Kerala High Court
Suresh.N vs N.Sheeja on 2 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942
Mat.Appeal.No.1137 OF 2014
AGAINST THE ORDER/JUDGMENT IN OP 305/2004 DATED 10-07-
2014 OF FAMILY COURT,TRIVANDRUM
APPELLANTS:
1 SURESH.N, AGED 38 YEARS, S/O.NADESAN,
KATTAMKULANGARA,PARAYARUVILA, INCHIVILA,
PARASSALA,NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM
2 NADESAN, KATTAMKULANGARA,PARAYARUVILA,
INCHIVILA,PARASSALA,NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM
BY ADV. SMT.VIJAYAKUMARI
RESPONDENT:
N.SHEEJA, AGED 26 YEARS, D/O.NIRMALA,
ADOTTUKONAM VEEDU, MAILACHAL,
DALUMUKHAM,NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM DISTRICT
R1 BY ADV. SRI.K.L.SHYAM
R1 BY ADV. SRI.K.K.VINOD
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal.No.1137 OF 2014
..2..
JUDGMENT
Dated this the 2nd day of February 2021
A.Muhamed Mustaque, J
This appeal was filed challenging the decree and
judgment in O.P. No. 305 of 2004 on the file of Family
Court, Thiruvananthapuram, filed by the respondent.
The respondent was the wife of the 1 st appellant. She
has been divorced by the decree granted by the
Family Court as per the impugned judgment. 2nd
appellant is the father of the 1st appellant.
2. The 1st appellant has no grievance against
the divorce granted by the Family Court. The 1 st
appellant also has no grievance in regard to relief
No.4. The main grievance of the 1 st appellant in this
Mat.Appeal.No.1137 OF 2014
..3..
case is in regard to relief Nos. 2 and 3. Which reads
thus:
(I) xxxxxxxxxxxxxxxxxxxxx
(II) A decree is passed allowing petitioner to get returned 5
sovereigns of ornaments or it's value as on the date of the
satisfaction of the decree. 1 st respondent is hereby ordered to
return 5 sovereigns within 60 days from today failing which
petitioner is entitled to realize the value of the ornaments as
per the prevailing market value on the date of the settlement
of the claim from respondent and his assets.
(III) Petitioner is allowed to realize Rs.15,000/- being a
portion of the patrimony of Rs.25,000/- from the 1 st respondent
and his assets. If the said amount is nor paid within 60 days
from today the amount will bear interest @ 9% per annum
from this date till realization from 1 st respondent and his
assets."
3. According to the appellants there was no
evidence to show that the appellants had
misappropriated 5 sovereigns of gold ornaments. It
was also further contented that the direction in the
impugned judgment to realise an amount of
Mat.Appeal.No.1137 OF 2014
..4..
Rs.15,000/- from the 1st appellant was also without
any supporting evidence.
4. The point that is to be considered by this
Court is whether there was any evidence before the
Family Court to hold that 5 sovereigns of gold
ornaments belongs to the respondent has been
appropriated by the appellants or not. So, also in
regard to the claim of Rs. 15,000/- to be recovered
from the 1st appellant.
5. The Family Court relied on Ext.A1, the
extract of the marriage register maintained by
Ayyanavar Mahajana Sanghom, which would show
that at the time of marriage the respondent had
adorned gold ornaments having a total weight of 38
Mat.Appeal.No.1137 OF 2014
..5..
gms. According to the respondent, the gold
ornaments were entrusted with the 1st appellant and
he had sold the same for his personal needs.
6. It is to be noted that no other evidence was
adduced, other than the oral evidence of the
respondent, to substantiate the claim that 5
sovereigns of gold ornaments were appropriated by
the 1st appellant. The finding of the Family Court that
5 sovereigns of gold ornaments were appropriated by
the 1st appellant was without any supporting
evidence. The Family Court entered into a finding
that when an entrustment is alleged, the burden is on
the 1st appellant to prove that 5 sovereigns of gold
ornaments were not appropriated. It is to be noted
Mat.Appeal.No.1137 OF 2014
..6..
that there was no evidence in regard to such
entrustment. It is only when the entrustment is
proved, then the burden shifts to the appellants to
prove that he had not appropriated that gold
ornaments. In the absence of any evidence in regard
to entrustment, the Family Court should not have cost
burden on the 1st appellant in regard to the proof of
return of the ornaments. In such circumstances, we
are of the view that the findings of the Family Court
that the 5 sovereigns of gold ornaments were
appropriated by the 1st appellant was erroneous.
7. In regard to the third relief allowing
realisation of an amount of Rs.15,000/- from the 1 st
appellant, it is to be noted that there was admission of
Mat.Appeal.No.1137 OF 2014
..7..
receipt of Rs.10,000/- on the side of the appellants.
Rs.10,000/- was received in relation to Ext.A4 sale
deed. It is to be noted that the sale deed was executed
in joint names of the 1st appellant and the
respondent, and the mother of the respondent paid
Rs. 10,000/- on behalf of the respondent towards
consideration. The Family Court ordered the 1 st
appellant to relinquish his nominal right over the
property covered by Ext.A4 sale deed. The appellants
have no objection in relinquishing the right and
submitted before this Court that the appellants are
not challenging the relief granted by the Family
Court. In such circumstances, Rs. 10,000/- paid
towards the sale consideration of the property
Mat.Appeal.No.1137 OF 2014
..8..
covered by Ext.A4 is not liable to be returned by the
1st appellant.
8. The Family Court ordered reimbursement of
Rs. 15,000/- out of Rs. 25,000/- received as patrimony.
This was for the reason that the respondent limited
the claim for Rs. 15,000/-. As seen from Ext.A1,
Rs.25,000/- was received by the 1 st appellant as
patrimony. In such circumstances, we find that the
order to recover Rs.15,000/- from the appellants is
justifiable. We find no reason to interfere with the
aforesaid order.
In the result, the appeal is allowed in partly. The
impugned judgment granting relief No.2 is set aside.
The impugned judgment in all other respect is
Mat.Appeal.No.1137 OF 2014
..9..
retained and maintained.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
PR
