Reji V.Joseph vs Nice Annam Oommen
2021 Latest Caselaw 19573 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                  MAT.APPEAL NO. 456 OF 2014
   AGAINST THE   JUDGMENT IN OP 1228/2013 OF FAMILY COURT,
                    MAVELIKKARA, ALAPPUZHA
APPELLANTS/RESPONDENTS:

    1     REJI V.JOSEPH
          AGED 38 YEARS
          S/O.JOSEPH VARGHESE,VELLAPALLI
          HOUSE,CHENNIERKARA,P.O.MUTTATHUKONAM,KOZHENCHERRY
          TALUK,PATHANAMTHITTA DISTRICT.

    2     JOSEPH VARGHESE
          AGED 52 YEARS
          S/O.VARGHESE,VELLAPALLI
          HOUSE,CHENNIERKARA.P.O,MUTTATHUKONAM,KOZHENCHERRY
          TALUK,PATHANAMTHITTA DISTRICT.

    3     LEELAMMA JOSEPH
          AGED 45 YEARS
          W/O.JOSEPH VARGHESE,VELLAPALLI
          HOUSE,CHENNIERKARA.P.O,MUTTATHUKONAM,KOZHENCHERRY
          TALUK,PATHANAMTHITTA DISTRICT.

    4     REJANI YOHANAN @KOCHUMOL
          AGED 34 YEARS
          W/O.BABY
          YOHANAN,PUTHENPURACKAL,KURAMBALA,ADOOR,PATHANAMTHI
          TTA.

          BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
 Mat.Appeal Nos. 456/14 & 758/14

                                  -:2:-



RESPONDENT/PETITIONER:

           NICE AMMA OOMMEN
           AGED 23 YEARS
           D/O.T.D.OOMMEN,RESIDING AT THARAYIL
           HOUSE,KODUKULANJI.P.O,ALA VILLAGE,CHENGANNUR
           TALUK,ALAPPUZHA DISTRICT.

           BY ADV SMT.ASHA ELIZABETH MATHEW



     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 9.09.2021, ALONG WITH Mat.Appeal.758/2014, THE COURT ON
17.09.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal Nos. 456/14 & 758/14

                                  -:3:-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                    &
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                   MAT.APPEAL NO. 758 OF 2014
   AGAINST THE JUDGMENT IN OP 1228/2013 OF FAMILY COURT,
                     MAVELIKKARA, ALAPPUZHA
APPELLANT/RESPONDENT:

           NICE ANNAM OOMMEN
           AGED 26 YEARS
           D/O.T.D.OOMMEN, THARAYIL HOUSE, KODUKULANJI P.O.,
           ALA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA
           REPRESENTED BY HER POWER OF ATTORNEY T.D.OOMMEN,
           AGED 60 YEARS, THARAYIL HOUSE, KODUKULANJI P.O.,
           ALA VILLAGE, CHENGANNUR TALUK.

           BY ADVS.
           SRI.RINNY STEPHEN CHAMAPARAMPIL
           SMT.ASHA ELIZABETH MATHEW



RESPONDENT/PETITIONER:

    1      REJI JOSEPH
           S/O.JOSEPH VARGHESE, VELLAPALLI HOUSE,
           CHENNEERKARA P.O., MUTTATHUKONAM, KOZHENCHERY
           TALUK, PATHANAMTHITTA-689503.

    2      JOSEPH VARGHESE
           S/O.VARGHESE, VELLAPALLI HOUSE, CHENNEERKARA
           P.O., MUTTATHUKONAM, KOZHENCHERY TALUK,
           PATHANAMTHITTA-689503.
 Mat.Appeal Nos. 456/14 & 758/14

                                  -:4:-



    3      LEELAMMA JOSEPH
           W/O.JOSEPH, VELLAPALLI HOUSE, CHENNEERKARA P.O.,
           MUTTATHUKONAM, KOZHENCHERY TALUK, PATHANAMTHITTA-
           689503.

