Yesudasan v. S. Vasantha, Anoop and Rajamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **Mat.Appeal.No. 291 of 2005 (E)** **------------------------------OS. NO.316/1994 OF FAMILY COURT, THIRUVANANTHAPURAM.** **.......** **APPELLANT/1ST DEFENDANT:** **----------------------------------------------** **YESUDASAN, ALAMBARA THEKKEPUTHEN BUNGLOW, KUNNATHUKAL VILLAGE.** **BY ADVS.SRI.G.UNNIKRISHNON, SRI.S.SREEKUMAR.** **RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT::** **------------------------------------------------------------------------** **1. S. VASANTHA, PUTHUVAL PUTHEN VEEDU, MURIYANKARA, PARASALLA P.O., THIRUVANANTHAPURAM.** **2. ANOOP, -DO-. -DO-. (REPRESENTED BY HIS GUARDIAN MOTHER 1ST RESPONDENT).** **3. RAJAMMA, ALAMBARA THEKKEPUTHEN BUNGLOW, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.R.S.KALKURA.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2017, ALONG WITH MA. NO. 48 OF 2006, THE COURT ON 30/05/2017 DAY DELIVERED THE FOLLOWING:** rs. ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== Mat.Appeal Nos. 291/05 & 48/2006 ====================== Dated this, the 30[th] day of May, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ These two appeals have been filed by plaintiffs as well as the first defendant in OS No.316/1994 challenging judgment dated 22/7/2005 of the Family Court and hence heard and decided together. 2. Mat.Appeal No. 291/2005 is filed by the first defendant in the suit and Mat.Appeal No.48/2006 is filed by the plaintiffs in the suit. For easy reference, the parties are referred to as shown in the Original Suit. The first plaintiff is the wife of first defendant. The 2[nd] plaintiff is their minor son. The marriage between the 1[st] plaintiff and 1[st] defendant was on 17/9/1986. The suit is filed for maintenance, recovery of money and for declaration of title and for permanent prohibitory injunction. 3. The short facts involved are as under:- Mat.Appeal Nos.291/05 & 48/06 -:2:- It is contended that at the time of marriage, the defendants demanded `50,000/- as pocket money and 35 sovereigns of gold. The parents of the first plaintiff gave `25,000/- in cash to the defendants and executed a simple mortgage in favour of the first plaintiff and first defendant for an amount of `15,000/-. She was also given 25 sovereigns of gold ornaments. Further, first plaintiff got valuable articles from the relatives as presentation at the time of marriage which was also brought to the house of defendants. The first plaintiff alleged that second defendant, mother of the first defendant and her daughter started illtreating her demanding more dowry. When she complained to the first defendant, he also joined them. After three months of marriage, he used to come home only in a drunken stage. On 10/12/1986, he came home in an intoxicated manner and directed the first plaintiff to go to her family house and return with the dowry amount mentioned in the mortgage deed. When she did not agree and explained the financial difficulty of her parents, she was abused and tortured. It is alleged that the first defendant took her to her parental house and left her there. Mediation took place and as requested by the mediators, first plaintiff went to the first defendant's house on Mat.Appeal Nos.291/05 & 48/06 -:3:- 5/4/1987. She stayed with him till 20/3/1988. The first defendant demanded her to give her gold ornaments to purchase a property and accordingly, 13 sovereigns of gold ornaments were sold on 6/12/1987. The amount was taken by the 2[nd] defendant and she executed a sale deed in favour of the first plaintiff and first defendant on 9/12/1987 assigning 25 cents of property in their joint names. The money was taken by the 2[nd] defendant for her daughter's marriage which was solemnized on 20/1/1988. After the marriage of first defendant's sister, he again started illtreating the first plaintiff. In the meantime, she became pregnant. First defendant started to have illicit relationship with a lady by name Girija. According to the first plaintiff, he was having illicit contact with other women also. When she questioned him, she was abused and tortured. Hence, she left to her parental home on 20/3/1988 and she delivered the second plaintiff. According to her, the first defendant did not come to her house and no maintenance was paid. She resided at her parental home till 25/9/1988. Her relatives took her to the defendants house. Accordingly, she resided there till 5/11/1988 when she was taken back to her parental house. On 11/1/1989, a lawyer's notice was Mat.Appeal Nos.291/05 & 48/06 -:4:- received by the first plaintiff wherein a demand was made for divorce. First plaintiff along with the brother went to the defendants' house on 13/1/1989. She was abused by the 2[nd] defendant and her daughter. She therefore returned to her house. The first defendant never turned up to take her back. However, he sent a notice calling upon the first plaintiff to reside with him and he also filed a petition for restitution of conjugal rights before the Sub Court, Thiruvananthapuram as OP(IDA) No.43/1991 which was later transferred and renumbered as OP No.40/92 before the Family Court. 