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2017 DIGILAW 1236 (KER)

Suja Thomas v. George Koshy

2017-09-25

A.M.SHAFFIQUE, K.P.JYOTHINDRANATH

body2017
JUDGMENT : Shaffique, J. 1. The petitioner in OP No.309/2006 is the appellant. The OP has been filed for return of gold ornaments or its value and for return of money. The Family Court partly allowed the claim against which the petitioner had preferred the appeal. 1st respondent had preferred a cross objection against the portion of the claim, which was decreed against him. 2. The short facts arising in the matter are as under and the parties are described as shown in the Original Petition unless otherwise stated. Petitioner and the 1st respondent married on 28/1/1999 as per Christian religious rites and ceremonies. It is stated that at the time of negotiation of the marriage itself, petitioner's parents had offered to pay Rs. 12 lakhs and 125 sovereigns of gold as her share out of the parents assets. The money and gold had been handed over to the respondents. However, the marriage did not succeed and they were living separately since 27/4/1999. 3. The respondent in his objection denied having received Rs. 10 lakhs by way of a cheque and contended that the said amount was utilized for purchasing a property in their joint names. He denied having received Rs. 2 lakh as cash nor having received or appropriated 125 sovereigns of gold ornaments. The above OP was tried along with OP(Div) No.310/2006 and by judgment dated 23/1/2008, divorce had been granted by the Family Court. 4. While impugning the aforesaid judgment, learned counsel for the appellant submits that sufficient evidence was available to prove entrustment of Rs. 12 lakhs and 125 sovereigns of gold ornaments and the Family Court completely erred in forming an opinion that there was no proof for payment of Rs. 2 lakhs and for giving 125 sovereigns of gold ornaments. It is submitted that the evidence of PWs1 to 3 read as a whole along with the pleadings would probablise the case of the petitioner. It is argued that in a matrimonial dispute relating to return of patrimony and gold ornaments, the evidence has to be appreciated based on the factual circumstances as well as the custom that is being followed among the members of the community. It is argued that in a matrimonial dispute relating to return of patrimony and gold ornaments, the evidence has to be appreciated based on the factual circumstances as well as the custom that is being followed among the members of the community. It is common knowledge that in certain areas of the State, payment of dowry or patrimony and gold ornaments is a pre requisite for any such marriage and this is also an instance where parents of the petitioner were residing abroad at Kuwait for quite a long time and they had made arrangements for her gold ornaments over a period of time. At the time of marriage, it was decided to hand over sufficient quantity of gold ornaments to the respondent's family which has been done and merely for the reason that there was no receipt for the same, it does not mean that the claim is not genuine. It is submitted that evidence of PW1 is supported by her father PW2 and an independent witness PW3. 5. On the other hand, learned counsel for respondent submits that there is no evidence to prove payment of Rs. 2 lakh and for entrustment of 125 sovereigns of gold ornaments. The photograph produced in the case by itself will show that she was wearing only minimum gold ornaments. Further, the amount of Rs. 10 lakhs paid by the petitioner's parents were utilized for purchasing a property. He had also invested money in the said property. 6. In regard to the property which is alleged to have been purchased with the money received by the respondent, the Family Court found that the document which is produced as Ext.B1, proves that the property was jointly owned by the couple. In the absence of any counter claim, no decree could be passed for releasing the right of the petitioner in the said property and his right to file a proper suit in the matter was left open. Since the payment of Rs. 10 lakh was admitted by the respondent, direction was issued to repay the said amount with interest. 7. The Family Court however found that there was no evidence to prove payment of Rs. 2 lakh. Even in regard to the gold ornaments, it was found that there was no material to indicate that the petitioner had such quantity of gold ornaments as alleged. Hence the said claim was rejected. 8. 7. The Family Court however found that there was no evidence to prove payment of Rs. 2 lakh. Even in regard to the gold ornaments, it was found that there was no material to indicate that the petitioner had such quantity of gold ornaments as alleged. Hence the said claim was rejected. 