IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 A.S.No. 321 of 1995(D) ----------------------------- OS.102/1990 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/PLAINTIFF MARY W/O ABRAHAM RESIDING AT ARACKAPARAMBIL HOUSE NADUVATTOM KARA MANJAPRA VILLAGE ALWAYE BY ADV. SRI.K.V.KURIAKOSE, RESPONDENT/DEFENDANT PAULOSE S/O KUNJAVIRA RESIDING AT MANJUMMEKUDIYIL HOUSE KEERAMPARA KARA, -DO- VILLAGE KOTHAMANGALAM TALUK (DIED) L.Rs. OF THE DECEASED SOLE RESPONDENT : Addl: R2 NAITY, W/O PAULOSE AGED 65 YEARS RESIDING AT MANJUMMEKUDIYIL HOUSE KEERAMPARA KARA, -DO- VILLAGE KOTHAMANGALAM TALUK Addl: R3 YOYAKI ALIAS BABU, S/O -DO- AGED 48 YEARS RESIDING AT MANJUMMEKUDIYIL HOUSE KEERAMPARA KARA, -DO- VILLAGE KOTHAMANGALAM TALUK A.S.No. 321 of 1995(D) :: 2 :: Addl: R4 P.P.GEORGE, 19W, STUYUESANT CIRCLE SETAURET NEWYORK N.Y.11733 U.S.A. Addl: R5 SUSAN JACOB 388, VICTORIA AVE BELLE VILLA ONTASIO, K-8 NZE, CANADA Addl: R6 ELIZABETH EASOW KARIMPUMKALAYIL MANJADI-P.O. THIRUVALLA-5 Addl: R7 MARY ISSAC CHENAYAPPILLIL PULINTHANAM-P.O. KOTHAMANGALAM TALUK Addl: R8 SIMALU JOSEPH CHERUSSERIL MARADI-P.O. MUVATTUPUZHA (Additional R2 & R3 and R4 to R8 are impleaded as the L.Rs. of the deceased sole respondent as per order dated 16-2-1995 on CMP 425/91 and CMP 5420/91 respectively) ADV. SRI.S.SHYAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.321 OF 1995 - D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2009 JUDGMENT Basheer, J: Appellant is the plaintiff in a suit for recovery of money. The court below granted a decree for a sum of Rs.10,001/- with 12% interest thereon from August 12, 1986 till the date of suit and thereafter with 6% interest on the principal amount till realisation with proportionate cost. Dissatisfied with the above decree, the appellant has preferred this appeal. 2. The pleadings of the parties may be briefly noticed. 3. The plaintiff married one Abraham, son of the defendant, on February 1, 1968. According to the plaintiff, on February 1, 1968 a sum of Rs.10,001/- in cash and gold ornaments weighing thirty sovereigns were entrusted to the father of her husband, (defendant in the suit) being the value of her share in the estate of her late father, as mutually agreed between the parties. The entrustment was with an understanding that the gold ornaments would be kept in trust for the benefit of the plaintiff to be returned when she demanded with interest or profit that accrued thereon. A.S.No.321 OF 1995 - D :: 2 :: Defendant had issued Ext.A1 receipt in this connection. According to the plaintiff, the amount of Rs.10,001/- was utilised by the defendant for the banking business conducted by the family of the defendant under the name and style 'Chelad Bankers' at Kothamangalam. The ornaments of the plaintiff which were also entrusted to the defendant were also sold and the sale proceeds were utilised for the business. Plaintiff further alleged that the defendant had made huge profits from the banking business utilising the money entrusted to him on behalf of the plaintiff. The price of one gold sovereign in February 1, 1968 was Rs.128/-. But in 1986, the value of one sovereign was Rs.1664/-. She further alleged that the sum of Rs.10,001/- which was entrusted to the defendant in the year 1968 had “appreciated by more than 30 times and thus it had become Rs.1,30,013/-”. The value of 30 gold sovereigns had also shots upto Rs.49,920/-. Thus, plaintiff claimed a total sum of Rs.1,79,933/- from the defendant with 18% interest thereon till the date of realisation. Alternatively, the plaintiff claimed recovery of the principal amount of Rs.10,001/- with interest at the rate of 18% p.a. by way of damages, since the amount was utilised by the defendant in a highly profitable A.S.No.321 OF 1995 - D :: 3 :: business. On this basis the amount due to the plaintiff was calculated and fixed as Rs.93,371/- including the value of gold ornaments, which was reckoned at Rs.49,920/-. 4. Plaintiff alleged that her parents her husband had deserted her and she was living with her brother at the time of the institution of the suit. She and her 11 year old daughter were being looked after by her brother. Though she had requested the defendant to return the money and ornaments on several occasions, he had refused to do so. Hence the suit. 5. In the written statement filed the defendant admitted that a sum of Rs.10,001/- was received by him as alleged in the plaint. But he denied receipt of any gold ornaments. He contended that Ext.A1 receipt itself would show that no gold ornaments had been handed over along with the money. He further contended that the plaintiff was also inducted as one of the four partners in M/S Chelad Bankers, which was registered as a partnership firm. The firm was wound up at the beginning of the year 1986. Accounts were settled and share of the plaintiff was disbursed to her. 6. The court below framed the following issues: i)Whether the defendant received the amount and ornaments mentioned in the receipt dated 1-2-1968 A.S.No.321 OF 1995 - D :: 4 :: produced by the plaintiff? ii) Whether the defendant has returned the amount and ornaments covered by the receipt dated 1-2-1968 to the plaintiff as contended by him? iii) What is the amount, if any, due to the plaintiff from the defendant? iv) Relief and costs? 7. Plaintiff got herself examined as PW1 and Exts.A1 and A2 were marked on her side. DW1 and 2 were examined on the side of the defendant. 