Sussan Samuel v. Stephan Koshy Kariyamvattaththu Mini Bhavanam, Vazhuvadi, Thazhakara, Mavelikara and Koshy Kariyamvattathu Mini Bhavanam, Vazhuvadi, Thazhakara, Mavelikara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933 RSA.No. 1479 of 2011 () ----------------------AS.130/2005 of ADDL.DISTRICT COURT, FAST TRACK (ADHOC), MAVELIKKARA OS NO.211/1998 OIF SUB COURT MAVELIKARA APPELLANT(S)/RESPONDENTS 1 AND 2/DEFENDANTS: ------------ 1. STEPHAN KOSHY KARIYAMVATTATHU MINI BHAVANAM,VAZHUVADI, THAZHAKARA, MAVELIKARA. 2. KOSHY KARIYAMVATTATHU MINI BHAVANAM,VAZHUVADI, THAZHAKARA, MAVELIKARA. BY ADVS.SRI.P.CHANDRASEKHARAN PILLAI (VENNELA) SMT.GISA SUSAN THOMAS RESPONDENT(S)/APPELLANT/PLAINTIFF: -------------- SUSSAN SAMUEL, AGED 31, PLOT NO.507, ANIBALAGAM STREET K.K.NAGAR, TRICHY, TAMILNADU (NOW RESIDING AT CHITTEZHATHU HOUSE, MUTTOOR PO, THIRUVALLA) -689 107. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.1479 of 2011 -------------------------------------Dated this the 5[th] day of March, 2012.** ## **JUDGMENT** The son and the father, defendants in O.S.No.211 of 1998 of the court of learned Sub Judge, Mavelikkara are the appellants before me. 1[st] appellant married the respondent on 03.11.1994. The betrothel ceremony was held on 24.10.1994. Marital relation between 1[st] appellant and the respondent went into trouble. 1[st] appellant demanded divorce from the respondent. Respondent shot back, by demanding return of `3,09,000/- with interest. According to her, at the time of betrothal a sum of `3,00,000/- was entrusted to the appellants as her share in her family property which appellants are liable to return with interest. 2. Appellants denied that there was entrustment of `3,00,000/-. According to them, there was no agreement to give share to the respondent since respondent's father had offered job for the 1[st] appellant. They admitted that `50,000/- was given to them towards marriage expenses. That according to them, is not liable to be returned. 3. Trial court dismissed the suit. The reasons for dismissing the suit are that respondent attempted to file the case as an indigent person but, later it was revealed that she has sufficient means to pay court fee and hence the **RSA No.1479/2011** 2 request to sue as an indigent person was not allowed. That conduct of respondent would tell upon credibility of her evidence. Trial court also found discrepancy in the pleadings and evidence of respondent and non-suited her. 4. Respondent took up the matter in appeal. Learned Additional District Judge, Fast Track (Adhoc), Mavelikkara decided A.S.No.130 of 2005 in favour of the respondent. The first appellate court after considering the evidence concluded that there is no reason to disbelieve evidence let in by the respondent and her witnesses. First appellate court relied on the decision in ## **Muhammed Davood and another v. Hafsath and another (AIR 2010 Kerala** **21)** to conclude that in a suit for recovery of money and ornaments handed over to the bride at the time of marriage, court need not insist on documentary evidence to prove such transaction and that oral evidence of the bride and her father getting support broadly from relevant circumstances can be accepted. Respondent was given a decree as prayed for. Judgment and decree of the first appellate court are under challenge in this Second Appeal raising by way of substantial questions of law whether the first appellate court was correct in accepting the proposition that it could pass a decree without evidence and factual pleadings when the claim is for return of partimony, whether first appellate court is correct in drawing a legal presumption of existence of patrimony right when there was lack of evidence to establish the case and whether the first appellate court is justified in negativing the finding of the trial court arrived at on a consideration of the evidence on record and that too, in the absence of reliable evidence? **RSA No.1479/2011** 3 5. Learned counsel for appellants has contended that plea raised by the respondent is not in tune with the evidence adduced and that it settled position of law that no amount of evidence which does not have the backing of pleadings can be looked into. It is also contended that first appellate court was not correct in reversing the finding of trial court which rested on a proper appreciation of evidence taking into account the discrepancy pointed out by the appellants. Reliance is place on the decisions in **Kashi Nath (Dead) through LRs. v. Jaganath ((2003) 8 SCC 740) and Ishwar Dutt v. Land Acquisition Collector and another ((2005) 7 SCC 190)** . It is further contended that having regard to the material discrepancy proved in the case and inconsistency with the pleadings and evidence trial court was not justified in relying on the decision in **Muhammed Davood and another v. Hafsath and another** (supra). 6. It is not as if the first appellate court is not entitled to appreciate the evidence and comes on its own conclusion. If on appreciation of evidence first appellate court finds that the decision of the trial court is wrong, nothing prevents the first appellate court from deciding the case on the materials on record. Being the last fact finding court, it is within the power of the first appellate court to appreciate the facts, evidence and other circumstances. 7. According to the respondent, `3,00,000 was paid as her share in her family property at the time of betrothel on 24.10.1994. Appellants, on the other hand say that only a sum of `50,000/- was paid and that too, as expenses for the marriage. Appellants have a further case that no share was fixed for the **RSA No.1479/2011** 4 respondent in her family property since respondent's father had offered a job for the 1[st] appellant. That, there was payment of `50,000/-by the relatives of the respondent to the appellants ofcourse according to the appellants, for expenses for the marriage is admitted by the appellants and it is not very much in dispute that the said payment was at the time of betrothel on 24.10.1994. In otherwords there was a payment on 24.10.1994, the date of betrothel. Then the question is whether the said payment was of `3,00,000/- as share of respondent in her family property or, as appellants would say, `50,000/- towards marriage expenses. 