8. Petitioner has been examined as PW1. She filed chief affidavit in terms with the averments in the petition. In her chief examination, she had stated that she was working at Kuwait at the time of marriage and on 24/1/1999, a sum of Rs. 12 lakhs and 125 sovereigns of gold were decided to be given as her share. Rs. 12 lakhs was given on 26/1/1999 of which Rs. 2 lakhs was given in cash and Rs. 10 lakh as cheque. Money was paid to the respondent's mother at his sister's house. The gold ornaments were partly worn by her at the time of marriage and all the ornaments given to her was taken by her to the respondent's house. On 5th February, they proceeded to Kuwait. Before she proceeded to Kuwait, respondent's sister asked her to prepare a list of gold ornaments and to keep a copy with her. She therefore handed over the gold to the 2nd respondent. She further indicated that their life at Kuwait was also not happy and he was behaving in a rude manner. He was aggressive and started beating her. Her mother intervened and she was taken home. Her parents and relatives tried to provide counselling or psychiatric help to the 1st respondent, for which he was not agreeing and hence the petition was filed. In cross examination, she stated that marriage negotiations were in her father's house. The arrangement was to pay a sum of Rs. 12 lakhs which was paid on 26/1/1999. The respondent had asked for cash payment for marriage expenses. Her father had given the money to his mother. Her mother was also present. She further deposed that mother in law, sister in law and herself had prepared the list of gold ornaments and it was handed over to the 2nd respondent. The list was prepared in the petitioner's handwriting. It is further stated that the marriage ceremony was over by 12.30 p.m. Reception ceremony was over by 3 0' clock. All of them went to the respondent's house at Vadaserikkara. The list was prepared in the petitioner's handwriting. It is further stated that the marriage ceremony was over by 12.30 p.m. Reception ceremony was over by 3 0' clock. All of them went to the respondent's house at Vadaserikkara. After the ceremony, the couple left at 5 0' clock for seeing off her parents. They left for Trivandrum only at 2 am on 29th. Until then, they were in her house at Othara. The gold ornaments were handed over on 4/2/1999 and on 5th, both of them left to Kuwait. Till 4/2/1999 the, gold ornaments were with her. When she was asked about the allegation in para 2 of the petition that the ornaments were handed over immediately after marriage, she said it is not correct. She further deposed that, two days after marriage, she and respondent's sister were waiting at the Bank to open a joint locker but since the respondent did not come, the gold was entrusted to the mother-in-law. She denied the suggestion that all the gold ornaments were entrusted to petitioner's mother and she had kept the same in a locker in a Bank at Othara. She however admits that her parents have a locker at SBT Branch, Othara. 9. PW2 is the father of the petitioner. In his chief examination, he states that the marriage was on 28/1/1999. As patrimony, he had paid Rs. 12 lakhs of which Rs. 10 lakhs was paid as cheque and Rs. 2 lakhs as cash. At the time of marriage, PW1 was given 125 sovereigns of gold. They had brought the gold from Kuwait which was given to the daughter. He identified Ext.A2 series photographs. In cross examination, he states that the gold was entrusted to his daughter and they went to Kuwait. He had not seen the petitioner entrusting gold ornaments to the respondents. Money was paid on 26th. After the marriage, he had not given any money. The cash and cheque were given on the same day. 10. PW3 is a witness. He deposes in chief examination that he was present when a decision was taken to give Rs. 12 lakh and 125 sovereigns. Rs. 10 lakhs was paid by cheque and Rs. 2 lakh as cash. He also had gone for taking the gold ornaments from the locker. He does not know the quantity. Money was given at the sister's house by PW2. 12 lakh and 125 sovereigns. Rs. 10 lakhs was paid by cheque and Rs. 2 lakh as cash. He also had gone for taking the gold ornaments from the locker. He does not know the quantity. Money was given at the sister's house by PW2. In cross examination, he states that he is staying at PW2's house for the last 10 to 20 years. Sometimes he used to reside with them. He is entrusted with the key. Gold was taken from the locker of SBT, Othara Branch. He had not seen how much quantity of gold had been taken. Decision was taken when people had come from the groom's house on 24th. There was no engagement. Another marriage was proposed which did not take place. 