Kerala High Court
Mr. Cherian Koshi vs Susan Abraham on 1 November, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
Mat.Appeal No.59 of 2020 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
MAT.APPEAL NO. 59 OF 2020
AGAINST THE JUDGMENT DATED 29.11.2019 IN OP NO.136 OF 2018
OF FAMILY COURT, THIRUVALLA
APPELLANT/PETITIONER:
MR. CHERIAN KOSHI
AGED 49 YEARS
S/O. KOSHY CHERIAN, KEERIKATTU HOUSE R.S. P.O.
KUTTAPUZHA VILLAGE, THIRUVALLA TALUK,
PATHANANAMTHUTTA DISTRICT, REPRESENTED BY POWER
OF ATTORNEY OF HIS FATHER KOSHY CHERIAN, AGED 78
KEERIKATTU HOUSE, R.S.P.O. KUTTAPPUZHA VILLAGE,
THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.
BY ADV ISAC NINAN
RESPONDENTS/RESPONDENTS:
1 SUSAN ABRAHAM
D/O. P I ABRAHAM, PATHINETTIL HOUSE,
PADUTHODU VILLAGE, MALLAPPALLY TALUK,
PATHANAMTHITTA DISTRICT 689 544. NOW RESIDING AT
PATHINEETTIL HOUSE, RAGHAVAMENON ROAD,
TIRUVANNOOR P.O. KOZHIKODE DISTRICT.
Mat.Appeal No.59 of 2020 2
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2 BRANCH MANAGER,
SOUTH INDIAN BANK LTD, MARTHOMA BUILDINGS, T K.
ROAD, THIRUVALLA BRANCH 689 101.
BY ADVS.
T.R.HARIKUMAR
ADITHYA RAJEEV
SUNIL SHANKER A
DEVAYANI NAIR T.H.(K/1531/2019)
VIDYA GANGADHARAN(K/000424/2020)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Devan Ramachandran, J.
The issues involved in this case have really no bearing
to the amount of time this Appeal has spent before this Court.
2. The controversy is in a very small compass and we
are certain that this Appeal ought to have been disposed of much
earlier.
3. That being said, the singular reason why this Appeal
could not be disposed of earlier is because, the respondent-wife
had made a submission that, against the judgment in Mat.Appeal
No.29 of 2009 - which she had secured earlier, there was a Civil
Appeal pending before the Hon'ble Supreme Court. However, it is
now stated by her learned Counsel that the said Civil Appeal
stands dismissed.
4. In short, there were matrimonial disputes between
the parties, which led the respondent-wife to file O.P. No.117 of
2006, which was decreed in part and against which, Mat.Appeal
No.29 of 2009 was filed by her before this Court. Through the
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judgments in these two proceedings, it was unequivocally
declared that she was entitled only to 500 sovereigns of gold
from the appellant herein; and it is conceded by both sides that
the same has already been returned to her. It transpires that she
was unhappy with this and that she then approached the Hon'ble
Supreme Court; but that, as said above, the Civil Appeal also
stands dismissed.
5. Indubitably, the respondent-wife cannot claim any
further from the appellant.
6. While so, on the assertion that there are other gold
ornaments in a Bank Locker operated jointly by the parties, the
appellant herein - husband, filed O.P.No.136 of 2019 before the
learned Family Court, Thiruvalla. But the same has now been
dismissed through the impugned judgment, finding that his claim
is barred by limitation and that the remaining gold ornaments in
the said locker belongs to his mother and sister.
7. Even though the parties lead extensive evidence, as
is evident from the factum of Exts.A1 to A9 being marked on the
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side of the appellant, and Ext.B1 being marked on the side of the
respondent, the ineluctable fact remains that, by the admitted
dismissal of the Civil Appeal, against the judgment of this Court
in Mat.Appeal No.29 of 2009, the respondent herein obtain no
right whatsoever to claim any further from the appellant - be
that against the assets or from the ornaments, that may be
inside the Bank Locker.
8. However, it is without contest that the Bank Locker is
operated by the parties jointly.
9. Coming to the impugned judgment delivered by the
learned Family Court, the claim of the husband ought to have
been automatically allowed because, when the gold ornaments
declared to be that of the respondent has been concededly
returned to her, he was entitled to operate the Bank Locker,
even without her permission. We fail to understand why the
learned Court went into the question as to the rigour of
limitation; which in our view never would arise, the articles in the
locker being that of the appellant or his relatives alone; and also
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what difference could be found, even if it is assumed that the
articles inside it belonged to the appellant's mother or sister,
since they have no dispute with him. As long as the articles are
inside the Bank Locker, and as long as there is no legal inhibition
for the appellant to operate it even in the absence of the
respondent - because her claims have already been fully settled
by successive orders of Courts, we cannot find any reason why
the learned Family Court should have dismissed the Original
Petition.
10. In the above circumstances, we are without doubt
that the judgment impugned is liable to be set aside and that the
Original Petition deserves to be allowed.
11. We record that the learned Counsel for the
respondent has conceded that the key of the Locker is with the
appellant and that her client will not seek any claim over it, in
view of the circumstances seen above.
12. In the afore scenario, we allow this Appeal and
consequently allow O.P.No.136 of 2018, thus declaring that the
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articles inside the gold locker, bearing No.G 11143, at the South
Indian Bank, Thiruvalla Branch, are deserving to be taken
possession of by him; with a consequential direction to the said
Bank to facilitate the same as per law and subject to all statutory
requirements being satisfied.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
sp/01/11/2024
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APPENDIX OF MAT.APPEAL 59/2020
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE LETTER NO135607
DATED 21-7-2023 ISSUED BY THE 2ND
RESPONDENT BANK
Annexure A2 THE TRUE COPY OF THE LETTER 11-8-2023
ISSUED TO THE 2ND RESPONDENT BANK