8. That there is a practice or custom, prevailant among the community of appellants and respondents of the share of the bride being given at the time of betrothel also is not very much in dispute as revealed from the evidence of DW1 (2[nd] appellant). DW1 would admit that there is a custom of payment of patrimony for the marriage. He would also say that in connection with marriage of his daughter, he had given `1,00,000/- (though according to him, for expenses for the marriage). A further statement of DW1 which is relevant in appreciating the evidence is that 1[st] appellant was suitable enough to get `25,00,000/- as dowry considering his status and education. Therefore, what exactly was in the mind of appellants when 1[st] appellant entered into marriage proposal with the respondent is very clear; they were under the impression that 1[st] appellant is suitable enough to get a minimum of `25,00,000/-. **RSA No.1479/2011** 5 9. According to the respondent, appellants had demanded `5,00,000/- as share of respondent, that amount was scaled down and it was fixed at `3,00,000/-. Having regard to the impression DW1, the 2[nd] appellant had about the capacity of his son to get patrimony for his bride, claim made by the respondent that the share of property was fixed as `3,00,000/- is not something which is basically unbelievable. 10. Now the question is whether evidence of respondent regarding payment of `3,00,000/- could be accepted? In the plaint, she says that for paying `3,00,000/-, her father had borrowed `1,00,000/- from his father-in-law, `1,00,000/- from his brother-in-law and `1,00,000/- from his brother thus making up the sum of `3,00,000/-. PW2, the father of respondent has stated that he collected `1,00,000/- each from the sister of the mother of respondent and wife of his brother. They were examined as PWs 3 and 4. They asserted that they had paid the amount to PW2. In proof, they also produced Exts.A1 to A8, documents showing that amounts were withdrawn from the respective accounts of PWs 3 and 4. 11. Yet another discrepancy or contradiction as the learned counsel puts it, is that while in the plaint it is stated that payment was made at the house of the elder brother of PW2, in the evidence PW2 has stated that payment was made in the presence of Paster Kaithakkal at the Church auditorium where the feast was arranged in connection with betrothel. A further contradiction learned counsel has pointed out is that as per plaint **RSA No.1479/2011** 6 averments, money was handed over by one S.E.Thomas, an elder member of respondent's family to Mathew, the senior member in the team of appellants but in evidence PW2 stated that money was handed over by Johny, the elder member of his family to the said Mathew. 12. The discrepancies which learned counsel has pointed out, in my view are only regarding the manner in which the sum of `3,00,000/- was raised by the respondent's father or as to who, at which place handed over the amount to the appellants. Not that the discrepancies could be discarded as irrelevant but the question is whether the discrepancy is such that no court could place reliance on evidence of PWs 1 to 5 and say that no such payment was made. In that matter, I must bear in mind that payment of `50,000/- is admitted by the appellants though according to them it was towards expenses for the marriage. I stated that therefore, the dispute has dwindled down to whether payment made was of `50,000/-as claimed by the appellants or `3,00,000/- as claimed by the respondent. In that view of the matter the discrepancy which learned counsel has pointed out in my view is not sufficient to discard the evidence of PWs 1 to 5 particularly in the light of Exts.A1 to A8 which the first appellate court has referred to and discussed. 13. Possibility of some discrepancy in the evidence is also quite probable. The transaction was on 24.10.1994, suit was filed in the year, 1998 and evidence was recorded still later. As revealed by the evidence of DW1, the 2[nd] appellant I stated that the practice of paying patrimony or share of the **RSA No.1479/2011** 7 bride at the time of betrothel is not something which was foreign to the parties. If the 2[nd] appellant was of the view that his son, the 1[st] appellant could get `25,00,000/- as dowry, it is quite unlikely that on the alleged offer of PW2 to arrange a job for the 1[st] appellant, they would have been satisfied with a mere, `50,000/- towards marriage expense when the 2[nd] appellant claims to have given `1,00,000/- in that way for the marriage of his daughter. I must also bear in mind that the trial court rejected the evidence of respondent as PW1 for the reason that her version is not creditworthy since she had requested permission to sue as indigent person but, later it was revealed that she has sufficient means to pay the court fee. I referred to the discrepancy which the trial court has taken into account which in the view of first appellate court is not sufficient to reject the case of respondent. First appellate court being the last fact finding court has referred to the evidence and come to the conclusion that minor discrepancies do not in any way affect the version of respondent regarding payment of `3,00,000/-. 14. Had been there documentary evidence for payment of the amount it would have been better. But having regard to the relationship between the parties on 24.10.1994, ie. respondent being proposed in marriage to the 1[st] appellant and the betrothel being performed, it is not normal for somebody to obtain document for payment of `3,00,000/- as share of the respondent. In such situation one has to depend on oral evidence. **RSA No.1479/2011** 8 15. Having regard to these aspects I do not find any infirmity in the decision of the first appellate court which has the touch of reality. Nor am I inclined to think that any substantial question of law is involved in the matter requiring admission of the Second Appeal. Second Appeal is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**