1[st] defendant later withdrew the petition when the question of granting maintenance came up for consideration. He also filed OP(IDA) No.567/1993 for judicial separation. It is in these circumstance the original suit is filed claiming return of 12 sovereigns of gold ornaments kept by the defendants and return of `25,000/- received by the defendants at the time of marriage. Maintenance at the rate of `1,500/- per month for the first plaintiff and `1,000/- for the second plaintiff along with past maintenance for three years was also sought for. It is alleged that he was having more than 3 acres of rubber estate and coconut plantation and deriving an income of more than `7,000/- per month. It is Mat.Appeal Nos.291/05 & 48/06 -:5:- further contended that plaint A schedule property absolutely belongs to the 1[st] plaintiff. The first defendant's name was inserted only as a trustee of the first plaintiff. The consideration of the sale was given by selling the first plaintiff's ornaments. Hence, she is entitled for a declaration for exclusive title and possession of the plaint A schedule property. She also sought for consequential injunction. Claim has therefore been made for realisation of `1,18,600/- towards value of gold ornaments, value of presentation articles, arrears of maintenance etc., along with future maintenance. 4. The first defendant filed written statement denying the facts. According to him, he never demanded any money from the first plaintiff or her parents. He further submits that first defendant had given `15,000/- to the parents of first plaintiff prior to the marriage for meeting marriage expenses. The first plaintiff was given only 5 sovereigns of gold ornaments which were taken by her at the time of desertion. He denied receipt of any amount. He only submitted that certain steel articles worth `1,500/- were given to the first plaintiff as presentation at the time of marriage. It is stated that when the defendants and others were not at their Mat.Appeal Nos.291/05 & 48/06 -:6:- residence, first plaintiff along with her paramour had taken all the valuable articles including the gold ornaments. The door of the cupboard was broke open by the first plaintiff and her paramour. A criminal case was registered before the Vellarada Police Station in the matter. He denied the fact that he was an alcoholic or drunkard. According to him, she has deserted him to live with her illicit paramour. He therefore denied the liability to pay any amount. He also denied the fact that he was having any properties to pay the maintenance. 5. Before the Family Court, PWs 1 to 3 were examined on the side of the plaintiff and the defendant was examined as DW1. Plaintiff relied upon Exts.A1 to A7 and the defendant relied upon Exts.B1 to B3. The Family Court after considering the respective claims granted a decree awarding maintenance at the rate of `600/- per month to the first plaintiff and `400/- per month to the second plaintiff with effect from the date of suit that is 25/6/1994. It is further declared that the first plaintiff is the absolute owner of plaint A schedule item No.2 property and the first defendant had no right over the same. Defendants are restrained from creating any obstruction to the peaceful enjoyment of the plaint A Mat.Appeal Nos.291/05 & 48/06 -:7:- schedule item No. 2 property. Other claims had been disallowed. The second defendant remained _ex parte_ . 6. Learned counsel appearing on either side submitted that the court below committed serious error of law in appreciating the evidence in the case. Counsel for plaintiffs contended that the Court below ought to have granted a decree for recovery of money as well as gold ornaments and the maintenance granted is too meagre. On the other hand, the first defendant's appeal is against the grant of maintenance and the declaration granted with reference to item No.2 of plaint A schedule property. The question to be considered in these appeals is whether the Family Court was justified in partly decreeing the suit by disallowing the entire claim in the suit. 7. Learned counsel for the 1[st] defendant placed reliance upon the judgment of this Court in _**Ajitha Kumari and another v. K.D.Jayasekharan**_ [2016 (5) KHC 664 (DB)] to contend that when the property is purchased in the name of both the parties, in the absence of evidence to substantiate that it is purchased with the funds expended by one of the parties, relief for declaration cannot be granted in favour of the wife. Mat.Appeal Nos.291/05 & 48/06 -:8:- 8. On the other hand, learned counsel appearing for the plaintiffs placed reliance upon the judgment in _**Scariah Varghese v. Marykutty**_ (1991 (2) KLT 71) wherein a learned Single Judge of this Court had occasion to observe that a suit for return of _sthreedhanam_ or dowry is not limited by the provisions of the Dowry Prohibition Act, 1961. 9. In regard to maintenance, the Family Court observed that though there are claims and counter claims in regard to income of either parties, the first plaintiff was entitled to maintenance at the rate of `600/- per month and the second plaintiff `400/- per month. Though it was contended by the plaintiffs that the first defendant was having an income of `7,000/- per month, there is no material to substantiate the said fact. Therefore, as far as the quantum of maintenance is concerned, we do not think it necessary for this Court to interfere at this stage of the proceedings. But a contention had been urged stating that past maintenance was not allowed. When there is a finding by the Family Court, that the first plaintiff is residing separately from the first defendant due to his fault, she is entitled for maintenance as well as past maintenance. The maintenance Mat.Appeal Nos.291/05 & 48/06 -:9:- has been allowed only from the date of suit ie 25/6/1994. Taking into account the fact that we are not interfering with the quantum, the plaintiffs are also entitled for past maintenance for a period of three years and accordingly, the plaintiffs are also entitled for past maintenance at the same rate from 25/6/1991, ie., three years prior to the date of filing the suit which would come to `36,000/-. 