    4      REJANI YOHANNAN @KOCHUMAKAL
           W/O.YOHANNAN, VELLAPALLI HOUSE, CHENNEERKARA
           P.O., MUTTATHUKONAM, KOZHENCHERY TALUK,
           PATHANAMTHITTA-689503.

           BY ADV SRI.K.N.RADHAKRISHNAN THIRUVALLA



     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 9.09.2021, ALONG WITH Mat.Appeal.456/2014, THE COURT ON
17.09.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal Nos. 456/14 & 758/14

                                  -:5:-



                           J U D G M E N T

Dated this the 17th day of September, 2021

Kauser Edappagath, J.

Both these appeals arise from the judgment of the Family

Court, Mavelikkara (for short, 'the court below') in OP

No.1228/2013 dated 15/1/2014.

2. The parties are referred to as shown in the original

petition unless otherwise stated. The petition was one for return

of gold ornaments, recovery of money and for return of movable

articles.

3. The petitioner and the first respondent are the

divorced spouses now. Their marriage took place on 30/5/2009

and it was dissolved by a decree of dissolution of marriage. The

second respondent is the father, the third respondent is the

mother and the fourth respondent is the sister of the first

respondent. It is alleged that two days prior to the marriage, i.e.,

on 28/5/2009, the father of the petitioner entrusted a sum of

Rs.1,50,000/- to respondents 1 to 3 at their house as patrimony

and the respondents 1 to 3 held the said amount as trustees. It is

further alleged that at the time of marriage, 40 sovereigns of gold Mat.Appeal Nos. 456/14 & 758/14

ornaments were given to the petitioner by her parents and out of

the same, 33 sovereigns of gold ornaments were obtained by the

respondents on the fourth day of marriage agreeing to return as

and when demanded, but was never returned. It is also alleged

that after the marriage, as per the usual custom, an almirah and

other movable articles were given to the petitioner by her parents

and those articles were kept in the house of the respondents.

According to the petitioner, 33 sovereigns of gold ornaments and

Rs.1,50,000/- cash entrusted with the respondents as trustees

were misappropriated by them. The original petition has been

instituted for the return of the said gold ornaments and cash, as

well as the movables mentioned above.

4. The respondents entered appearance and filed a joint

objection statement. The respondents denied the case set up by

the petitioner that the gold ornaments and Rs.1,50,000/- were

entrusted to them. It is contended that when the petitioner went

to the house of the first respondent on the next day of the

marriage, she was not wearing the gold ornaments and all the

gold ornaments she was having were handed over by her to her

parents. In so far as the allegation regarding the entrustment of

movables are concerned, the respondents admitted that an Mat.Appeal Nos. 456/14 & 758/14

almirah worth Rs.10,000/- was brought to their house. They

contended that they were prepared to return the said almirah to

the petitioner.

5. The parties went on trial. On the side of the petitioner,

PW1 to PW4 were examined and Exts.A1 to A12(a) were marked.

On the side of the respondents, RW1 to RW4 were examined and

Exts.B1 and B2 were marked. After trial, the court below allowed

the original petition in part and directed respondents 1 to 3 to

return Rs.1,50,000/- with interest @6% per annum from the date

of the petition till realisation. The respondents 1 to 3 were also

directed to return the almirah or its value of Rs.10,000/-. The

relief sought for by the petitioner for the return of 33 sovereigns

of gold ornaments was disallowed. Aggrieved by the relief

granted in favour of the petitioner, the respondents preferred

Mat.Appeal No.456/2014 and aggrieved by the rejection of the

claim for return of gold ornaments, the petitioner preferred

Mat.Appeal No.758/2014.

6. We have heard Sri.Rinny Stephen Chamaparambil, the

learned counsel for the petitioner and Sri.K.N.Radhakrishnan, the

learned counsel for the respondents.

