IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 Mat.Appeal.No. 24 OF 2004() --------------------------- OP.634/1999 OF FAMILY COURT, ERNAKULAM .................... APPELLANT/RESPONDENT JAYANTH LAL, AGED 36, S/O. P.K.PARAMESWARAN, PARINGOTTPARAMBIL VEEDU, K.M.P.NEAR PALLURUTHY, RAMESWARAM VILLAGE, KOCHI TALUK. BY ADV. SRI.ABRAHAM JOHN RESPONDENT: PETITIONER SELVY, AGED 32, D/O. LATE P.K.KRISHNAN, PADNAYIL HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.BABU CHERUKARA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MAT. A. 24/2004 ORDER ON I.A. NO. 569/2004 IN M.A. 24/2004 // DISMISSED // 5.1.2009. SD/-, P.R. RAMAN, JUDGE. SD/-, C.T. RAVIKUMAR, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & C.T.RAVI KUMAR, JJ. = = = = = = = = = = = = = MAT. APPEAL NO. 24 OF 2004 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 5TH DAY OF JANUARY, 2009. J U D G M E N T Raman, J. Appellant is the husband, who is the respondent in O.P. 634/1999 before the Family Court, Ernakulam, which is a petition filed by the wife for realisation of gold ornaments weighing 183/4 sovereigns, the value of which being 1,15,625/- and an amount of Rs. 50,000/- said to have been paid as her share amount to the appellant at the time of marriage. 2. The contention of the respondent/wife was that the appellant/husband had accepted the said gold ornaments and the amount and hence he is obliged to retain the same only in trust for the wife, that over and above the amount mentioned above, 20 sovereigns of gold was provided to the wife by her father at the time of marriage, that her life became miserable due to cruelty meted out to her, that her husband was a habitual drunkard and he misused the amount given to him because of his bad habits, that when there was a protest by the wife, the husband threatened to do away with her, that out of the aforesaid gold ornaments, 51/2 M.A. 24/2004 :2: sovereigns were sold by the husband unauthorizedly and the remaining articles were pledged in Geo Financiers, Thoppumpady and the amount was appropriated by the respondent, that the cruelty meted out to her exceeded its tolerable limits and in such circumstances, she filed the petition for realisation of the amount as aforesaid. 3. In the counter affidavit filed by the appellant(husband), the marriage is admitted. He also admits that on 27.5.1995, Vivahapathrika was exchanged. But the remaining averments made in the petition is denied. According to him, the petitioner(wife) was threatening him stating that she will commit suicide and it is because of that she was taken to her house. She always wanted to live with her parents than in the matrimonial house. 4. The issue that arose for consideration was as to whether the petitioner/wife was entitled for an order of recovery of an amount of Rs. 1,15,625/- as prayed for in the original petition. The evidence in the case consist of Exts. A1 and X1 besides the oral testimony of PWs 1 to 3 on the side of the petitioner/wife. The respondent/husband was examined as RW.1 on his side. The court below, after analysing the evidence on record, passed a decree for realisation of an amount of Rs. 50,000/- and also an amount of Rs.42,000/- being the value of 14 sovereigns of gold ornaments, M.A. 24/2004 :3: together with interest at 10% from the date of the original petition. Aggrieved thereby, the respondent/husband has preferred this appeal. 5. Learned counsel appearing on behalf of the appellant contended that the court below did not appreciate the evidence in the proper perspective, that no reliance could be placed on Ext.X1 as the appellant or the respondent or any of the committee members put their signature therein and that the same is a forged document. Further, RW.1 deposed before the court that he could not attend the meeting entirely and he walked out in protest on the decision taken by the committee members and that he did not sign the relevant page of Ext.X1 court exhibit. PW.2, who has deposed about the authenticity of Ext. X1, stated that he did not sign in Ext.X1. PW.2 is a neighbour of the respondent and therefore, Ext.X1 and the evidence of PW.2 cannot be accepted. According to him, as per Ext.A1 only an amount of Rs. 10,000/- is withdrawn on 9.5.1995, that there is no proof of the source for the balance amount, that the entrustment of the amount of Rs.50,000/- with the uncle is unsupported by any evidence and that the respondent was not wearing on any gold ornaments as alleged nor was there any entrustment. It is therefore, prayed that the judgment and decree passed by the court below be set aside and the appeal be allowed. 6. The respondent, on the other hand, contended that the court below M.A. 24/2004 :4: decreed the suit after appreciating the evidence on record, that though an amount of Rs. 1,15,625/- was claimed, the court below granted a decree only for an amount of Rs. 92,000/- with interest thereon, that the marriage between the parties is beyond dispute, that Ext.X1 is the proceedings of the committee where conciliation talk was held and it was signed by the secretary, that the fact that there is a conciliation talk is not disputed by the appellant since even according to him he walked away from the committee hall and it is evident therefore, that there was a conciliation talk and the Sabha has drawn up the proceedings. Apart from that, PWs 1 and 3 cogently proved the factum of entrustment of the money as well as gold ornaments with the appellant beyond dispute, and except the ipsi dixit of the appellant as RW.1, no further evidence is adduced by him to support his contention and in such circumstances, the finding recorded by the court below and relied upon for granting the decree cannot be said to be perverse or illegal. 7. We have heard both sides, perused the evidence on record and considered the judgment passed by the court below. 