Kerala High Court
Manohar Jefferson vs Mini, D/O.Chintamony on 18 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943
Mat.Appeal.No.180 OF 2016
AGAINST THE JUDGMENT IN OP 317/2007 DATED 06-10-2015 OF
FAMILY COURT,THIRUVANANTHAPURAM
APPELLANT/COUNTER PETITIONER:
MANOHAR JEFFERSON
AGED 45 YEARS
S/O. RASSALAM , RESIDING AT VARIVILAKOM,
PARASSALA (PO),PARASSALA VILLAGE, TRIVANDRUM
BY ADVS.
SRI.R.ANILKUMAR
SRI.G.RADHAKRISHNAN
RESPONDENTS/PETITIONER/COUNTER PETITIONER:
1 MINI, D/O.CHINTAMONY
AGED 41 YEARS
RESIDING AT CHEEN MARRY HOUSE, KONATHUVILA,
KARODE VILLAGE, NEYYATTINKARA TALUK,
TRIVANDRUM 695 506
Mat.Appeal Nos.180 & 304/2016
-:2:-
2 J.R PRAUADA
AGED 45 YEARS
D/O. JAGADAMMA, VAZHAVILAKOM VEEDU, VAVARA, S.T
MONCAUD (PO), VALAVAN TAMIL NADU
R1 BY ADV. SRI.C.CHANDRASEKHARAN
R1 BY ADV. SMT.P.M.SWAYAM PRABHA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2021, ALONG WITH Mat.Appeal.304/2016, THE COURT ON
18.5.2021 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.180 & 304/2016
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943
Mat.Appeal.No.304 OF 2016
AGAINST THE JUDGMENT IN OP 317/2007 DATED 06-10-2015 OF
FAMILY COURT,THIRUVANANTHAPURAM
APPELLANT/PETITIONER:
MINI
AGED 41 YEARS
D/O. CHINTHAMONY, RESIDING AT CHEEN MARY HOUSE,
KONATHU VILA, KARODE P.O., NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM DISTRICT-695 506.
BY ADVS.
SRI.C.CHANDRASEKHARAN
SMT.P.M.SWAYAM PRABHA
RESPONDENTS/CR.PETITIONERS:
1 MANOHAR JEFFERSON
AGED 46 YEARS
S/O. RASSAIAN, RESIDING AT "PROVIDENCE",
VARIVILAKAM, PARASSALA VILLAGE & P.O.,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM
DISTRICT-695 502.
Mat.Appeal Nos.180 & 304/2016
-:4:-
2 SMT. J.R.PRAVADA
AGED 46 YEARS
D/O. JAGADAMMA, RESIDING AT VAZHAVILAKAM VEEDU,
VAVARA, ST.MANGAD P.O., VILAVANCODE TALUK,
KANYAKUMARI DISTRICT, TAMILNADU-629 172.
R1 BY ADV. G. RADHAKRISHNAN
R1 BY ADV. SRI.R.ANILKUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2021, ALONG WITH Mat.Appeal.180/2016, THE COURT ON
18.05.2021 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.180 & 304/2016
-:5:-
J U D G M E N T
Dated this the 18th day of May, 2021
Dr.Kauser Edappagath, J.
Both these appeals arise out of the judgment of the Family
Court, Thiruvananthapuram in OP No.317/2007 dated 6 th October,
2015.
2. The parties are referred to as shown in the Original
petition unless otherwise stated. The original petition was filed by
the wife for return of gold ornaments, recovery of money,
recovery of furniture and household articles, past and future
maintenance and also to set aside two documents on the ground
of fraud.