10. Next question is in regard to the finding on issues 2 and 3. Issues 2 and 3 are with reference to the claim over plaint A schedule property and also the claim in respect of the dowry amount, value of gold ornaments and value of presentation articles. The Family Court granted a declaration of title in respect of Item No.2 of plaint A schedule property having an extent of 25 cents of land in Sy.No.157/1 of Neyyattinkara Taluk. 11. Item No.1 of A schedule property is 18 cents in Sy.No.86/16 of Parassala village. The claim of the plaintiffs in respect of the said property is on the basis that at the time of marriage, as demanded by the first defendant, 1[st] plaintiff's parents had given `25,000/- as cash to the defendants and executed a simple mortgage in respect of plaint A Schedule Item Mat.Appeal Nos.291/05 & 48/06 -:10:- No.1 for an amount of `15,000/-. Case of the plaintiffs is that they offered to pay `40,000/- out of which `25,000/- was paid in cash and for the remaining amount, a mortgage deed was executed. The case of the first defendant is that he never demanded any amount whereas he paid `15,000/- to the parents of the first plaintiff to meet the marriage expenses for which the mortgage deed is executed. Family Court did not believe the aforesaid version. However, denied a declaration as sought for with reference to item No.1 property on the premise that the pocket money promised to be paid is in violation of the provisions of the Dowry Prohibition Act. A perusal of Ext.A1 would show that it is a simple mortgage deed executed by the father of the first plaintiff in favour of the first plaintiff and the first defendant on 21/8/1986 one month prior to the marriage between the parties. The document indicates that `15,000/- was received by the first plaintiff's father from the first plaintiff and first defendant. It is rather clear that no such transaction had taken place and therefore, there is justification on the part of the Family Court to have observed that it was offered as a security for `15,000/- to be paid to the first defendant as pocket money and in so far as Mat.Appeal Nos.291/05 & 48/06 -:11:- the said amount has not been paid, it has to be held that no rights flow from Ext.A1 and that apart, plaintiff's father himself is the owner of the property and the document cannot be enforced. In regard to item No.2 of A schedule property, the Family Court found that the case set up by the plaintiffs stand proved. According to her, her 13 sovereigns of gold ornaments were sold for the purpose of conducting the marriage of first defendant's sister and for the said purpose, the second defendant had assigned 25 cents of property in favour of first plaintiff and first defendant. Ext.A3 document is executed on 9/12/1987 and the marriage of first defendant's sister was conducted on 20/1/1988. The consideration for the document is stated to be `7,500/-. As rightly pointed out by the Family Court, first defendant does not have a case that he had paid the said amount. There is reason to believe the version of PW1 that the property was assigned in her name along with the name of the first defendant since the parents have taken her gold ornaments for the purpose of marriage. This apparently is a possible view which cannot be disturbed. Under such circumstances the decree in that regard cannot be challenged by the first defendant. Mat.Appeal Nos.291/05 & 48/06 -:12:- 12. First plaintiff had a case seeking return of `25,000/which was paid at the time of marriage. Family Court rejected the said claim on the finding that there is no source for the said funds. The case of the plaintiff is that the 1[st] defendant was given `25,000/- as pocket money which has been denied by him. Parallely it could be seen that Ext.A1 document was executed one month prior to the marriage offering to pay `15,000/-. Taking into consideration the overall factual background in the matter, the Family Court was justified in rejecting the said claim for `25,000/-. 13. Lastly, in regard to the gold ornaments, claim is for 13 sovereigns of gold ornament. The Family Court observes that her claim in the chief examination was for return of 10 sovereigns of gold ornaments. There is no material to arrive at the actual quantity of gold ornaments given to the 1[st] plaintiff other than the oral testimony of PW's1 and 2. Further, in lieu of taking her gold ornaments, they have also executed an assignment deed Ext.A2. Under such circumstances what was remaining with her at the relevant time is not discerned by any acceptable evidence. In the light of the aforesaid factual situation, we are of the view that the decision in that regard by the Family Court cannot be disturbed. Mat.Appeal Nos.291/05 & 48/06 -:13:- Having regard to the aforesaid findings, these appeals are disposed of as under:- - (i) Mat.Appeal No.291/2005 is dismissed. - (ii) Mat.Appeal No.48/2006 is partly allowed as under:- (a) In addition to the decree already passed, plaintiffs 1 and 2 shall be entitled to recover from the first defendant past maintenance of `36,000/-, which is to be paid with interest at the rate of 6% per annum from the date of suit till realisation. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.RAMAKRISHNAN, JUDGE** Rp //TRUE COPY// PS TO JUDGE