8. The trial court, after considering issue nos.1 and 2, held that the plaintiff had failed to establish that gold ornaments weighing thirty sovereigns were entrusted to the defendant along with cash of Rs.10,001/- as alleged by her. However, the court below found that Rs.10,001/- was received by the defendant as evidenced by Ext.A1. As regards the contention that the defendant had made huge profits from the business utilizing cash and ornaments of the plaintiff, the trial court held that the plaintiff was not entitled to succeed. It was in the above circumstance that the court below granted a decree in favour of the plaintiff for recovery of sum of Rs.10,001/- with interest as indicated above. A.S.No.321 OF 1995 - D :: 5 :: 9. This appeal came up for consideration on May 23, 2009. There was no representation for the appellant. However, an adjournment was granted as requested by learned counsel for the respondent. Today when the case is taken up for hearing, neither the appellant nor her counsel is present. There is no representation for the respondent also. However, we have carefully perused the records available in the court. 10. As rightly noticed by the Court below, Ext.A1receipt which was admittedly executed by the defendant will only show that a sum of Rs.10,001/- was received from one Chacko Varghese at the time of the marriage of the plaintiff with the son of the defendant. Though the plaintiff had alleged that gold ornaments weighing thirty sovereigns were also handed over to the defendant along with the above sum of Rs.10,001/-, Ext.A1 receipt did not contain any such recital. The evidence of PW1 also revealed that she had been wearing her gold ornaments given to her at the time of her marriage till 1986. She admitted that she had shifted her residence to Manjapra in the year 1986, since her relationship with her husband had got strained by that time. Moreover, there was nothing on record to show that either she or any of her A.S.No.321 OF 1995 - D :: 6 :: relatives had in fact given her ornaments to the defendant. In the course of cross examination appellant/plaintiff had admitted that she had not entrusted any ornaments to the defendant as per Ext.A1. According to her, she had handed over the ornaments to the defendant after she shifted her residence along with her husband to the house situated in her husband's family property. It was in the above circumstances that the court below had held that only a sum of Rs.10,001/- in cash was entrusted to the defendant at the time of marriage of the plaintiff with the son of the defendant. Having carefully perused the evidence on record, we do not find any reason to interfere with the above finding entered by the court below. 11. In this context, it may also be noticed that the defendant had raised a contention that he had in fact returned the above sum of Rs.10,001/- to the plaintiff. But in the absence of any evidence to substantiate the above plea of discharge, the court below had rightly repelled the said contention raised by the plaintiff. In our view, the finding entered by the trial court in this regard is also justified in the facts and circumstances of the case. A.S.No.321 OF 1995 - D :: 7 :: 12. The trial court had thereafter proceeded to consider the question whether the plaintiff was entitled to recover Rs.1,79,933/- from the defendant on the allegation that the sum of Rs.10,001/- paid to him in the year 1986 had appreciated 13 times in value. But as rightly noticed by the trial court, plaintiff was also one of the four partners in the banking business. Defendant had contended that the accounts of the firm had been settled and the share payable to the plaintiff had been paid to her. Moreover, it had come out in evidence that plaintiff had been residing with her husband atleast till 1983. According to the plaintiff, she had shifted her residence to Manjapra in the year 1986. It was further admitted by her that she and her husband had been residing in a separate building situated in his joint family property having a total extent of 10 acre 65 cents. She had also admitted that on the strength of a power of attorney executed by her husband, she had alienated a small portion of the above property to her two brothers. According to her, it was done for discharging certain debts for which her husband was solely responsible. This aspect was considered by the trial court in the context that the relationship between the plaintiff and her husband had got strained in the year A.S.No.321 OF 1995 - D :: 8 :: 1986 and plaintiff had shifted her residence along with her daughter in that year. Plaintiff claimed that she had demanded for return of the money in the year 1986, though admittedly no notice in this regard was issued by her. More importantly, apart from the bald allegation that the defendant had utilised the sum of Rs.10,001/- for the purpose of banking business and amassed huge profit from that business there was nothing on record to substantiate the above contention. It was in the above circumstance that the court below had granted decree for recovery of Rs.10,001/- with interest thereon. Having carefully perused the entire materials available on record, we do not find any illegality in the decree and judgment passed by the court below. There is no merit in any of the contentions raised by the appellant in the memorandum of appeal. The appeal, therefore, fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE). jes A.S.No.321 OF 1995 - D :: 9 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.321 OF 1995 - D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 26th day of May, 2009