IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 Mat.Appeal.No. 878 of 2010 ------------------------------------ OP.361/2009 of FAMILY COURT, MALAPPURAM .................... APPELLANTS/RESPONDENTS: 1. SULTHAN, AGED 27 YEARS, S/O.SAIDALAVI @ MUTHUKOYA, AMBALAPPARA KALLIVALAPPIL HOUSE, MALAMUKKU, AMBALAPPARA POST, CHUNANGADU, MALAPPURAM, OTTAPPALAM TALUK. 2. SAIDALAVI @ MUTHUKOYA, S/O.ALAVI, 56 YEARS, AMBALAPPARA KALLIVALAPPIL HOUSE, MALAMUKKU, AMBALAPPARA POST, CHUNANGADU, MALAPPURAM, OTTAPPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI RESPONDENT/PETITIONER: SFOORA,AGED 24 YEARS,D/O.HAMZAKUTTY, THANKAYATHIL HOUSE,ALIPPARAMBA AMSOM, PARAL DESOM, THOOTHA POST, PERINTHALMANNA TALUK. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.M.SHAFFIQUE & ANU SIVARAMAN, JJ. = = = = = = = = = = = = = = = = = = = = Mat.Appeal No.878 of 2008 = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of July, 2017 JUDGMENT Anu Sivaraman, J. 1.This Mat.Appeal is preferred by respondents 1 and 2 in O.P.No.574/2006 against the judgment dated 29.09.2008 of the Family Court, Thiruvalla. The original petition was filed by the respondent-wife seeking recovery of an amount of Rs.7,06,500/- towards money paid as patrimony as also the value of gold ornaments. 2.It was contended that the parties were married on 01.06.2005 at the Sree Vallabha Temple Thiruvalla. They lived together as man and wife in the appellant's house. It is alleged that an amount of Rs.5 lakhs was entrusted to respondents 2 and 3 on 26.05.2005 and ornaments of 36 sovereigns were worn by the respondent wife at the time of the marriage. In the marriage register maintained by the SNDP, converting the money paid also into gold, it was recorded that 136 sovereigns of gold had M.A.No.878/10 2 been handed over. It is stated that the ornaments worn were appropriated by the husband, his mother and sister. It is stated that another amount of Rs.25,000/- was paid allegedly on the day of the marriage itself and Rs.15,000/- on 3.06.2005 and Rs.20,000/- on 26.5.2005. It was further stated that the ornaments of the petitioner were pledged with the Kunnikode branch of Muthoot Financial Corporation by the respondents and the petitioner was assaulted both physically and mentally demanding more money. It is stated that on 2.10.2005, the wife was sent back to her parental home demanding more money. She was returned to the matrimonial home by the parents and she was again assaulted and abused. On 28.12.2005 she was taken to her parental home by the 1st respondent and abandoned at the gate. She states that her gold ornaments and money were not returned to her and therefore claimed the value of the same. 3.The appellants herein had filed a joint written statement along with the 2nd respondent who is the sister of the 1st respondent denying any demand for money or gold ornaments. The allegation that the petitioner had 36 sovereigns of gold M.A.No.878/10 3 ornaments at the time of marriage as well as the entrustment of the gold ornaments or money with the respondents and the appropriation of the same were also denied. The allegations of cruelty and the contention that the petitioner had been taken to her parental home and left there on 28.12.2005 were also denied. It was the case of the respondents that their family was a respectable one and that the petitioner had left the residence on 7.1.2006 on her own volition. When mediators intervened and called him for a settlement, the 1st respondent had gone to the petitioner's house on 31.07.2006. But he was wrongly confined and was threatened and coerced to sign on two cheques for Rs.5,40,000/- and Rs.2,59,200/- respectively. He had preferred a complaint before the Dy.S.P., Thiruvalla and the present original petition was filed only as a counter blast. 4.PWs.1 to 3 were examined on the side of the petitioner and A1 to A6 were marked. The respondents examined CPW1 & 2 and B1 to B11 documents were marked. X1 to X4 documents were also marked. M.A.No.878/10 4 5.After considering the evidence on record, the Family Court came to the conclusion that Rs.5 lakhs had been paid to the 1st respondent as patrimony and that he had appropriated the said amount. On an examination of the evidence, it was further found that the claim for return of the further sum of Rs.40,000/- allegedly paid after the date of marriage would fail due to the inconsistency in the pleading as well as the evidence. With regard to the entrustment of the gold ornaments the petitioner's case that she had worn around 36 sovereigns of gold at the time of the marriage which had been entrusted with the 1st respondent who had appropriated the same for his own use was accepted by the Family Court. In the result, a decree for return of Rs.5 lakh and Rs.1,66,500/- being the value of gold ornaments within one month was passed by the Family Court. The cost of Rs.10,000/- was also allowed to the petitioner. 