Kerala High Court
Rajeeb Khan vs Sumimol on 28 January, 2021
1
Mat.Appeal.No.320 OF 2013
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 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
Mat.Appeal.No.320 OF 2013
AGAINST THE ORDER/JUDGMENT IN OP 755/2011 DATED 16-03-2013 OF FAMILY COURT,
KOTTARAKKARA
APPELLANT/S:
1 RAJEEB KHAN, AGED 37 YEARS, S/O.MUHAMMED SALEEM, FAZEENA
MANZIL KARIYARA P.O., PUNLUR, VILAKKUDI VILLAGE PATHANAPURAM
TALUK, KOLLAM.
2 SHEREEFA BHEEVI, FAZEENA MANZIL, KARIYARA P.O., PUNLUR,
VILAKKUDI VILLAGE PATHANAPURAM TALUK, KOLLAM (DIED)
RAZEENA, AGED 43 YEARS, D/O.SHAREEFA BHEEVI
NIZAM MANZIL, PANACHIVALA P.O,CHAVARIKUNNU, ANCHAL (VIA),
3 KOLLAM- 691 306
UMAIMUTHU, AGED 45 YEARS, W/O.RASHEED, FAZEENA MANZIL,
KARIYARA P.O., PUNALUR, VILAKKUDY VILLAGE KOLLAM 691 332
4
SHAHANA, AGED 22 YEARS, D/O.RASHEED, CHARUVILAPUTHEN VEEDU,
VELICHIKKALA.P.O, KOLLAM 691 573.
5 ABU THAHIR, AGED 16 YEARS, S/O.RASHEED, FAZEENA MANZIL,
KARIYARA P.O., PUNALUR, VILAKKUDY VILLAGE KOLLAM 691 332,
REPRESENTED BY HIS MOTHER UMAIMUTHU, AGED 45 YEARS,
W/O.RASHEED, FAZEENA MANZIL, KARIYARA P.O., PUNALUR, VILAKKUDY
VILLAGE KOLLAM 691 332
6 (ADDITIONAL APPELLANTS 3 TO 6 ARE IMPLEADED AS LEGAL HEIRS OF
THE DECEASED SECOND APPELLANT AS PER ORDER DATED 5.3.2020 IN
IA 1/2020 IN MA.320/2013.
BY ADV. SRI.M.RAJESH
RESPONDENT/S:
SUMIMOL, W/O.REJEEB KHAN,
MULAYIPARA VEEDU, AVENASWARAM P.O., VILAKKUDI VILLAGE,
PATHANAPURAM TALUK.691 501
R1 BY ADV. SRI.P.M.HABEEB
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Mat.Appeal.No.320 OF 2013
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
Mat.Appeal No. 320 of 2013
======================
Dated this the 28th day of January, 2021.
JUDGMENT
C.S.DIAS , J.
Confronted with the judgment and decree in OP
755/2011 on the file of the Family Court,
Kottarakkara, the respondents in the original
petition are in appeal before this Court. The second
appellant died during the pendency of the appeal.
Her legal representatives are impleaded as
additional respondents 3 to 6. The respondent in
the appeal was the petitioner in the original petition.
The parties are, for the sake of convenience,
referred to as per their status in the original
petition.
2. The concise case of the petitioner in the
original petition was that she was married to the
first respondent on 25.3.2010. On the date of
Mat.Appeal.No.320 OF 2013
betrothal, the petitioner's parents entrusted an
amount of Rs.2,00,000/- to the first respondent and
his parents. The petitioner was also given 50
sovereigns of gold ornaments by her parents as her
share in the parental properties, which she adorned
at the time of marriage. The petitioner's father was
employed in the Railways and mother was employed
in the Animal Welfare Department. After the
marriage, the petitioner came to learn that the first
respondent had no job and he was depending on his
parents for his livelihood. The first respondent had
misappropriated a gold chain given to him, within a
week after the marriage, for the purpose of
consuming alcohol. When the respondent again
demanded for the petitioner's gold ornaments, to
invest in his cargo business, the petitioner informed
the first respondent's mother - the second
respondent - who took 30 sovereigns of the
petitioner's gold ornaments and handed it over to
the first respondent. The second respondent
Mat.Appeal.No.320 OF 2013
declared that the first respondent would sell the
gold ornaments as per his whims and fancies. When
the petitioner refused to accede to demand of the
first respondent, the first respondent physically and
mentally tortured her. The respondents 2 and 3 -
the mother and sister of the first respondent -
abetted the first respondent to physically assault the
petitioner. The respondents had constantly tortured
the petitioner demanding her to get Rs.3,00,000/-
from her parents. Consequent to the physical
torture by the respondents, the petitioner suffered
an abortion on 2.11.2010. The first respondent had
not taken care of the petitioner. When the
petitioner resisted the respondents from selling her
movable property, the first respondent again brutally
manhandled her ably supported by the respondents
2 and 3. On 4.10.2010, the first respondent left the
petitioner at her natal home. He categorically
declared that she need return to the matrimonial
home only on payment of Rs.3,00,000/-. The
Mat.Appeal.No.320 OF 2013
petitioner instituted a complaint before the
Judicial First Class Magistrate Court-I, Punalur. In
a mediation talk, the petitioner's movable
properties were returned to her. However, the
respondents refused to return the petitioner's gold
ornaments and money. Thus, the respondents
misappropriated 30 sovereigns of the petitioner's
gold ornaments and the first respondent had
misappropriated Rs.2,00,000/- that was entrusted to
him as a trustee of the petitioner. Hence, the
original petition.
