Kerala High Court
Kolakkattil Bushra vs Anvar on 14 January, 2021
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MFA No.1082 of 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
MFA.No.1082 OF 2002
AGAINST THE ORDER/JUDGMENT IN OP 296/2000 DATED 13-06-2002 OF
FAMILY COURT, MANJERI, MALAPPURAM
APPELLANT/S:
KOLAKKATTIL BUSHRA
D/O. SAIDALAVI HAJI, TIRURANGADI TALUK,,
TIRURANGADI AMSOM, DESOM, P.O.TIRURANGADI.
BY ADVS.
SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
RESPONDENT/S:
1 ANVAR
S/O. PATTARKKADAVAN PUZHAMMAL IBRAHIM,, KODUVAYOOR
AMSOM, MAMBURAM DESOM,, MAMBURAM P.O., TIRURANGADI
TALUK.
2 SARAFUDHEEN 28 YEARS
S/O. PATTARAKKADAVAN PUZHAMMAL YAKOOB HAJI, DO.
3 YAKOOB HAJI 68 YEARS
S/O. PATTARKKADAVAN PUZHAMMAL MUHAMMED, DO.
4 CHALUKUNNAN KUNHIPATHUMMA, 50 YEARS
W/O. YAKOOB HAJI, DO.
BY ADV. SRI.R.RANJITH MANJERI
BY ADV. SRI.R.RANJITH (MANJERI)
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14-01-
2021, THE COURT ON 14-01-2021 DELIVERED THE FOLLOWING:
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MFA No.1082 of 2002
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
MFA No.1082 of 2002
======================
Dated this the 14th day of January, 2021.
JUDGMENT
MUHAMED MUSTAQUE, J.
This appeal was filed in the year 2002 by one
Kolakkattil Bushra. The respondents in this appeal is her
husband and near relatives.
2. Bushra filed OP No.296/2000 on the file of
Family Court, Manjeri for value of the ornaments forcibly
taken by her husband, namely, Anvar. She also filed OP
No.3/2001 for the recovery of amount due to her. Both
matters were tried together. OP No.296/2000 was
dismissed. OP No.3/2001 was decreed in part granting a
decree for Rs.1 lakh against her husband and third
respondent in the above said original petition.
3. Challenging the dismissal of OP No.296/2000,
this appeal has been preferred by Bushra.
4. The averments in the petition filed for recovery
MFA No.1082 of 2002
of value of ornaments would disclose that her husband
had forcibly taken away her ornaments and therefore she
is entitled for value of such ornaments.
5. The respondents herein entered appearance
and filed separate counter statements totally denying the
allegations in the petition.
6. After adverting to the rival contentions, the
Family Court framed the following issues for
consideration:
(i) Whether the respondents had taken away the
bangle of 1½ sovereigns belonging to the
petitioner on 10.4.1997?
(ii) Whether they had obtained a chain of 17
sovereigns belonging to the petitioner on
19.5.1997?
7. Both the above issues were tried together.
The relevant findings of the court below in paragraph
19 of the judgment, is reproduced hereunder:
"19. There is only the evidence of PW2 to show
that ornaments of 100 sovereigns were given to PW2
at the time of the marriage. She did not refer to this
MFA No.1082 of 2002
during her examination. She has of course deposed
that her two items of ornaments, a bangle and a
large chain were taken away by the first
respondent with the connivance of the other
respondents. However, there is no other evidence
other than the evidence of PW2 to show that
ornaments were taken away. She has deposed
that these ornaments were taken away by force.
During her cross-examination she has stated that
the first respondent told her when the chain was
broken that it will repair and bring it back on the
next day. She stated in cross-examination by the
counsel for the second respondent that she has no
case that the second respondent appropriated the
ornaments. She again stated that she has no case
that the third respondent also appropriated the
ornaments. Thus in effect PW1 has admitted
during her examination that respondents 2 and 3
in any case are not liable for the value of the
ornaments. Her case against the first and fourth
respondents also will not lie for the reason that
she has not established that the respondents 1 or
4 have taken away the ornaments and
appropriated them. In fact, it is not even
established that those ornaments referred to by
her were with her. So the case of PW1 that she is
entitled to value of the ornaments from the
MFA No.1082 of 2002
respondents could not be accepted. Both points
are found against the petitioner.
8. Having considered the findings as above, we
are of the view that there is no materials or any other
cogent evidence to hold contra. Except the oral
testimony of PWs 1 and 2, there is no other evidence to
establish that the respondent had forcibly taken away the
gold ornaments. It is to be noted, the first instance that
taking away of the gold ornaments was allegedly
occurred on 10.4.1997. The second incident allegedly
was occurred on 19.5.1997. The incidents were not
reported to the Police. This is not a case of entrustment
on account of the fiduciary relationship between the
parties. The allegations itself would disclose that he
obtained the gold ornaments by force or coercion. The
original petition itself was filed only in the year 2000.
There is no explanation for such a delay in approaching
the Court for recovery of the gold ornaments. The
documents produced by the petitioner as Exts A1 series
showing purchase of gold ornaments would not establish
MFA No.1082 of 2002
that gold ornaments were taken away by the
respondents.
9. In such circumstances, we are of the view
that the Family Court rightly rejected the claim for
value of gold ornaments. We do not find any reason to
interfere with the findings of the Family Court.
Accordingly, we dismiss the appeal. No orders as to
costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
Sks/14.1.2021 JUDGE