6.Heard the learned counsel for the appellants and the learned counsel appearing for the respondents. M.A.No.878/10 5 7.The learned counsel for the appellants would submit that the acceptance of the case set up by the petitioner that an amount of Rs.5 lakhs had been paid as patrimony on 26.05.2005 was completely unwarranted in the light of the facts and circumstances of the case. It is contended that admittedly the wedding which was solemnised on 01.06.2005 was preceded by an engagement on 22.5.2005. The case in the petition is that on 26.5.2005, the amount of Rs.5 lakhs had been handed over to respondents 2 and 3 who were the younger brother and sister of the 1st respondent respectively. It is contended that such a handing over of what was a substantial amount of money to younger brother and sister of the bridegroom itself is inherently improbable and evidence to that effect ought not to have been relied on by the Family Court. Further it is submitted that the reliance on Exts.X1 and X2 marriage register of the SNDP to find that Rs.5 lakhs and 36 sovereigns of gold had been given at the time of marriage was also erroneous. It is stated that the Family Court ought to have seen that there was no signature of the guardian in X1 register and there were clear discrepancies as to the entries in the M.A.No.878/10 6 same. The reliance placed on the documentary evidence produced by the petitioner was also misconceived, it is submitted. 8.The learned counsel for the respondents would, on the other hand, contend that cogent evidence had been adduced on the side of the petitioner to prove that an amount of Rs.5 lakhs and 36 sovereigns of gold had been given at the time of marriage. It is submitted that the aspect of entrustment and appropriation were also sufficiently proved by the documentary and oral evidence adduced by the petitioner. Exhibits A5 and A6 series of receipts issued regarding the pawning of gold ornaments by the appellant would clearly prove the case of appropriation of gold by the appellant. It is further stated that no objection whatsoever with regard to the source of funds had been raised in the written objection filed by the appellant before the Family Court. In the above circumstances, in view of the clear evidence let in it is contended that the finding of the court below in the effect that the entrustment and appropriation stood proved could not be faulted. M.A.No.878/10 7 9.We have considered the contentions advanced on either side. We have also perused the judgment and gone through the oral and documentary evidence let in by the parties. It is contended in the petition that the respondents and their mother had demanded an amount of Rs.20 lakhs during the time of the marriage proposal. Since it was not possible to raise so much of cash, the petitioner's father had agreed to give his daughter one acre of property and 125 sovereigns of gold. However, the respondents had stated that Rs.5 lakhs being the equivalent of 100 sovereigns of gold should be handed over as cash. It is alleged that respondents 2 and 3, as directed by the 1st respondent, had come to the petitioner's house on 26.5.2005 and had collected Rs.5 lakhs. At the time of the marriage reckoning the Rs.5 lakhs handed over on 26.5.2005 also and the 36 sovereigns of gold worn by the petitioner it was recorded in the register that 136 sovereigns of gold had been worn at the marriage. It was further stated that Rs.15,000/- had been handed over at the Kitchen seeing ceremony and further amount of Rs.25,000/- on 26.7.2005 for the conduct of some cases of the appellant-husband. It is M.A.No.878/10 8 stated that later all gold ornaments of the petitioner had been taken by the respondents and pledged with the Muthoot Finance Corporation, Kannur branch and later sold by 1st appellant for his own purposes. Even the thali chain had been taken by the 1st appellant during Onam, 2005 saying that he needed to buy a present for the inauguration of his Advocate's Shopping Complex. The 1st respondent-wife therefore sought return of Rs.5,40,000/- rupees and the monetary value of 37 sovereigns of gold ornaments being Rs.1,66,500/-. 