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2004 DIGILAW 312 (MAD)

N. Nachiappan & Another v. Umayal Achi & others

2004-03-01

N.V.BALASUBRAMANIAN, V.KANAGARAJ

body2004
Judgment :- V. Kanagaraj, J. A.S.No.1232 of 1988 arises out of the judgment and decree dated 26.2.1988 passed by the learned Subordinate Judge, Devakottai made in O.S.No. 56 of 1981. 2.The 1st defendant in the suit is the appellant. The 1st respondent herein is the plaintiff. The plaintiff filed the suit as an indigent person for rendition of accounts, for delivery of possession of the jewels, other valuables and other articles and in default to pay the value of the same and for costs. 2.The 1st defendant in the suit is the appellant. The 1st respondent herein is the plaintiff. The plaintiff filed the suit as an indigent person for rendition of accounts, for delivery of possession of the jewels, other valuables and other articles and in default to pay the value of the same and for costs. 3.The case of the plaintiff is that the plaintiff was given in marriage to the 1st defendant on 8.5.1964 and he was employed in the Indian Overseas Bank, Cuddalore; that defendants 2 and 3 are his parents; that at the time of marriage the plaintiff's father gave sreedhanam and seermurai the cash of Rs.3600.25, jewels, valuables and articles; that a list of articles was prepared and given to the 1st defendant's father; that sreedhanam and seermurai amounts were deposited by the defendants in the name of plaintiff and 1st defendant in the Indian bank, Karaikudi; that the jewels were kept in the bank locker in one of the Indian Overseas Bank branches at Madras; that the defendants stating that they would invest the sreedhanam and seermurai amount in good inums to earn better interest, got the signature in the fixed deposit voucher issued by the Indian Bank, Karaikudi; that the plaintiff was not informed about the details of the said investment; that the silver and other valuable articles are in the family house of the defendants at A.Muthupattinam and the keys of the rooms are in their possession; that three children were born to the plaintiff and 1st defendant; that the 1st defendant treated her cruelly and abandoned her in or about September 1976; that the plaintiff is living with her parents; that the 1st defendant is illegally living with one Meenal; that the 1st defendant did not even allow the plaintiff to meet her children; that in May 1974, when the plaintiff attended her sister's marriage, the 1st defendant gave the jewels to the plaintiff for wearing under a receipt obtained from her and she returned the jewels to him; that the children are in the custody of the 1st defendant; that the attempts made by the plaintiff's father for the amicable living of the 1st defendant with the plaintiff were in vain; that the plaintiff apprehends that her jewels and other valuables and other articles will be disposed of by the 1st defendant in collusion with defendants 2 and 3, the plaintiff was constrained to file the suit; that the 2nd defendant died pending suit; that defendants 1 and 3 are son and wife of the deceased; that the defendants 4 to 7 are the children of the deceased 2nd defendant; that the plaintiff has no means to pay the court fees, since she is an indigent person. Hence the plaintiff has filed the suit for the reliefs extracted above. Hence the plaintiff has filed the suit for the reliefs extracted above. 4.The 1st defendant filed a written statement contending that the marriage was held on 8.5.1964, and not on 5.8.1964; that defendants 2 and 3 are not necessary parties; that the stridhanam, seermurai and other presents were exclusively gifted to the plaintiff by her mother's elder sister, who had no children; that the 1st defendant had no personal knowledge of the quantum and the number of jewels, their nature, weight and value; that the plaintiff has to prove that she was presented with every one of the items in schedules B to M; that the 1st defendant denies the value of the gold and diamond jewels mentioned in B schedule and the value of articles in C to L schedule of the plaint and the claim of the plaintiff that entirety of items B to L were really gifted to her; that it is true that Rs.3600.25 was gifted as stridhanam to the plaintiff by Parvathi Achi; that the said Parvathi Achi the donor had transported and placed the seermurai items in a room of his father's house at Athangudi as per practice of the community; that there was no question of entrustment of articles or valuables to the 1st defendant or his parents; that a list of jewels, valuables and articles was not given to any one; that Parvathi Achi caused the deposit of stridhanam and seermurai in joint names of plaintiff and 1st defendant in Indian Bank, Karaidudi and she retained the bank deposit receipt with her, that after maturity the plaintiff