11. CPW1 is Saramma George, mother of the respondent. In her evidence, she submitted that cheque for Rs. 10 lakh was given by PW2 to her elder son and no other amount was paid. The couple came to her residence 2 hours after the marriage. They were available only for another two hours. Afternoon, all of them had gone stating that it is time for the flight. At that time, PW1 had not entrusted any of the gold ornaments. They did not check the gold ornaments as well. They came back only after three days. At that time, she did not have any gold ornaments. After two days, both of them went to Kuwait. Rs. 10 lakhs received by them was utilized for purchasing 4 cents of land. She denied having knowledge about the fact that PW1 and her daughter had gone to open a locker at Federal Bank. According to her, no one in her house had any locker facility. She denied having been entrusted with gold ornaments of the petitioner. 12. CPW2 is the respondent. In his chief examination, he denied having appropriated any of the property of the petitioner. In cross examination, he submits that he does not know as to how much gold ornaments PW1 was having. He deposed that by about 8 A.M. on the date of marriage, they had gone to PW1's house and on the same night, they had gone to Trivandrum also. The property was purchased for Rs. 12 lakhs and a building was constructed spending Rs. 40 lakhs. 13. The evidence of PWs1, 2 and 3 in regard to payment of Rs. He deposed that by about 8 A.M. on the date of marriage, they had gone to PW1's house and on the same night, they had gone to Trivandrum also. The property was purchased for Rs. 12 lakhs and a building was constructed spending Rs. 40 lakhs. 13. The evidence of PWs1, 2 and 3 in regard to payment of Rs. 10 lakhs by cheque and Rs. 2 lakhs as cash is consistent. The Family Court did not grant any decree for Rs. 2 lakhs since there was no evidence to prove payment of the said amount, and which has been denied by the respondents. Similarly, the Family Court did not grant any decree for return of gold ornaments on the finding that there was no evidence to substantiate the availability of such quantity of gold ornaments and the appropriation by the respondents. 14. First we shall consider whether the oral testimony of PWs1 to 3 can be believed for the purpose of granting a decree for return of gold ornaments. The claim is for 125 sovereigns of gold ornaments. On a perusal of the photographs produced in the case as Ext.A2 series, it does not appear that the bride was wearing such quantity of gold ornaments. Let us now consider the pleadings and evidence in the matter. 15. In para 2 of the Original Petition, the petitioner contended that at the time of negotiation for marriage, an amount of Rs. 12 lakhs and gold ornaments worth 125 sovereign were fixed as the petitioner's share of her parents assets. This fact had been spoken to by PWs 1 to 3 without any contradictions at all. In the objection filed by the 1st respondent, he contends that there was no such negotiation at all. The only agreement was to give Rs. 10 lakhs as patrimony. Two days prior to the marriage, petitioner's father, mother and two of the relatives visited the respondent's house and entrusted the cheque for Rs. 10 lakhs. There was no cash payment. He further contended that after the marriage, no gold ornaments were entrusted to the 2nd respondent. It is further contended that after the marriage reception, the newly wedded couple and relatives had come to the respondent's house at about 2.00 p.m. The couple spent about half an hour in the respondents' house. They immediately went to the petitioner's house at Othara. It is further contended that after the marriage reception, the newly wedded couple and relatives had come to the respondent's house at about 2.00 p.m. The couple spent about half an hour in the respondents' house. They immediately went to the petitioner's house at Othara. They reached petitioner's house by about 3.30 p.m. Petitioner entrusted all her gold ornaments to her mother. After sometime, petitioner's father and mother had gone out of their house for the purpose of keeping all the gold ornaments in the bank locker. Thereafter, they had gone to Trivandrum Airport to see off petitioner's parents and the flight was at 3 am on 29/1/1999. After seeing the parents, the couple went to Peroorkarda, 1st respondent's uncle's house and the next day they returned to Vadaserikkara. After a few days, the couple went to Kuwait. 