IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 AS.No. 436 of 1998() -------------------- OS.136/1984 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/1ST DEFENDANT ------------------------------------------ A. MOHAMMED SHERIFF, KATTUNKAL HOUSE NEAR DY.SP OFFICE, VELLAKKINAR, ALLEPPEY BY ADV. SRI.R.HARIKRISHNAN SRI.C.A.RAJEEV RESPONDENTS/PLAINTIFFS --------------------------------------- 1. M V ABDUL RAHIMAN, TAJ MANZIL, ZILLA COURT WARD DIED AND LRS IMPLEADED ALLEPPEY 2. FATHIMA ALIAS BEENA, D/O.M V ABDUL RAHIMAN ZILLA COURT WARD ALLEPPEY ADDL.R3 UMAIBAN, TAJ MANZIL ZILLA COURT WARD, ALLEPPAY ADDL.R4 ABDUL SHAHID ALIAS RAJU -DO- ADDL.R5 SALIM SIDDIQUE -DO- ADDL.R6 LAILA, -DO- ADDL.R7 THAMEEM -DO ADDL.R8 SHAKHEELA ALIAS SHEELA -DO- (LRS OF DECEASED R1 IMPLEADED AS ADDL.R3 TO R8 AS PER ORDER DT.8.7.2011 ON CMP 3377/98) ADV. T.M.ABDUL LATIFF FOR R E.S.MOHAMMED KABEER FOR R SRI.N.RAGHURAJ FOR R2 TO 8 SMT.K.AMMINIKUTTY FOR R2 TO 8 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ----------------------------------------------------- AS No.436 of 1998-D ------------------------------------------------------ Dated this the 27th day of October 2011 Judgment The first defendant in OS No.136/84 before the Sub Court, Alleppey, who suffered a decree for money, is the appellant. During the pendency of the appeal before this court, the first respondent died and his legal heirs have been brought on the party array as additional respondents 3 to 8. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The second plaintiff is the daughter of the first plaintiff and the wife of the first defendant. The second defendant is the father of the first defendant. The marriage between the second plaintiff and the first defendant was solemnized on 18.10.1981. According to the plaintiffs, a sum of Rs.70,000/- was entrusted with AS 436/98 2 the defendants on 11.10.1981 for the purpose of purchasing a property in the name of the second plaintiff on the eve of her marriage with the first defendant. The defendants had promised to utilise the said amount for purchasing property in the name of the second plaintiff. But, they did not do so, nor did they return the money received by them. The first defendant sent a letter to the second plaintiff, calling upon her to go and reside with him and discharge her marital obligations, to which she sent Ext.A1 reply calling upon the first defendant to return the various articles they received at the time of their marriage. Pointing out that the amount of Rs.70,000/- which was handed over on the eve of her marriage has not been utilised for the purpose for which it was given, the suit was laid for recovery of the amount. AS 436/98 3 3. The defendants resisted the suit and pointed out that there are absolutely no bona fides in the claim made by the plaintiffs. They disputed that the plaintiffs had entrusted Rs.70,000/- with them on 11.10.1981 for the purpose of purchase of property in the name of the second plaintiff. The true facts are otherwise. The first plaintiff wanted the first defendant to marry the second plaintiff. But, there was considerable difference in the financial status of the parties and the first plaintiff, in order to suit the convenience of the second plaintiff for residing in the matrimonial house, gave Rs.40,000/- to the defendants for renovation and modification of their house. Regarding the receipt of the balance Rs.30,000/-, it is stated as follows : The first defendant had a sister, who was advanced in age and she was not getting proper marriage alliances for various reasons. The defendants AS 436/98 4 had put forward a condition that only after the marriage of his sister, the first defendant would get married. When a suitable alliance came for the sister of the first defendant, the first plaintiff voluntarily offered to pay Rs.30,000/- so that her marriage could be conducted and thereafter, the marriage of his daughter could be solemnized. The defendants do admit the receipt of Rs.30,000/- in cash, but they say that it was not as alleged in the plaint. There was no agreement between the parties for return of the amount. They, therefore, prayed that the suit may be dismissed. 4. On the above pleadings, issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A2(a) from the side of the plaintiffs. The defendants had DWs 1 and 2 examined. No documents were marked from their side. AS 436/98 5 5. The lower appellate court felt that whatever may be the purpose of the payment of the amounts, the defendants have gained by the same and are benefitted by the said amounts. They have been unduly enriched by the amount received from the first plaintiff. So, they are bound to return the same. On that basis, the suit was decreed. That brings the first defendant before this court. 