3. The marriage between the petitioner and the first
counter petitioner was solemnized on 6/2/2002 as per Christian
religious rites and ceremonies. It is the case of the petitioner that
her parents had given her 58 sovereigns of gold ornaments at the
time of her marriage and the same had been taken away and
misappropriated by the first counter petitioner. It is alleged that
Mat.Appeal Nos.180 & 304/2016
at the time of marriage, the father of the petitioner had given a
sum of `2 lakhs to the counter petitioner as well as furniture
worth `50,000/- and household articles worth `45,000/-. The
petitioner seeks to return the above said sum of `2 lakhs and the
furniture and household articles or its value. Admittedly, at the
time of marriage, the parents of the petitioner had settled 24
cents of land more particularly described in Schedule A of the
petition in the name of the petitioner and the first counter
petitioner as per Ext.A4 settlement deed. It is also admitted that
the plaint B schedule property having an extent of 3 cents was
also assigned by the parents of the petitioner in her favour as per
Ext.A3 document. It is the case of the petitioner that on
22/1/2003, the first counter petitioner by misrepresentation took
her to SRO, Parassala and she was forced to sign on some stamp
papers and later on she came to know that she was made to
execute Ext.A7 sale deed assigning the petition B schedule
property in the name of the first counter petitioner. Later on, the
first counter petitioner transferred the petition B schedule
property in favour of the second counter petitioner as per Ext.A8
document which according to her is not binding on her. The
Mat.Appeal Nos.180 & 304/2016
petitioner seeks to set aside Exts.A7 and A8 documents besides
declaring her absolute title over plaint A and B schedule
properties. The petitioner has also sought for maintenance, past
as well as future, from the first counter petitioner @`2,000/- per
month. It is in these circumstances original petition has been
filed seeking the above said reliefs.
4. The counter petitioners entered appearance and filed
separate written statement. The first counter petitioner denied
the case set up by the petitioner that the parents of the petitioner
had given 58 sovereigns of gold ornaments to her and that
furniture and household articles worth `95,000/- were given to
him at the time of marriage. The first counter petitioner has
admitted receipt of `2 lakhs from the parents of the petitioner.
But it is contended that he had given the said amount to the
petitioner later on. It is also contended that the petitioner
voluntarily assigned the plaint B schedule property in his favour
for consideration as per Ext.A7 document and he in turn assigned
the same in favour of the 2 nd counter petitioner for consideration
as per Ext.A8 document. In so far as the claim for maintenance is
concerned, the contention of the first counter petitioner is that
Mat.Appeal Nos.180 & 304/2016
the petitioner is taking tuition classes and getting attractive
income. It is also contended that he is working as salesman in a
stationery store and drawing a salary of `3,000/- per month. In
the written statement filed by the second counter petitioner, she
contended that she is a bonafide purchaser of the plaint B
schedule property for valuable consideration. According to her,
she is the absolute owner in possession of the plaint B schedule
property.
5. The parties went on trial. On the side of the petitioner,
PWs 1 to 4 were examined and Exts.A1 and A22 were marked.
On the side of the counter petitioners, CPW1 and 2 were
examined and Exts.B1 to B6 were marked. After trial, the Court
below allowed the petition in part as per the impugned
judgment. All the reliefs except the relief sought to set aside
Exts.A7 and A8 documents were granted. 58 sovereigns of gold
ornaments or its equivalent value as well as `2 lakhs and
`95,000/- being the value of furniture and household articles with
interest @6% per annum were ordered to be given by the first
counter petitioner to the petitioner. The petitioner's title and
possession over A schedule property also was declared. The
Mat.Appeal Nos.180 & 304/2016
maintenance, past and future, @ `1,000/- per month was also
ordered. Aggrieved by the said judgment, the first counter
petitioner preferred Mat.Appeal No.180/2016. Aggrieved by the
dismissal of the prayer to set aside Exts.A7 and A8 documents
and dissatisfied with the rate of maintenance ordered, the
petitioner preferred Mat.Appeal No.304/2016.