and the 1st defendant realised the same and thereafter deposited it in their joint names; that the plaintiff was constantly wearing diamond ear-rings and gold bangles, chains, 2 rings; that the 1st defendant had never been in custody of any of her jewels; that he denies the allegation that he has deserted the plaintiff and is living with one Meenal, that the plaintiff's father never requested the 1st defendant to live with the plaintiff; that he never said that he would dispose of the jewels and other valuables; that the jewels and valuables are not in the custody of the 1st defendant; that he did not know what are all articles or valuables that the plaintiff had removed from the room as she had also the key of the room with her; that seermurai amounts were withdrawn by the plaintiff and the 1st defendant and the entire sum was lent to one S.K.Brothers, Timber Merchants, Cuddalore on the foot of a promissory note executed by the borrowers in the joint names of the 1st defendant and the plaintiff; that the plaintiff had not even cared to take steps along with this defendant for filing suit against the said S.K.Brothers; that to give a colour of reality to her false contention that she was wearing covering jewels, she has purposely introduced M schedule, that the 1st defendant never represented that the stridhanam seermurai amounts could be invested in good inums; that the amount was invested in their joint names; that he is not bound to account for the said amount, and he was never a trustee; that he never took the key of the rooms and he was not at all interested in any of her articles or silver items etc.,; that he never treated the plaintiff cruelly and he never abandoned her in about September 1976; that he is not living illegally with one Meenal; that ever since the marriage, the plaintiff had been a quarrelsome obstinate wife with no attachment to this defendant or even to her children; that the plaintiff's father had completely liquidated Parvathi achi's partnership firm at Madurai by means of lending amounts of the partnership not on obtaining pledge of gold jewels but receiving duplicate jewels with some gold coating; that on the apprehension that the plaintiff and her father would be unfaithful, and by way of abundant caution he insisted that she should pass a receipt for all the jewels in her custody which she was taking home; that she took away all the jewels on 2.5.1974 after passing a receipt and no more jewels remained in the rented house at Madras and she never brought them back excepting what she was wearing; that she had also taken the key of the room at Athangudi where she had placed all her articles. This defendant would further submit that on 2.5.1974 she left for her parental house not even taking the 7 months old child with her, but leaving the children to be looked after by this defendant; that she insisted Rs.500/- but the defendant gave her Rs.350/- which she had acknowledged in the receipt; that even in 1976 when the plaintiff was living with him, her character was immoral; that from September 1976 the plaintiff had totally and once for all deserted her children and also the 1st defendant; that in regard to A schedule, the plaintiff is a joint depositor and since she did not care to join with this defendant for realisation from the borrower S.K.Brothers, the said advance had become totally lapsed; that this defendant is not liable for the same on any account; that as far as the valuables and movables mentioned in B to L schedules, this defendant never had any possession or custody or control and he is not liable. 'M' schedule are imaginary untrue items; that this defendant denies the truth and contents of document No.1 filed with the plaint; that the suit is bad for misjoinder of defendants 2 and 3, who have nothing to do with the plaintiff or any of her jewels; that they have been impleaded to cause harassment to them in their old age; that there are no causes of actions for the suit and the causes of actions alleged are all absolutely untrue. On such averments, the 1st defendant would pray to dismiss the suit with costs. On such averments, the 1st defendant would pray to dismiss the suit with costs. 5.The plaintiff has filed a reply statement, alleging that the marriage was held on 8.5.1964 and the date 5.8.1964 is only a type mistake; that defendants 2 and 3 are also necessary parties to the suit; that the plaintiff objected the allegation that her parents had no means to make any gift or stridhanam or seermurai and they were made to her by Parvathi Achi; that the defendants are personally aware of the quantum and number of jewels and other articles given to the plaintiff; that she would deny the alleged acts of misconduct on the part of her father; that the defendants were the trustees of the stridhanam and other jewels entrusted with the defendants; that Parvathi Achi had not made the deposit of stridhanam amounts in the Indian Bank, Karaikudi and that the receipt was not with her; that the 1st defendant was in control and possession of the jewels; that the plaintiff never deserted the first defendant; that she never insisted Rs.500/- for her expenses; that the plaintiff was not having any immoral life in 1976 and the 1st defendant alone has deserted her. 6.On the above pleadings, the following issues were framed:- 1.Whether the plaintiff is entitled to claim account for Stridhanam and Seermurai amounts from the defendants? 