Kerala High Court
Triptha Krishna K.S vs Bimal Raj V on 26 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MAT.APPEAL NO.1150 OF 2015
AGAINST THE ORDER/JUDGMENT IN OP 283/2011 OF FAMILY COURT,
KOLLAM
APPELLANT/RESPONDENT:
TRIPTHA KRISHNA K.S
AGED 29 YEARS
D/O.FRENY, KRISHNATHU MADOM HOUSE, MAMOODU,
CHANDANATHOPU P.O., EDAVATTOM CHERRY, PERINADU
VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT.
BY ADV SRI.ARUN BABU
RESPONDENTS/PETITIONER:
1 BIMAL RAJ V
AGED 39 YEARS
S/O.VELAYUDHAN PILLAI, BIJI VIHAR,
SAKTHIKULANGARA VILLAGE, KANNIMEL CHERRY,
SAKTHIKULANGARA P.O., KOLLAM TALUK-691001.
2 LEELA BAI
AGED 65 YEARS
W/O.VELAYUDHAN PILLAI, BIJI VIHAR,
SAKTHIKULANGARA VILLAGE, KANNIMEL CHERRY,
SAKTHIKULANGARA P.O., KOLLAM TALUK-691001.
3 JAYA
AGED 39 YEARS
BIJI VIHAR, SAKTHIKULANGARA VILLAGE, KANNIMEL
CHERRY, SAKTHIKULANGARA P.O., KOLLAM TALUK-
691001.
BY ADVS.
SRI.S.BIJU (KIZHAKKANELA)
SRI.S.BIJU KIZHAKKANELA
SRI.JOHNSON GOMEZ
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
11.08.2022, ALONG WITH Mat.Appeal.453/2016, THE COURT ON
26.08.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.1150 of 2015 & 453 of 2016 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MAT.APPEAL NO.453 OF 2016
AGAINST THE ORDER/JUDGMENT IN OP 283/2011 OF FAMILY COURT,
KOLLAM
APPELLANT/1ST RESPONDENT:
BIMAL RAJ V.L.
AGED 39 YEARS, S/O.VELAYUDHAN PILLAI, BIJI VIHAR,
SAKTHIKULANGARA VILLAGE, KANNIMEL CHERRY,
SAKTHIKULANGARA P.O, KOLLAM TALUK, PIN 691 001
BY ADV SRI.JOHNSON GOMEZ
RESPONDENT/PETITIONER/RESPONDENTS 2 & 3:
1 THRIPTHA KRISHNA K.S.
AGED 29 YEARS, D/O. FRENY, KRISHNATHUMADOM HOUSE,
MAMOODU, CHANDANATHOPE P.O, EDAVATTOM CHERRY,
PERINADU VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT,
PIN - 651 014.
2 LEELA BAI
AGED 68 YEARS,W/O. VELAYUDHAN PILLAI, BIJI BIHAR,
SAKTHIKULANGARA, KANNIMEL CHERRY, SAKTHIKULANGARA
P.O, KOLLAM TALUK, PIN - 691581.
3 JAYA
AGED 41 YEARS, DO DO
BY ADV SRI.ARUN BABU
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
11.08.2022, ALONG WITH Mat.Appeal.1150/2015, THE COURT ON
26.08.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.1150 of 2015 & 453 of 2016 3
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
-------------------------------------------------
Mat.Appeal Nos.1150 of 2015 & 453 of 2016
--------------------------------------------------
Dated this the 26th day of August, 2022
JUDGMENT
Sophy Thomas, J.
These appeals arise out of the judgment in O.P No.283 of
2011 on the file of the Family Court, Kollam. The wife filed that
O.P for recovery of 270 sovereigns of gold ornaments, Rs.6.5 lakh
in cash and a dressing table worth Rs.30,000/-. The Family
Court, as per impugned judgment dated 21.08.2015, partly
decreed that O.P allowing the wife to realise 15 sovereigns of gold
ornaments or its present market value from the husband and his
assets, and her remaining claims were rejected. The wife filed
Mat.Appeal No.1150 of 2015 against the reliefs which were
rejected, and the husband filed Mat.Appeal No.453 of 2016
against the reliefs which were granted against him.
