Sunil and Lohitakshan v Neethu and Sarala (Mat.Appeal No. 833 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** **Mat.Appeal.No.833 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 25-06-2014 IN OP NO.258/2013 OF FAMILY COURT, ATTINGAL** ## **APPELLANT/ RESPONDENTS 1 & 2** **1 SUNIL, AGED 36 YEARS, S/O.LOHITHAKSHAN,RESIDING AT KEEZHYEVARIL VEEDU, ARA 63,ANAYARA,THIRUVANANTHAPURAM.** **2 LOHITAKSHAN, AGED 70 YEARS, RESIDING AT KEEZHEVARIL VEEDU,ARA 63,ANAYARA,THIRUVANANTHAPURAM.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** ## **RESPONDENT/ PETITIONER & 3RD RESPONDENT:** **1 NEETHU, AGED 29 YEARS, D/O.VALSALA,RESIDING AT NEETHU NIVAS,KIZHUVILAM VILLAGE-695583.** **2 SARALA, AGED 63 YEARS, W/O.LOHITAKSHAN,RESIDING AT KEEZHEVARIL VEEDU,ARA 63,ANAYARA,THIRUVANANTHAPURAM. R1 BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2019, THE COURT ON 21-11-2019 DELIVERED THE FOLLOWING:** M.A.No.833/2014 -:2:- ## Dated this the 21[st] day of November, 2019 ## J U D G M E N T ## T.V.ANILKUMAR J. Appellants are son and father and also respondents 1 and 2 respectively in O.P.No.258 of 2013 before the Family Court, Attingal. The first respondent in the appeal, who is the wife of the 1[st] appellant filed the said original petition for recovery of gold ornaments, cash amount and presentation items etc. alleged to have been entrusted with the respondents in the O.P. The 2[nd] respondent in the appeal is the mother of the 1[st] appellant and is arrayed as the 3[rd] respondent in the O.P. 2. The court below accepted the 1[st] respondent's claim in the O.P. only in part allowing her to realise 87 sovereigns of gold ornaments or its market value, cash amount of Rs.1,00,000/- and Rs.6,000/being the value of a few utensils from the appellants. The claim as against the 3[rd] respondent in the O.P. was wholly dismissed. Some of the reliefs, M.A.No.833/2014 ## -:3:- including claim for past and future maintenance were also turned down against which the 1[st] respondent has not preferred any appeal. Aggrieved by the impugned order, respondents 1 and 2 in the O.P. alone are now in the appeal before us. 3. Reference to parties herein below will be according to their respective rank in the original petition save as otherwise indicated by the context. 4. The parties are Hindus. Petitioner was married to 1[st] respondent/husband on 26.10.2008. Both spouses are sufficiently educated. Petitioner's case is that she was adorned with 101 sovereigns of gold ornaments at the time of marriage. On the same day itself, when her parents visited her in connection with 'maruveedu' ceremony, she was entrusted with cash amount of Rs.2,50,000/- (received as presents) and a few valuable presents also which included a standing lamp and a dressing table. It is also her case that on the next day of marriage, all the respondents together represented to her that keeping of gold ornaments and also cash in the house would not be safe and they therefore, advised her to keep her gold in a locker. Accordingly, 87 sovereigns of gold ornaments were taken by the 2[nd] respondent and M.A.No.833/2014 -:4:- entrusted with the 1[st] respondent for being kept in a locker in Dhanalekshmi Bank, Sasthamangalam branch. Cash amount of Rs.2,50,000/- was also taken by the 2[nd] respondent and given to the 1[st] respondent for investment in connection with his business. The gold kept in the locker was later misappropriated by the respondents and same happened to be the fate of cash amount also. 5. When matrimonial relationship strained, she and her parents demanded her assets back and on refusal of the same, she lodged Ext.A10 complaint before Police Station, Attingal which was registered as Crime No.537 of 2010 under Section 498A read with Section 34 of the Indian Penal Code,1860. The 1[st] respondent filed O.P. No.371 of 2010 against her seeking dissolution of marriage. It was in this context that the O.P. was filed seeking recovery of 87 sovereigns of gold ornaments or its market value, cash amount of Rs.2,50,000/- and recovery of a dressing table and 'nilavilak' along with claim for maintenance both past and future. 