Kerala High Court
Ajesh K. Cheriyan vs Rosamma on 19 February, 2021
1
Mat.Appeal.No.442 OF 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
Mat.Appeal.No.442 OF 2014
AGAINST THE ORDER/JUDGMENT IN OP 760/2011 DATED 31-12-2013 OF FAMILY
COURT, PALAKKAD
APPELLANT/S:
1 AJESH K. CHERIYAN, S/O. K.N. CHERIYAN, PUZHAVATHU
KOCHUTHAZHATHU VEEDU, (ANUGRAHA), CHANANGASSERY,
KOTTAYAM DISTRICT.(REPRESENTED BY THE POWSER OF ATTORNEY
HOLDER SRI. K.N. CHERIAN, AGED 64 YEARS, S/O. NINAN,
KOCHUTHAZHATHU (ANUGRAHA) HOUsE, ANGADI ROAD,
CHANGANACHERRY.P.O., CHANGANACHERRY VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT AS PER POWER OF
ATTORNEY DATED 5-10-2011)
2 K.N. CHERIAN, AGED 64 YEARS, S/O. NINAN, DO-
3 MARY AN VARGHESE, AGED 59 YEARS, W/O. K.N.CHERIYAN, DO-
BY ADVS.
SRI.MILLU DANDAPANI
SRI.PREMCHAND R.NAIR
RESPONDENT/S:
ROSAMMA, AGED 30 YEARS, D/O. PIOUS, KUZHITHODE VEEDU,
MANIKKASSERY, KONGAD, PALAKKAD TALUK, (PRESENT ADDRESS),
ROSHIN PIUS, W/O. TITO VARGHESE AKKARA, ELIXER VILLAS
AND APARTMENTS "THE ORCHID", GRUND FLOOR, BELOW
SBI,KUTTANELLUR BRANCH, KUTTANELLUR.P.O., THRISSUR-
680014.
R1 BY ADV. SRI.BABU KARUKAPADATH
R1 BY ADV. SMT.M.A.VAHEEDA BABU
R1 BY ADV. SRI.P.U.VINOD KUMAR
R1 BY ADV. SRI.AVINASH P RAVEENDRAN
R1 BY ADV. SMT.ARYA RAGHUNATH
R1 BY ADV. SMT.ANJALY N.S.
R1 BY ADV. SMT.KADIJA JASMINE
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Mat.Appeal.No.442 OF 2014
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
Mat Appeal No.442 of 2014
======================
Dated this the 19th day of February, 2021.
JUDGMENT
C.S.DIAS , J.
The respondents in OP No.760/2011 on the file of
the Family Court, Palakkad are the appellants. The
petitioner in the above original petition is the
respondent in the appeal. The respondent is the wife of
the first appellant. The appellants 2 and 3 are the
parents of the first appellant. The parties are, for the
sake of convenience, referred to as per their status in
the original petition.
2. The compendious facts in the original petition,
for the determination of the appeal, are: The petitioner
married the first respondent on 7.1.2010. The parties
are Christians. The petitioner and the first respondent
are Engineers by profession. The second respondent
was employed in the United States of America. The
Mat.Appeal.No.442 OF 2014
third respondent is working at State Bank of
Travancore. On the date of betrothal, the petitioner's
father entrusted an amount of Rs.20,00,000/- to the
second respondent at the petitioner's paternal uncle's
house at Pala. There was a mutual understanding
between the parties that out of the money entrusted,
gold ornaments worth Rs.10,00,000/- would be
purchased. As per the understanding, the parties
purchased 80 sovereigns of gold ornaments for an
amount of Rs.9,00,000/-. The remaining Rs.11,00,000/-
was with the respondents. From the date of marriage
itself, the behaviour of third respondent caused mental
agony to the petitioner. The third respondent called
the petitioner to the bedroom and asked her to hand
over all the gold ornaments. She was only given
bangles studed with beads, the wedding ring, a pair of
ear rings and the Thali with a chain. The remaining
gold ornaments were kept in the custody of the third
respondent. The petitioner was permitted to wear the
gold ornaments for two to three days after the
Mat.Appeal.No.442 OF 2014
marriage, during the customary visits to their family
and friends. While so, the first respondent wanted to
throw a party for his friends. So the first respondent
took a bangle of the petitioner and sold it. He
purchased two bangles of less weight and utilized an
amount of Rs.10,000/- with the balance of the money
received from the sale of the bangles. The petitioner
was having certain amounts in HDFC Bank, which were
also given to the first respondent. The respondents
harassed the petitioner to get more dowry from her
parents. Unable to bear the harassment, the
petitioner's father withdrew an amount of Rs.5,00,000/-
from the Punjab National Bank and entrusted the same
to the first respondent. The respondents are in
possession of Rs.16,00,000/- apart from the gold
ornaments of 72.2 sovereigns. The third respondent
treated the petitioner worse than a maid-servant. Even
though several rounds of mediation talks were held,
the respondents were not amenable to return the
petitioner's belongings. The petitioner was constrained
Mat.Appeal.No.442 OF 2014
to file a complaint under Sec.498 of the Indian Penal
Code against the respondents. From the behaviour and
attitude of the respondents, the petitioner is fully
convinced that they will not return her money and gold
ornaments. Hence, the original petition.