2. Brief facts necessary for the appeals could be stated as
follows:
Mat.Appeal No.1150 of 2015 & 453 of 2016 4
The marriage between the appellant/wife and the
respondent/husband was solemnised on 01.05.2002 as per Hindu
rites and custom. The appellant was given 270 sovereigns of gold
ornaments at the time of marriage. The husband and his mother
were gifted gold ornaments weighing 20 sovereigns from her
family in connection with the marriage. Out of the 270 sovereigns
of gold she was wearing, the respondent and his parents took 250
sovereigns, promising that it would be kept in the bank locker of
the father-in-law. Still they are possessing her gold ornaments
along with the ornaments gifted to them. So she is entitl ed to
get back 270 sovereigns of gold ornaments from the respondents,
who are her husband, his mother and brother's wife.
3. Rs.5,00,000/- in cash was entrusted with the
respondent/husband for purchasing a car, and Rs.1,50,000/- was
entrusted with him in connection with the Maruveedu ceremony.
Matrimonial life of the appellant was miserable and their
relationship became strained as the respondent was greedy to get
the automobile service station of her mother. After separation for
a while, in the year 2007, they purchased a residential house at
Udayamperoor and started residence there, along with their child.
Mat.Appeal No.1150 of 2015 & 453 of 2016 5
Even after that, friction continued in their life and on 23.12.2010,
she was forcibly sent out of the house along with the child. So,
she wants to get back her 270 sovereigns of gold ornaments, cash
worth Rs.6.5 lakh and also the dressing table worth Rs.30,000/-.
4. The respondent/husband filed written statement denying
entrustment of gold, cash or the dressing table. According to
him, nothing was entrusted with him and no gold ornaments were
gifted to him or his mother by the appellant. The car was
purchased by him availing car loan and no amount was received
for that purpose from the family of the appellant. In fact, they
were relatives, and so, for the marriage, there were no financial
demands. Moreover, father of the appellant died prior to their
marriage, and so, their financial condition was not good to give
270 sovereigns of gold ornaments or Rs.6.5 lakh in cash. Her
mother had no source of income to give that much of gold and
money, for the marriage of the appellant. It was the respondent
who arranged admission for the appellant in T.K.M Engineering
College after the marriage, paying capitation fee of Rs.4 lakh. He
himself purchased the property at Ernakulam and no amount was
received for that purpose from the appellant or her mother. While
Mat.Appeal No.1150 of 2015 & 453 of 2016 6
residing at Ernakulam along with the respondent, on 23.01.2011
the appellant and her mother along with her relatives came to his
house at Ernakulam, and removed household articles and
furniture from that house. The respondent complained to local
Police and on interference by the Police, the appellant was insisted
to prepare a list of the articles removed. He prayed for dismissal
of the O.P as she had no cause of action to file such a suit.
5. After formulating necessary issues by the Family Court,
the parties went on trial. Above O.P was tried along with other
connected matters pending between the parties. PWs 1 to 8 were
examined and Exts.A1 to A22 were marked from the side of the
appellant. RW1 was examined and Exts.B1 to B25 were marked
from the side of the respondent.
6. On analysing the facts and evidence and on hearing the
arguments put forward from either side, the Family Court partly
decreed O.P No.283 of 2011 allowing the appellant to realise 15
sovereigns of gold ornaments or its present market value from
the 1st respondent/husband and his assets, and her remaining
claims were rejected.
7. Let us have a reappraisal of the facts and evidence to
Mat.Appeal No.1150 of 2015 & 453 of 2016 7
find out whether any interference is called for in the judgment
impugned.
8. Admittedly, the appellant was a relative of the father of
the respondent, and she was only 18 years old at the time of
marriage. Her father had an unnatural death just one year prior
to her marriage. According to PW1, her father had purchased 100
sovereigns of gold ornaments for her marriage prior to his death.
Thereafter her mother purchased 170 sovereigns of gold
ornaments for her. So, at the time of marriage, she was wearing
270 sovereigns of gold ornaments in total. In order to prove that
fact, the only document produced by her is Ext.A6 photograph. It
is true that, in Ext.A6 photograph, the appellant was seen wearing
considerable quantity of ornaments, though we are not able to
ascertain its weight. No bills were produced by the appellant
though she has got a case that 170 sovereigns of gold ornaments
were purchased by her mother from Prince Jewellery. There is no
evidence to show that, her father had purchased 100 sovereigns
of gold ornaments for her.
