Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 180 (MAD)

Kathavarayanan @ Kuppusamy v. Kalaiarasi

2008-01-22

S.TAMILVANAN

body2008
Judgment :- This appeal has been preferred against the judgment and decree made in O.S.No.31 of 1992 dated 03.01.1995 on the file of the Family Court, Pondicherry. .2. The appellant herein was the defendant in the suit before the Trial Court. It is not in dispute that the appellant is the father of late Murugaiyan, husband of the respondent/plaintiff. The said Murugaiyan had married the respondent herein on 211. 1998, at Pondicherry and on 30.08.1991 he died. According to the respondent, subsequently she was driven out of her matrimonial home by the appellant, on 15.09.1991. However, her Sreedhana properties, insurance policies and the bank pass books kept in the matrimonial home were not returned to the respondent. Based on the above pleadings the respondent had filed the suit, seeking a decree directing the appellant to deliver B and C schedule of properties described in the plaint whichever presented as Sreedhana properties at the time of her marriage and also to direct the appellant to return the C schedule properties or its value that were pledged by Murugaiyan. The appellant as defendant, disputed the claim of the respondent. 3. On the side of the respondent/plaintiff P.Ws. 1 to 7 were examined, Exs.A1 to A13 were marked. On the side of the appellant/defendant D.Ws.1 to 4 were examined, apart from marking the documents Exs.BI to BII. Considering the oral and documentary evidence, the Trial Court decreed the suit directing the appellant to return the articles and jewels described as items 3 to 14, in the first schedule of the plaint and in case if he fails to return those articles and jewels he should pay a sum of Rs.42,750/- with 12% interest from the date of filing of the suit till the date of realisation and the appellant shall return the items of property mentioned in the second schedule therein or the value thereof after deducting a sum of Rs.9,950/- paid by him, for redeeming the jewels. 4. According to the appellant, the suit was filed on 012. 1991 and disposed of on 03.01.1991 six years after the date of marriage of the plaintiff and due to the long period of six years the articles would have become old or damaged and lost its value. 4. According to the appellant, the suit was filed on 012. 1991 and disposed of on 03.01.1991 six years after the date of marriage of the plaintiff and due to the long period of six years the articles would have become old or damaged and lost its value. In the grounds of appeal, it has been further contended that on the date of marriage the respondent was living separately with her husband by having a separate mess and therefore all the jewels/articles were only in their custody and use. The appellant has further averred that the respondent had not proved her contention that the properties mentioned as B and C schedule properties in the plaint, were returned and that the judgment rendered by the Court below was not based on the evidence. In the written statement the appellant has averred that he was living with his eldest son and the deceased was his younger son. According to him, Murugaiyan, husband of the respondent had already sold his motor cycle referred to in the plaint during his life time and he had raised money by pledging the jewels specified in the C schedule of the plaint. 5. According to the respondent/P.W.I at the time of her marriage, she was given with the B and C schedule of properties. During the life time of her husband Murugaiyan he had pledged her jewels for constructing the house. However, she was not allowed to stay in the house of the appellant, but driven out of her matrimonial home by the appellant, by using filthy language against her. Though she had asked the appellant to return the B and C schedule properties, he refused to return the same and she came to know that the jewels pledged by her husband were also redeemed by the appellant. However, he refused to return the same to the respondent. Hence, the respondent issued legal notice for the return of Sreedhana properties. In spite of the legal notice the Sreedhana properties were not returned to her. 6. The appellant as P.W.I has stated that the respondent had taken away her Sreedhana properties leaving a steel cot, almerah in his house and that he was ready to return the same. He has further stated that there was a village Panchayat and that they held that the respondent could take home her Sreedhana properties. 6. The appellant as P.W.I has stated that the respondent had taken away her Sreedhana properties leaving a steel cot, almerah in his house and that he was ready to return the same. He has further stated that there was a village Panchayat and that they held that the respondent could take home her Sreedhana properties. He has also admitted that he had redeemed the jewels pledged by the deceased Murugaiyan. According to him, the redeemed jewels were presented by his three daughters during the marriage and hence he did not return the same to the respondent, but, handed over the same to his daughters. .7. Learned counsel for the respondent contended that even if the jewels had been presented by the daughters of the appellant during the marriage of the respondent, on the date of presentation itself, the respondent became the owner of the properties. Even if the jewels were presented to Murugaiyan, after his death, being the legal heir of her husband, she was entitled to the property. Therefore, the defence raised by the appellant that he handed over the jewels to his daughter, cannot be legally sustainable. As contended by the learned counsel for the respondent the Trial Court has held that the jewels redeemed by the appellant could have been returned to the respondent since they were presented to her on the date of her marriage. However, in the written statement the appellant had stated that after the death of Murugaiyan, even before the sixteenth day ceremony, the respondent had moved the entire belongings, cash and jewels and all Sraedhana properties, from her matrimonial home. Had the respondent taken away the entire belongings of cash, jewels and Sreedhana properties as stated in the written statement in the oral evidence, the appellant would not have stated that she had left only with a steel cot, almerah which is self contradictory. 