3. Even though the first respondent was served
with notice, he remained absent and was set ex parte.
4. The second and third respondents filed a joint
written objection, inter alia, refuting the allegations in
the original petition. They denied the entrustment of
Rs.20,00,000/- to the second respondent on the date of
engagement. The respondents 2 and 3 contended that
they were unaware of the gold ornaments worn by the
petitioner at the time of marriage. According to them,
the petitioner's gold ornaments were under her lock
and key. On 19.5.2011, the petitioner along with her
father and relatives went to the matrimonial home and
took away all her belongings. The respondents have
not received any amount from the father of the
Mat.Appeal.No.442 OF 2014
petitioner. The respondents are not in possession of
the petitioner's valuables or belongings as alleged in
the original petition. The key of the almirah, where the
gold ornaments were kept, was returned to the third
respondent only on 19.5.2011, after the petitioner took
her belongings. The petitioner to change some of the
ornaments which could not be used on usual basis,
purchased gold ornaments of her choice. The
petitioner was residing at her natal home after the first
respondent returned to United States of America. The
petitioner insisted the first respondent to construct a
house at Palakkad and stay along with her parents. As
per the knowledge of the respondents, the petitioner
had only 47 sovereigns of gold ornaments, which were
purchased by the petitioner from Joy Alukkas
Jewellery, Kottayam. The respondents are well
educated and well employed and never harassed the
petitioner at any point of time. The petitioner is living
separately without any reasonable cause. Hence, the
original petition may be dismissed.
Mat.Appeal.No.442 OF 2014
5. The petitioner was examined as PW1 and Exts
A1 series were marked on her side in evidence. The
second appellant was examined as RW1 and Exts B1,
B2 and B4 to B12 were marked through him.
6. The Family Court, after evaluating the
pleadings and materials on record, by the impugned
judgment and decree allowed the original petition by
directing the respondents to return 65¾ sovereigns of
gold ornaments or its value of Rs.14,46,500/- and also
an amount of Rs.16,00,000/- with 9% interest per
annum from the date of decree till the date of payment.
The respondents were directed to jointly and severally
pay the decree amount and a charge was created over
the properties of the respondents.
7. Aggrieved by the above judgment and decree
that the respondents are before this Court in appeal.
8. Heard Smt.Sumathi Dandapani, the learned
Senior Counsel appearing for the
appellants/respondents, and Sri.Babu Karukapadath,
Mat.Appeal.No.442 OF 2014
the learned Counsel appearing for the
respondent/petitioner.
9. The questions that emanate for consideration
in this appeal are:
(i) Whether the petitioner's father had entrusted an
amount of Rs.5,00,000/- to the first respondent as
alleged in the original petition.
(ii) Whether the petitioner's father had handed over an
amount of Rs.20,00,000/- to the second respondent on
the date of engagement.
(iii) Whether the balance amount of Rs.11,00,000/- is
with the respondents.
(iv) Whether the gold ornaments were purchased from
the amount entrusted by the petitioner's father.
Question No.(i)
10. The specific case of the petitioner was that
the petitioner's father paid an amount of Rs.5,00,000/-
to the first respondent on 30.10.2010. In order to
substantiate the withdrawal of the above said amount
from the Punjab National Bank, the petitioner
Mat.Appeal.No.442 OF 2014
produced and marked in evidence. Ext A1,which
establishes that the said amount was withdrawn from
the Bank on the said date. Ext A1 stands corroborated
with the oral testimony of the petitioner - PW1.
