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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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