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2016 DIGILAW 950 (KER)

Ajitha Kumari v. K. D. Jayasekharan

2016-11-07

K.SURENDRA MOHAN, MARY JOSEPH

body2016
JUDGMENT : Mary Joseph, J. 1. The challenge in this Mat.Appeal is against the judgment and decree dated 25.3.2009 of the Family Court, Thiruvananthapuram (for short 'the court below') in O.S.No.320/1999. Parties to this appeal are referred to as the plaintiffs and the defendant for the sake of convenience. 2. The appellants are the plaintiffs and the respondent is the defendant in the original suit. 3. The original suit was filed by the plaintiffs for recovery of money and gold ornaments, for a declaration that item Nos.1,2 and 3 in the plaint A schedule properties are owned by the first plaintiff and also for an injunction against alienation and encumbrance of the said properties. 4. The suit was tried by the court below along with O.P.No.569/2005 filed by the defendant seeking to appoint him as the guardian of the minor son staying with the first plaintiff at the relevant time. 5. By a common judgment, both O.S.No.320/99 and O.P.No.569/2005 were disposed of on 25.3.2009. 6. The reliefs granted by the common judgment in O.S.No.320/99 are to the following effect:- “In the result, the O.S.320/99 is allowed with modification as follows:- 1. Maintenance allowance is granted at the rate of Rs.750/- per month to the first plaintiff and Rs.500/- per month to the 2nd plaintiff with effect from the date of suit i.e., from 19.9.1999 for a period of 5 years and thereafter at the rate of Rs.1600/- per month to the first plaintiff and Rs.750/- per month to the 2nd plaintiff till the date of this judgment and thereafter at the rate of Rs.1500/- per month to the 1st plaintiff and Rs.1000/- per month to the 2nd plaintiff and the 1st plaintiff is allowe zd to recover the amount so granted for herself and for and on behalf of the minor 2nd plaintiff also after deducting the amount paid by the defendant as interim maintenance from the defendant and his assets and as charged on the petition schedule item No.3 and additional item No.4 properties. 2. It is hereby declared that the 1st plaintiff is the absolute owner of the plaint A schedule item 1 and 2 properties. 3. The defendant is restrained from entering the plaint A schedule items 1 and 2 properties. 4. All other prayers are disallowed. 5. Parties will bear their respective costs. 2. It is hereby declared that the 1st plaintiff is the absolute owner of the plaint A schedule item 1 and 2 properties. 3. The defendant is restrained from entering the plaint A schedule items 1 and 2 properties. 4. All other prayers are disallowed. 5. Parties will bear their respective costs. O.P.569/05 is disposed of by disallowing the prayer for appointing the petitioner as the guardian of the child Harikrishnan and for granting permanent custody to him the petitioner is allowed to see the child as and when he comes without causing disturbances to the studies of the child. The parties will bear their respective costs.” 6. The plaintiffs in O.S.No.320/1999 were aggrieved by the judgment and therefore, have appealed against the same vide this Mat Appeal. The grounds raised in the Appeal Memorandum are:- (1) Plaint A schedule item 3 property having an extent of 25 cents was purchased on 25.5.1998 in the name of the first plaintiff and the respondent as per Ext.A2 sale deed and the sale consideration was paid by the former's father. Ext.A2 was executed one year after the marriage of the parties. Absolutely no evidence was let in by the respondent before the court below to support his contention that the property was purchased by him. The court below overlooked this fact and based on unjustifiable and untenable reasons disallowed the prayer of the first plaintiff to declare him as the owner of item No.3 of the plaint A schedule properties. 2. Despite ample evidence let in by the first plaintiff, the court below declined the relief for return of amount and thereby erred. The court below overlooked the evidence of PW1 to PW4 which are of the nature of complimenting each other and thereby went erroneous in appreciating the evidence. 3. Only a very low and inadequate amount was awarded by the court below and that is indicative of the failure of the court below to appreciate the evidence on record, especially Ext.X1 in its proper perspective. The court below has erred in arriving at a finding unfavourable to the plaintiff totally based upon minor discrepancies. The court below also failed in adverting to the financial dependency of the first plaintiff on her mother and brothers for meeting her requirement as testified by her. Had it been adverted, the sum awarded as maintenance would have been adequate and satisfactory. 7. The court below also failed in adverting to the financial dependency of the first plaintiff on her mother and brothers for meeting her requirement as testified by her. Had it been adverted, the sum awarded as maintenance would have been adequate and satisfactory. 