IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Mat.Appeal.No. 179 of 2006 ---------------------------- OP.260/2004 of FAMILY COURT, THIRUVALLA .................... APPELLANTS : RESPONDENT NOs.1 AND 2 ------------------------------------------------ 1. SOBY BABU @ SHIBU, AGED 30, S/O. BABU JOSEPH, EBENEZER COTTAGE, PIRALASSERY, MULAKKUZHA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DIST., PRESENT ADDRESS: I.P.C. HALL, HAPPY VILLA, KALLUMALA P.O., MAVELIKKARA, ALAPPUZHA DISTRICT. 2. BABU JOSEPH, AGED 60 YRS, EBENEZER COTTAGE, PIRALASSERY, MULAKKUZHA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DIST., PRESENT ADDRES: I.P.C. HALL, HAPPY VILLA, KALLUMALA P.O., MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. SRI.BIJU M.JOHN RESPONDENT : APPELLANT ------------------------- SHEEBA SARA DANIEL, AGED 26 YRS, D/O. K.C.DANIEL, JAI VILLA, ELANTHOOR VILLAGE, ELANTHOOR EAST P.O., VARIYAPURAM, PATHANAMTHITTA DISTRICT. ADV. SRI.V.PHILIP MATHEW FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.179 of 2006 ------------------------------------- Dated this the 17th day of July, 2009 JUDGMENT BASANT, J. This appeal is preferred by the appellants, who have suffered a decree directing them to pay an amount of Rs.2.5 lakhs to the respondent herein. 2. The respondent/claimant is the wife and the appellants are the husband and father in law respectively of the respondent/claimant. The wife contended that in connection with her marriage, an amount of Rs.2.5 lakhs was handed over to the appellants herein representing her share of her father's wealth. The claimant claimed return of the said amount. 3. That the marriage took place on 27.11.2000 was admitted. The theory of handing over Rs.2.5 lakhs was disputed. The parties went to trial on these contentions. The claimant/wife examined herself as PW1. Her father was examined as PW2. Her paternal uncle was examined as PW3. PW1 spoke about the marriage and the fact of handing over a bag containing Rs.2.5 lakhs to both the appellants. The same was handed over to the 2nd respondent to be paid to the 1st respondent, it was asserted. PW2, the father of PW1, also spoke about the handing over of a Mat.Appeal No.179 of 2006 2 bag containing Rs.2.5 lakhs on the date of engagement not in front of the audience/spectators who had come for the engagement ceremony, but behind the stage. PW3 also confirmed the evidence of PWs 1 and 2. PWs 1 and 2 were cross examined. PW3 was not cross examined. Exts.A1, A1(a), A2 and A2(a) were marked. Exts.A1 and A1(a) are documents to show that PW2, the father of the claimant/wife, had received amounts by way of terminal benefits on his leaving his service. Ext.A1 shows payment of amounts under the Provident Fund Scheme, whereas Ext.A1(a) shows payment of amounts as gratuity. Those two amounts together far exceed Rs.2.5 lakhs, which was allegedly handed over. Ext.A2 is a photograph taken on the date of the engagement ceremony. Ext.A2(a) is the negative. They support the case of PWs 1 to 3 that a bag was handed over in connection with the marriage. RWs 1 and 2 are the appellants herein. They stated that no amount was handed over. Obliged to explain Ext.A2 photograph and A2(a) negative, they came out with the story that they had received a bag. But according to them the bag contained not cash of Rs.2.5 lakhs, but a simple Bible. That Bible was handed over in connection with the marriage as a gift, it was contended. Mat.Appeal No.179 of 2006 3 4. The court below had only these pieces of evidence. The court was obliged to resolve the factual controversy as to whether the amount of Rs.2.5 lakhs had actually been handed over to the appellants by and on behalf of the claimant on the date of engagement. 5. We find that the court below looked at the oral evidence for its intrinsic worth and also on broad probabilities. The court took note of the fact that the explanation that a Bible handed over was pressed into service only after the appellants found themselves in an inconvenient position after Ext.A2 and A2 (a) were pressed into service. It is their case that the bag which was admittedly handed over contained not currency, but a Bible. Why was the Bible handed over in such a money bag as can be seen from Ext.A2 ? No explanation is seen offered. Why was the Bible not handed over in front of the audience/spectators and why did they choose to hand it over behind the curtain at the stage ? No explanation whatsoever was offered. Though there is a contention that the parties being Pentecost Christians, no dowry was handed over and received, we have the undisputed admission that Rs.1.5 lakhs was agreed to be given to the bridegroom on the retirement of the bride's mother, which was to take place after some time. Mat.Appeal No.179 of 2006 4 6. The learned counsel for the appellants contends that sufficient evidence to found a direction for return of money has not been adduced. This is not a loan transaction. The liability arises from the amount paid at the time of engagement representing the share of wealth which the bride is entitled. It would be idle for any Court to naively look for documentary evidence in support of such a transaction. Oral evidence will have to be alertly appreciated. The totality of inputs will have to be realistically evaluated. We find that the court below has adverted to various relevant inputs. We are satisfied that the court below committed no error or indiscretion in choosing to accept and act upon the oral evidence of PWs 1 to 3 in preference to that of RWs 1 and 2. The court below has adverted to the inter se incongruities between the evidence of RWs 1 and 2. While one stated that there is no such practice of handing over of the Bible, the other asserted that such a practice exists. 7. We must further note that we are in appeal considering the challenge against the appreciation of oral evidence. The evident advantage which a trial court has in the matter of appreciation of evidence cannot be ignored or overlooked by the appellate court. The trial courts see the witnesses perform before them in flesh and blood. The alert trial Mat.Appeal No.179 of 2006 5 Judge gathers many input in the course of examination of witnesses which may help such Judge in the matter of appreciation of evidence. The conclusion of the trial Court that the oral evidence of PWs 1 to 3 can be preferred to that of RWs 1 and 2 does appear to us to be eminently reasonable, fair, just and correct. The same does not warrant any interference. 8. A question is posed that there is no convincing evidence to show that it was cash and it was Rs.2.5 lakhs which was there inside the bag. The bag may have contained any amount and there is nothing to show that it actually contained Rs.2.5 lakhs, contends counsel. We agree with the learned counsel for the appellant on that aspect. A Court may at times have to place reliance on the oral evidence of witnesses. We cannot lose sight of the fact that even according to the appellants they had expected Rs.1.5 lakhs to be given in connection with the marriage, that according to them, was to be paid only long later after the superannuation of the mother of the bride. The idea about the expectation and the worth of the parties and the probabilities are available from this input also. Conscious of the fact that there is no convincing evidence to prove the quantum of currency note which was available inside the bag except the oral evidence of PWs 1 to 3, no Court can Mat.Appeal No.179 of 2006 6 throw its hands up and lament in despair that convincing evidence is not available. Totality of inputs have to be considered. The probabilities have to be evaluated and assessed. The general presumption in law that a witness is expected to and must be presumed to speak the truth on oath can also be taken into account. At any rate, we are not persuaded to agree that sitting as an appellate court, there is any sufficient material to interfere with the conclusion of facts arrived at by the trial court on the basis of the oral evidence placed before it supported on broad probabilities by the documents produced. The challenge raised in this appeal must, in these circumstances, fail. 9. In the result: a) This appeal is dismissed; b) The impugned order is upheld; c) In the circumstances, we direct the parties to suffer the respective costs. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-