16. From these pleadings, it is rather evident that there is no dispute regarding the quantum of gold ornaments available with the petitioner at the time of marriage. It is argued by the learned counsel for the petitioner that the photographs do not disclose that she was having such a huge quantity of gold ornaments. This fact had been explained by the petitioner in her evidence where she has stated that she was not wearing all the gold ornaments given to her by her parents at the time of marriage. Perusal of the Original Petition also would show that some of the gold articles were in the form of biscuit and described as sovereigns also. There are four earrings shown, which by itself would indicate that she was not wearing all the gold ornaments. Her contention in the pleading was that 125 sovereigns were handed over to the mother of the counter petitioner immediately after the marriage. In the evidence, she has stated that the gold ornaments were handed over before she left to Kuwait along with the 1st respondent after preparing a list. Of course, a question was asked whether she could produce the list and her answer was that it was not available. It might be a true statement especially on account of the fact that the transaction took place in February, 1999 and the Original Petition is filed only in the year 2006. The Family Court however proceeded on the basis that the photographs do not show such quantity of gold ornaments as claimed. It might be a true statement especially on account of the fact that the transaction took place in February, 1999 and the Original Petition is filed only in the year 2006. The Family Court however proceeded on the basis that the photographs do not show such quantity of gold ornaments as claimed. No other documentary evidence is produced to prove purchase of the ornaments. There was no pleading in the petition that she was not wearing all the gold ornaments. The list of gold ornaments which were prepared on 4/2/1999 was not produced. There is inconsistency in the evidence wherein PW1 had stated that she handed over the gold ornaments only on 4/2/1999 whereas in her pleadings she had stated that it was handed over immediately after marriage. Further, it was observed that PW1 stated that she wanted to keep the gold ornaments in a bank locker in the joint names of the couple and since the 1st respondent did not come to the Bank, she had to entrust the gold ornaments to her mother-in-law. From these factors, the Family Court found that it probablises the version of the respondents that the petitioner had intention to keep her ornaments in a bank locker and she would have kept it in the bank locker of her parents at SBT, Othara Branch. Non examination of the Bank Manager of Othara Branch was also a reason for discarding the evidence of PW1. 17. It is settled law that while deciding a claim for return of gold ornaments and money, the Court will have to appreciate the evidence and arrive at a decision based on preponderance of probabilities. Therefore, a true and correct appreciation of the pleadings and evidence is required to arrive at a conclusion one way or other. As already indicated, the Family Court had found several reasons for denying the claim for return of gold ornaments. But, it could as well be seen that no dispute is being raised by the respondents in regard to the quantity of gold ornaments she was having. PWs1, 2 and 3 had categorically spoken about the contract between the parties in regard to the patrimony and the gold ornaments. PW3 had also stated that he had gone along with PW2 to take the gold ornaments from the locker. Therefore, existence of such quantity of gold ornaments cannot be disputed. PWs1, 2 and 3 had categorically spoken about the contract between the parties in regard to the patrimony and the gold ornaments. PW3 had also stated that he had gone along with PW2 to take the gold ornaments from the locker. Therefore, existence of such quantity of gold ornaments cannot be disputed. Family Court relied upon the photographs and formed an opinion that she did not have 125 sovereigns of gold ornaments and proceeded on the basis that respondents did not admit that she had 125 sovereigns of gold ornaments. In fact, there is no such denial regarding the quantity of gold ornaments. The denial was in respect of entrustment of gold to the mother and the contention urged is that the gold ornaments belonging to her were entrusted with her parents before they left to Kuwait on the same day of marriage. At this juncture, it is worthwhile to take note of the evidence of CPW2, the respondent. In the petition, he had contended that the couple reached petitioner's house by about 3.30 pm and entrusted all the gold ornaments with her mother and after some time, her father and mother went out for the purpose of keeping all the gold ornaments in the bank locker. While examined as CPW2, respondent deposed that the gold ornaments were kept in a locker and they had gone to Trivandrum on the same night of marriage and came back to Ranni on the next day. While going to Trivandrum, if there was no gold ornaments with PW1 other than what she was wearing, what were the ornaments that were kept