7. In the backdrop of the grounds as aforesaid in the appeal memorandum, the plaintiffs urged this Court to re-appreciate the evidence to see whether the reliefs declined or granted not to their satisfaction respectively are liable to be granted or modified. 8. Sri. K. Ravikumar and Sri. G. Sudheer, the respective learned counsel representing the plaintiffs and the defendant were heard extensively on the rival contentions of the parties to the appeal. 9. In view of the rival contentions, we ventured to have an analysis of the evidence on record. 10. The first plaintiff is setting forth his grievance mainly upon three reliefs, two of which have been declined to him and one has been allowed, but not to his satisfaction. According to Sri. Ravikumar, the learned counsel, ample evidence was let in by the plaintiff and based on that, all reliefs sought by the plaintiffs are liable to be granted, but in its erroneous appreciation of evidence, the court below allowed only some of it and declined the rest. 11. Issues framed by the court below need to be extracted hereunder before venturing into re-appreciation of evidence to find impropriety and incorrectness of the court below:- “1. Whether the prayer for maintenance is allowable and if so, its quantum? 2. Whether the 1st plaintiff is the absolute owner of plaint A schedule items 1,2 and 3? 3. Is the declaration prayed for allowable? 4. Whether the 1st plaintiff is entitled to get an order of injunction as prayed for? 5. Whether the prayer for recovery of gold ornaments is allowable? 6. Whether the prayer of the 1st plaintiff for recovery of money on various counts is allowable? 7. Reliefs and costs.” Supportive of the issues raised, the parties had let in evidence and that consists of oral evidence of Pws.1 to 4 and documentary evidence consisting of Exts.A1 to A4 on the plaintiff's side and the documentary evidence of Exts.B1 to B4, on the side of the respondent. Ext.C1 and Ext.X1 are the court exhibits. 12. 7. Reliefs and costs.” Supportive of the issues raised, the parties had let in evidence and that consists of oral evidence of Pws.1 to 4 and documentary evidence consisting of Exts.A1 to A4 on the plaintiff's side and the documentary evidence of Exts.B1 to B4, on the side of the respondent. Ext.C1 and Ext.X1 are the court exhibits. 12. The first and foremost contention of the plaintiffs was that the court below on an erroneous and improper appreciation of evidence on record declined reasonable and adequate maintenance for the sustenance of herself and the only child. In the context, it is appropriate to have a look at the rival pleadings of the parties and to see how the evidence adduced by the parties lend support to those. 13. The pleadings of the plaintiffs in O.S. No. 320/1999 are to the following effect:- The 1st plaintiff is the divorced wife of the defendant. The defendant is drawing a salary of more than Rs.8000/- per month, but, he is not maintaining the plaintiffs. Ist plaintiff has no independent income and herself and her son are depending on her parents for their day to day affairs. At least a sum of Rs.5500/- is required by the plaintiffs for meeting their day to day expenses. 14. With respect to the pleas, the contentions were raised by the defendant in the written statement to the following effect:- The first plaintiff is having an income of more than Rs.3000/- from the properties held by her. She is running a fancy store and is getting a substantial income therefrom. 15. The rival pleadings need to be checked in the light of the evidence let in by the parties, to see how far those would sustain. 16. The fact that the parties had lawfully married on 3.4.1997 and their marital relationship went to a standstill by a decree of dissolution of marriage obtained from a court of law are factors on which both of them are not in conflict. 17. The first plaintiff while examined as PW1 has put forth a version that she has no income of her own for sustenance of herself and son and therefore, is depending on her father and mother for their livelihood. She also deposed that the defendant is a Government servant drawing Rs.18000/- as monthly salary. 