Kerala High Court
Sathi Devi vs Ramadas on 27 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
Mat.Appeal.No.141 OF 2012
AGAINST THE JUDGMENT IN O.P.(O.S.)NO.70/2007 DATED 28-02-2011 OF
FAMILY COURT, ALAPPUZHA
---------
APPELLANT/S:
SATHI DEVI, D/O.GOMATHI PANIKKATHI,
KAMALALAYYATHU VEEDU, KANICHANALLOOR MURI,
CHEPPAD VILLAGE, MUTTAM.P.O,
KARTHIKAPPALLY TALUK.
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENT/S:
1 RAMADAS, S/O.VALSALAN, KULANJIYIL VEEDU, KEERIKKAD
VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM,
KARTHIKAPPALLY TALUK, ALAPPUZHA-690508.
2 VALSALAN, S/O.KESAVAN, KULANJIYIL VEEDU, KEERIKKAD
VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM,
KARTHIKAPPALLY TALUK, ALAPPUZHA-690508.
3 LEKSHMI, D/O.KUNJIKA, KULANJIYIL VEEDU, KEERIKKAD
VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM,
KARTHIKAPPALLY TALUK, ALAPPUZHA-690508.
R1, R3 BY ADV. SMT.HYMA.S
R1, R3 BY ADV. SMT.LISHA.M.G.
R1, R3 BY ADV. SRI.M.K.SHAJI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.01.2021,
ALONG WITH Mat.Appeal NO.1138/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Mat.Appeal Nos.141/2012 & 1138/2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
Mat.Appeal.No.1138 OF 2017
AGAINST THE JUDGMENT IN OP(OS)NO.70/2007 DATED 28-02-2011 OF
FAMILY COURT, ALAPPUZHA
-----
APPELLANT/S:
RAMADAS, S/O.VALSALAN, KULANJIYIL VEEDU,
KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI,
KAYAMKULAM, KARITHIKAPPALLY TALUK.
BY ADVS.
SMT.HYMA S.
SMT.LISHA.M.G.
SRI.M.K.SHAJI
RESPONDENT/S:
1 SATHI DEVI, D/O. GOMATHI PANIKKATHI,
KAMALALAYYATHU VEEDU, KANICHANALLOOR MURI,
CHEPPAD VILLAGE, MUTTAM P.O.,
KARTHIKAPPALLY TALUK-690 508.
2 VALSALAN, S/O. KESAVAN, KULANJIYIL VEEDU,
KEERIKKAD VILLAGE, KANNAMPALLY BHAGOM MURI,
KAYAMKULAM, KARTHIKAPPALLY TALUK-690 508 (DELETED).
3 LEKSHMI, D/O. KUNJIKA, KULANJIYIL VEEDU, KEERIKKAD
VILLAGE, KANNAMPALLY BHAGOM MURI, KAYAMKULAM,
KARTHIKAPPALLY TALUK-690 508 (DELETED).
(RESPONDENT NOS.2 AND 3 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER
DATED 03.11.2017 IN I.A.NO.3958/2017).
Mat.Appeal Nos.141/2012 & 1138/2017 3
R1 BY ADV. SMT.BHAVANA VELAYUDHAN
R1 BY ADV. SRI.S.SANAL KUMAR
R1 BY ADV. SMT.T.J.SEEMA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.01.2021,
ALONG WITH Mat.Appeal.141/2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Mat.Appeal Nos.141/2012 & 1138/2017 4
JUDGMENT
[ Mat.Appeal.141/2012, Mat.Appeal.1138/2017 ]
Dated this the 27th day of January 2021
A.Muhamed Mustaque, J.
These appeals were filed challenging the decree and
judgment in O.P.(OS) No.70/2007 on the file of the
Family Court, Alappuzha. The said original petition was
filed by Sathi Devi claiming recovery of 40 sovereigns
of gold ornaments or the value of the same and for
recovery of Rs.1,00,000/- from Ramadas and his parents.
2. Sathi Devi was married to Ramadas on
26.11.1995. Pending O.P.(OS)No.70/2007, Ramadas filed
O.P.(HMA)No.723/2008 seeking divorce. Both matters were
tried together and disposed of by a common judgment.
O.P.(OS)No.70/2007 was allowed partly granting relief to
Sathi Devi to recover Rs.2,88,000/- being the value of
40 sovereigns of gold ornaments from all the respondents
jointly. Her claim for recovery of Rs.1,00,000/- from
respondents is negatived. Challenging this, Sathi Devi
filed Mat.Appeal No.141/2012. Ramadas filed Mat.Appeal
No.1138/2017 challenging the decree granted in favour of
Sathi Devi. There is no challenge against the divorce
granted in O.P.(HMA) No.723/2008.
