IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 Mat.Appeal.No. 575 of 2008() ---------------------------- OP.312/2007 of FAMILY COURT, MALAPPURAM .................... APPELLANTS/ RESPONDENTS -------------------------------------- 1. MAMBAYIL SURESAN, AGED 34 YEARS, S/O.NAYADIKUTTY, VADAKKUMBRAM VEEDU, KADALUNDI AMSOM, MANNUR DESOM, P.O.MANNUR, KOZHIKODE DIST. 2. MAMBAYIL RAMADASAN, AGED 40 YEARS, S/O.NAYADIKUTTY, VADAKKUMBRAM VEEDU, KADALUNDI AMSOM, MANNUR DESOM, P.O.MANNUR, KOZHIKODE DIST. 3. MAMBAYIL VASANTHA, AGED 38 YEARS, D/O.NAYADIKUTTY, VADAKKUMBRAM VEEDU,KADALUNDI AMSOM, MANNUR DESOM, P.O.MANNUR, KOZHIKODE DIST. 4. MAMBAYIL SOBHANA, AGED 42 YEARS, D/O.NAYADIKUTTY, VADAKKUMBRAM VEEDU, KADALUNDI AMSOM, MANNUR DESOM, P.O.MANNUR, KOZHIKODE DIST. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): PETITIONER ------------------------- NISHA, AGED 27 YEARS, D/O.MUTHALAVEETTIL KELUKUTTY, KUMANNA, OLAKARA.P.O, THIRURANGADI TALUK, MALAPPURAM DISTRICT. ADV. SRI.BINDU SREEKUMAR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON 12/01/2010 DELIVERED THE FOLLOWING: K.M.JOSEPH & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - Mat Appeal No.575 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of January, 2010 JUDGMENT Barkath Ali, J. Challenge in this appeal under Section 19(1) of Family Court Act by the respondents in O.P.No.312/2007 of Family Court, Malappuram is to the order of the Family Court dated January 8, 2008 allowing the O.P. in part for recovery of Rs. 1,65,500/- being the value of gold ornaments and almirah which were given to appellants at the time of her marriage from the appellants with interest at the rate of 9% per annum and cost with a charge on the petition schedule immovable property. 2. The case of the respondent/petitioner as testified by her as PW1 before the lower court and as detailed in the O.P. in brief is this : The first appellant/first respondent married the respondent/petitioner on May 12, 2003 and they have a son named Akhil aged 3. At the time of marriage, she was given ornaments worth 25 sovereigns out of which ornaments worth 23 sovereigns were taken Mat.Appeal No.575/08 Page numbers by appellants/respondents to clear their debt. Three months prior the marriage Rs. 50,000/- was given to petitioners 1 and 2 by her family members. After three months of marriage the family members of respondent/petitioner gave an Almirah worth Rs. 4,500/- and petition A schedule utensils worth Rs. 8000/-. When she was taken from her matrimonial home after delivery, she has bought a mixie worth Rs. 5000/- . Respondent has obtained divorce by order in O.P.No.746/2006. Thus the respondent/petitioner is entitled to get back value of all these articles. 3. The case of appellants/respondents was of total denial. PWs 1 to 3 were examined and Exts.A1 to A4 series were marked on the side of respondent/petitioner. The first appellant/respondent was examined as RW1 before the lower court. The trial court on an appreciation of evidence decreed the suit for recovery of the value of gold ornaments and almirah to the tune of Rs. 1,65,000/- with interest and cost. The amount was also made a charge over the petition schedule immovable property. Now the appellants/respondents have come up in appeal challenging the said order. Mat.Appeal No.575/08 Page numbers 4. The following points arise for consideration : 1) Whether the respondent/petitioner is entitled to the value of gold ornaments, furniture, cot, Almirah from appellants/respondents ? 2) Whether the order of lower court can be sustained ? Point Nos. 1 and 2 5. The case of the respondent/petitioner is that at the time of her marriage with first appellant/first respondent, 25 sovereigns of gold ornaments were given by her family members, that out of that, 23 sovereigns of gold ornaments were taken by the appellants/respondents; that three months after marriage her family members gave her an almirah worth Rs. 4,500/- and a cot, that Ext.A2 is the bill of the almirah, that Ext.A3 is the bill of the cot, that utensils described in petition A schedule worth Rs. 8000/- were also given to her, that when she was taken back after delivery to her matrimonial home, she had bought mixie worth Rs. 5000/- , that as she had obtained divorce as per order in O.P.No.746/2006 dated 22/02/2007. Therefore Mat.Appeal No.575/08 Page numbers she is entitled to get back the value of those articles. She has a further case that three months prior to the marriage respondents 1 and 2 had obtained Rs. 50,000/- from her family members which they did not return. She has claimed the value of the 23 sovereigns at the rate of Rs. 7000/- per sovereign, totalling to Rs. 1,61,000/-. The case of the appellants/respondents is of total denial. 