17. The first plaintiff while examined as PW1 has put forth a version that she has no income of her own for sustenance of herself and son and therefore, is depending on her father and mother for their livelihood. She also deposed that the defendant is a Government servant drawing Rs.18000/- as monthly salary. According to her, she was constrained to leave the society of the defendant on account of the immoral life led by him in the company of other ladies. The allegation of cruelty and infidelity made by PW1 against him was met by DW1 by a stout denial. He deposed categorically to inform the court that the marital life was put to an end by the adamant refusal of the first plaintiff to join him despite the earnest efforts from his side. The claim for maintenance was resisted by him stating that the plaintiff was getting an income of Rs.3000/- per month from the property owned by her and an additional income from a fancy store run by her, which was sufficient to meet the sustenance of herself and her son. He had produced Exts.B2 to B5 to add veracity to his contentions. Exts.B2 to B5 are certified copies of certain deeds. Ext.B2 is the certified copy of the settlement deed executed by the father of the first plaintiff in respect of a small plot of paddy land and Exts.B3 to B5 are certified copies of the deeds relating to properties purchased by the first plaintiff after filing the suit. The plaintiff had taken out a commission to lend support to his contentions and the commission report formed part of the evidence as Ext.C1. Indisputably the defendant had succeeded in establishing the factum of possession of properties by PW1, but the effort to establish that the sustenance of herself and the child was meted out from the income derived therefrom, turned a futile exercise when the evidence tendered through Ext.C1 by the Advocate Commissioner revealed it to the court that recently cultivated rubber plants not liable to yield any income alone were found in it. Therefore, there cannot be any dispute with respect to the fact that she does not derive any income to meet the expenses. The further contention of the defendant was that the purchase of the properties by the first plaintiff as disclosed from Exts.B2 to B5 would be indicative of her financial capacity. Therefore, there cannot be any dispute with respect to the fact that she does not derive any income to meet the expenses. The further contention of the defendant was that the purchase of the properties by the first plaintiff as disclosed from Exts.B2 to B5 would be indicative of her financial capacity. In that connection, the court below noticed and reported the fact that Exts.B2 to B5 were brought in evidence by the defendant at the verge of closure of the evidence on either side and the plaintiff had no opportunity to adduce evidence regarding the manner in which the property reaches her hand or how the money for the purchase was arranged. Therefore, there is absolute insufficiency of evidence on record to that effect. Indisputably, no opportunity was given to the 1st plaintiff to dispute the veracity of documents or to establish when and how it came to her hand. Moreover, only small extent of properties are covered by Exts.B2 to B5. In such circumstances, there is no justification to think that the properties were purchased by the first plaintiff from the fund from her pocket itself. Therefore, the court below was perfectly right in holding that the first plaintiff and her son (the 2nd plaintiff) are entitled to get maintenance from the defendant. 18. It is pertinent at this juncture to note here that the plaintiffs though pleaded the defendant as a Government servant having salary of Rs.18,000/-, did not succeed in establishing the same. The defendant had controverted the said plea when he was examined as DW1 by stating that his total salary is Rs.8500/- and his net salary is Rs.7500/-. 19. He had also undertaken in the box to produce his salary certificate before the court. But, he did not produce the same and thereby empowered the court to draw an adverse inference against him that he was getting more sum than that admitted by him. 20. The plaintiff had claimed maintenance from 1998 onwards, but no reason is stated for raising such an extraordinary claim and therefore, the court below had allowed maintenance to the plaintiff from the date of the suit. Having regard to relevant aspects decisive of the amount to be granted as maintenance, the court below fixed the rate of maintenance for various periods in the following manner:- “......... Having regard to relevant aspects decisive of the amount to be granted as maintenance, the court below fixed the rate of maintenance for various periods in the following manner:- “......... I find that maintenance allowance can be fixed at the rate of Rs.750/- per month to the 1st plaintiff, Rs.500/- per month to the 2nd plaintiff with effect from the date of suit i.e., from 29.9.1999 for a period of 5 years and thereafter, at the rate of Rs.1000/- per month to the 1st plaintiff and Rs.750/- per month to the 2nd plaintiff till the date of this judgment and thereafter at the rate of Rs.1500/- per month to the 1st plaintiff and Rs.1000/- per month to the 2nd plaintiff. The plaintiff can be allowed to realise the maintenance awarded by charged on the plaint A schedule item No.3 and additional 4th schedule item.” 21. The aggrieved first plaintiff's contention was that the court below had shut its eyes to the materials that stood to her favour and therefore, is highly unjustified in fixing maintenance to such a lower sum. 22. We have already noted that in the circumstances of the case as those stand, there is possibility to draw adverse