2.Whether the plaintiff is entitled to delivery of possession of the jewels and articles mentioned in B to L schedules or its value thereof? 3.Whether the articles belonging to the plaintiff were entrusted with the defendants? 4.Whether the plaintiff alone has custody of all the jewels as per receipt dated 2.5.1974? 5.Whether the suit is bad for mis joinder of defendants 2 and 3 as parties? 6.To what relief the plaintiff is entitled to? 7.The lower court had also appointed a Commission to take inventory of the articles and file a report and the Commissioner had also filed a report and inventory list. 8. On the side of the plaintiff, the plaintiff examined herself as P.W.1 and she has also examined one S.P.Annamalai as P.W.2. Exs.A.1 and A2 were marked on the plaintff's side. On the side of the defendants,the 1st defendant examined himself as D.W.1 and Exs.B.1 to B.79 were marked. The Commissioner's report and inventory list were marked as Court documents Exs. C1 and C.2. 9. Exs.A.1 and A2 were marked on the plaintff's side. On the side of the defendants,the 1st defendant examined himself as D.W.1 and Exs.B.1 to B.79 were marked. The Commissioner's report and inventory list were marked as Court documents Exs. C1 and C.2. 9. The trial court, on considering the oral and documentary evidence, passed a preliminary decree directing the 1st defendant to render true accounts for the deposit of Rs.3600.25 , to return C to L schedule items, or its value on the date of plaint to the plaintiff, except the jewels mentioned in B schedule. The Court also held that there is no necessity for the 1st defendant to return the articles mentioned in C to L schedules since they are not found in the inventory list, Exc.C.2. The 1st defendant is directed to pay costs of suit to the plaintiff. The suit as against other defendants has been dismissed without costs. It also held that Exs.C1 and C.2 would form part of the decree and that the plaintiff has to pay the value of court fees. 10. On the basis of the preliminary decree, the lower court has taken up the suit to decide the two questions, viz., whether the 1st defendant is liable to render accounts for the amount due on the promissory note and if so, for how much amount the 1st defendant is liable to render account to the plaintiff? 11.The lower court after considering the records and statement of accounts and statement of charge given by the plaintiff, and after hearing the arguments of both sides, passed a judgment, directing the 1st defendant to pay to the plaintiff a sum of Rs.15,656.20, in which the 1st defendant is liable to pay the principal amount of Rs.4,200/- with interest at 6 % from the date of judgment (26.2.1988) till the date of realisation. The 1st defendant is also directed to pay the sum of Rs.14,656.20 being the court fees to the Government and also costs of the suit to the plaintiff. 12.As against this decree and judgment dated 26.2.1988, the 1st defendant has preferred the above appeal A.S.1232 of 1988. 13.Aggrieved against the preliminary decree and judgment dated 23.7.1986, the plaintiff/appellant has preferred A.S.No.1409 of 1994. 12.As against this decree and judgment dated 26.2.1988, the 1st defendant has preferred the above appeal A.S.1232 of 1988. 13.Aggrieved against the preliminary decree and judgment dated 23.7.1986, the plaintiff/appellant has preferred A.S.No.1409 of 1994. 14.Peculiarly it is seen that in one and the same suit two judgments have been pronounced, the first one dated 23.7.1986 against which a separate appeal has been preferred by the plaintiff in A.S.No.1409 of 1994 and the second judgment dated 26.2.1988 against which the first defendant has preferred the appeal in A.S.No.1232 of 1988. Both the judgments have been passed in due consideration of one and the same facts and circumstances and with full opportunity for both parties to be heard and therefore, both the above appeals have been heard and decided together by this common judgment. 