Moreover, as observed above, the first respondent,
despite receipt of summons, absented himself and was
consequently set ex parte. Undisputedly, the first
respondent has not filed any written statement to
refute the allegations in the plaint. RW1-the father of
the first respondent - in his cross-examination admitted
that he was unaware of the entrustment. Even though
he attempted to state that his son told him that no
amount was entrusted, the said statement is only
hearsay and without any foundation in the pleading.
Hence, the same is only be shunned. Therefore, on the
basis of the uncontroverted oral evidence of PW1
corroborated with Ext A1, it stands proved that an
amount of Rs.5,00,000/- was handed over to the first
respondent. In the said circumstances, we are of the
considered opinion that the Family Court has rightly
Mat.Appeal.No.442 OF 2014
decreed the original petition by permitting the
petitioner to realize an amount of Rs.5,00,000/-.
Nevertheless, the Family Court has committed an error
by directing the respondents 1 to 3 to return the
aforesaid amount. The specific case of the petitioner
was that the amount was entrusted to the first
respondent. Therefore, there can only be a decree
permitting the petitioner to realize an amount of
Rs.5,00,000/- from the first respondent instead of
respondents 2 and 3. With the above modification,
question No.(i) is answered in favour of the petitioner.
Question No.(ii)
11. It is no longer res-integra, in view of the
categoric declaration of law by this Court in Alphonsa
v. Neetha [2019 (4) KLT 846] and Royson Mathew v.
Minimol [2020 (3) KLT 280], that the initial burden to
prove the entrustment of gold and money is on the
person who claims the decree for recovery of money,
and unless there are pleadings/evidence on record to
Mat.Appeal.No.442 OF 2014
suggest that the entrustment was for a specific
purpose or that the entrustment was in the nature of
trust or under the specific understanding that the
amounts will be returned, an action for recovery of
money may not succeed.
12. In light of the categoric enunciation of law in
the aforecited decisions, the onus of proof to prove
that the money was entrusted to the respondents and
that the respondents misappropriated the gold
ornaments is on the petitioner. The precise case of the
petitioner was that, on the date of the betrothal an
amount of Rs.20,00,000/- was entrusted to the second
respondent (RW1) at the petitioner's paternal uncle's
house at Pala. Other than for the interested oral
testimony of the petitioner, there is no material to
prove the entrustment of the aforesaid amount. The
petitioner has not examined the paternal uncle as a
witness in the case, which has turned fatal. True, the
petitioner's father is no more. In the above analysis of
the pleadings and materials, we set aside the finding of
Mat.Appeal.No.442 OF 2014
the Family Court and answer Question No.(ii) against
the petitioner.
Question No.(iii)
13. In light of our answer on Question No.(ii),
Question No.(iii) is also answered against the
petitioner.
Question No.(iv)
14. The petitioner has placed heavy reliance on
Ext A2 series photographs to establish that the
petitioner was wearing gold ornaments at the time of
marriage. Wearing of the gold ornaments is not
sufficient to establish the case of the petitioner, that the
respondents have misappropriated her gold ornaments.
Therefore, we have to decide the case on the basis of
preponderance of evidence, which is permitted in
matrimonial matters of this nature, instead of the
rigour of reasonable doubt.
Mat.Appeal.No.442 OF 2014
15. The respondents 2 and 3 have admitted in
their written statement that 47 sovereigns of gold
ornaments were purchased for the petitioner from Joy
Alukkas Jewellery, Kottayam. The respondents have
also admitted that the petitioner's gold ornaments were
kept in the almirah in the matrimonial home. It is their
case that on 19.5.2011, the petitioner along with
family members went to the matrimonial home and
took away all her belongings including the gold
ornaments. However, on an appreciation of the cross-
examination of RW1, he has admitted that he and his
wife had filed OS No.178/2011 on 4.6.2011 before the
Court of the Munsiff, Changanachery, inter lia, seeking
a decree of permanent prohibitory injunction, to
restrain the petitioner from forcefully entering the
matrimonial house. There is not even a whisper in the
plaint regarding the allegation that the petitioner had
entered the matrimonial home and taken away her
belongings including the gold ornaments. The pleading
at the first instance does not contain the defence build
Mat.Appeal.No.442 OF 2014
up in the written objection filed before the Family
Court. Hence, the Family Court has rightly discarded
the oral testimony of RW1 on the said aspect. We fully
endorse the view taken by the Family Court.