3. The first respondent had filed a written
statement for and on behalf of himself and the
respondents 2 and 3 also. He, inter alia, contended
that the third respondent had been unnecessarily
impleaded as a party in the original petition. The
third respondent was married 12 years before the
marriage between the petitioner and the first
respondent. The petitioner had only 10 sovereigns
of gold ornaments. Apart from the above 10
Mat.Appeal.No.320 OF 2013
sovereigns of gold ornaments, the remaining
ornaments were imitation gold. The first respondent
was working as a Sales Executive and Cashier in a
furniture shop till 2011. He was drawing a monthly
salary of Rs.5,000/- per month. The petitioner got
entangled in a love affair with a third person. It
was due to the said relationship, she aborted the
fetus in a private hospital, without the consent and
knowledge of the first respondent. The respondents
have returned all the movable properties of the
petitioner on 12.2.2011 at Kunnikkodu Police Station
as demanded by the petitioner. Hence, there is
nothing more to be returned to the petitioner as
claimed in the original petition. The original petition
was filed at the instigation of the petitioner's
relatives and her paramour. The original petition
may be dismissed.
4. The petitioner and a witness were
examined as PWs 1 and 2 and Exts A1 to A5 were
marked through them. The first respondent was
Mat.Appeal.No.320 OF 2013
examined as DW1 and Exts B1 to B8 were marked
through him.
5. The Family Court, after considering the
pleadings and materials on record, by the impugned
judgment and decree partly allowed the original
petition by directing the respondents 1 and 2 to
return 25 ½ sovereigns of the gold ornaments of the
petitioner or its market value and also pay an
amount of Rs.2,00,000/- to the petitioner with
interest. The original petition as against the third
respondent was dismissed.
6. Heard the learned counsel appearing for
the appellants/respondents and the learned counsel
appearing for the respondent/petitioner.
7. The sole question that emerges for
consideration in this appeal is whether the
judgment and decree passed by the Family Court in
directing the appellants/respondents 1 and 2 to
return 25½ sovereigns of gold ornaments or its
value and Rs.2,00,000/- is correct or not.
Mat.Appeal.No.320 OF 2013
8. 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 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.
9. The marriage between the first respondent
and the petitioner is not disputed. The Family Court
relying on Exts A2 and A5 photographs and Exts A3
and A4(b) estimates came to the conclusion that
the respondent had 50 sovereigns of gold
ornaments. The pertinent aspect to be looked into
in a suit for recovery of gold ornaments is not the
Mat.Appeal.No.320 OF 2013
amount of gold ornaments the petitioner had
adorned at the time of marriage, but is whether the
respondents had misappropriated the same.
10. The case of the petitioner was that the
respondents had misappropriated 30 sovereigns of
gold ornaments and Rs.2,00,000/-, which was
entrusted to the first respondent. The
petitioner/respondent while she was examined as
PW1, deposed that out of her 50 sovereigns of gold
ornaments, a chain weighing 2 sovereigns was given
to the first respondent at the time of betrothal, one
bangle weighing 1 sovereign was given to the
second respondent and a bangle weighing 1
sovereign and a ring weighing half sovereign
totaling 1½ sovereigns was given to the third
respondent. Going by the pleadings in the original
petition, there is a conspicuous absence of an
averment in the original petition that the second
respondent was given a bangle weighing 1 sovereign
and the third respondent was given a bangle and a
Mat.Appeal.No.320 OF 2013
ring weighing 1½ sovereigns. Nevertheless, the first
respondent had categorically admitted that, at the
time of marriage the petitioner adorned 10
sovereigns of gold ornaments and he had sold a
chain, which was given to him by the petitioner.
