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Against The Judgment And Decree … vs By Advs.Sri.George … on 21 November, 2019

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 21st 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 1st

appellant and is arrayed as the 3rd 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 3rd 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 1st 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 1st 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 2nd respondent and
M.A.No.833/2014
-:4:-

entrusted with the 1st 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 1st 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 1st

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 1st 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 1st respondent/husband.

Accordingly, he was held liable along with his

father/2nd 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],SectionTreasa Bency v.
Preceline George [2013(3)KLT 414] and SectionBexy 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 1st 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 1st 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 1st respondent.

17. The 1st 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 2nd 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 1st 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 1st 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 1st 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 1st respondent, no liability can be fastened on

his father, who is the 2nd 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 2nd 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 1st 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 2nd respondent

demanded it for safe custody. She gave the amount to

2nd respondent the next day. Further case in the

pleadings is that the 2nd 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

1st 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 2nd

respondent and also in respect of claim made by the

1st respondent for cash amount. No costs.

Sd/-

K. HARILAL,JUDGE
Sd/-

T.V.ANILKUMAR,JUDGE
DST /True copy//

P.A.To Judge

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