9. The respondent has got a case that the mother of the
appellant had no source of income to give 270 sovereigns of gold
Mat.Appeal No.1150 of 2015 & 453 of 2016 8
ornaments for her marriage. Though PW2 her mother produced
Ext.A7 audit report to prove her financial capacity, it was not
sufficient to show that, she had sufficient funds with her to give
270 sovereigns of gold ornaments and Rs.6.5 lakh in cash to the
respondent. Ext.A10 to A13 will show that PW2 received price
money of some chitty in the year 2004, which was after two years
of the marriage of the appellant. Though she had a case that she
received Rs.10 lakh as insurance claim on the death of her
husband, there was no scrap of paper to support that fact.
According to her, she sold away two fishing boats owned by her
husband for an amount of Rs.25 lakh and for that also, no
evidence is forthcoming. So, the appellant utterly failed to prove
the source of income of her family, to give 270 sovereigns of gold
ornaments and Rs.6.5 lakh in cash to the respondent.
10. The appellant would say that Rs.5 lakh was given to the
respondent on the date of engagement which was one year prior
to the marriage, and it was for the purpose of purchasing a car.
There was no probability for purchasing a car one year prior to
the marriage. Moreover, the respondent produced Exts.B10 to
B17 documents to show that, he had availed personal loans for
Mat.Appeal No.1150 of 2015 & 453 of 2016 9
purchasing cars in the year 2001 as well as in 2007. Regarding
Rs.1.5 lakh alleged to have been given in connection with the
Maruveed ceremony, according to the appellant, that amount was
deposited by the respondent in Banks. But, she did not produce
any evidence in support. At the same time, she would say that,
the said amount was given for the purpose of marriage expenses.
If such amounts were entrusted in cash, definitely, there might
have been some supporting documents to prove its withdrawal
from Banks. But no such evidence was there from the part of the
appellant.
11. Regarding the gold ornaments, the pleadings of the
appellant is to the effect that, she was given 270 sovereigns of
gold ornaments, and the defendants took 250 sovereigns on the
promise of keeping it in the locker of her father-in-law. It is not
stated when they took the gold ornaments or from where they
took it. She has not pleaded entrustment of gold ornaments
either with the husband or with his mother or sister-in-law in her
original petition. Though her case was that the gold ornaments
were taken on the promise of keeping it in the locker of her
father-in-law, father-in-law is not made a party. No evidence was
Mat.Appeal No.1150 of 2015 & 453 of 2016 10
adduced at least to show that her father-in-law had a bank locker.
Moreover she never attempted to call for the details of the bank
locker, or took any steps to get the locker opened to see whether
her ornaments were there in the alleged locker of her father-in-
law. Admittedly, when the appellant was residing separately from
the respondent, he sent Ext.A4 lawyer notice to her and she sent
Ext.A5 reply notice on 05.05.2005. In that reply notice also, she
was alleging entrustment of 250 sovereigns of gold ornaments
with the respondent and his parents. Admittedly, in the year
2007, the appellant and respondent started residence along with
their child, in the new house purchased at Ernakulam. If there
was a dispute pending between the appellant and respondent,
regarding 250 sovereigns of gold ornaments unauthorisedly kept
by the respondent and his family members, without settling that
dispute, in normal course, she might not have started residence
with the respondent, in the new house purchased in the year
2007.
12. PW1 was not able to give the details of the gold
ornaments she was wearing at the time of marriage. According to
her, the schedule of gold ornaments in the O.P itself was prepared
Mat.Appeal No.1150 of 2015 & 453 of 2016 11
as per the description given by her mother. Regarding the
entrustment, PW1 would say that, on the next day of marriage,
since she was having practical examination of Plus 2, keeping only
20 sovereigns for her daily use, the balance 250 sovereigns were
entrusted with the respondent. PW4, who is the paternal uncle of
the appellant, categorically stated before court that, he had
witnessed entrustment of 250 sovereigns of gold ornaments by
the appellant with the respondent. But, according to him, it was
at the house of the appellant in presence of her mother and
brother. It supports the case of the respondent that, on the next
day of marriage, her entire gold ornaments were taken back to
her house for keeping it in the strong room of the financial
institution run by her mother. Admittedly, PW2, the mother of
the appellant, was running Krishnathumadam Financiers, and it
was having a strong room. If PW4 is believed, 250 sovereigns of
gold ornaments were taken to the house of the appellant after the
marriage. If so, the case of the appellant that, the respondents
took away her 250 sovereigns for keeping it in the bank locker of
the father-in-law cannot be believed. The other witnesses
examined from the part of the appellant had only hearsay
Mat.Appeal No.1150 of 2015 & 453 of 2016 12
information about the quantity of gold ornaments given to the
appellant, and they know nothing about the entrustment of the
gold ornaments with the respondent or his parents.