This averment has also not been denied by the first
respondent in the written objection.
11. The Family Court after analysing the
pleadings and evidence came to the conclusion that
even though the petitioner had 30 sovereigns of gold
ornaments, she could have only parted with 25½
sovereigns of gold ornaments. Accordingly, the
Family Court held that the respondents had
misappropriated 25 ½ sovereigns of gold of the
petitioner. Accordingly, the Family Court decreed the
original petition by directing the respondents 1 and
2 to return 25 ½ sovereigns of gold ornaments .
12. On a reappreciaton of the pleadings and
materials on record, especially the oral testimonies
of PWs 1 and 2 and Exts A1 to A5 and B1 to B8, we
Mat.Appeal.No.320 OF 2013
find that even though the petitioner had put up a
plea that the respondents had misappropriated 30
sovereigns of her gold ornaments, and the Family
Court arriving at a conclusion that the respondents
1 and 2 had misappropriated 25½ sovereigns of gold
ornaments, we do not find any cogent evidence for
arriving at the said conclusion, as there is no
material on record to substantiate the finding as
required to be proved in Alphonsa and Royson
Mathew (Supra).
13. However, in view of the admission made by
the first respondent that the petitioner had 10
sovereigns of gold ornaments and his silence with
regard to the assertion in the original petition that
he had misappropriated the gold chain that was
adorned by the petitioner, we are of the considered
opinion that the first respondent is liable to return
10 sovereigns of gold ornaments or its value thereof
as claimed in the original petition. Accordingly, we
modify the decree by directing the first respondent
Mat.Appeal.No.320 OF 2013
to return 10 sovereigns of gold ornaments or its
value thereof to the petitioner, as claimed in the
original petition.
14. Now coming to the question regarding
return of money that was allegedly entrusted at the
time of marriage. Even though PW2 had deposed
that he had seen an amount of Rs 2,00,000/- being
entrusted by the petitioner's elder sister's husband
to the first respondent, no material has been
produced before the Court to substantiate the
source from which the amount was garnered. In the
said circumstances, the finding of the Family Court
that the petitioner's brother-in-law had entrusted an
amount of Rs.2,00,000/- to the first respondent
cannot be accepted. From the evidence on record, it
is seen that during the cross-examination of PW1,
the counsel for the respondents had made a
suggestion to the petitioner that only an amount of
Rs.1,00,000/- was received by the first respondent at
the time of marriage. This suggestion tantamounts
Mat.Appeal.No.320 OF 2013
to an admission on the part of the respondents. In
the said circumstances, taking the suggestion put
forth in the cross-examination of PW1, as an
admission, we are of the considered opinion that the
first respondent had received an amount of
Rs.1,00,000/- as the petitioner's share in her
parental properties. Thus the first respondent is
liable to return the aforesaid amount of
Rs.1,00,000/- to the petitioner.
15. On an overall reappreciation of the
pleadings and the materials on record, and in light
of our aforesaid findings and the law laid down in
Alphonsa and Royson Mathew (supra), we are of
the considered opinion that the impugned judgment
and decree has to be modified in tune with findings
arrived by us. Accordingly, the appeal is allowed in
part as follows:
(i) The judgment and decree in OP 755/2011 is set
aside in part.
(ii) The first appellant/first respondent is directed
to return 10 sovereigns of gold ornaments or its
Mat.Appeal.No.320 OF 2013
market value as on the date of the original
petition to the respondent/petitioner,
within three moths from today.
(iii) The first appellant/first respondent is also
directed to return an amount of
Rs.1,00,000/- to the respondent/petitioner
within three months from today.
(iv) In case the first appellant/first respondent
fails to return the gold ornaments or its
value thereof and an amount of
Rs.1,00,000/- within three months from
today, the respondent/petitioner would be
entitled to realise the aforesaid amounts with
interest at the rate of 6% per annum from
the date of petition till the date of realisation,
personally and from the assets of the first
respondent.
(v) The judgment and decree as against the second
respondent is set aside.
(vi) In the facts and circumstances of the case, the
parties shall bear their respective costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
Sks/1.2.2021