16. Moreover, subsequent to the filing of the suit,
the petitioner had filed Ext B1 complaint before the
Superintendent of Police, Kottayam and, thereafter, Ext
B2 FIR was registered against the respondents for an
offence under Sec.498A of the Indian Penal Code. In
Ext B1 complaint, the petitioner has categorically
stated that her entire gold ornaments and belongings
are in the possession of the respondents in the
matrimonial home. She also has made a reference to
the civil suit filed. The above sequence of events,
pleadings and materials probablise that the gold
ornaments were in the matrimonial home and the
petitioner was prevented by an order of injunction from
entering the matrimonial home to take her gold
ornaments and belongings.
Mat.Appeal.No.442 OF 2014
17. Now, we are left to decide the quantity of gold
ornaments that were purchased and what was the
quantity of gold ornaments misappropriated by the
respondents. The case of the petitioner is that she had
purchased 80 sovereigns of gold ornaments. The
Family Court after considering the value of the gold
ornaments on the date of purchase, the making charge,
tax and the discount given to the petitioner, held that
the petitioner had purchased only 70 sovereigns of gold
ornaments @ Rs.12,000/- per sovereign. The remaining
gold ornaments which were admittedly given to the
petitioner for daily use was found to be 4.25
sovereigns. Accordingly, the Family Court found that
65¾ sovereigns of gold ornaments were left in the
matrimonial home. We find the said finding to be
cogent and based on preponderance of evidence. The
fact finding Court, having had the opportunity to see
the demeanor of the witnesses, has accepted the case
of the petitioner in this regard on finding a ring of truth
in the petitioner's case and the defence version of the
Mat.Appeal.No.442 OF 2014
respondents to be unbelievable. Therefore, we accept
the findings of the Family Court with regard to the gold
ornaments left in the matrimonial home i.e., 65¾
sovereigns.
18. On an overall reappreciation of the pleadings
and materials on records, particularly the oral
testimonies of PW1 and RW1, we are of the considered
opinion that the petitioner is entitled for a decree for
recovery of an amount of Rs.5,00,000/- from the first
respondent and a decree for recovery of 65¾
sovereigns of gold ornaments or its value as calculated
by the Family Court at Rs.14,46,500/- from the
respondents 2 and 3. The said amount shall bear
interest at the rate of 9% per annum from the date of
petition till the date of realization.
19. It is seen from the records that the appeal has
been preferred by all the respondents (appellants). At
the time of admission of the appeal, the petitioner had
already filed EP No.19/2015 before the Family Court,
Mat.Appeal.No.442 OF 2014
Palakkad. This Court by order dated 22.6.2015 stayed
all further proceedings in EP 19/2015 on condition that
the appellants/respondents furnish security to the
satisfaction of the Execution Court. It was reported
before this Court on 20.11.2015, that the appellants
have complied with conditions stipulated in the interim
order dated 22.6.2015.
In the result, the appeal is allowed in part, as
follows:
(i) The judgment and decree in OP 760/2011 is
modified.
(ii) The respondent/petitioner is permitted to realize
an amount of Rs.5,00,000/- from the first
appellant/first respondent and his assets with
interest at the rate of 9% per annum from the
date of petition till the date of realization.
(iii) The appellants 2 and 3/respondents 2 and 3 are
directed to return to the respondent/petitioner
65¾ sovereigns of gold ornaments or its
value of Rs.14,46,500/- with interest at the rate
of 9% per annum from the date of petition till
Mat.Appeal.No.442 OF 2014
the date of realization.
(iv) The appellants/respondents shall pay the aforesaid
amounts as directed above within a period
of two months from today, failing which, the
Family Court shall resurrect EP No.19/2015
and proceed with the execution proceedings as
against the properties that have been
furnished by the appellants as security,
pursuant to the orders of this Court.
(v) In the facts and circumstances of the
case, the parties are directed to bear
their respective costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
Sks/22.2.2021 JUDGE
Mat.Appeal.No.442 OF 2014
APPENDIX
PETITIONERS ANNEXURES
A- TRUE COPY OF ORDER DATED 3.8.2017 IN CRLMC 5292/14
B- TRUE COPY OF THE ORDER DATED 28.2.2019 IN CMP 4172 OF
2017 IN CC 897 OF 2014