6. We heard both sides.
7. We will consider the claim of the petitioner regarding
the return of 58 sovereigns of gold ornaments first. The definite
case of the petitioner is that at the time of marriage, her parents
gave her 58 sovereigns of gold ornaments and the same has
been misappropriated by the first counter petitioner. To prove the
fact that petitioner was having 58 sovereigns of gold ornaments
as well as its entrustment and misappropriation by the first
counter petitioner, the petitioner relies on the oral testimony of
PWs 1 to 3 and Exts.A5 estimate and A6 photograph. PW1 is the
petitioner. PW2 is the father of the petitioner. PW3 is the uncle of
the petitioner. They gave evidence in tune with the pleadings.
Their evidence would show that the petitioner was wearing 58
sovereigns of gold ornaments at the time of marriage. That apart,
Mat.Appeal Nos.180 & 304/2016
the first counter petitioner has also admitted that the parents of
the petitioner had given 20 sovereigns of gold ornaments to the
petitioner at the time of marriage. Ext.A5 is the estimate for the
purchase of 343.260 grams of gold ornaments in connection with
the marriage of the petitioner. Ext.A6 is the photograph of the
petitioner and the first counter petitioner which has been
produced mainly to support the case of the petitioner that she
was wearing 58 sovereigns of gold ornaments at the time of her
marriage. Ext.A5 estimate issued from Alapatt Jewellery shows
that 343.260 grams of gold ornaments corresponding to 42.907
sovereigns of gold were purchased by the petitioner's parents.
PW2, father of the petitioner, gave evidence to prove the same.
PW1 had also clearly deposed that apart from the purchase made
as per Ext.A5, she was also having some old gold ornaments and
together she was having 58 sovereigns of gold ornaments at the
time of her marriage. PWs1 to 3 clearly gave evidence that the
entire gold ornaments belonging to her were taken away and
misappropriated by the first counter petitioner. The Division
Bench of this Court in Jubairiya M.K. v. Abusalih and Another
(2013 (2) KHC 304) has held that in matrimonial cases, it is
Mat.Appeal Nos.180 & 304/2016
difficult to get documentary evidence to prove money transaction
and exchange of gold and oral evidence of the parties, if found
believable, can be relied upon by the Court to prove payment of
money and gold. In Leelamma N.P. v. M.A.Moni (2017 (3) KHC
340), the Division Bench of this Court held that once it is proved
that gold ornaments were entrusted by the wife to the husband,
the burden is on the husband to prove as to what happened to
the gold ornaments. It is further held that if it was taken by the
wife when she left the matrimonial home, the same has to be
proved by the husband. Again, the Division Bench in
Pankajakshan Nair v. Shylaja and Another (2017 (1) KHC
620) held that it is quite natural that once the marriage is over
and the bride has come to the house of in-laws, there is
possibility of ornaments being entrusted to the elders as a
trustee for keeping the articles during the subsistence of the
marriage and the duty is cast on the husband to disprove this fact
and also to prove the fact that it was taken by the wife at the
time she left the matrimonial home.
8. The evidence of Pws 1 to 3 coupled with Exts.A5 and
A6 clearly prove that the petitioner was having 58 sovereigns of
Mat.Appeal Nos.180 & 304/2016
gold ornaments and the same have been taken away and
misappropriated by the first counter petitioner. Thus, we are of
the view that the Court below was absolutely justified in directing
the first counter petitioner to return the said gold ornaments or
its value to the petitioner.
9. Next we will consider the claim regarding return of `2
lakhs as well as the furniture and household articles or its value.
In the written statement filed by the first counter petitioner, he
has admitted that he has received `2 lakhs from the parents of
the petitioner and out of the same, `1.5 lakhs was deposited in
the name of the petitioner herself. He contended that the amount
so deposited was withdrawn by the petitioner. However, the first
counter petitioner could not adduce any positive evidence to
substantiate his contention that the amount was taken back by
the petitioner. Thus, the only conclusion possible is that he had
appropriated the said amount. Hence, the petitioner is entitled to
recover back the said sum of `2 lakhs from the first counter
petitioner which was rightly granted by the Court below. In so far
as the claim regarding furniture and household articles is
concerned, PW1 to 3 clearly gave evidence that furniture and
Mat.Appeal Nos.180 & 304/2016
household articles worth `95,000/- were given to the first counter
petitioner by the parents of the petitioner at the time of marriage.
