Sumesh s/o Kumaran; Kumaran s/o late Komban; Pushpavally w/o Kumaran v Sreema d/o Sreedharan

1 Mat.Appeal.No.621 OF 2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942** **Mat.Appeal.No.621 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OP 228/2013 DATED 30-03-2017 OF FAMILY COURT, PALAKKAD** ## **APPELLANT/S:** **1 SUMESH S/O KUMARAN, AGED 41 YEARS,KANNIYAD, OOTTARA, VADAVANNUR, CHITTUR TALUK, PALAKKAD DISTRICT. 2 KUMARAN S/O LATE KOMBAN,AGED ABOUT 66 YEARS,KANNIYAD, OOTTARA, VADAVANNUR, CHITTUR TALUK, PALAKKAD DISTRICT. 3 PUSHPAVALLY W/O KUMARAN,AGED ABOUT 56 YEARS,KANNIYAD, OOTTARA, VADAVANNUR, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENT/S:** **SREEMA.S D/O SREEDHARAN,AGED 31 YEARS,ARAYAKULAM, KUTTIYAMPAK, THENARI, ELAPPULLY, PALAKKAD PIN678622.** **R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal.No.621 OF 2017 **A.MUHAMED MUSTAQUE & C.S.DIAS, JJ. ====================== Mat.Appeal No.621 of 2017 ====================== Dated this the 11[th] day of February, 2021.** ## **JUDGMENT** ## **C.S.DIAS. J.** Confronted with the judgment and decree in OP 228/2013 of the Family Court, Palakkad, the respondents are in appeal. The petitioner in the original petition is the respondent in the appeal. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The germane facts in the original petition are as follows: The petitioner is the wife of the first respondent. Their marriage was solemnized on 12/12/2010. The respondents 2 and 3 are the parents of the first respondent. At the time of marriage, the petitioner was given 50 sovereigns of gold ornaments, as her share in parental properties. A week after the marriage, the respondents took away the entire gold 3 Mat.Appeal.No.621 OF 2017 ornaments except for two bangles. The respondents used to give the gold ornaments to the petitioner to attend functions and, thereafter, take it back from her, immediately after the function. The first respondent was an alcoholic. He used to illtreat and harass the petitioner to get more dowry from her parents. The respondents pawned and sold the petitioner's gold ornaments. The second respondent used to also misbehave towards the petitioner. The father of the petitioner had gifted her a gold chain weighing 8 grams for Vishu and a pair of stud weighing 3½ sovereigns on 31.7.2011. The first respondent took away the said ornaments also. He compelled the petitioner to subscribe her signature for divorce. On 9.8.2011, the petitioner returned to her natal home with her father. On 28.4.2012, the first respondent went to petitioner's parental home and mauled her. The respondents have not returned the petitioner's gold ornaments. Hence, the original petition. 3. The respondents filed a written statement, 4 Mat.Appeal.No.621 OF 2017 refuting the allegations in the original petition. They admitted the marriage, but denied the fact that the petitioner was given 50 sovereigns of gold ornaments as her share in parental properties. Similarly, they denied that the petitioner was gifted with a 8 grams gold chain and a pair of stud weighing 3½ sovereigns. The respondents contended that they never compelled the petitioner to leave the matrimonial home. The petitioner demanded a separate residence. It was in the above situation that the petitioner left the matrimonial home on 12.7.2011, without any reason. They prayed the original petition be dismissed. 4. The petitioner was examined as PW1 and Exts A1 to A9(b) were marked through her. The first respondent was examined as RW1. 5. The Family Court, after appreciating the pleadings and materials on record, by the impugned judgment and decree allowed the original petition, by directing the respondents to return the petition schedule gold ornaments or its value amounting to 5 Mat.Appeal.No.621 OF 2017 Rs.11,23,220/- within one month from the date of decree. A charge was also created over the attachment schedule property. 6. Heard the learned counsel appearing for the appellants/respondents and the learned counsel appearing for the respondent/petitioner. 