6. First, we shall consider whether respondent/petitioner has proved the entrustment of gold ornaments with respondents. Respondent/petitioner did not produce any bills regarding the purchase of ornaments. She as PW1 testified regarding the details of gold ornaments given to her at the time of marriage which are a gold chain of 6 sovereigns, another gold chain of 3 ½ sovereigns, another gold necklace of 2 ½ sovereigns, 8 bangles of one sovereign each, 2 bangles of two sovereigns each, ear stead of one sovereign. She as PW1 would say that except the ear stead and one bangle, the remaining ornaments worth 23 sovereigns were taken by respondents saying that they have to clear some debts and that gold ornaments were purchased from one Parambil Peedika jewellery. Mat.Appeal No.575/08 Page numbers 7. The counsel for appellants/respondents was not able to shake her evidence in cross examination regarding the above aspect. Further her evidence on this aspect is supported by PW2 her uncle and PW3 her father. They have also given a consistent version regarding the giving of the gold ornaments to respondents at the time of marriage. No serious discrepancies or inconsistencies were brought out during their cross examination to discredit their evidence. 8. Further PW1 produced Ext.A1 her wedding photograph and Ext.A4 series, her marriage album. It is seen from those photographs that she was wearing those gold ornaments. RW1 when cross examined admitted that PW1 was wearing the gold ornaments shown in the photographs, but it was only 10 sovereigns. RW1 did not examine any of his relatives or other respondents to prove the same. Therefore the trial court is perfectly justified in accepting the evidence of PWs 1 to 3 and Ext.A1 and A4 series and holding that at the time of marriage, respondent was given jewellery worth 25 sovereigns out of which jewellery worth 23 sovereigns is not returned which the first appellant as her husband and appellants 2 to 4 as his brother and sisters Mat.Appeal No.575/08 Page numbers are bound to return the same. The finding of the lower court on this point is confirmed. 9. The respondent/petitioner claimed Rs. 50,000/- being the amount allegedly paid by her relatives to appellants 1 and 2/respondents 1 and 2 two months prior to marriage. As there are no documents to prove the same, the lower court has rightly rejected the said claim. Her claim of Rs. 8000/- towards the value of utensils as described in petition A schedule and the value of mixie were rejected by the lower court for want of any documents. As regards the value of cot, the lower court did not accept the bill Ext.A3 dated 20.02.2004. The respondent/petitioner did not file any appeal challenging the said finding of lower court. That being so, the said finding of lower court has to be confirmed. 10. The lower court accepted the bill Ext.A2 dated 10.09.2003 for the almirah. The learned counsel for appellants argued that the said bill is a concocted one. We are unable to agree. The evidence of PW1 on this aspect is supported by PWs 2 and 3. We find no reason to disbelieve the evidence of PWs 1 to 3 on this aspect. Therefore, in our Mat.Appeal No.575/08 Page numbers view, the lower court is justified in finding that an almirah costing Rs. 4500/- was purchased as per bill Ext.A2 and given to PW1, the value of which respondents are bound to repay. For all these reasons, we find no merit in this appeal. Therefore confirming the decree and order of lower court, appeal is dismissed with cost. K.M.JOSEPH, JUDGE P.Q.BARKATH ALI, JUDGE sv. Mat.Appeal No.575/08 Page numbers