inference. As already observed, the defendant by his conduct has caused an inference to be drawn that he was getting more income than that was admitted by him. The fact that he got married for the second time and has taken the strain of looking after the new wife are not reasons of any relevance to discard the claim of maintenance or to decline reasonable sum from being granted as maintenance. But it was the burden of the plaintiff to establish the income of the defendant to get a better sum awarded in her favour. Here, the plaintiff failed to call for the records pertaining to the drawing of salary by the defendant. Therefore in our re-appreciation of evidence, we see absolutely no ground to enhance the sum of maintenance to the plaintiffs. The court below has awarded a reasonable sum taking note of the attending circumstance and interference of any sort is unwarranted. Accordingly, the finding of the court below and the awarding of maintenance are confirmed. The appeal to that extent fails. 22. The court below has awarded a reasonable sum taking note of the attending circumstance and interference of any sort is unwarranted. Accordingly, the finding of the court below and the awarding of maintenance are confirmed. The appeal to that extent fails. 22. The further question mooted for our consideration in the appeal is whether the court below went wrong in rejecting the relief of declaration and injunction in respect of item No.3 of plaint A schedule property to the 1st plaintiff. In the said backdrop, a re-appreciation of evidence is inevitable to see, any error has been crept into while entering into such a finding. 23. Item No.3 of plaint A Schedule includes 25 cents of land and as evidenced, was purchased on 25.5.1998 in the joint name of the 1st plaintiff and the defendant. Ext.A2 is the document relating to the said transaction. The marriage of the first plaintiff and the defendant was solemnised on 3.4.1997 and the property was purchased after one year of the marriage. The special case of the first plaintiff projected through pleadings and evidence was that the property was purchased in the joint names of herself and her husband by her father for a sale consideration of Rs.25,000/- and it also finds endorsement in the recital in Ext.A2. The defendant has raised a specific claim that the property was purchased by him with his own money. PW2, the brother of the first plaintiff deposed in tune with the version of PW1 and went further to the extent of stating that on account of the illtreatment of the defendant of the 1st plaintiff and with a view to safeguard the interest of the 1st plaintiff and her child that 25 cents of property was purchased in the joint names of PW1 and the defendant. PW3 a relative of PW1 and PW2 also deposed categorically in identical terms. The defendant as DW1 by his firm words had thrived to establish that the property was purchased by him utilising his own funds. Despite raising rival claims verbally, either parties did not choose to establish by evidence that the property was purchased by any of them with their own funds. The defendant as DW1 by his firm words had thrived to establish that the property was purchased by him utilising his own funds. Despite raising rival claims verbally, either parties did not choose to establish by evidence that the property was purchased by any of them with their own funds. The property stands in the joint names of PW1 and the defendant and in the absence of cogent evidence indicating that the sale consideration has been meted out by any of them, the relief of declaration in favour of any of them is impossible. The interested versions of PW1 and DW1 are there but those do not find corroboration in any other pieces of evidence to strengthen its credibility. The elicitation from Ext.A2 is also the factum of co-ownership of PW1 and the defendant over the property scheduled in Ext.A3 as item No.3. The property having been held in common by PW1 and the defendant and in the absence of evidence to substantiate its purchase later by the 1st plaintiff (PW1) expending money from her pocket, the relief of declaration is not liable to be granted in her favour. The fact that the parties remained in co-ownership also stand in the way of obtaining an order of restrain in favour of the first plaintiff. Therefore, the finding of the court below cannot be said to be erroneous. The finding being rendered in the correct perspective is not required to be interfered with. The finding of the court below declining the relief is only liable to be upheld and we do so. 24. The third point to which our attention was drawn by the counsel was regarding the refusal of the court below to pass a decree to return the gold ornaments in favour of the 1st plaintiff. The counsel contended that the court below has committed a grave error by entering into a finding that the defendant was not in custody of the gold ornaments and thereby declining the relief to her. According to him, the court below ought to have held otherwise by relying upon the entry in Ext.X1, the Marriage Register. 