10.The counter case of the respondents was one of total denial. The petitioner-wife had produced Exhibit A1 series of bills showing the purchase of 36 sovereigns of gold. She had given evidence in terms of her pleadings and in cross-examination, she stated that her father was working in the Gulf till 2011. He had four daughters. The elder sister was married in 2004 December. 70 sovereigns of gold was given to her. The marriage of the petitioner's younger sister was 8 months after the petitioner's wedding. She was also given 100 sovereigns of gold. The petitioner's engagement was on 22.5.2005. The agreement was that 125 sovereigns of gold and one acre of M.A.No.878/10 9 land would be given as her paternal share. Later it was agreed that Rs.5 lakhs would be paid in cash. It is stated that respondents 2 and 3 had come to collect the money. The petitioner states that she was present when the money was handed over to respondents 2 and 3. However, she cannot remember the denominations in which the money was handed over. It was on the telephonic direction of the 1st respondent that the money was handed over to respondents 2 and 3. She speaks of the entrustment and appropriation of the gold ornaments as well. PW2 the Shagha Secretary of the petitioner's Shagha was examined and X1 extract of the marriage register was marked. The evidence in the case was later reopened and A5 & A6 series of receipts of Muthoot Financial Corporation were marked. 11.A1 series of bills as well as notings in Ext X2 marriage register have been relied upon by the Family Court in support of the contentions that the value equivalent to 136 sovereigns of gold had been given to the petitioner at the time of the marriage. Ext A1 series are authenticated bills for the purchase of the gold. A2 and A3 have been produced to show M.A.No.878/10 10 that the petitioner's mother had retired from service and her terminal benefits had been disposed to her. Ext.A4 Bank statement of the 1st appellant was marked to show that an amount of Rs.5 lakhs was deposited in his bank account on 27.05.2005 as cash. Though he sought to explain the said amount stating that he had sold his Lancer car for Rs.6 lakhs, no material was produced to prove the transaction. A5 and A6 series of receipts from Muthoot Finance Corporation have also been produced by the petitioner. The receipts include receipts for the mortgage of gold ornaments including thali chain. The said thali chain appears to have been pledged on 13.9.2005. All the receipts are seen to have been closed on 20.09.2005. Read in conjunction with the oral evidence adduced in the instant case, it can be seen that Exhibit A5 and A6 series of receipts would evidence the pledging of gold on various dates from 10.06.2005 to 13.9.2005. Though an attempt was made by the 1st appellant to show that the gold pledged was obtained from his brother, it was not accepted by the court below since the evidence let in showed that the brother had brought only small quantity of gold and that would not tally with the receipts produced. The oral and documentary evidence therefore M.A.No.878/10 11 agrees with the pleadings of the petitioner that her gold was taken by the 1st respondent and had been pledged with Muthoot Financial Corporation and later taken from there and sold in a jewellery. 12.After going through the evidence of PW1 to PW3 as well as the evidence adduced by the petitioner with regard to the appropriation of the money and gold, we are of the opinion that the conclusion reached by the Family Court with regard to the entrustment of the money and gold as well as its appropriation cannot be faulted. We are of the opinion that the petitioner-wife had succeeded in proving her case of entrustment of cash and gold ornaments and the appropriation thereof. She would therefore be entitled to a decree for the return of the same. We find no merit in the appeal. The appeal therefore fails and is accordingly dismissed. There will be no order as to costs. sd/- A.M.Shaffique, Judge sd/- Anu Sivaraman, Judge /TRUE COPY/- PA TO JUDGE sj