6. During the pendency of the original petition, parties sought for a divorce by mutual consent under ## M.A.No.833/2014 ## -:5:- Section 13B of the Hindu Marriage Act,1955 and thereafter, petitioner's claim for maintenance was abandoned and consequently original petition was dismissed in part. 7. The respondents in their joint counter statement denied all allegations raised against them contending that none of them took her ornaments or cash nor they had any occasion to deal with any of her assets. Entrustment of gold and cash was denied as false. It was strenuously contended that no valuable moveables were brought to their house nor misappropriated by them. It was stated that the petitioner was a woman of such a character that she loved to wear all the ornaments and therefore, did not allow any of the respondents even to touch them. It is true that respondents suggested to her to keep the ornaments in a locker so that they could be made safe. Since she did not yield to the suggestion, the ornaments and cash continued to be in her custody. Ext.A10 complaint was assailed as founded on false allegations and it was further alleged that her separation from the conjugal company of the 1[st] respondent was solely on her own fault. M.A.No.833/2014 -:6:- 8. The court below examined the petitioner, her father and her maternal uncle as PWs. 1 to 3 respectively. Jeweller from whom the ornaments were purchased was examined as PW.4. Exts. A1 to A10 were admitted in evidence on the side of the petitioner. The 1[st] respondent also examined the Jeweller, who sold ornaments to the petitioner as DW.2 and himself as DW.1. Ext.B1 is the sole document admitted in evidence on his side. Ext.X1 is the copy of locker register issued from Dhanalekshmi Bank, Sasthamangalam branch. 9. The court below after examining the entire evidence on record was of the opinion that the petitioner was adorned with 101 sovereigns at the time of her marriage and at the insistence of the respondents, 87 sovereigns out of them were kept in a bank locker in the name of the 1[st] respondent/husband. Accordingly, he was held liable along with his father/2[nd] respondent to return the same, since it was the latter to whom the ornaments were initially entrusted. However, with respect to entrustment of cash Rs.2,50,000/-, the court below was not prepared to accept the claim of the petitioner in its M.A.No.833/2014 -:7:- entirety. But instead of rejecting her claim in toto, the court below made a guess work and ordered respondents 1 and 2 to make payment of Rs.1,00,000/with interest. Claim for return of 'nilavilaku' and dressing table was accepted and it was ordered that in the event of failure to return the items, she will be entitled to recover Rs.6,000/- from the appellants with 6% interest per annum from the date of petition till realisation. 10. We heard the counsel appearing on both sides. 11. It is contended on behalf of the appellants that the court below utterly failed to hold that the petitioner was not adorned with 101 sovereigns of gold ornaments. It was contended that the estimates issued from the Jewellery mart were not sufficient to prove that the petitioner purchased ornaments and evidence tendered by PW.4 and DW.2, who are the Jewellery mart owners was not properly appreciated. It was also contended that the ornaments worn by the petitioner were only plated gold. Further, the court below was not justified in acting on Ext.A9 series wedding photographs which were not admissible in evidence under law. As regards evidence adduced by ## M.A.No.833/2014 ## -:8:- the petitioner for proving entrustment of cash amount, it was contended that the contradictions in the pleading and her evidence were not duly considered. On the other hand, the learned counsel for the respondents sought to sustain the impugned order in the light of the entirety of evidence, circumstances and probabilities. 12. The fact that the petitioner was adorned with gold ornaments at the time of marriage is not a disputed fact. We find from the pleadings of the respondents that there is no specific denial at all with respect to the weight of ornaments claimed to have been worn by the petitioner. There is definite plea that she possessed 101 sovereigns at the time of marriage till she was insisted to part with 87 sovereigns of ornaments. It is true that in order to prove the source of money for purchase of ornaments, no reliable materials could be brought on record. Except that PW.2/her father was a retired government employee, there is no other circumstance to infer about his financial ability. PW.3/her maternal uncle supported her case; but his information about purchase of gold, entrustment of it and cash is only M.A.No.833/2014 -:9:- hearsay. 