The details of the furniture and household articles were given in
evidence. There is nothing to disbelieve the said evidence. It is
true that no bills have been produced to prove the purchase of
the furniture or household articles. The parents of the petitioner
cannot be expected to keep the bills for a pretty long period. PW2
and 3, father and uncle of the petitioner, gave positive evidence
regarding the handing over of the furniture and household
articles. The said evidence was not effectively challenged in
cross-examination. The evidence given by PW1 to PW3 in this
regard is quite convincing. Hence, we are of the view that the
Court below was justified in granting the said relief as well.
10. It is not in dispute that the petition A schedule
property was settled in the name of the petitioner and the first
counter petitioner by the parents of the petitioner at the time of
marriage. It has been settled in their joint name for the welfare
and benefit of the petitioner. From the entire evidence on record
and facts and circumstances of the case, it is evident that the
intention of the parents of the petitioner at the time of settling
Mat.Appeal Nos.180 & 304/2016
the property was to give the property to the petitioner as a gift at
the time of her marriage for her benefit and welfare. First counter
petitioner is only a name lender. Therefore, I am of the view that
the Court below was justified in declaring that the plaint A
schedule property absolutely belongs to the petitioner. In so far
as the B schedule property is concerned, the case of the
petitioner is that, on 22/1/2003, by misrepresentation, she was
taken to the Sub Registrar's office to execute Ext.A7. In short, her
case is that Ext.A7 happened to be executed by exercising fraud
on her. But, there is absolutely no evidence to substantiate the
same apart from the mere allegation. That apart, Ext.A8 would
show that first counter petitioner assigned the property to the
second counter petitioner. The evidence on record would further
show that B schedule property is in exclusive possession of the
2nd counter petitioner. The 2nd counter petitioner has also given
evidence. No relief has been sought to recover possession of the
plaint B schedule property. In these circumstances, the Court
below was correct in declining the relief sought for by the
petitioner in so far as B schedule property is concerned.
11. The maintenance sought for by the petitioner is
Mat.Appeal Nos.180 & 304/2016
@2,000/- per month. The court below awarded `1,000/- per
month. It has come out in evidence that as per Ext.A12 order, the
Magistrate Court has awarded `2,000/- as maintenance to the
petitioner which has been reduced to `1,500/- by the appellate
Court. The evidence on record would show that the first counter
petitioner is working as a Medical Representative. The case of the
petitioner is that he is earning `25,000/- per month. Nothing has
been produced by the 1st counter petitioner to prove his income.
Being a medical representative, at least there must be
documentary evidence to prove his income. In the absence of
any documentary evidence produced by the first counter
petitioner, the oral evidence given by the petitioner has to be
believed. It has also come out in evidence that the petitioner is
jobless and has no steady income. `1,000/- awarded by the Court
below appears to be very meagre. It is not at all possible for a
lady to pull on life with `3,500/- per month. It is the legal and
moral responsibility of the first counter petitioner to maintain the
petitioner. We are of the view that the Court below without any
justification cut short the maintenance awarded to `1,000/- as
against `2,000/- per month claimed. We are of the view that the
Mat.Appeal Nos.180 & 304/2016
maintenance ordered by the Court below has to be enhanced
from `1,000/- per month to `2,000/- per month. The impugned
judgment requires modification to that extent.
In the result:
(I) Mat.Appeal No.180/2016 is dismissed.
(II) Mat.Appeal No.304/2016 is allowed in part.
(a) The maintenance amount awarded by the Court below
is enhanced from `1,000/- to `2,000/- per month.
(b) The impugned judgment is sustained in respect of all
other reliefs.
(c) The parties shall bear their respective costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
Rp True Copy JUDGE
PS to Judge
