IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 AS.No. 61 of 1997() -------------------------- OS.641/1994 of SUB COURT, PALA .................... APPELLANT(S): (DEFENDANTS) ---------------------- 1. JOHN, SON OF PAULOSE, KALLU MADHAM, KUDAKKACHIRA KARA, VALLICHIRA VILLAGE. 2. JOSEPH, SON OF PAULOSE, OF DO. DO. BY ADVS. SMT.AMBIKA K. MR.S.VIDYASAGAR RESPONDENT(S): (PLAINTIFF) ------------------------ MERCU KURIAKOSE, DAUGHTER OF KURIAKOSE, MANIMALAKUNNEL HOUSE, NECHIPUZHOOR KARA, MEENACHIL TALUK BY ADVS. MR.P.N.PURUSHOTHAMA KAIMAL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.580/1997 IN AS. NO.61/1997 DISMISSED 26/05/2009 SD/- K.SURENDRA MOHAN, JUDGE TRUE COPY P.A. TO JUDGE TSS K. SURENDRA MOHAN, J ------------------------------------------------------------ A.S. NO: 61 OF 1997 ----------------------------------------------------------- Dated this the 26th May, 2009. JUDGMENT The defendants in a suit for recovery of money are the appellants. The second defendant/second appellant is the father of the first defendant/first appellant. 2. The first appellant married the respondent on 28.11.1987 at the Kudakkachira Catholic Church. After the marriage, they resided at the house of the appellants as husband and wife for a period of two months. According to the respondent/plaintiff, she left her matrimonial home thereafter, because she was ill-treated. According to the appellants, the respondent was found to be of unsound mind, shortly after marriage. Though her father was informed of the same and was treated at the Mental Hospital, Thodupuzha there was no improvement. Therefore, she started residing separately at her father's house. 3. Subsequently the first appellant approached the catholic church for dissolution of his marriage with the respondent on 28.3.1990. The marriage is stated to have been dissolved. It is alleged that the first appellant has subsequently remarried and is leading a family life with his second wife and child. A.S.61/1997 2 4. According to the respondent/plaintiff her betrothal took place on 5.11.1987. On that day her father entrusted with the appellants a sum of Rs. 50,000/- being her share in the properties of her father. The said amount was entrusted with the second defendant by the appellants for her benefit and she was entitled to return of the said amount. The amount has not been returned by the appellants. It is further alleged that at the time when the respondent left her matrimonial home, the appellants did not allow her to take 11 sarees worth Rs.2000/-, 11 blouses worth Rs.200/- , 3 lungies worth Rs.90/- 3 lungy blouses worth Rs.60/-, a nighty worth Rs.50/- a blanket worth Rs.60/- a lady's watch worth Rs,300/-, 5 skirts worth Rs.100/-, 2 gold rings weighing ½ a sovereign worth Rs.3000/-, a suit case worth Rs.250/-and a wooden almirah worth Rs.3000/- all of which are still retained by the appellants in their custody. Though the appellants were asked to return the belongings of the respondent, they did not do so. Therefore, she filed a suit for realisation of the amount of Rs.50,000/- with future interest at the rate of 18% per annum. She also prayed for a decree directing return of her belongings which are kept in the custody of the appellants and in the event of their failure to do so, to realise an amount of Rs. 9,110/- with future A.S.61/1997 3 interest at the rate of 18% per annum from the date of suit till the date of realization. The suit was originally filed as an indigent O.P seeking permission to sue as an indigent person, which was allowed. 5. The defendants filed a joint written statement, refuting the plaint claim. They denied that they were in possession of any amount belonging to the respondent. According to them, no such amount as claimed in the plaint was entrusted by the father of the respondent. They admitted the marriage between the first appellant and the respondent on 23.11.1987 and the fact that the same was subsequently dissolved. According to them, one week after marriage the mental illness of the respondent became evident and therefore, she was taken for treatment to the Painkulam Hospital, Thodupuzha, where she was being treated earlier. Thereafter, she was taken to her house where she started residing with her father. The parents of the respondent had not disclosed the mental illness of the respondent to the appellants before marriage. According to the appellants, the first appellant would not have consented for the marriage, had he known about the mental illness of the respondent. Therefore, the first appellant approached the church authorities for dissolving the marriage A.S.61/1997 4 between himself and the respondent and on being convinced of the mental state of the respondent, the marriage was dissolved by the Church. 6. The appellants denied that any amount was given to the second appellant by the father of the respondent on the betrothal day. They contended that, if any such amount had been received as alleged, provision for the return of such amount would have been made by the church authorities while dissolving the marriage. According to the appellants, on 6.11.1987 the respondent and her parents along with the appellants and the brother of the first appellant went to the jewellery shop at Idakkara, Ramapuram, for the purchase of gold ornaments for the plaintiff. 10 gold bangles, one necklace, one ring, one pair of studs and a gold chain were purchased for an amount of Rs.40,000/-. The father of the respondent handed over an amount of Rs.50,000/- out of which Rs.40,000/- was paid for the jewellery. Thereafter, they went to Pulimoottil Silk House, Thodupuzha for purchase of clothes for the marriage . At the time of leaving their house, the respondent had kept her articles in a wooden almirah which are all remaining there to this date. The respondent is free to take away the said articles at any time, it is stated. They denied that any demand for return of A.S.61/1997 5 the amount of Rs.50,000/- was made by the respondent, as alleged. On the above averments, they contested the suit. 7. The evidence in the suit consists of the oral testimonies of P.Ws 1 to 3 on the side of the plaintiff/respondent and the oral testimonies of D.Ws 1 to 3 and Exts.B1,B1(a) and B2 documents on the side of the defendants/appellants. 