Madras High Court
K.Singaravelu vs Kalaiselvi on 21 March, 2025
SA(MD)No.730 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 21/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.730 of 2009
K.Singaravelu : Appellant/Appellant/
Defendant
Vs.
Kalaiselvi, : Respondent/Respondent/
rep. by her Sister and next Plaintiff
friend S.Nirmala
(Substituted the Guardian and
next friend of the respondent,
vide Court order, dated 24/01/2020
made in CMP(MD)No.5620 of 2019
in SA(MD)No.730 of 2009)
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, to set aside the decree and
judgment passed in AS No.49 of 2007 on the file of the
Principal District Court, Thanjavur, dated 28/02/2008,
confirming the decree and judgment passed in OS No.149 of
2004 on the file of the District Munsif Court, Thanjavur,
dated 14/06/2006.
For Appellant : Mr.M.R.S.Prabhu
For Respondent : Mr.N.Tamil Mani
1/15
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
SA(MD)No.730 of 2009
J U D G M E N T
This Second Appeal is filed against the decree and
judgment passed in AS No.49 of 2007 by the Principal
District Court, Thanjavur, dated 28/02/2008, confirming
the decree and judgment, dated 14/06/2006 passed in OS
No.149 of 2004 by the District Munsif Court, Thanjavur.
2.The averments in the plaint in brief:-
(i)The marriage between the plaintiff and the
defendant was performed on 10/12/1986 as per their
religious rites. For 3 weeks only, they were living
together. On 07/01/1987, she was taken by the defendant
to her parental home, living there promising to take her
back after some-time. At that time, the defendant and his
parents removed all the jewellery stating that it will be
kept in the Bank locker. Later, the defendant filed a
suit in OP No.110 of 1987 on the file of the Sub Court,
Thanjavur. That application was allowed, on 16/11/1988.
Against which, CMA No.21 of 1989 was filed on the file of
the Principal District Court, Thanjavur West. It was
allowed on 05/11/1992. Against which, the defendant filed
appeal before the High Court of Madras in A.A.A.O No.35
of 1993. The High Court, by order, dated 26/02/1997
restored the order of the trial court. Now the order has
become final. Later, the defendant initiated proceedings
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
for annulment of marriage stating that the plaintiff is
suffering from mental illness. That petition was allowed
and the marriage between the parties was annulled.
(ii)At that time of marriage, the plaintiff was
presented with ornaments and other articles mentioned in
the schedule. The account was maintained by the father of
the plaintiff. The property was in the custody of the
defendant. It was mentioned in the earlier proceedings
also. After getting the decree of nullity of marriage,
the defendant has no right to retain the articles. So,
they are bound to return the same. By notice, dated
17/02/1999, the defendant was required to return the
jewellery and articles. But so far, it was not complied
by the defendant. Hence, the suit.
3.The statement:- The suit framed as such is not
maintainable. It was already decided in OP No.110 of 1987
that the plaintiff is a mentally ill-patient. Without
mentioning the same, the suit is filed, which is not
maintainable. Right from the beginning, the father of the
plaintiff was not behaving properly. Suppressing the
mental capacity of the plaintiff, he arranged marriage.
Even after that issue, a false complaint was given, which
was registered in Crime No.861 of 1988. Criminal case was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
filed in CC No.677 of 1988. After 2-1/2 years, that
criminal case ended in acquittal. So, in that criminal
case itself, the plaintiff's father admitted that the
plaintiff returned to house with Tali and earrings. The
plaintiff took all the jewellery at the time of leaving
the house. After a lapse of 12 years, the suit is filed.
Even at the time of enquiry, the defendant gave a list
containing 41 items stating that he is ready to return
the articles. Along with the written statement, they have
annexed a list containing the articles in the custody of
the defendant. He is ready to return the articles to the
plaintiff as per the order of the court. The suit is
barred by limitation and prayed for dismissal of the
suit.
4.Based upon the pleadings of both sides, the trial
court has formulated the following issues:-
(1)Whether the plaintiff's father
presented the gold ornaments and the
articles mentioned in the plaint to the
defendant at the time of marriage?
(2)Whether the suit is maintainable
or not as the suit has been filed by the
plaintiff without the help of the
guardian?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
(3)Whether the suit claim is barred
by limitation?
(4)Whether the defendant has kept
only the properties mentioned in the
written statement or not?
