in the Town Co-operative Bank, Irinjalakuda. While leaving the matrimonial home, on 18/10/02, she was not given back the gold ornaments. Hence, claim has been made for return of gold ornaments or its equivalent value of `3,14,000/- Petitioner also had a case that, an amount of `50,000/- was paid to the 1[st] respondent at the time of marriage which also he had appropriated. 2. Respondents denied the allegations. According to him, Mat.Appeal Nos.740/09 & 231/10 -:3:- he had not taken any of the gold ornaments or money whereas he had given her a thali chain weighing 9½ sovereigns and a bangle weighing 2½ sovereigns. He also had spent `50,000/- for her B.Ed course. 3. The above case was tried along with OP No.137/2004 which was filed for divorce. Common evidence was taken in the case. PWs1 to PW6 were examined on the side of the petitioner/wife. She relied upon Exts.A1 to A10. Respondents examined two witnesses as RW1 and RW2 and produced Ext.B1. 4. The Family Court granted divorce against which no challenge had been made. The above OP was partly allowed directing return of `3,00,000/- being the value of ornaments with interest. Petitioner as well as the respondents have preferred these appeals. 5. It is contended on behalf of the appellant/wife who has filed MA No.740/2009 that though an alternate relief was claimed for return of gold ornaments or its value and money, the Court had only granted its value. There ought to have been a direction to return the gold ornaments as the value of the gold had substantially increased from time to time. Mat.Appeal Nos.740/09 & 231/10 -:4:- 6. On the other hand, learned counsel for the appellant/husband who had filed MA No.231/2010 even challenges the very direction of the Court below granting a decree for recovery of money, being the value of gold ornaments. 7. The first question to be considered in the present appeals is whether the Family Court was justified in arriving at a conclusion that the respondent/husband had appropriated 80 sovereigns of gold ornaments. From the pleadings, it appears that the definite case of the wife was that she had 80 sovereigns of gold ornaments and when she reached the matrimonial home, the same was kept in a locker facility opened in their joint names. Ext.A9 series proves the aforesaid fact. The locker was opened as per an agreement dated 8/11/2001. The marriage between the couple was on 4/11/2001. Apparently, the locker had been opened only for keeping the gold ornaments belonging to the wife. Though the husband pleads ignorance about the quantity of gold ornaments, Ext.A10 disproves the said fact. Ext.A10 is the marriage register maintained by the SNDP Sakha Yogam and in one of the columns of the marriage register in one of the entries, the gold ornaments given to the bride is recorded. It is mentioned Mat.Appeal Nos.740/09 & 231/10 -:5:- that she was given 80 sovereigns of gold ornaments. There is no reason to disbelieve the said entry in the register. Therefore, we have to proceed on the basis that she was having 80 sovereigns of gold ornaments. 8. In the objection filed by the husband, he does not say anything about the gold ornaments being kept in a locker facility, whereas in evidence, he had taken up a contention that he was operating the locker on instructions of his wife and she had taken away all the gold ornaments with her. Ext.A9(e) would show that a joint application was given by the couple for closing the locker and Ext.A9(d) would indicate that the locker facility was closed on 26/3/2002. Ext.A9(f) further indicates that, on 26/3/2002, at 12.15 p.m. Bijoy T.V/husband had opened locker No.61. These documents clearly prove the fact that the husband had opened the locker on 26/3/2002, the date on which the locker facility was closed. Apparently, respondent husband had not stated anything in his objection about opening of the locker by himself either on behalf of his wife or for himself. Therefore, when there is absolutely no pleading regarding the operation of the locker facility, he cannot take a contention during evidence when he is Mat.Appeal Nos.740/09 & 231/10 -:6:- confronted with Ext.A9 series that he was operating the locker on instructions from his wife. We have no hesitation to hold that he had made up a story that he was operating the locker on instructions from his wife. 9. There is no doubt that the locker facility itself was opened for keeping the gold ornaments belonging to the wife. If the wife was operating the locker, definitely, respondent husband could have summoned the documents from the bank to prove that she was operating the locker. There is no such evidence. He had not made any attempt to prove any fact in order to indicate that wife was operating the locker at any point of time. He himself had not stated that he had operated the locker. Under such circumstances, we have to proceed on the basis that whatever gold ornaments were kept in the locker had been taken by the husband. 10. The husband does not have a case that he had taken the gold ornaments and entrusted it to his wife. No such statement is seen in the written objection. Therefore, the wife's version is believable and the version of the husband cannot be believed. Under such circumstances, the Court below was Mat.Appeal Nos.740/09 & 231/10 -:7:- justified in directing return of 80 sovereigns of gold ornaments. 11. But the respondent husband has a further case that he had given to the petitioner wife 9½ sovereigns of gold ornaments by way of a thali chain and 2½ sovereigns of gold ornaments by way of a bangle. PW1 in her evidence admits that she had received 9½ sovereigns of thali chain which is available with her and also a bangle weighing 1½ sovereigns. This quantity of gold ornaments which had been given by the husband had to be deducted from the gold ornaments which are to be returned. Therefore, we hold that the respondent husband is liable to return 69 sovereigns of gold ornaments or its value to the petitioner/wife. 12. Having found so, the question to be considered is the claim in MA No.740/2009. The contention urged by the appellant/wife is that though an alternate prayer was made for return of `3,14,000/-, being the value of gold ornaments, the Court below ought to have directed return of gold ornaments as well. There is no dispute about the fact that value of gold has considerably increased over a period of time and due to the pendency of the appeal, there had been substantial change in the Mat.Appeal Nos.740/09 & 231/10 -:8:- value of gold. At present, the value of gold will be more than `22,000/-. In the memorandum of appeal, appellant/wife had claimed only an amount of `7,00,000/-. In the OP, petitioner/wife had claimed return of 80 sovereigns of gold ornaments or in the alternative, an amount of `3,14,000/-. 13. Learned counsel for the respondent husband had relied upon a judgment of this Court in _**Thomas M.Varghese v. Sonia Susan Thomas**_ (2014 (3) KLT 487). That was also a case in which wife had claimed return of gold ornaments or its equivalent value. But the appeal was filed by the husband. Family Court directed return of the value of gold ornaments. During the course of hearing, in the appeal filed by the husband, wife made a claim that instead of value of gold ornaments, there should be a direction to return the gold ornaments as such. It was observed that in the absence of any appeal or cross appeal, it is not possible for the appellate Court to modify the judgment at the instance of the respondent. The factual circumstance in the said case has no application to the present facts as in the present matter, appeal has already been filed by the wife claiming return of gold ornaments or its present value. Mat.Appeal Nos.740/09 & 231/10 -:9:- 14. Taking into consideration the factual circumstances involved in the matter, it would only be appropriate to modify the decree to the claim made in the memorandum of appeal. Accordingly, these appeals are disposed of as under:- (a) Mat.Appeal Nos. 740/09 and 231/10 are partly allowed and the decree shall stand modified as under:- (i) That the petitioner/wife shall be entitled to recover an amount of `7,00,000/- (Rupees Seven lakhs only) with interest @6% per annum from the date of petition till realisation from the respondent/husband. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/MARY JOSEPH** Rp //True Copy// **JUDGE** PS to Judge