13. The documents which the petitioner relies on to prove purchase of ornaments are Exts.A1 to A7, estimates issued from Jewellery mart and also the wedding photographs. The respondents assailed estimate bills as being either bogus or not sufficient enough to prove purchase of gold ornaments. In regard to photographs also, there is serious contention that the ornaments appearing therein are spurious gold and therefore, Ext.A9 series ought not to have been admitted in evidence and relied on by the court below. It is true that except Ext.A3 bill, other documents are only rough estimates issued from the Jewellery mart. It goes without saying estimates are not evidence of sale unlike cash bills issued to customers. This is a matter of general knowledge and that is what PW.4 and DW.2, the two Jewellers examined in the case spoke in favour of the appellants. PW.4 examined on the side of the petitioner said that Exts.A6 and A7 estimates were not issued to the petitioner's father. Therefore, he was declared hostile and cross-examined. DW.2, who was examined on the side of the respondents also said that in the absence of M.A.No.833/2014 -:10:- purchase bills issued from the Jewellery shop, mere estimates produced before court cannot prove that any gold was purchased by the customer from his shop. Whatever may be the evidence given by PW.4 and DW.2, it is a matter of common knowledge that most of the customers, who purchase gold ornaments from jewellery shops do not insist for issue of bills since there is large tendency among customers to avoid payment of tax. This aspect was rightly taken note of by the court below. 14. Ext.A9 photographs, in our opinion cannot be wholly disregarded as inadmissible since Section 14 of the Family Court Act,1984 relaxes application of rigid rules of evidence and court is at liberty to receive them in evidence in appropriate cases depending on the facts and circumstances of each case. Law in this respect is clear from Susan George v. Rahul Padman [2012(1)KLT 360], Treasa Bency v. Preceline George [2013(3)KLT 414] and Bexy Michael v. A.J. Michael [2010(4) KHC 376] relied on by the learned counsel for the respondents. In order to rebut the oral evidence of PW.1 and her father that she was adorned with 101 sovereigns of gold ornaments, the 1[st] respondent gave oral evidence as M.A.No.833/2014 -:11:- DW.1. But, we find from the answers elicited from his cross-examination that he was all throughout evasive to the precise questions put to him, as to the weight of ornaments worn by the wife. When he was asked whether ornaments in Ext.A9 photographs disclosed the true weight of ornaments worn by petitioner at the time of marriage, he was not in a position to give a definite answer. Instead of raising a flat denial, he could only say that the photographs might be true. In one part of his testimony, he even said that photographs were edited. Later, he resiled and said that he was not able to assert that there was any edition. All throughout his evidence, he was taking an adamant stand that he did not even look at the ornaments nor count the weight and check the purity. His answers in this respect cannot be considered as reliable since he was only trying to suppress true facts. DW.1 tried to explain that ornaments worn by PW.1 were plated gold and therefore spurious. This is a statement which can hardly be accepted inasmuch as it is a contention taken for the first time at the time of evidence having no foundation in his pleadings. 15. It is also relevant to note that there is no M.A.No.833/2014 -:12:- specific denial in his pleadings that she was wearing 101 sovereigns of gold ornaments at the time of marriage. That evasive denial only tantamounts to admission is the basic law of pleadings. When this circumstance is taken along with the testimony of DW.1, petitioner's case looks more probable than that of the respondents. This is so notwithstanding the estimate bills being eschewed from evidence. The court below also adopted the same view and we find no reason to differ from the conclusion and accept the case of the respondents. 