7. The learned counsel for the petitioner submitted that Mat.Appeal Nos. 456/14 & 758/14

the oral and documentary evidence let in by the petitioner would

clearly prove the entrustment of the gold ornaments with the

respondents and its misappropriation by them and as such, the

court below ought to have allowed the petition in toto. The

learned counsel for the respondents, on the other hand, argued

that inasmuch as the petitioner was claiming a decree for return

of money and gold ornaments, the burden rests squarely on her

to prove the claim satisfactorily and she miserably failed to

discharge the said burden. The counsel submitted that the court

below went wrong in granting a decree for return of money.

8. We will first consider the claim of the petitioner

regarding the return of gold ornaments. As stated already, the

definite case of the petitioner is that at the time of marriage, 40

sovereigns of gold ornaments were given to her by her parents

and on the 4th day of marriage, 33 sovereigns of gold ornaments

out of it were collected by the respondents from her under the

pretext of safe custody and later on misappropriated it. In order

to prove the possession, entrustment and misappropriation of the

gold ornaments, the petitioner relied on her own oral testimony,

the oral testimony of PW2 to PW4 and Exts.A6 and A7 series. The

petitioner gave evidence as PW1 in tune with the pleadings. She Mat.Appeal Nos. 456/14 & 758/14

positively gave evidence that 40 sovereigns of gold ornaments

were gifted to her by her parents at the time of marriage and 33

sovereigns of gold ornaments out of it were collected from her by

the respondents on the fourth day of marriage agreeing to return

the same as and when demanded. PW4 is the father of PW1. He

gave evidence to corroborate the evidence given by PW1.

Exts.A6 series and A7 series were marked through him. Ext.A6

series are the bills for the purchase of gold ornaments issued by

Bhima Jewellery, Ernakulam. Ext.A7 series are the photographs

taken on the wedding day. He gave evidence that Ext.A6 series

were issued when he purchased 40 sovereigns of gold ornaments

from Bhima Jewellers. Ext.A6 series would clearly show that PW4

purchased 284 grams of gold ornaments on 27/5/2009. The date

of marriage was on 30/5/2009. PW3 is the photographer. He took

Ext.A7 series photographs. Ext.A7 series photographs stand

proved through PW3. Those photographs would show that gold

ornaments were worn by the petitioner at the time of her

marriage. The evidence of PW1, PW3 and PW4 as well as Exts.A6

and A7 series would clearly prove that 40 sovereigns of gold

ornaments were purchased by PW4, four days prior to the

marriage and the same were given to the petitioner and she wore Mat.Appeal Nos. 456/14 & 758/14

it on the date of marriage. PW1 clearly gave evidence that 33

sovereigns of gold ornaments were collected from her by the

respondents on the fourth day of marriage and never returned.

PW4 also gave evidence in support of the evidence given by PW1

regarding entrustment of gold ornaments. Even though PW1 and

PW4 were cross-examined in length, there is nothing to doubt

their evidence. Their evidence appears to be credible and

trustworthy. The respondents contended that when the petitioner

went to the matrimonial home on the next day of marriage, she

did not take with her any of the gold ornaments. There is nothing

to substantiate the said contention. It is a common practice that

when the bride moves to the house of the groom after the

marriage, she takes all her ornaments and entrust the same,

except few required for her daily wear, to her husband or in-laws

for safe custody. Since such entrustment takes place at the

matrimonial home, normally there will not be any other eye

witness. Hence, the unshaken evidence given by PW1 in this

regard can very well be relied on. The court below disallowed

the claim for return of gold ornaments only on the ground that

the details and description of the gold ornaments were not

scheduled in the original petition. It is true that there is no Mat.Appeal Nos. 456/14 & 758/14