(5)To what other reliefs, the
plaintiff is entitled to?
5.Before the trial court, the plaintiff's father was
examined as PW1 and marked 7 documents as Exs.A1 to A7.
On the side of the defendant, the defendant was examined
as DW1 and marked 2 documents as Exs.B1 and B2.
6.At the conclusion of the trial process, the trial
court decreed the suit as prayed with costs. Against
which, appeal was preferred in AS No.49 of 2007 before
the Principal District Judge, Thanjavur and the appeal
was dismissed concurring with the decree and judgment of
the trial court.
7.Against which, this second appeal is preferred by
the appellant.
8.At the time of admission, the following
substantial question of law was framed:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
Whether the conclusion reached by the
Courts below that the defendant was bound to
return the gold ornaments mentioned in 'A'
schedule is based on no evidence?
9.Heard both sides.
10.The matrimonial dispute between the plaintiff and
the defendant culminating the decree of nullity granted
in favour of the defendant against the plaintiff passed
by this court in AAAO No.35 of 1993, dated 26/02/1997. It
is very unfortunate to note that even says the marriage
that was performed between the parties on 10/12/1986 was
annulled by the above said judgment, but still the matter
has not come to an end in a conclusive manner. This is
the third litigation between the parties. First one is
the decree of nullity. Second one is the criminal case
registered against the husband under the provisions of
IPC. The action initiated by the husband ended in his
favour. The action initiated by the wife in a criminal
complaint ended in favour of the husband. In both
matters, he succeeded. This the third litigation started
for the return of the articles, jewellery, etc., Both the
courts namely the trial court as well as the appellate
court granted decree as prayed for against the husband.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
At the second appellate stage, an attempt was made by
this court to resolve the issue to the extent possible.
The matter was referred to the mediation. But there was
no settlement between the parties due to difference of
opinion regarding the return of jewellery.
11.It is the consistent case of the plaintiff that
the jewellery mentioned in the plaint 'A' schedule, which
was quantified to the money value at Rs.56,277.50/- were
retained by the appellant herein when she was taken to
her parental home. Whether this appellant took the
plaintiff to her parental home, left there promising to
take her back is true or not is beyond the scope of this
matter. I am not entering into that issue.
12.Consistently, a stand has been taken by the
appellant that the jewellery were never retained by them
and they did not even know the items jewellery presented
to the plaintiff.
13.But prima facie, it is seen that such a
contention on the part of the appellant is not tenable.
It is a customary practise of the parents to present the
jewellery to the bride at the time of marriage. So,
there cannot be no total denial on that aspect. But at
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
one stage, the appellant would say that when the
plaintiff left the matrimonial home, she took all her
jewellery along with her. But this itself is not
acceptable for the simple reason that while filing the
counter in OP No.110 of 1987, the details of the
jewellery and other articles presented at the time of
marriage were furnished. But perusal of the records in OP
No.110 of 1987 does not indicate any denial statement
filed by this appellant. Further, it is seen that no
discussion was made in this regard in that matter. The
appellant has not even produced the deposition copies in
that matter as to see whether any specific denial was
made by this appellant in the matrimonial proceedings.
Only for the first time, by issuing reply notice to the
plaintiff, which was given for return of the article, it
has been stated that no such articles were available with
the appellant. So, this is the preliminary point,
which is available against the case of the plaintiff.
14.Now it has been contended by the appellant that
absolutely, no evidence was let in by the plaintiff to
show that the articles mentioned in the plaint were
retained by the appellant herein and no evidence was
available to show that these jewellery were presented to
the plaintiff at the time of marriage.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
15.No doubt that there is no evidence on record to
show that the jewellery, which are mentioned in the
plaint were gifted to the bride namely the plaintiff at
the time of marriage. But we cannot expect any
documentary evidence in this regard. It is the customary
practise for the parents of the bride to present the
jewellery at the time of marriage. Except in rare, there
is no practice, either to get acknowledgment of the
presentation of the jewellery or to work out a list of
presentation. This omission on the part of the
plaintiff's parents neither in making which was
contemporaneous in nature or acknowledgment of
presentation cannot be taken advantage by the appellant.
16.As mentioned above, in the counter statement
itself the items are mentioned stating that they are
retained by the appellant. In the absence of any specific
denial, then it will amount to admission. Absolutely,
there is no evidence on record to show that the plaintiff
took all the jewellery at the time of leaving the house.