15. It is a case registered by the wife as against the husband the 1st defendant and some others and in fact the lower court on a thorough study made into the facts and circumstances of the case, in evidence has ultimately arrived at the conclusion that excepting the first defendant, the other defendants have absolutely no bearing on the case and therefore, has dismissed the suit without any costs against the other defendants and the decree has been passed only as against the first defendant, who is the husband of the plaintiff. Since the plaintiff wife and the first defendant husband have fallen apart, it has become incumbent on the part of the plaintiff to seek to the properties belonging to her, which have been in the custody of the first defendant and for rendition of accounts, and since she is without any source or succor, she has filed the suit as an indigent person, in consideration of which also the lower court has passed its judgment requiring the first defendant to pay the court fees on the plaint. 16.During arguments the learned counsel for both would only reiterate what has been pleaded and projected in evidence before the lower court citing from the judgments of the lower court without any new fact or circumstance or law being brought forth. 17.On the part of the learned counsel appearing for the appellant in A.S.No.1409 of 1994, she would point out that certain items of B schedule are made the subject matter of the appeal from out of all the items mentioned in the suit schedule. 17.On the part of the learned counsel appearing for the appellant in A.S.No.1409 of 1994, she would point out that certain items of B schedule are made the subject matter of the appeal from out of all the items mentioned in the suit schedule. A perusal of the grounds of appeal in A.S.No.1232 of 1988 would show that the appellant, the first defendant alone has been held responsible for the A schedule property by the trial court, when as per Ex.A.13 by S.K.Brothers in favour of the plaintiff and the first defendant would show that it has been jointly held and therefore,there is no possibility on the part of the first defendant to initiate any action independently; that the trial court has further erred in holding that the first defendant alone had given money to S.K.Brothers when only with the plaintiff's consent the first defendant done it; that it is not correct on the part of the lower court to have held that the first defendant is a trustee for the A schedule property and is liable for rendition of accounts of the same; that in the evidence of D.W.1 it is glaring that only on the advice of the plaintiff, the first defendant did not file any case against S.K.Brothers and that he is entitled to recover the money from them; that the trial court has given exorbitant rate of interest at 12 p.c. for 23 years and it ought to have considered the evidence of D.W.1 regarding issue Nos.1 and 2 and ought to have dismissed the suit. 18.So far as the other appeal suit A.S.1409 of 1994 preferred by the plaintiff is concerned, it is against the earlier judgment dated 23.7.1986 in O.S.No.56 of 1981 (Pauper O.P.No.7 of 1981) rendered by the court of Subordinate Judge, Devakottai, wherein the grounds of attack are that the lower court ought to have granted a decree in favour of the plaintiff in so far as it relates to the jewels mentioned in B schedule and the other valuables mentioned in C to L schedules are concerned in recognition of the fact that those jewels and valuables were entrusted by the plaintiff's father in favour of defendants 1 to 3 for the benefit of the plaintiff at the time of marriage thus putting them as trustees with the duplicate list prepared at the time of marriage was also handed over only to the defendants and the lower court ought to have accepted the entrustment of the B schedule jewels with the defendants rejecting their versions. The appellant would further allege that the valuables and articles were missing at the time of the Commissioner's visit and taking of the inventories, which have been sold by the defendants and hence the lower court ought to have granted the sale proceeds in its decree in favour of the plaintiff for B to L schedule properties also; that the first defendant as her husband and a male member had over all control and possession on all those valuables, jewels and articles and he is responsible for the same; that the lower court should have seen that no wife would issue a receipt to the husband while taking jewellery which is a quite normal conduct; that in this regard the lower court has failed to appreciate oral and documentary evidence adduced on the part of the plaintiff and on such grounds would seek to the relief that the lower court ought to have held that the appellant is entitled to recover the entire items mentioned in C to L schedules as detained in the plaint. 19. 