schedule in the original petition. But there is no requirement to

give a separate schedule in a suit/petition for return of movable

items. Order VII Rule 3 of Code of Civil Procedure is applicable to

a suit for immovable property only. When the description and

details of the gold ornaments sought to be recovered can be

made out from the pleadings and evidence, the failure to furnish

the description of the gold ornaments in a tabular form or in a

separate schedule is not at all fatal. Here is a case where the

petitioner has produced Ext.A6 series bills to prove the purchase

of the gold ornaments. It stands proved through the oral

evidence of PW1 and PW4. The details and description of each

and every item of gold ornaments have been mentioned in Ext.A6

series. The oral and documentary evidence given by the

petitioner clearly prove that the petitioner was having 40

sovereigns of gold ornaments with her on the date of marriage

and 33 sovereigns out of it were entrusted to the respondents on

the fourth day of marriage. Once such entrustment is made, a

trust gets created. Being trustees, the respondents are liable to

return the same. In these circumstances, the court below ought

not have disallowed the claim for return of gold ornaments on a

technical ground that gold ornaments were not scheduled in the Mat.Appeal Nos. 456/14 & 758/14

petition. The finding of the court below in this regard is liable to

be set aside and we do so. The petitioner is entitled to get back

33 sovereigns of gold ornaments or its equivalent value from the

respondents 1 to 3.

9. The next claim is regarding return of money of

Rs.1,50,000/-. The definite case of the petitioner is that two days

prior to the marriage, i.e., on 28/5/2009, PW2 gave a sum of

Rs.1,50,000/- to the respondents 1 to 3 as patrimony. To prove

the same, petitioner has relied on the oral testimony of PW1,

PW2, PW4 and Ext.A5. PW1 gave evidence that her father along

with her relative viz., John Joseph went to the house of the

respondents on 28/5/2009 and entrusted an amount of

Rs.1,50,000/- as patrimony in connection with her marriage.

Sri.John Joseph was examined as PW2. He deposed that he along

with PW4 went to the house of the respondents on 28/5/2009 and

entrusted Rs.1,50,000/- with the respondents. PW4, the father of

PW1 gave evidence that he withdrew an amount of Rs.1,50,000/-

from his bank account on 26/5/2009 and the same was entrusted

with the respondents on 28/5/2009. We perused the evidence of

PW1, PW2 and PW4 in this regard. There is absolutely nothing to

doubt their version regarding the entrustment of Rs.1,50,000/-. Mat.Appeal Nos. 456/14 & 758/14

Ext.A5 is the statement of account of the bank account of PW4. It

would show that a sum of Rs.1,50,000/- was withdrawn on

26/5/2009. PW4 deposed that he entrusted the said amount with

respondents 1 to 3 on 28/5/2009. The evidence of PW2 would

show that he also accompanied PW4 to the house of the

respondents on 28/5/2009. The Division Bench of this Court in

Bexy Michael v. A.J.Michael (2010 (4) KHC 376) took note of

the practice among Christians and held that it is a known practice

among Christians that properties/money is exchanged at the time

of marriage from parents of the bride to the parents of the groom.

We see no reason to disbelieve the oral evidence tendered by

PW1, PW2 and PW4 regarding the entrustment of Rs.1,50,000/-.

The oral evidence gets corroboration from Ext.A5. Hence, we

endorse the finding of the court below that the petitioner is

entitled to get back the patrimony amount of Rs.1,50,000/-.

10. In so far as the claim regarding movables are

concerned, the respondents have admitted that after the

marriage, the petitioner had brought one almirah worth

Rs.10,000/- and they are prepared to return the same. Hence,

the finding regarding the return of almirah or its value of

Rs.10,000/- does not warrant any interference. Mat.Appeal Nos. 456/14 & 758/14

For the reasons stated above, we allow Mat.Appeal

No.758/2014 and dismiss Mat.Appeal No.456/2014. Over and

above the reliefs granted by the court below, we direct the

respondents 1 to 3 to return 33 sovereigns of gold ornaments or

its equivalent value of Rs.4,29,000/- with interest @6% per

annum from the date of the petition till realisation to the

petitioner. The parties shall bear their respective costs in both the

appeals.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp