IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 RSA.No. 1027 of 2008() ---------------------- AS.56/2000 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.41/1999 of SUB COURT, THIRUVALLA .................... APPELLANTS/DEFENDANTS: ------------------------------------------ 1. ANAND DAS, AGED 71 YEARS, BIJU BHAVAN, KIZHAKKEKKARA NORTH, VALIYAPARAMBU P.O., KARTHIKAPPALLY. 2. SARASWATHY AMMA, AGED 61 YEARS, W/O.ANANDA DAS, BIJU BHAVAN, KIZHAKKEKKARA NORTH, VALIYAPARAMBU P.O., KARTHIKAPPALLY. BY ADV. SRI.SEBASTIAN PHILIP RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------ SHYMAJA, AGED 31 YEARS, D/O.RAMAKRISHNAN, KILLICHUNDANMACKAL HOUSE, VAIPUR P.O., KOTTANGAL VILLAGE, MALLAPPALLY, PATHANAMTHITTA. ADV. SRI.SALIM V.S. FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ................................................... R.S.A. No. 1027 of 2008 .................................................... DATED: 10-12-2008 JUDGMENT Defendants 1 and 2 (who are husband and wife) in O.S. 41/1999 on the file of the Sub Court, Thiruvalla are the appellants in this Second Appeal. The said suit was for recovery of 40 soverigns of gold ornaments, furniture and utensils or their value and further a sum of Rs. 25,000/- being the expenses for celebrating the marriage of the plaintiff with the son of the defendants. The trial court granted a decree for Rs. 1,75,000/-. On appeal preferred by the defendants the lower appellate court reduced the decree to Rs. 73,125/-. Hence, this Second Appeal by the defendants. 2. The following are the questions of law formulated in the memorandum of Second Appeal :- i) In a suit for return of movables alleged to have been specifically entrusted to the defendants, can the court grant a decree on mere possibility when evidence adduced does not probabilize the alleged entrustment ? R.S.A. No. 1027 of 2008 -:2:- Applying the principles of bailment can the court grant a decree, even if otherwise permissible based on on admission of the defendant as to different item ? ii)Whether the courts below interpreted and construed Ext.A1 document in the correct perspective ? 3. The facts which have been concurrently found by the courts below are to the following effect :- The plaintiff Shymaja is the daughter of the sister of first defendant Anandadas. The second defendant Saraswathy Amma is the wife of the first defendant. The marriage between the plaintiff and Biju the son of the defendants was on 18-10- 98. The parties belong to the Hindu Ezhava community. At the time of marriage Shymaja was given 40 sovereigns of gold ornaments as recorded in Ext.A1 marriage register maintained by the S.N.D.P. Vaypor. One month after the marriage in a ceremony called “adukkalakanal” (visiting the kitchen) the parents of Shymaja gave her one almirah, one cot and also presentation articles which had been received at the time of marriage. The post marital life of Shymaja in her matrimonial home was full of miseries. She alleged that her husband used to R.S.A. No. 1027 of 2008 -:3:- physically torture her with demand of dowry. She also alleged that her in-laws were also ill-treating her with such demands. On 26-2-1999, according to the plaintiff, unable to bear the ill- treatment and corporal torture she ran away from her matrimonial home and took asylum in the house of a relative. In the same night her husband Biju committed suicide because he was being blamed for the disappearance of Shymaja from the matrimonial home. After the death of Biju, the plaintiff's father made Ext.A3 demand for return of the 14 sovereign of gold ornaments and the furniture through the S.N.D.P. sakha. Ext.A4 is the reply given by the defendants denying the statement in Ext.A3 that the ornaments were entrusted with them. They however expressed that they had no objection to the plaintiff taking back the movables if she returned Rs. 35,000/- which she had taken with her while leaving her matrimonial home. Thereafter the plaintiff's father sent Ext.A2 notice dated 20-4-1999 repeating the demand under Ext.A3. No reply was given to Ext.A2 lawyer notice. The suit was thereafter filed. 4. Both the courts have held that as per Ext.A1 marriage R.S.A. No. 1027 of 2008 -:4:- register to which both the marital partners and their fathers are signatories , 40 sovereigns of gold ornaments were given to the plaintiff at the time of marriage. The trial court accepted the said case of the plaintiff in its entireity to hold that the defendants who were in custody of the ornaments and furniture pursuant to the death of Biju are liable to return the same in specie or their value totalling to a sum of Rs. 1,75,000/-. The lower appellate court, however, came to the conclusion that even though Ext.A1 marriage register would show that 40 sovereigns were given to the plaintiff, according to the appellants she was given ornaments worth only 15 sovereigns . Accordingly, the lower appellate court held that the defendants who are in custody of the said 15 sovereigns of gold ornaments were liable to return the same in specie or their value which was fixed at Rs. 58,125/- at the rate of Rs. 3875/- per sovereign. The value of movables was fixed at Rs. 15,000/-. Thus the plaintiff was held entitled to Rs. 73,165/- as against 1,75,000/- decreed by the trial court. 5. Eventhough the learned counsel assailed the decrees passed by the courts below on the premise that in the absence R.S.A. No. 1027 of 2008 -:5:- of any case or evidence of entrustment of the gold ornaments with the appellants, it was not permissible for the courts below to presume that the appellants were in custody of the gold ornaments and pass a decree as above. 6. I am afraid that I cannot agree with the above submissions. The conclusions reached by the courts below are on the basis of the oral and documentary evidence adduced by the parties. Six witnesses were examined on the side of the plaintiffs and three witnesses were examined on the side of the appellants of whom Dws 1 and 2 are the appellants themselves. The findings recorded and the conclusions reached are on the basis of the evaluation of the oral and documentary evidence in the case. No question of law, much less, any substantial question of law arises for consideration in this appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 10th day of December 2008. V. Ramkumar, Judge. R.S.A. No. 1027 of 2008 -:6:-