16. What is the most important is the reliability of evidence of the petitioner with respect to entrustment of 87 sovereigns of gold ornaments with appellants as contended by her. Even if it is assumed that she had 101 sovereigns also, unless she could establish entrustment of 87 sovereigns out of them, the impugned order of the court below is not capable of being sustained. Her precise and definite contention in the pleadings as well as in the testimony of herself and father/PW.2 is that on the very next day of marriage itself, the 2[nd] respondent/father-in-law insisted her to handover 87 sovereigns to him, since according to him, it was not M.A.No.833/2014 -:13:- safe to keep all the ornaments in the house. The testimonies of PWs.1 and 2 show that 87 sovereigns of gold were taken by the appellants the next day and kept in the bank locker of the 1[st] respondent in Dhanalekshmi Bank, Sasthamangalam branch. The court below believed this evidence of the petitioner and accepted her case. According to the learned counsel for the appellants, there is absolutely no evidence to substantiate that she ever entrusted the ornaments with the appellants nor they were taken and kept in the bank locker of the 1[st] respondent. 17. The 1[st] respondent did not dispute during cross-examination that immediately after the marriage he opened a bank locker in his name. Ext.X1, locker register whose genuineness is not under dispute sufficiently proves that he alone operated the locker since 29.10.2008 onwards. Accordingly to PW.1, she along with appellants went to the bank and they kept her 87 sovereigns of gold ornaments in the locker on 29.10.2008 and at no later point of time, none of them was returned to her in spite of repeated demands following the subsequently strained matrimonial relationship between spouses. What has come out from the evidence of DW.1 in the cross-examination is M.A.No.833/2014 -:14:- that, though he had opened a locker in his name, the petitioner was hesitant to handover the ornaments and deposit the same in the locker. Therefore itself he doubted the ornaments to be spurious and she preferred to detain the ornaments all throughout with her. In order to prove that the ornaments were taken to locker and kept there, there is no independent witness or evidence except the testimony of the petitioner. Therefore, necessarily, the court could take a proper decision only by placing reliance upon the material circumstances having bearing in the matter. 18. We notice that there is sharp inconsistency between the pleadings of the appellants and the testimony of DW.1 in this respect rendering their denial of entrustment absolutely false. The nature of contention raised in Paragraph No.10 of the counter statement is that the 2[nd] respondent did nothing with the ornaments except suggesting to the petitioner that it would be safe for her to keep the ornaments in a bank locker, if she had so chosen. But she refused to yield to the suggestion even after she had consultation with her father. It is relevant to note that there is no specific averment in the pleadings M.A.No.833/2014 -:15:- that the 1[st] respondent had ever opened a locker after the marriage nor the petitioner refused to put her ornaments in the locker when he and his parents had gone to Dhanalekshmi Bank along with the petitioner with gold ornaments for safe deposit. But instead, entirely a new case was developed through the evidence of DW.1 that though she came on 29.10.2008 near the bank along with him in a car with her ornaments, she refused to take her ornaments to the locker; but only sat in the car detaining all the ornaments with her. He then said that he, however, opened the locker on the same day only to deposit his bracelet and a chain. This appears to be the manner as to how he sought to rebut the evidence of alleged entrustment of ornaments with him. 19. It is wholly insensible to believe the evidence of DW.1 that the petitioner accompanied him with ornaments upto the bank and later refused to deposit the gold in the locker. This is totally inconsistent with the case of the appellants put forward in their pleadings. If the true incident is what DW.1 testified, it would certainly have found a place when the pleadings were drafted. In view of the inconsistency between the pleadings and evidence M.A.No.833/2014 -:16:- which does not go hand in hand, we are of the view that the conclusion drawn by the court below is most reasonable. When circumstances probabilise that 87 sovereigns were taken and deposited in the bank locker in the name of the 1[st] respondent, it is upto him either to explain and prove the contrary or to show that the ornaments were taken back and returned to the petitioner. The 1[st] respondent failed to discharge the burden of proof in this respect. 