6. The only question that arises for consideration in this appeal is whether the finding of the court below that merely because the defendants are benefitted by the amount given by the first plaintiff, are they bound and liable to return the same. 7. The learned counsel for the appellant pointed out that a reading of the evidence of PW1 is sufficient to show that the entire averments in the plaint are untrue. He gives a totally different version at the AS 436/98 6 time of evidence. It is clear from his evidence that his contribution towards the amount paid to the defendants was only Rs.17,000/- and the rest of the money came from his sons given as gift. They never demanded it back. The learned counsel referring to the evidence of PW1, pointed out that he has admitted that he had given the amount for the renovation of the house of the defendants and that the marriage of the sister of the first defendant had to be conducted so as to solemnize the marriage of his daughter. The learned counsel pointed out that in the facts and circumstances of the case, it is quite evident that Rs.40,000/- was given to the defendants for carrying out the repairs and renovation of their house and Rs.30,000/- was given with the intention to conduct the marriage of the sister of the first defendant. The learned counsel also drew attention of this court to the fact that notice to the second plaintiff AS 436/98 7 was sent on 08.08.1994 and the reply was sent on 12.09.1984. The suit was filed on 11.10.1984. It becomes, therefore, crystal clear that the suit is a counter blast to the demand made by the first defendant to the second plaintiff to come and reside with him to which she was quite unwilling. There were absolutely no bona fides in the plaint claim and the trial court was in grievous error in decreeing the suit. 8. Per contra, the learned counsel for the respondents sought to sustain the judgment and decree of the trial court. It is pointed out by him that whatever may be the explanation offered by the defendants, the fact remains that they have received an amount of Rs.70,000/- from the first plaintiff. Even assuming that the amount of Rs.40,000/- was utilised for carrying out the maintenance of the house, the defendants stood benefitted from the same and therefore, they are bound AS 436/98 8 to return the benefit. As far as the amount of Rs.30,000/- is concerned, the learned counsel pointed out that there is clear admission from the part of the respondents that they have received it for the marriage of the sister of the first defendant and that at any rate, it had to be returned to the first plaintiff. The learned counsel pointed out that the court below has applied the correct law on the point and no grounds are made out warranting interference with the judgment and decree of the court below. 9. One may recapitulate that the case put forward by the plaintiffs is that an amount of Rs.70,000/- was paid to the defendants on 11.10.1981 for the purpose of purchasing a property in the name of the second plaintiff, who is none other than the daughter of the first plaintiff. The averment is that it was given on the eve of the marriage between the second plaintiff AS 436/98 9 and the first defendant. It is pointed out in the plaint that it was not a gratuitous payment. Therefore, the defendants had to return the amount to the first plaintiff. The defendants pointed out that the amounts were received under the circumstances mentioned above and their definite stand is that they were never given an impression that the amounts had to be returned as the maintenance works were done to the house of the defendants for the comfort and convenience of the second plaintiff. According to the defendants, the amounts were thrust upon them by the first plaintiff. As far as the receipt of Rs.30,000/- is concerned, it is pointed out that it was given at the instance of the first plaintiff that the amount was received on compulsion and since the first plaintiff was anxious enough to have his daughter, the second plaintiff married to the first defendant as early as possible. It was pointed out that AS 436/98 10 due to financial stringency, the first defendant could not get his sister married off, the first plaintiff offered to help them out of the dire situation, giving them Rs.30,000/- which they received. They admit that they are benefitted by the amount but they say that the first plaintiff had given the amounts gratuitously for the benefit of his daughter and it was never in the mind of the defendants that the amounts so received from the first plaintiff had to be returned. The learned counsel also pointed out that there is no justification for the trial court to hold that the defendants are bound to return the amounts to the plaintiffs. 