25. The counsel contended that the court below has committed a grave error by entering into a finding that the defendant was not in custody of the gold ornaments and thereby declining the relief to her. According to him, the court below ought to have held otherwise by relying upon the entry in Ext.X1, the Marriage Register. 25. The plea of the 1st plaintiff in that regard was that 51 sovereigns of gold ornaments have been given to her at the time of her marriage by her father and those have been shown by her in Schedule B appended with the original petition filed, seeking the relief. The further plea was that those ornaments have been entrusted to the defendant after the marriage and therefore, he is liable to return those to her. In the proof affidavit filed in lieu of chief examination, those aspects have been sworn to by the 1st plaintiff as PW1. PW2, the brother of PW1, PW3, a relative of PW1, PW4, the Secretary of S.N.D.P. Branch, Izhuvikkode were examined to support her claim. Ext.X1 the marriage register was also marked through PW4. The testimony of PW1 finds corroboration with that of PW2 and PW3. The common claim of Pws.1 to 3 was that 51 sovereigns of gold ornaments were given to PW1 by her father at the time of her marriage and those have been misappropriated by the defendant. But, it is pertinent to note from column No.8 in Ext.X1 that 41 sovereigns of gold ornaments were given to PW1 at the time of her marriage. PW4 had also deposed to the effect that the details regarding the property given at the time of marriage as stated by both sides would normally be entered in the marriage register, but there is no practice of weighing it before making the entry. Per contra, the defendant while letting oral evidence as DW1 denied the entrustment of the gold ornaments. According to him, the gold ornaments were in the possession of the 1st plaintiff herself. Evidence let in by the 1st plaintiff as PW1 discloses entrustment of gold ornaments to the defendant during the initial days of marriage, while staying at the house of the sister of the defendant. The defendant as DW1 has also admitted this factum. Defendant has taken the specific plea that the gold ornaments have been given to PW1's custody later. Evidence let in by the 1st plaintiff as PW1 discloses entrustment of gold ornaments to the defendant during the initial days of marriage, while staying at the house of the sister of the defendant. The defendant as DW1 has also admitted this factum. Defendant has taken the specific plea that the gold ornaments have been given to PW1's custody later. But, the evidence is silent on that aspect. Materials to support return of gold ornaments to PW1 are not available before us. Once entrustment is admitted and in the event of failure to let in evidence on the claim of return of the same to PW1, the inference probable was that those were still in the custody of DW1. Evidence on record convincingly establishes the fact that gold ornaments have been given to PW1 by her father at the time of her marriage with the defendant. Ext.X1 having not been disputed by the defendant and in the event of its marking through PW4, who had deposed in specific terms that an entry is there in column 8 of Ext.X1, reciting gift of 41 sovereigns of gold ornaments to PW1 at the time of her marriage with defendant, the claim of gift of 41 sovereigns of gold ornaments to PW1 by her parents is convincingly established. In the said circumstances, we see every justification in granting a decree for return of 41 sovereigns of gold ornaments or its equivalent value as on date of realisation in favour of PW1. We have no hesitation to hold that the court below had committed a grave error in not passing a decree in favour of the 1st plaintif. The discussion as aforesaid drives us to a conclusion that the decree declining the relief is only to be set aside and accordingly, we do so. In the said circumstances, the claim of the 1st plaintiff in O.S.No.320/1999 for return of gold ornaments to the extent of 41 sovereigns is liable to be allowed and a decree to that effect needs to be passed. In the result, this Mat.Appeal is allowed in part on the following terms:- O.S.No.320/1999 is allowed in part on the following terms:- The defendant shall return 41 sovereigns of gold ornaments or its equivalent value, within a period of two months from the date of receipt of a copy of this judgment. In the result, this Mat.Appeal is allowed in part on the following terms:- O.S.No.320/1999 is allowed in part on the following terms:- The defendant shall return 41 sovereigns of gold ornaments or its equivalent value, within a period of two months from the date of receipt of a copy of this judgment. With respect to the other reliefs sought by the first plaintiff, Mat.Appeal stands dismissed. Parties shall bear their respective costs.