20. Ext.X1 locker register proves that the appellant operated the locker in the months of November and December, 2008 and also in the month of January 2010. He made it clear in his evidence that none other than him had occasion to operate the locker at all. In this context, the burden on him is severe and it is upto him to show that gold were returned to the petitioner without the same being subjected to any sort of misappropriation. We are of the view that since locker stood only in the name of the 1[st] respondent, no liability can be fastened on his father, who is the 2[nd] respondent. Only because the initial entrustment was with him and he also allegedly followed the spouses to the bank for deposit of ornaments in the locker, he cannot be M.A.No.833/2014 -:17:- fastened with any legal liability. The impugned order directing the 2[nd] respondent also to account for the gold entrusted is, therefore, not sustainable and liable to be set aside. 21. The finding of court below that the petitioner is entitled to recover Rs.1,00,000/- from the appellants does not appear to accord with the evidence on record. It is liable to be set aside for the reason that it rests totally on a mere speculation drawn by the court below. We find that there is utter inconsistency between evidence of petitioner and her case set up in pleadings as to the entrustment of cash amount. She as PW.1 said that after the marriage on 26.10.2008, her parents came to the matrimonial home on the same day and entrusted cash amount of Rs.2,50,000/- with the 1[st] respondent in her presence. This is what was repeated and affirmed by the father/PW.2 also in his oral evidence. The uniform evidence in their testimonies is that entrustment was on the same date of marriage and also direct to the 1[st] respondent. There is no independent witness or evidence in this respect other than the testimonies of PWs.1 and 2. PW.3, her maternal uncle is not a direct witness to the M.A.No.833/2014 -:18:- entrustment of cash. 22. The case set up in her pleadings in paragraph Nos.6 to 8 is to the effect that on the same date of marriage, cash amount of Rs.2,50,000/- was entrusted by her parents only with her when they came to matrimonial home in connection with 'maruveedu' ceremony and the amount continued to be in her custody till the next day, until the 2[nd] respondent demanded it for safe custody. She gave the amount to 2[nd] respondent the next day. Further case in the pleadings is that the 2[nd] respondent in turn entrusted the amount with his son, the 1[st] respondent, who invested the amount in his business. The absolute inconsistency in the pleadings and evidence raises serious doubt about the veracity of entrustment and this was to a certain extent taken note by the court below also. But instead of rejecting the claim acting only on some guess work, petitioner was favoured with a limited award of Rs.1,00,000/-. In our view, the finding of the court below can hardly be sustained as it does not accord with probabilities nor evidence on record, especially when there is no independent evidence other than the interested testimonies of daughter and father. Therefore, the impugned order to M.A.No.833/2014 -:19:- the extent it directed the appellants to make payment of Rs.2,50,000/- is liable to be set aside. 23. The last part of the order concerns with direction of court to return a 'nilavilaku' and a dressing table and make payment of the value thereof to the petitioner in case of default. We find that this finding is absolutely based on the admission made by DW.1 that the said utensils were brought to his house and he has no objection to return the same. Therefore, we do not find any ground to interfere with the direction issued in this respect by the court below. On the whole, we find that the impugned order could be sustained only in part and to the extent being made clear in the foregoing paras of this judgment. In the result, appeal succeeds only in part. The 1[st] appellant/husband is directed to return 87 sovereigns of gold ornaments to the 1[st] respondent/ wife or in the alternative its market value of Rs.18,27,000/-(Rupees eighteen lakhs twenty seven thousand only) with 6% interest per annum from the date of petition till realisation. He will also return the dressing table and 'nilavilaku' to the 1[st] respondent or in the alternative its value of M.A.No.833/2014 -:20:- Rs.6,000/- with interest at 6% interest per annum from the date of petition till realisation. Original petition is wholly dismissed against the 2[nd] respondent and also in respect of claim made by the 1[st] respondent for cash amount. No costs. **Sd/-** ## K. HARILAL,JUDGE **Sd/-** ## T.V.ANILKUMAR,JUDGE DST /True copy// P.A.To Judge