10. The fact remains that there was considerable difference in the financial status of the parties. Evidence is clear to the effect that the defendants were financially poor. The plaintiff when examined as PW1, has admitted that repairs were AS 436/98 11 carried out to the house of the defendants, but he says that the payments made were not gratuitous payments. He also supplied materials to effect alteration, modification and maintenance of the residential house of the defendants. His evidence shows that out of the total amount of Rs.70,000/-, only Rs.17,000/- was given by him and the balance amount was given by his sons. PW1 also admitted that his sons have never demanded back the amounts. PW1 has stated that amounts were given by his sons as gift to their sister. It is significant to notice that the claim of the first plaintiff is that the amount was entrusted on 11.10.1981 for the purpose of purchase of property in the name of the second plaintiff. It is strange to note that after having handed over the money in 1981, the first plaintiff did not bother to find out what the defendants have done with the money. The sequence of events would clearly show that as AS 436/98 12 contended by the defendants, money was paid by the first plaintiff for the maintenance of the house of the defendants with the intention to provide a comfortable life to the second plaintiff. There was nothing to show that it was as per the demand made by the defendants that the amounts were paid to them. It would also appear from the evidence that the first plaintiff was anxious to have his daughter married off to the first defendant as early as possible. It has also come out from the evidence of PW1 that the defendants had put forward a condition that the marriage of the first defendant with the second plaintiff could be solemnized only after the marriage of the sister of the first defendant. The first plaintiff understood that owing to the financial stringency faced by the defendants, they were unable to conduct the marriage of the sister of the first defendant and it was at that point of time that the AS 436/98 13 first plaintiff offered to pay Rs.30,000/- to the defendants. It would appear more probable from the facts and circumstances of the case that the amount was so paid out of anxiety so that his daughter's marriage would be held immediately. The first defendant's sister's marriage was conducted on 14.10.1981 while the first defendant's marriage was conducted on 18.10.1981. The claim made by the first plaintiff that the amount of Rs.70,000/- was handed over to the defendants seems to be highly improbable. But, one cannot find fault with the lower court in coming to the conclusion that the defendants are benefitted by the amounts so received from the first plaintiff. 11. The question is whether under the facts and circumstances of the case, the conclusion drawn by the trial court is irresistible. In all probability, the expenses met for the maintenance i.e. Rs.40,000/- and AS 436/98 14 the payment of Rs.30,000/- for conducting the marriage of the sister of the first defendant were intended to be gratuitous. If that be so, the defendants cannot be made liable to return the said amounts. After having perused the records, this court is unable to accept the findings of the lower court. From the evidence, it is clear that the payments were intended for the purpose of providing comfort to the daughter of the first plaintiff when she is given in marriage to the first defendant. It is clear from the evidence of PW1 that he was in a very affluent circumstance and he could have easily purchased a property for his daughter and it was unnecessary to entrust the amount to the defendants. More strange is that it was only when the relationship between the second plaintiff and the first defendant had become bitter and the second plaintiff had left him that the first plaintiff remembered about the money given to AS 436/98 15 the defendants. The claim of the defendants that the suit is a counterblast to the notice issued by the first defendant, calling upon the second plaintiff to come and reside with him and discharge her marital obligations, cannot be easily ignored and appear to be more probable. It would be quite inappropriate and improper to direct the defendants now to return the amount of Rs.70,000/- to the plaintiffs. In the result, this appeal is allowed. The judgment and decree of the court below are set aside and the suit stands dismissed. No order as to costs. P.Bhavadasan, Judge sta AS 436/98 16