IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 AS.No. 385 of 2000(B) ------------------------------- OS.264/1987 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): PLAINTIFF --------------------------------------- S.MUTHUSWAMI CHETTIAR, PLAVILAKATHU VEEDU, THELUGUCHETTY STREET, TRIVANDRUM. BY ADV. SRI.M.RAJASEKHARAN NAYAR RESPONDENT(S): DEFENDANT ------------------------------------------- S.PARAMASIVAN CHETTIAR, PLAVILAKATHU VEEDU, THELUGUCHETTY STREET, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE SRI.M.RAMASWAMY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. -------------------------------------------------------- A.S.No.385 OF 2000 --------------------------------------------------------- Dated this the 18th day of August, 2010. JUDGMENT This is an appeal preferred against judgment and decree of the Subordinate Judge's Court, Trivandrum, in O.S.No.264 of 1987. The suit is one for realisation of amount. It was dismissed by the trial Court. It is against that decision, the present appeal is preferred by the plaintiff. The brief facts, necessary for the disposal of the appeal, are stated as follows:- 2. Plaintiff and defendant are brothers. It is the case of the plaintiff that as per the stipulation in the Will executed by the mother of the parties, the defendant was to conduct the marriage of the sisters who were minors at that point of time. It is also contended that if the defendant fails to discharge the responsibility, the plaintiff can spend the amount for the marriage and realise it from the defendant and the property allotted him under the Will. It is the case of the plaintiff that the marriage of the 1st sister Sukumari took place in 1971 and that of the younger sister Saraswathi on 25.1.1981 and for both the marriages the plaintiff had expended the amount and, therefore, the defendant has violated the terms and conditions of the Will A.S.No.385 OF 2000 2 and, therefore, the plaintiff is entitled to realise the amount. 3. The defendant on the other hand would contend that the plaintiff was an young boy at that time and he had not expended even one rupee for the marriage and it was the defendant who was looking him as well as the sisters and so the question of the plaintiff spending any amount for the marriage does not arise. It is further contended that the suit is also hopelessly barred by limitation. 4. The evidence in this matter consists of oral testimonies of PWs.1 to 4 and DWs.1 and 2. Exts.A1 to A4 had been marked. 5. Ext.A1 is the Will, which is executed in the year 1970. There is a condition that the defendant would conduct the marriage of his sisters. There is also a Clause that in case of default, the property set apart to him and himself are liable and that the plaintiff can take up the responsibility and conduct the marriage. I am not going to deep into the discussion as done by the trial court, regarding the proof of the Will. Both parties do not dispute the Will and it is the terms and conditions of the Will that has come up for consideration. It is true that normally a Will is to be proved, as contended by the parties. Even if it is admitted for argument that the Will has been proved, the point to be A.S.No.385 OF 2000 3 considered is whether the plaintiff had satisfied the court that he had expended for the marriage of his sisters. 6. PW1 is the plaintiff and PW2 is the first sister Sukumari. Admittedly, at the time of marriage of Sukumari, the plaintiff was a young man of about 21 years. He was attending the college for his graduation as a B.A student. There is absolutely no scrap of paper to show that he had any independent income to be derived from any property. His contention is that from 1970 on wards his father was not keeping good health, and therefore, he was looking after vegetable business of his father and from that he had received money, which he had spent for the sisters marriage. It is to be remembered that though the mother was not alive, the father was alive at that point of time. The marriage was conducted at Tuticorin. Except the interested version of PW1, supported by PW2, there are no materials to prove the income. PW2 is the sister who got married. The evidence has come out that she had come and stayed with the defendant after the marriage for a period of 2 to 3 years along with her husband. The defendant would contend that there was a difference of opinion between the sister and his wife and as it developed in to the quarrel, they started living separately. It is the case of the A.S.No.385 OF 2000 4 defendant that on account of the same the plaintiff had won over her and had instituted a suit of this nature. At the outset I like to say this marriage took place in 1971 and the suit is instituted in the year 1987 i.e., 16 years after the marriage. If really the plaintiff was only a student or had just finished his education and admittedly unemployed, and if he had spent money, he would not have kept quite for such a long time. Just because PW2 comes and supports him, it cannot be treated as an evidence to prove that he had conducted the marriage of PW2. Now turning to PW3 she is the second sister. During her marriage also father was alive and the invitation also reveals the same. Her marriage was conducted on 25.1.1981 and the suit is instituted only in the year 1987. If really the plaintiff had expended the amount, he would not have kept quite for such a long time. There is absolutely no scrap of paper showing the purchase of any gold ornaments or other expenses incurred in connection with the marriage by the plaintiff. Just because PW3 also comes and deposes after a period of 10 years to help her elder brother that he had spent money, it will not a substitute for valid evidence. Therefore, the evidence of PWs.1 to 3 does not inspire confidence to prove that it was the plaintiff who had expended the money. A.S.No.385 OF 2000 5 7. The only documentary evidence produced in support of contention is an assignment deed Ext.A3. It is an assignment executed by the plaintiff in favour of one Thajudheen and it is for a consideration of Rs.3,000/-. He is examined as PW4. He deposed that the amount was given two months prior to Ext.A3. That document is dated 1.12.1971. The marriage of Sukumari had taken place in September 1971. So it cannot be for marriage because the alleged payment is only after the marriage. There is absolutely no recital in the document with respect to the payment of the consideration prior to the marriage. The purpose for which property is sold is not mentioned in that document. Just because the year happens to be 1971, the court below jumped into the conclusion that that amount has been utilised for the marriage. Therefore, the evidence which the plaintiff is bound to let in is unsatisfactory to establish the case. So far as the amount relating to Sukumari is concerned, even if it is admitted for argument that the plaintiff had expended the amount and there is a charge over the property even then the suit should have filed in the year 1983. But the suit is filed only in the year 1987. So it is hopelessly barred by limitation. In order to circumvent the same an acknowledgment of liability is attempted to be put forward. A.S.No.385 OF 2000 6 But unfortunately, it is stated it was entrusted to the lawyer and he had misplaced it. Therefore, acknowledgment of liability is also not there. Therefore, from all these materials I find that trial court has approached the matter in the correct perspective and dismissed the suit. Therefore, the appeal fails and the same is dismissed. The parties are directed to bear their respective costs. The Registry will address the District Collector under Order 33 of the Civil Procedure Code for realisation of court fee from the appellant. M.N.KRISHNAN, JUDGE mns