19. In consideration of the facts pleaded having regard to the materials placed on record and upon hearing the learned counsel for both, it is relevant to mention that for both these appeals the parent suit is only one i.e, O.S.No.56 of 1981 and evidence has been recorded and the judgment has been rendered which is part and parcel of A.S.No.1409 of 1994 rendered on 23.7.1986. However the second judgment has also been pronounced as per the judgment dated 26.2.1988 in the same suit and for appreciation of evidence we have to resort to the judgment dated 23.7.1986, according to which for oral evidence the plaintiff and one Annamalai would examine themselves as P.Ws.1 and 2 and they would adduce evidence adhering to the plaint averments. On the other hand, the defendant has only examined himself as the sole witness for oral evidence. For documentary evidence on the part of the plaintiff she would submit the note book containing to the items of properties,jewels and other valuables given at the time of marriage as Ex.A.1 and another letter written bythe first defendant to her father on 3.5.1974 would be marked as Ex.A.2. On the part of the defendants, they would mark 79 documents as Exs.B.1 to B.79. Exs.B.1 to B.9 are letters written by their relatives on different dates. Ex.B.10 dated 2.5.1974 is a receipt issued by the plaintiff to the first defendant; Exs.B.11 and B.12 are the memos issued by I.O.B.Karaikudi to first defendant; Ex.B.13 is a pronote for a sum of Rs.4200/- given by S.K.Brothers in favour of the plaintiff and the first defendant; Exs.B.14 and B.15 are the receipts, Exs.B.16 to B.41 are the letter correspondence among themselves; Exs.B.42 to B.48 are the memos issued by I.O.B; Ex.B.49 is a letter; Ex.B.50 is an acknowledgment for the receipt of Rs.50/- by the plaintiff's father; Ex.B.52 is also a similar letter; Ex.B.52 is a receipt issued by I.O.B, Kodambakkam; Exs.B.53 to B.56 are acknowledgments and Exs.B.57 to B.79 are all receipts issued by different parties on different dates. 20. 20. A careful perusal of the judgment of the lower court would reveal that the lower court in careful consideration of the facts and circumstances of the case as pleaded by parties and tracing all the dates and events which are necessary for proper consideration and framing proper issues which are necessary for deciding all the questions involved in the suit, numbering six extracted supra and permitting the parties to record their evidence,in the manner aforementioned and based on such recorded evidence and in appreciation of the same would ultimately arrive at the conclusion in the manner extracted supra and delivered in both the judgments dated 26.7.1986 and 26.2.1988 and it is only aggrieved against both these judgments, both parties the plaintiff and the first defendant as well, have come forward to prefer the above appeals on grounds extracted supra. 21. So far as the jewels concerned with the 'B' schedule of the suit properties, the controversy is more regarding these items pertaining to which Issues No.2, 3 and 4 have been framed and if these issues are answered, it could be safely concluded that the entire appeal is answered and therefore, it has become necessary on the part of this Court to go into the question 'whether the lower Court has properly considered the facts and circumstance of the case so far as these issues are concerned and whether the evidence adduced in this regard has been properly appreciated by the lower court in order to get an answer for the grounds raised on the part of the appellant regarding these items of properties'? 22. The appellant's case is that her parents entrusted the 'B' schedule items in favour of the first respondent and his parents viz., the second and third respondents and they have been kept in their custody and therefore they are bound to return those jewels in her favour in the present circumstances of the case. On the part of the first respondent, it would be argued that those items remained only in the custody of the plaintiff/appellant and therefore he is not in any manner responsible for returning the same in her favour. On the part of the first respondent, it would be argued that those items remained only in the custody of the plaintiff/appellant and therefore he is not in any manner responsible for returning the same in her favour. The court below, would assess the facts pertaining to Ex.A.1, which is a 40 page notebook wherein the Stridhana items have been reduced into writing and pertaining to this document, the case of the appellant/plaintiff is that the copies of these documents have been taken and were served in favour of the first respondent and his parents; that the scribe of this document is no more. Even though the trial Court is in full agreement with regard to the genuineness of Ex.A.1 entries, still having a comparative study of Ex.B.26 inland letter which has been written by one Ambalatchi on 14.8.1973 to the effect that though the appellant has written to her that the household articles could be placed in some other house, still, in consideration of various facts and circumstances under which a