IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 Mat.Appeal.No. 56 of 2003(F) ---------------------------- OP.391/1998 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): APPELLANTS/RESPONDENTS ------------------ 1. K.M.MATHEW, S/O. MATHEW, KIZHAKKE KALATHIL, CHOZHIYAKKADU KARA, PANACHIKADU VILLAGE. 2. MATHEW, FATHER OF 1ST RESPONDENT, KIZHAKKE KALATHIL, CHOZHIYAKKADU KARA, PANACHIKADU VILLAGE. BY ADV. SRI.M.NARENDRA KUMAR SRI.SALISH ARAVINDAKSHAN SRI.ARUL KUMAR.P RESPONDENT(S): PETITIONER ------------------- JOLLY MATHEW, D/O. V.T.LUKOSE, PUTHENTTU HOUSE, NEERIKKADU KARA, AYARKUNNAM VILLAGE. ADV. SRI.P.R.VENKITESH SRI.A.K.HARIDAS THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- Mat. Appeal No.56 of 2003 ------------------------------- Dated this the 4th March, 2009 J U D G M E N T Raman, J. This appeal is filed by the husband against the judgment and decree in O.P.No.391 of 1998, on the file of the Family Court, Kottayam, which is a petition filed by the wife for return of gold ornaments and money. It was the case of the wife-respondent that originally a suit was filed before the Sub Court, Kottayam, and on the establishment of Family Court, the same was transferred to Family Court and re-numbered. 2. The claim is for a total amount of Rs.75,000/= with 12% interest thereon. According to the plaint averment, the marriage between the parties was solemnised on 14.9.1980 at Neerikkadu St.Mary's Catholic Church. After marriage they resided together and two children were born. Due to the cruelty by the husband, both physically and mentally, she left the M.A.No.56 of 2003 2 matrimonial home on 1.6.1993. In the mediation talk between the parties, an extent of 32 cents of land and building therein was settled in favour of the petitioner and the respondent, as per settlement deed dated 15.6.1993. Though they lived together thereafter, again the tie was broken. She claimed an amount of Rs.25,000/= towards her paternal share, which amount is stated to have entrusted by her father at the time of marriage; an amount of Rs.6000/= towards the stamp duty and other expenses of settlement deed as aforesaid, and Rs.26,000/= said to have been paid for the purpose of constructing a bath room with pipe connection in the property of the respondents. She also claimed an amount of Rs.16,000/= towards the value of 4 ½ sovereigns given at the time of marriage. 3. Respondent-husband resisted the claim and denied the allegation that she was meted out with any cruelty by him. But the execution of the settlement deed was admitted. It was submitted that it was in consideration of the paternal share that the settlement deed was executed by his father and the M.A.No.56 of 2003 3 other amounts made mention of in the petition were not received. 4. The evidence consists of oral testimony of PW.1, RW.1 and Exts.B1 to B3. The court below, by the judgment under appeal, allowed a sum of Rs.73,000/= in all with 6% interest from the date of the decree, against which the present appeal is preferred. 5. We have heard both sides, perused the judgment and the materials on record. The point that arise for consideration is as to whether the court below was right in decreeing the suit for an amount of Rs.73,000/=, and whether the claim made in the petition stands proved. 6. Admittedly there was an extent of 32 cents of land along with a building therein, in respect of which a settlement deed was executed by the father of the first appellant, in favour of the appellant and his wife, the petitioner in the O.P. She would not have been entitled for any share in the property, M.A.No.56 of 2003 4 but for the settlement deed and her own saying in the plaint that the settlement was executed in view of the patrimony paid at the time of marriage. If so, she cannot claim again an amount of Rs.25,000/= as her paternal share, said to have been entrusted at the time of marriage. However, since the property along with the building stands in the name of both the husband and the wife, she is entitled to half share of the property, and as such, she can deal with the half right over the property. If she wants enjoyment of the property separately, she is also entitled for a partition. Then, the amount of Rs.6000/= spent by her towards the stamp duty for execution of the settlement deed, does not entitle to be re-imbursed. Likewise, the amount said to have been spent for construction of a bath room is not be re-imbursed, since the house belongs to both the husband and the wife. 7. The only other claim that remains to be considered is regarding the value of gold ornaments. The court below has appreciated the evidence on record and held that she is entitled for an amount of Rs.16,000/= as the value of gold M.A.No.56 of 2003 5 ornaments. We do not think that the decree passed by the court below for return of the gold ornaments or to pay Rs.16,000/= is in any way perverse or unsupported by the evidence in the case. We sustain the decree for the aforesaid amount of Rs.16,000/= together with interest at the rate of 6%. The other amount as decreed by the court below will stand set aside. The decree and judgment passed by the court below will stand modified. In the result, the appeal is partly allowed. The parties are directed to bear their respective costs. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.