We cannot accept that the bride to take the jewellery
along with her when she left the house due to some
matrimonial issue. When such case of this nature requires
application of theory of preponderance of probability,
only on that account, the trial court as well as the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
appellate court recorded a finding. But the appellant
would rely upon the evidence of the father of the
plaintiff in the criminal case, which is marked as Ex.B2
in CC No.677 of 1988.
17.But the evidence or deposition of a living person
cannot be admitted in evidence, unless that person is
called as witness. PW1 is the father of the plaintiff. He
was examined on the side of the plaintiff. Being the
father, he is competent to speak about affair, even
though strong exception was taken by the appellant for
the non-examination of the plaintiff. As stated above, it
is the case of the appellant that the plaintiff is a
mentally ill-person. When that is being so, the question
of examination of the plaintiff does not arise and her
non-examination will not improve his case. If at all,
Ex.B2 ought to have been brought to his notice and if
there is any admission of his evidence, then that can be
taken into account or if PW1 denies a particular portion
of the evidence, it might have been marked as
contradiction. This process was not followed. Simply it
was marked on the side of the defendant namely the
appellant herein. The evidentiary value of Ex.B1 cannot
be taken into account and it has to be discarded from our
discussion.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
18.Now coming to the question of admission due to
absence of specific denial in the earlier proceedings, it
must be construed only as implied admission. So, this
position can also be verified from the argument advanced
by the appellant before the appellate court. It was
argued by the appellant before the appellate court that
in CC No.687 of 1988 PW1 namely the father of the
plaintiff has admitted that the plaintiff came to the
house with the earrings and Tali and chain; This
admission on the part of the plaintiff's father will show
that the jewellery was not retained by the defendant, but
was taken by the plaintiff herself. But the evidentiary
value of Ex.B2 has been rejected by me. Even if we
consider that the father of the plaintiff has given such
evidence in the criminal case, the case of the appellant
does not improve. What he has admitted is only earrings,
tali and chain and not the other jewellery.
19.Another argument was that one Laxmi Narayanan,
who is witness in CC No.677 of 1988 the brother-in-law,
the father of the plaintiff, has stated in his chief
examination that the plaintiff came to the house on
07/01/1987 with a pair of bangles.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
20.Even if we consider for the argument sake that
the plaintiff returned to the house of her parents with
earrings and tali and chain and bangles, what happened to
the remaining jewellery, there is no explanation even by
their own argument. So, in all probabilities, some of the
jewellery might have been retained by the
appellant/plaintiff leaving the plaintiff to leave the
house with tali, earrings, bangles.
21.We can also verify the above said finding, in the
light of the list given in the plaint. 4th item is
mentioned as Red Stone earring 1 pair. 8th item is
mentioned as earring. 5th item is mentioned as Vaalai Poo
Chain. The same is repeated as 9th item. There is
overlapping in the items when we compare and deduct the
above Vaalai Poo Chain, earring articles. So, the
repetition of the Vaalai Poo Chain makes very difficult
in assessing the correct jewellery taken by the plaintiff
of her person and the jewellery retained by the
defendant. This was put as clarification to the learned
counsel for the respondent. But no acceptable explanation
came. This was not properly appreciated at the time of
trial. Even at the time of judgement by the trial court
as well as by the appellate court. We have to necessarily
deduct some of the items. Which item has to be deducted due
to the absence of the clear evidence on record, I am unable
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
to point out. But some deletion can be made, which must
be reasonable. I am of the considered view that the total
15 sovereigns or its equivalent money value calculated on
the date of the plant may be ordered to be returned or
paid in cash. In fact, at the time of argument, the
respondent has submitted that during the course of
mediation process, they wanted to reduce the items. But
that was not accepted by the appellant. Now whatever it
may be, I am of the considered view that 15 sovereigns of
gold jewel or its equivalent to 120 grams or its value in
money must be returned by the appellant. To that effect,
the decree and judgment of the trial court is modified.
22.With the above said modification, this second
appeal is dismissed without any costs.
21/03/2025
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
To,
1.The Principal District Judge,
Thanjavur.
2.The District Munsif,
Thajavur.
3.The Section Officers,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
G.ILANGOVAN, J
er
21/03/2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 06:42:45 pm )
