IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 AS.No. 815 of 1998(C) -------------------- OS.260/1991 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S): -------------- CELINE ALIAS ANNAMMA, ARUTHARA HOUSE, STORE JUNCTION, CHELLAKKADU P.O., PAZHAVANGADI VILLAGE, RANNI TALUK PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): --------------- 1. RAJAN ABRAHAM, S/O. LATE ABRAHAM KAKKUZHIYIL HOUSE, KARIKULAM .P.O., KARIKULAM, PAZHAVANGADI VILLAGE, RANNI TALUK. 2. ACHAMMA ABRAHAM, W/O. LATE ABRAHAM, -DO- -DO- -DO- ADV. SRI. P.V.S. SUDHEER SRI.PIRAPPANCODE V.S.SUDHIR SRI.MATHEWS JACOB, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 5/8/2009 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - A. S. NO: 815 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th Day of August, 2009. JUDGMENT This appeal is filed by the plaintiff in O.S. No. 260 of 1991 on the file of Sub Court Pathanamthitta. Respondents 1 and 2 herein are the defendants 1 and 2 in that suit. O.S. No. 260 of 1991 is a suit for return of money. 2. The facts of the case are briefly as follows: The 1st respondent married the appellant on 7.5.1990 observing the customary rituals prevalent among Christians. The 2nd respondent is the mother of 1st respondent. After the marriage, the appellant and the 1st respondent lived together as man and wife at the residence of the 1st respondent at Karimula. Very soon, the 1st respondent developed a sort of dislike towards the respondent. He became suspicious. He started torturing the appellant mentally and physically and even attempted to murder the appellant. Ultimately, the appellant was driven out the house on 5.1.1991. Prior to the marriage there was a betrothal A.S. NO:815 OF 1998 :2: ceremony on 30.4.1990 at the resident of the appellant. On that day a sum of Rs.35,000/- was entrusted to the 1st respondent as the value of the share due to the appellant in her ancestral properties. The respondents received the amount as trusties of the appellant. They spent the entire amount for their family needs. The appellant is entitled to get the back the said amount from the respondents. On 4.2.1991 the appellant's father requested the respondents to return the amount. They did not return it so far. A decree allowing the appellant to recover a sum of Rs.35,000/- with interest from the respondents is to be passed. 3. In the written statement the respondents contend that the marriage of the 1st respondent with the appellant took place on 7.5.1990. The appellant was never ill-treated by the respondents. She left the matrimonial home at the instigation of her father. The allegation in the plaint that a sum of Rs.35,000/- was entrusted to the respondent at the time of betrothal on 30.4.1990 is incorrect. The appellant was not given any share from the property of her father. The appellant filed O.P. No.65 of 1991 for divorce and the case is pending A.S. NO:815 OF 1998 :3: before the District Court, Pathanamthitta. The suit is speculative in nature. The appellant has no cause of action and the suit is to be dismissed with costs. 4. In the Sub Court PW1 and PW2 and DW1 were examined and Ext.A1 was marked. The learned Sub Judge on considering the evidence dismissed the suit without costs. Against that judgment and decree, the plaintiff filed this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. Learned counsel for the appellant submitted that the Court below committed an error by dismissing the suit and that the learned Sub Judge ought to have found that on considering the preponderance of probabilities, the case of the plaintiff is probable and should have decreed the suit. 7. The fact that the first defendant married the plaintiff on 7.5.1990 in accordance with the customary rites of the Christian Community, is admitted by the defendants. It is also admitted fact that A.S. NO:815 OF 1998 :4: the marriage between the plaintiff and first defendant is subsequently dissolved through court. The plaintiff is examined as PW1. PW1 deposed that on 30.4.90, her marriage with the first respondent was fixed at her residence and at that time towards her share of property, Rs.35,000/- was paid to the karanavan of the defendant's family and that karanavan entrusted that the amount with the first defendant. PW1 deposed that out of that amount Rs.27,000/- was paid in ready cash and balance of Rs.8,000/- was given by cheque. PW1 deposed that for paying that amount her father took Rs.27,000/- from his Bank Account with Mandamaruthy branch of Federal Bank. The father of the plaintiff is examined as PW2. PW2 deposed that Rs.35,000/- was given to the first defendant at the time of fixing of marriage between the plaintiff and first defendant. PW2 deposed that the amount was given to the uncle of the first defendant through the uncle of plaintiff. PW2 deposed that Rs.27,000/- was given in cash and Rs.8,000/- was given by cheque. The plaintiff has not produced the pass-book or bank records to show that PW2 gave Rs.27,000/- by withdrawing that A.S. NO:815 OF 1998 :5: amount from the bank and the first defendant encashed Rs.8,000/- by presenting the cheque given by PW2. Ext.A1 Sale Deed dated 21.2.1995 is executed after the filing of the suit and therefore no evidencary value can be given to that document. The 2nd defendant was examined as DW1. DW1 deposed that defendants have not received any amount from the plaintiff or her father towards value of share. In the absence of reliable evidence, I am of the view that the learned Sub Judge is perfectly justified in dismissing the suit on finding that the plaintiff has failed to prove her case. The result is that this appeal is liable to be dismissed as it without any merits. Accordingly this appeal is dismissed and that the judgment and decree in O.S. No. 260 of 1991 on the file of Sub Court, Pathanamthitta is confirmed. The parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/