8. P.W.2, Manager of Pondicherry State Co-operative Bank, Ilango Nagar Branch, Pondicherry has deposed that the deceased Murugalyan had obtained loan from the Bank and also made part payment of Rs.5,383/-for which Ex.A5 receipt was given. As per the evidence of P.W.3, pawn broker the deceased Murugaiyan had obtained a loan of Rs.1,200/- on 111. 1988 by pledging gold ring. The appellant being his customer was permitted to redeem the jewels by him, under Ex.A9, without knowing the dispute between the appellant and the respondent. As per the evidence of P.W.3, pawn broker the deceased Murugaiyan had obtained a loan of Rs.1,200/- on 111. 1988 by pledging gold ring. The appellant being his customer was permitted to redeem the jewels by him, under Ex.A9, without knowing the dispute between the appellant and the respondent. P.W.4 is another pawn broker and Exs.A7 and A8 are the receipts given by him under which jewels were pledged by the deceased Murugaiyan. The jewels described in Ex.A7. were redeemed by the appellant after making payment for the same. According to him, he did not know anything about the dispute between the appellant and the respondent, since the appellant was the father of the deceased he permitted him to redeem the jewels, pledged by the deceased Murugaiyan. P.W.5 has also admitted that Exs.A10 is the receipt issued by him and according to him the appellant redeemed the jewels as per Ex.A6, though the jewels had been pledged by his son the deceased Murugaiyan similar evidence was given by P.W.6 who has deposed that Ex.A12 and A13 were the receipts issued by him and as per the documents the deceased Murugaiyan had obtained loan from Naveen Bankers and the same was redeemed by the appellant herein. According to him, as the appellant being the father of the deceased he was permitted to redeem the jewels mortgaged by the deceased Murugaiyan. The aforesaid witnesses were examined on behalf of the appellant/defendant and therefore it is clear that the jewels which were mortgaged by the deceased Murugaiyan with various pawn brokers have been redeemed by the appellant, without the consent or knowledge of the respondent, his wife. 9. It is not in dispute that the appellant could have redeemed the jewels and return the jewels to her after getting the money spent by him towards redeeming the jewels. The appellant, apart from examining himself as D.W.I has examined other witnesses as D.Ws.2 to 4. However as held by the Court below their oral evidence of the defendants is not sufficient to impeach the documentary evidence supported by P.Ws.2 to 7. 10. It is not in dispute that the respondent/plaintiff was the legally wedded wife of the deceased Murugaiyan. The appellant, apart from examining himself as D.W.I has examined other witnesses as D.Ws.2 to 4. However as held by the Court below their oral evidence of the defendants is not sufficient to impeach the documentary evidence supported by P.Ws.2 to 7. 10. It is not in dispute that the respondent/plaintiff was the legally wedded wife of the deceased Murugaiyan. She had claimed B and C schedule properties which were in the custody of the appellant or its value from the appellant/defendant and the Trial Court has held that she is entitled to get return of the aforesaid properties in proper condition or Rs.42,750/- towards the value of those articles and jewels with 12% interest from the date of filing of the suit till the date of realization. Further based on Exs.A7 to A13 the Court below has held that the appellant was entitled to deduct an extent of Rs.9,950/-spent by him towards redeeming the jewels from pawn brokers. 11. It has been clearly established that on the date of marriage, the respondent had jewels and other Sreedhana properties, and after the death of her husband Murugaiyan, she was driven out of her matrimonial home. According to the appellant she had voluntarily left her matrimonial home and went to her parents house and subsequently even prior to the sixteenth day ceremony, she came to the house of the appellant with her family members and others and took away the Sreedhana properties. On account of the same, he lodged a complaint before the police officials. As per the written statement filed by the appellant, he has stated that nothing was left by the respondent with the appellant. However, in his oral evidence, the appellant has admitted that only a Steel cot and an Almerah were left by the respondent. Had the respondent taken away all her jewels and Sreedhana properties from the custody of the appellant, there could be no possibility for leaving steel cot and Almerah alone. Further, the evidence of the aforesaid pawn broker would show that the deceased Murugaiyan had pledged the jewels belong to the respondent and after his death the same were redeemed by the appellant without the knowledge or consent of the respondent. In fact, the same have been suppressed in the written statement. Further, the evidence of the aforesaid pawn broker would show that the deceased Murugaiyan had pledged the jewels belong to the respondent and after his death the same were redeemed by the appellant without the knowledge or consent of the respondent. In fact, the same have been suppressed in the written statement. Though the respondent being the widow of the deceased, son of the appellant, was entitled to reside in her matrimonial home and claim maintenance, she has claimed only for return of her properties. There is no sustainable defence on the part of the appellant for allowing this appeal. 12. As contended by the learned counsel for the respondent no such claim was made by her towards her maintenance. However, the appellant was not prepared to return even her Sreedhana properties which warranted her in filing the suit. On the available evidence, I could find no error or infirmity in the impugned judgment so as to warrant any interference of this Court. 13. In the result, confirming the judgment and decree rendered by the court below this appeal is dismissed with costs.