8. There is no dispute that the appellant and the respondent got married. That the acceptance of the vivahapathrika is also admitted by the parties. The short question, therefore, that arises for consideration is M.A. 24/2004 :5: whether the entrustment of an amount of Rs. 50,000/- and the gold ornaments is true and whether the appellant is bound to return the same as decreed by the court below. 9. In the proof affidavit filed by the respondent as petitioner, it is averred that the marriage was performed as per the religious rites of Dheevara community on 20.8. 1995 at her residence, that on 27.5.1995, prior to the marriage, there was exchange of the Vivaha pathrika and at that time, her father P.K. Krishnan entrusted an amount of Rs. 50,000/- with the appellant through his uncle one Mr. Asokan towards her share, that the amount was accepted by the appellant and in addition, 20 sovereigns of gold ornaments were also given by her father at the time of marriage, that her life with the appellant was miserable due to cruelty meted out to her by the appellant and his mother, that in December, 1995, the appellant unauthorizedly took away 51/2 sovereigns of gold ornaments and sold it for his wayward life, further, six bangles, a chain, a locket and wring were also unauthorisedly pledged by the appellant with Geo Financiers and obtained money and spent the same, that on 28.3.1996 at about 9.30 A.M. she was taken to her house by the appellant and at that time, she had only 1 1/4 sovereigns of gold ornaments and the balance 183/4 were misappropriated by the appellant, that the marriage was dissolved and the same became final M.A. 24/2004 :6: and that she is entitled to get back her gold ornaments and also the money entrusted with the appellant. 10. The total value of 183/4 sovereigns of gold ornaments was claimed as Rs. 65,625/- at the prevailing rate of Rs.4,080/- per sovereign. In the petition, the details of the gold ornaments are also given. Mediation talks took place at Udayamperoor Vijnanodaya Sabha and there was a talk on the subject of gold and money at Kumbalam Sanmarga Pradeeksha Sabha on 9.8.1997. Nothing was settled in the matter but the statement of the parties were recorded. Though she was cross examined by the appellant's counsel nothing is brought out to discredit her testimony as PW.1. To a specific question as to how she came to know about the ornaments having been pledged with the Financier, she stated that she came to know from a slip in the pocket of the shirt of her husband and that receipt is with him. PW.2 is the president of the Vijanodaya Sabha, Udayamperoor. He has stated that at his leadership there was a meeting held on 9.8.1997, that the meeting was held at the Kumbalam Sanmargha Pradeeksha Sabha and the proceedings were produced which was marked as Ext.X1. He has further stated that Ext.X1 was prepared and kept in the normal course of business. Ext.X1 would show that the parties who attended the meeting 14 in numbers, had signed against their names and the M.A. 24/2004 :7: sum total of the statement recorded would show that there was an admission on the part of the husband that an amount of Rs. 50,000/- had been entrusted with him and according to him, he has enmity only with his wife and not with her parents. It is also admitted that he has received 14 sovereigns; but he denied having soled any such gold ornaments and that his father received the gold ornaments for the purchase of Almirah. It is true that what has been produced as Ext.X1 does not contain the signature either of the bride or bridegroom. But there is nothing to disbelieve the version of PW.2 the president of the Sabha who proves Ext.X1 proceeding recorded in the meeting. This statement has been recorded in the mediation talk between the parties and the parties 14 in number on the side of the respondent have singed the proceedings and the fact that there was such a proceeding in the mediation talk is beyond dispute. Though PW.2 was throughly cross examined, nothing is brought out to discredit his testimony. PW.3 is the brother of the petitioner who supports the case as pleaded. As against this, the only evidence is that of RW.1 who makes a flat denial of the receipt contrary to the statement recorded in Ext.X1. Even though Ext.A1 would show that only an amount of Rs. 10,000/- was withdrawn from the Bank, that cannot be taken as a solitary ground for rejecting the contention of the respondent of having entrusted Rs. 50,000/- and the gold M.A. 24/2004 :8: ornaments. The father of the petitioner died and hence he could not be examined in the case. The court below who had the advantage of seeing the demenour of the witnesses has accepted the evidence of PWs.1 to 3 and Ext.X1. It cannot be said that the evidence as adduced by the respondent herein is liable to be rejected in preference to the solitary statement of the appellant. The appellant did not choose to examine any independent witness - either his relatives or friends who attended the marriage. Even the mother of the appellant was not examined in the case. In the circumstances, on a careful consideration of the entire evidence adduced in the matter, we do not think that the findings as entered into by the court below, on appreciation of the evidence on record, is in any way perverse or improbable. 11. However, we find that the court below has awarded interest at the rate of 10% from the date of petition. This interest is awarded by exercising the power under Section 34 of the Code of Civil procedure. Considering the totality of the case, we think it is only appropriate that interest need be awarded from the date of judgment of the court below at the rate of 8% instead of 10%. To that extent alone, the judgment and decree passed by the court below is modified. In all other respects, the same is confirmed. M.A. 24/2004 :9: The appeal is thus allowed in part, as above. P.R. RAMAN, (JUDGE) C.T.RAVIKUMAR, (JUDGE) knc/-