IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SECOND FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CITY CIVIL COURT APPEAL No.203 of 1994 BETWEEN B. Obul Raju and two others. ... APPELLANTS AND Smt. B. Vijayalakshmi. ...RESPONDENT Counsel for the Appellants: MR. A. ANANDA RAO Counsel for the Respondent: MR. V. PADMANABHAN The Court made the following order: JUDGMENT: This is an appeal by the defendants against the decree dated 13.07.1994 of the trial Court decreeing the suit O.S.No.377 of 1987 of the respondent-plaintiff for Rs.35,510/- with 6% interest. 2. Heard learned counsel for the parties. 3. The respondent herein filed the suit for recovery of value of Gold articles, Silver articles and household articles from the defendants-appellants herein. She states that these are Stridhana articles and that they were given to the first defendant/first appellant herein at the time of marriage on 22.03.1984. She also claimed a sum of Rs.15,000/- stating that the said amount was paid to the first defendant at the time of engagement prior to the marriage. 4. The facts of the case show that the plaintiff and the first defendant lived together after marriage till May 1987 and the plaintiff alleges that the defendant had ill-treated her and the first defendant alleges that the plaintiff left the house and went to her parents’ house. In fact, however, the marriage between the plaintiff and the first defendant ran into a serious disharmony resulting in the plaintiff filing complaint under Section 498-A of the Indian Penal Code as well as complaint under Section 125 of the Code of Criminal Procedure for maintenance apart from institution of the present suit for recovery of Stridhana articles on the ground that the defendants are holding these articles. 5. The defendants filed a written statement denying the plaint averments and contended that the plaintiff and her family was financially very weak and had no capacity to give any such articles as stated by the plaintiff. The first defendant further states that he was interested in leading marital life but the plaintiff was forcing him to get transferred to Hyderabad from Khammam where he was working as Lab Technician. Ultimately, since they could not get along in May 1987 the brother of the plaintiff came to the house of the first defendant and took away the plaintiff. Therefore, there is no question of plaintiff seeking to recover again Stridhana properties as alleged and has no such property existing. 6. The plaintiff examined herself as P.W.1 and also examined P.Ws.2 to 4 and marked Exs.A1 to A5 – photographs at the time of marriage together with negatives – Exs.A6 to A10. Ex.A11 is a cash memo of 28.03.1984 relating to purchase of an almyriah said to have been given to the first defendant at the time of marriage. The defendants 2, 1 and 3 were examined as D.Ws.1, 2 and 3 respectively. The Court below framed issues as under: “1. Whether the plaintiff is entitled for the decree of Stridhana articles as shown in the schedule (A) or its value of Rs.37,265/-? 2. Whether the plaintiff is entitled for a decree of cash of Rs.15,000/- ? 3. To what relief?” 7. On issue No.1, the Court below found that there is no evidence established that a sum of Rs.15,000/- was given by the parents of the plaintiff to the father of the first defendant and disallowed the said claim. To the extent of value of Gold ornaments, the Court below gives a finding that the Mangalsutra and other gold ornaments weighing about three tulas were given at the time of marriage of the plaintiff and as per the plaintiff’s valuation the said items valued at Rs.22,150/- and the same was decreed in addition to the value of the household articles quantified at Rs.13,000/-. Thus, in aggregate a decree for Rs.35,510/- was passed against the defendants with 6% interest and the rest of the suit claim was dismissed. 8. As mentioned above, this is an appeal by the defendants and there appears to be no appeal preferred by the plaintiff with regard to the disallowed claim. 9. It is contended by the learned counsel for the appellants that there is absolutely no evidence in support of the plaintiff’s case and the Court below has merely passed it’s judgment and decree on the basis of the Photographs – Exs.A1 to A5 and based on that has concluded that the gold ornaments remained with the first defendant. 10. I find substance in the contention of the learned counsel for the appellants inasmuch as the plaintiff, in an action of this nature, would succeed only on proof of entrustment and existence of gold and household articles and that the same were withheld by the defendants. The evidence of existence of such articles on the basis of the photographs is clearly unsustainable. The photographs of 1984 at the time of marriage do not by itself establish that as on the date of the suit in 1987, the said ornaments were not with the plaintiff. The evidence on record including self-serving evidence of P.W.1, therefore, does not support the said claim of the plaintiff. The Court below has not appreciated that it was granting a decree for recovery of money against husband and in-laws of the plaintiff and unless the Court was satisfied that the plaintiff has discharged the entire burden of establishing availability and entrustment of said articles at the time of marriage and that of withholding thereof by the defendants, the plaintiff cannot be granted a decree of this nature. The only independent evidence produced by the plaintiff is that of P.Ws.3 and 4 whereas the evidence of P.Ws.1 and 2 is interested. So far as P.W.3 is concerned he claimed to be a witness at the time of engagement prior to marriage but his evidence was disbelieved by the trial Court. Even his presence was not spoken to by P.Ws.1 and 2. The said evidence, therefore, having been rejected as not trustworthy for treating him, as a witness from engagement onwards, cannot also be used for the purpose of entrustment of articles of marriage as alleged by the plaintiff. The evidence of P.W.4 is equally sketchy and for a third party other than the family members that too elders in the family, it is improbable that the third party would know which gold ornaments or marriage articles were given to defendant No.1 at the time of marriage. 11. As stated above, the photographs cannot be a proof of such entrustment nor the cash memo – Ex.A11 relating to steel almyriah by itself cannot establish that the same was given by the plaintiff’s family to defendant No.1. The Court below, therefore, committed serious error in thinking that the plaintiff has discharged the burden and in the absence of cogent and adequate evidence, has erroneously decreed the suit to the extent of Rs.35,510/-. I am therefore, not satisfied that the said judgment and decree is based on any evidence and in that view of the matter, I am constrained to set aside the decree and allow the appeal as prayed for. 12. It is, however, to be mentioned that pending this appeal, by an interim order of this Court dated 17.01.1995 the appellants were directed to deposit a sum of Rs.9,000/- and costs. By further order dated 23.01.1996 passed by this Court, it was noticed that the appellants have complied with the said order and consequently the respondent/plaintiff was permitted to withdraw the said amount without furnishing any security. The respondent/plaintiff must have withdrawn the said amount accordingly and keeping in view the nature of the suit, I deem it appropriate to direct that not withstanding the allowing of this appeal the appellants shall not claim recovery of the said amount deposited by them in pursuance of the interim order referred to above and withdrawn by the respondent accordingly. The appeal is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 22, 2010 DSK