8. The court framed four issues and considered the matter. After a detailed consideration and analysis of the oral and documentary evidence on record, the trial Court found that the respondent was entitled to a decree as prayed for in the plaint. Therefore, the suit was decreed and the plaintiff has been held entitled to recover the amount claimed, with interest at the rate of 12% per annum. The judgment and decree of the trail court are assailed in the above appeal. 9. I have heard the counsel for the appellants as well as the respondents, in detail. I have been taken through the pleadings as well as the oral evidence on record, elaborately. According to the counsel for the appellants, the appellants have denied in their written statement, the receipt of the amount of Rs.50,000/- that is alleged to have been paid as the family share of the respondent. According to the appellants, they have been cheated by the wilful A.S.61/1997 6 suppression of the mental illness of the respondent. Consequently, irreparable injury and loss has been caused to the life of the first appellant, for which the respondent and her family members are responsible. It is further submitted that as per orders in proceedings for maintenance before the Family court, monthly maintenance was being paid by the first appellant to the respondent. The liability has been subsequently compromised by fixing a lumpsum which was received by the respondent in full satisfaction of all her claims towards furture maintenance also. According to the counsel, the trial court erred in placing reliance on the testimonies of the plantiffs' witnesses and seriously erred in decreeing the suit, relying entirely on such oral testimonies, in the absence of any documentary evidence. According to the counsel for the respondent, all the aspects of the case have been considered by the trial court and there are no grounds whatsoever for interfering with the judgment and decree under appeal. 11. The point that arises for consideration is: Whether the judgment and decree of the Trial Court suffers from any infirmity as sought to be made out by the appellants. 12. It is an admitted fact that the first appellant had married A.S.61/1997 7 the respondent on 23.11.1987, though the betrothal preceding the marriage ceremony was on 5.11.1987 and that the parties have separated shortly thereafter. According to the respondent-plaintiff on the day of her betrothal, her father had handed over an amount of Rs.50,000/- to the second appellant, which represented her share in her father's properties. According to the appellants, an amount of Rs.50,000/- was given to the second appellant by the father of the respondent on 6.11.1987 when they went for purchasing jewellery for the purpose of the marriage. The jewellery and the dresses were worn by the respondent at the time of marriage and used by her subsequently, during her stay at her matrionial house. They are alleged to have been taken away by the respondent, when she left her matrimonial house. 13 P.W.1 is the plaintiff. She has given evidence in terms of the avermnents in the plaint. According to her, on 5.11.1987 her share in her paternal properties comprising of an amount of Rs,50,000/- was handed over to the second appellant by her father. She was also given a wooden almirah worth Rs.3,000/- which is still retained by the appellants. Certain other ornaments and personal articles made mention of by her are also retained by the appellants. It is the admitted case that the first appellant has re-married and is A.S.61/1997 8 leading a family life with his second wife. 14. P.W.2 is an Ayurvedic doctor. The brother of P.W.1 was working as his driver and he had attended the betrothal ceremony on his invitation. He was at the house of the respondent when the amount of Rs.50,000/- was handed over to the second appellant. According to him, he saw the respondent's father entrusting the said amount to the appellant on the betrothal day. P.W.3 is the father of the respondent. According to him, on 5.11.1987 he had entrusted an amount of Rs.50,000/- representing his daughter's share in his properties to the second appellant. He had also given a wooden almirah, two gold rings weighing ½ sovereign, a lady's wrist watch, a brief case, some sarees, dresses and other articles. Those articles have a total value of Rs.9,110/- and they are still remaining with the appellants. 15. The appellants have examined themselves as D.Ws 1 and 2 and one K.K.Madhu as D.W.3. According to them, the second appellant, D.W.2 did not attend the betrothal ceremony of the respondent and the first appellant. They further alleged that when the respondent left their house, she took back the gold ornaments that were purchased for her. In fact, according to them the amount given by the respondent's father was utilized for purchasing gold A.S.61/1997 9 ornaments and dresses for the respondent. However, according to P.W.1, whatever gold articles she had were pledged by the first appellant and they were not with her when she left her house. 16. Though it is alleged that the respondent is a person who was suffering from mental illness, there is no evidence on record to substantiate the above fact. 17. At the same time, it is admitted that the first appellant has remarried and is leading a family life with his second wife. The respondent is living separately. The respondent has been examined as P.W.1 and apparently, no abnormality or infirmity has been noted by the trial court. There is nothing to disbelieve the evidence of P.W.2 and the trial court has rightly relied on the evidence of P.Ws 1 to 3 to hold that the respondent/plaintiff had entrusted the amount of Rs.50,000/- that is sought to be recovered by her. Regarding the other articles that are alleged to have been left behind by the respondent at her matrimonial home when she left, the trial court has found that there is no convincing evidence to show the exact nature of the articles or the actual value thereof. Therefore, an amount of Rs.4,340/- has been decreed, relying on the admissions contained in the written statement. The amounts are decreed with interest at 12% per annum from the date A.S.61/1997 10 of suit till date of realisation. I do not find any ground to interfere with the findings of the trial court. The reliefs granted are perfectly justified in the facts and circumstances of the case and the evidence on record. The appeal fails and is accordingly dismissed. K. SURENDRA MOHAN Judge jj A.S.61/1997 11 K. SURENDRA MOHAN, J. ---------------------------- A.S.NO:61 OF 1997 ----------------------------- JUDGMENT Dated: 26th May, 2009.