sum of Rs.3600-25 had been given as Stridhana, it would be assessed that those articles enumerated in Ex.A.1 have been given in favour of the plaintiff; that even the first defendant in his evidence, has only denied knowledge of those items of Ex.A.1 having been given in favour of the plaintiff, but he would be certain that Stridhana was given to her, and therefore, the trial court has reason to believe that those items of properties have been given as Stridhana in favour of the plaintiff/appellant. The trial court would next start focussing its attention as to who were all in charge of those articles and would conclude that the 'B' schedule properties contained in ten items have been in possession and custody of the first defendant being kept in the Indian Bank and in the Indian Overseas Bank every now and then and was in the habit of giving those jewels to the plaintiff on marriage and festive occasions and would get them back again. 23. 23. The lower court would then start assessing the other side argument to the effect that the first respondent had later on given away those 'B' schedule items in favour of the plaintiff and taking into consideration Exs.B.1, B.17 and B.27 letters, the lower court would find fault with the plaintiff having not well taken care of her husband, the first respondent, supplying with food and other required necessities in life and having issued the receipt in Ex.B.10 dated 2.5.1974, it would arrive at the conclusion that she had obtained those jewels in order to attend to the marriage of her younger sister wherein the signature found is admitted in her evidence of which later she has come forward to say that her signature was obtained by coercion and threat. Hence, it would conclude that under Ex.B.10, the plaintiff had received those jewels along with the key and since the plaintiff is at liberty to do anything with regard to those jewels or vessels, she cannot come forward to claim from the first respondent, and therefore, would ultimately arrive at the conclusion to answer issue Nos.2, 3 and 4 pertaining to the jewels and properties concerned therein, that the appellant/plaintiff has got back all those jewels and properties particularly which have been classified into Schedule 'B', but also would arrive at the further conclusion that the respondent is liable to return the Schedule 'C' to 'L' properties or the equivalent money, and therefore, the lower court has reason to arrive at the ultimate conclusion that the first respondent/defendant should render true accounts for having deposited the sum of Rs.3600-25 and the 'C' to 'L' schedule articles or the equivalent money must be paid in favour of the appellant/plaintiff. The trial court would further hold that if any of these articles contained in 'c' to 'L' schedule properties do not find place in the inventories taken by the Court Commissioner, neither those articles nor the equivalent sum need be remitted by the first respondent in favour of the appellant besides ordering the first respondent to pay the cost of the suit in favour of the plaintiff and requiring Exs.C.1 and C.2 to be attached with the decree and that the plaintiff should pay the stamp duty thus passing its decree and judgment in the original suit. 24. 24. In consideration of the facts pleaded having regard to the materials placed on record and upon hearing the learned counsel for both, this court, particularly on a careful study made into the judgments forming part of both the above appeals and the decrees passed thereon by the lower court is able to see that there has been due consideration of each and every aspect of the case particularly in application of the evidence adduced on behalf of the parties, appreciating them issue-wise, valid conclusions have been arrived at on a neat discussion held on each and every items of properties, the rights of parties etc., and therefore, the conclusions that have been arrived at and the manner in which the said conclusions have been arrived at by the lower court are highly balanced and the only decision that could be arrived at in the circumstances of the case is that the interference of this court sought for in both the above appeal suits is neither necessary to be made nor required under circumstances and in result the only conclusion that could be arrived at by this court is to dismiss both the above appeal suits as without merit and hence the following judgment:- In result, (i) Both the above Appeal Suits do not merit acceptance and they are dismissed. (ii) The judgments and decrees dated 23.7.1986 and 26.2.1988 both made in O.S.No. 56 of 1981 on the file of Subordinate Judge, Devakottai against which both the above Appeal Suits have been preferred by the plaintiff and the 1st defendant as well are confirmed. (iii) However, in the circumstances of the case,there will be no order as to costs.