7. The question that emerges for consideration in this appeal is whether the impugned judgment and decree passed by the Family Court is correct or not. 8. This Court has aphoristically held in **Alphonsa v. Neetha** [2019 (4) KLT 846] and **Royson Mathew** v. **Minimol [** 2020 (3) KLT 280], that the initial burden to prove the entrustment of gold and money is on the person who claims the decree for recovery of money, and unless there are pleadings/evidence on record to suggest that the entrustment was for a specific purpose or that the entrustment was in the nature of trust or under the specific understanding that the amounts will be returned, an action for recovery of money may not 6 Mat.Appeal.No.621 OF 2017 succeed. 9. The case of the petitioner was that she was given 50 sovereigns of gold ornaments at the time of marriage as her share in parental properties. Thereafter, her father gifted her a gold chain weighing 8 grams and a pair of stud weighing 3½ sovereigns. She averred that the respondents took away her gold ornaments and pledged/sold the same. Due to the harassment and ill-treatment meted out to her, she was constrained to leave matrimonial home. 10. The petitioner produced Exts A1 to A8 estimates to prove the purchase of gold ornaments and Exts A9 and A9(b) photographs to substantiate that she had adorned the gold ornaments at the time of marriage. Even though the petitioner has proved that she was given 50 sovereigns of gold ornaments, there is no material as laid down in **Alphonsa v. Neetha** and **Royson Mathew** v. **Minimol** (supra) to establish that the respondents have misappropriated the petitioner's gold ornaments so as to grant her decree 7 Mat.Appeal.No.621 OF 2017 for recovery as prayed for in the original petition. Nevertheless, the first respondent, who was examined as RW1, admitted in his cross-examination that the petitioner was given 30 sovereigns of gold ornaments at the time of marriage, which is reflected in Exts A9 series photographs. 11. On a reappreciation of the pleadings and materials on record, especially the oral testimony of RW1- the first respondent, he has in an unequivocal terms admitted in his cross- examination that the petitioner's gold ornaments weighing 30 sovereigns were kept in the almirah in the bedroom of the matrimonial home and that the petitioner has not taken the gold ornaments from the matrimonial home. In light of the said admission, it is only to believed that the respondents had in their possession 30 sovereigns of gold ornaments of the petitioner. The preponderance of probability leans in favour of the petitioner. 12. The error committed by the Family Court, 8 Mat.Appeal.No.621 OF 2017 after relying on the above admission of the first respondent was that the Family Court decreed the original petition by directing the respondents to return 49.4375 sovereigns of gold ornaments (petition schedule gold ornaments). In view of the finding of the Family Court that the first respondent had admitted the petitioner had only 30 sovereigns of gold ornaments, the Family Court ought to have granted a decree only for the return of 30 sovereigns of gold ornaments. 13. In the above circumstances and appreciation of evidence, particularly the oral testimonies of PW1 and RW1, which stands corroborated by Exts A1 to A9 (b), we are of the considered opinion that the petitioner is only entitled to recover 30 sovereigns of gold ornaments or its value at the rate of Rs.22,700/as claimed in the original petition, totaling to an amount of Rs.6,81,000/-. In the result, the appeal is allowed, in part, as follows: 9 Mat.Appeal.No.621 OF 2017 (i) The respondent/petitioner is permitted to realise an amount of Rs.6,81,000/- (Rupees Six Lakh Eighty One Thousand only) from the appellants/respondents within three months from today. (ii) The appellants/respondents are directed to pay the respondent/petitioner the amount of Rs.6,81,000/- within three months from today, failing which the respondent/petitioner would be entitled to realise the above said amount with interest at the rate of 6% per annum, from the date of petition till the date of realisation. (iii) In the facts and circumstances of the case, the parties are directed to bear their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **C.S.DIAS** **JUDGE** SKS/15.2.2021