3. The Family Court, Alappuzha relied on Ext.A1
series and Ext.A2. Respondents 2 and 3 in the original
petition, who are the parents of Ramadas. The finding of
the Family Court is that Ramadas and his parents took
away the entire 40 sovereigns of gold ornaments and sold
them for their personal needs. Ext.A2 is the vivaha
register issued from SNDP Branch No.202, Avoor North.
It is revealed from Ext.A2 that 40 sovereigns of gold
were given to Sathi Devi at the time of marriage. Ext.A1
series is the copy of Pawn Tickets and copies of memo
issued by Kandalloor Farmers Service Co-operative Bank.
As evident from the Pawn tickets, the Family Court came
to the conclusion that the gold ornaments belonging to
Sathi Devi were pledged with the aforesaid bank by
Ramadas and his parents. There was no proof before the
Family Court that those gold ornaments were entrusted
back to Sathi Devi. In the absence of any other
evidence, the Family Court came to the conclusion that
those gold ornaments were appropriated by Ramadas and
his parents Accordingly, the Family Court granted a
decree for Rs.2,88,000/- being the value of 40
sovereigns of gold ornaments from Ramadas and his
parents.
4. Sathi Devi is not satisfied with the denial of
decree for Rs.1,00,000/-. Accordingly, she filed the
appeal at the time of hearing. The learned counsel for
Sathi Devi also argued that she is entitled for interest
atleast for the decreetal amount. Ramadas appealed
against the judgment on the ground that there was no
evidence before the Family Court to prove the
entrustment of gold belonging to Sathi Devi to Ramadas
and his parents. It is contended before this Court that
Sathi Devi had no case before the Family Court that gold
ornaments were taken away by Ramadas and his parents.
5. We perused the records. We are satisfied with
the evidence and finding of the Family Court in regard
to appropriation of 40 sovereigns of gold ornaments by
Ramadas and his parents. In the absence of any other
contra evidence to prove that Ramadas and his parents
returned the gold ornaments, the irresistible conclusion
will have to be drawn that gold ornaments have been
appropriated by Ramadas and his parents respectively as
there was proof of pleading ornaments by them. We,
accordingly, affirm the finding of the Family Court.
6. The learned counsel for Sathi Devi would argue
that Sathi Devi is entitled to the value of the gold
ornaments at the time of the decree. It is to be noted
that the claim itself was filed for recovery of
Rs.2,88,000/-. Therefore, Sathi Devi could not have
claimed anything more than what is claimed in the
original petition before the Family Court. Further, the
Division Bench of this Court in Thomas M. Varghese v.
Sonia Susan Thomas [2014(3) KLT 487] held that where the
petitioner makes a definite claim for return of gold,
either in kind or in alternative in its value on the
date of application, the petitioner cannot subsequently
claim for return of the value of the gold on the date of
actual return. Therefore, we are of the view that Sathi
Devi cannot claim the value of the gold ornaments other
than what she claimed in the original petition. However,
we are of the view that the claim being a monetary
claim, the Family Court was not justified in not
granting interest to Sathi Devi pendente lite and also
future interest. We assess 6% interest on the claim.
Accordingly, we partly allow the appeal filed by Sathi
Devi granting 6% interest from the date of institution
till recovery. The judgment and decree, accordingly, are
modified to the above extent.
7. It is to be noted that the decree was joint
decree as against Ramadas and his parents. The parents
had not chosen to challenge the decree against them.
The appeal filed by Ramadas is only to be
dismissed. Accordingly, it is dismissed. Mat.Appeal
No.141/2012 is partly allowed modifying the impugned
judgment directing awarding of 6% interest to the
appellant from the date of institution of
O.P(OS).No.70/2007 till realisation. Mat. Appeal
No.1138/2010 is dismissed. There will be no order as to
costs. All pending interlocutory applications are
closed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
ln
APPENDIX OF MAT.APPEAL NO.1138/2017
PETITIONER'S/S ANNEXURES:
ANNEXURE-A TRUE PHOTOCOPY OF THE DEATH CERTIFICATE OF
PETITIONER'S FATHER DATED 19.07.2017.
ANNEXURE-B TRUE PHOTOCOPY OF THE DISCHARGE CARD ISSUED TO
THE PETITIONER FROM P.K.KUNJU SAHIB MEMORIAL
TALUK HOSPITAL, KAYAMKULAM.
ANNEXURE-C TRUE PHOTOCOPY OF THE DISCHARGE CARD ISSUED FROM
MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA.
ANNEXURE-D TRUE COPY OF THE DISCHARGE CARD ISSUED FROM
PUSHPAGIRI MEDICAL COLLEGE HOSPITAL, THIRUVALLA.
ANNEXURE-E PHOTOCOPY OF THE CERTIFICATE ISSUED BY MEDICAL
BOARD OF PUSHPAGIRI MEDICAL COLLEGE HOSPITAL,
THIRUVALLA DATED 08.08.2007.
RESPONDENTS ANNEXURES:NIL.
//TRUE COPY//
P.A.TO JUDGE