13. Deviating from the pleadings, PW1 deposed before
court that, after the respondent and his relatives took away her
gold ornaments, she had seen those ornaments twice, when she
was given some of those ornaments for attending functions. That
also will negative her case that, the respondent took away her
250 sovereigns of gold ornaments, and thereafter it was never
returned. She further deposed before court that, she had seen
the respondents using her gold ornaments and they told her that
some of the gold ornaments were sold away. So, on analysing the
entire facts and evidence, the appellant has no consistent case
about the entrustment of gold ornaments with the respondent and
she has no definite case when it was entrusted, where it was
entrusted and with whom it was entrusted. She relied on Ext.A18
copy of list of articles to say that, she had not taken any cash or
gold along with that articles. So, according to her, the cash and
gold are still with the respondent.
14. The respondent also is admitting the fact that, when the
Mat.Appeal No.1150 of 2015 & 453 of 2016 13
appellant and her relatives tried to remove household articles
from the house at Ernakulam, he complained to police and as
insisted by police, a list was prepared. That list shows that, there
was no cash or gold among the articles taken. That does not
mean that any cash or gold which belonged to the appellant was
there with the respondent and it was not taken along with them.
If it was so, nothing prevented the appellant to get an
acknowledgment from the respondent in presence of police
regarding the quantity of gold ornaments or cash which was due
to her from him. Even in the O.P, there is no mention regarding
Ext.A18, as a document supporting her claim for cash and gold.
15. As already stated, disputes were there between the
appellant and respondent even from the year 2005. According to
the appellant, her 250 sovereigns of gold ornaments and 20
sovereigns of gold ornaments gifted to the respondent and his
relatives were with them at that time. Without settling those
claims, there was no possibility for them to purchase a residential
house jointly and to start their residence there in the year 2007.
So, the appellant failed to prove entrustment of 250 sovereigns of
gold ornaments with the respondent, his mother or with his
Mat.Appeal No.1150 of 2015 & 453 of 2016 14
sister-in-law. So, the Family Court rightly rejected her claim for
return of 250 sovereigns of gold ornaments and Rs.6.5 lakh in
cash.
16. Regarding the dressing table also, the appellant has no
case that, more than one dressing table was given from her
family. Ext.A18 list of articles taken by her will show that, a
dressing table was there as item No.6 in that list. So, she was
not eligible to get back the dressing table which was scheduled as
'C' schedule in the O.P.
17. Regarding the gold ornaments gifted to the respondent
and his mother, RW1 though denied any such gift, Ext.A16 and
A17 photographs amply proved the gold chain and bracelet gifted
to the respondent by the brother of the appellant. There is
nothing to show that, a gold chain weighing 5 sovereigns was
gifted to the mother of the respondent by the appellant or her
family members. According to her, the chain gifted to the
respondent was weighing 10 sovereigns and the bracelet was
weighing 5 sovereigns. No evidence is forthcoming from the part
of the respondent to show that, those ornaments were not
weighing that much. In the absence of any contra evidence to
Mat.Appeal No.1150 of 2015 & 453 of 2016 15
prove the actual weight of the chain and bracelet given to the
respondent, we have to go by the weight stated by the appellant.
So, the finding of the Family Court that the appellant is entitled to
get back 15 sovereigns of gold ornaments is only to be upheld.
In the result, we are of the view that, no interference is
warranted in the impugned judgment and decree. In case the
respondent fails to return the gold ornaments in specie, the
appellant is entitled to get back its market value as on the date of
payment, instead of the 'present market value' mentioned in the
decree.
With modification to that extent, both the appeals are
dismissed. No order as to costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