in the locker. In chief examination, he does not say that PW1 had entrusted her gold ornaments with her parents. In cross examination, he deposes that he does not know the quantity of gold ornaments kept in the locker and he does not know how much gold ornaments she had. By about 8 0'clock, on the date of marriage, they had gone to PW1's house. On the same night, they had gone to Trivandrum. Nowhere in his evidence he had stated that PW1 had entrusted the gold ornaments to her parents who had thereafter kept the same in a locker whereas his deposition is that her gold ornaments were kept in a locker, but, in which locker is not mentioned anywhere. On the same night, they had gone to Trivandrum. Nowhere in his evidence he had stated that PW1 had entrusted the gold ornaments to her parents who had thereafter kept the same in a locker whereas his deposition is that her gold ornaments were kept in a locker, but, in which locker is not mentioned anywhere. He only deposes that it was not entrusted to his mother while she was at his house. From the evidence it is also borne out that the couple had gone to the petitioner's house only at 8 O'clock apparently at 8 p.m. in which event, the contention that the father and mother had gone out to keep the gold ornaments in a locker cannot be believed and in fact, he has no such contention while giving evidence before the Court. 18. PW1 in her evidence had clearly stated that the gold ornaments were entrusted to 2 nd respondent on 5/2/1999. The Family Court observed that there is contradiction in respect of the evidence so adduced by PW1. Learned counsel for the respondent also contended that the evidence of PW1 is inconsistent in so far as she had pleaded that the gold ornaments were entrusted immediately after marriage. We do not think that there is any contradiction between the pleadings and the evidence as projected by the Family Court and as contended by learned counsel for respondent. In the petition she did not say about any date. She only stated that the gold ornaments were handed over to the mother of the counter petitioner “immediately after the marriage”. She had not stated any specific date as such. It is relevant to note that, the marriage was only on 28/1/1999 and they left to Kuwait on 5/2/1999. The word “immediately” can be a few days after, i.e., within a few days. That by itself would not amount to any inconsistency in the evidence. In the evidence, she had stated that a list was prepared and the gold ornaments were entrusted to the 2nd respondent. The word “immediately” can be a few days after, i.e., within a few days. That by itself would not amount to any inconsistency in the evidence. In the evidence, she had stated that a list was prepared and the gold ornaments were entrusted to the 2nd respondent. If there is no entrustment of the gold to her parents as alleged by the respondent, and the respondent does not have a case that petitioner had kept in her own locker and especially when both have decided to go abroad, it is quite natural and probable that the gold ornaments are entrusted to the 2nd respondent for keeping the same in safe custody or a locker. Minor inconsistencies in the evidence cannot be projected to deprive a person of a legitimate claim especially when the factual scenario clearly proves the fact that the contention urged by the respondent was not correct. 19. Yet another instance pointed out by the Family Court and the learned counsel for the respondent was that the list was not produced. PW1 has clearly stated that list was not available with her and therefore the non production of the list cannot be a reason to deny her the claim. 20. Another circumstance pointed out is that there was an attempt to keep the gold in a locker facility and it could not be opened since the respondent did not come for opening the joint locker account. This circumstance mentioned in the evidence by itself cannot be a reason to take an adverse inference against the petitioner. Of course, every family would like to keep the gold in safe custody and one of the safest mode is to keep it in a bank locker. If it is not kept in the locker of the petitioner as contented by the respondent, definitely everyone will look forward to keep the same in a locker facility opened in the name of the couple and merely for the reason that her intention was to keep the gold in a locker does not indicate that the same was already kept in the locker facility available with her parents. PW2, father of the petitioner, when examined, has stated that after entrusting the gold ornaments to the daughter, he had gone to Kuwait. He also stated that the gold was brought from Kuwait. PW2, father of the petitioner, when examined, has stated that after entrusting the gold ornaments to the daughter, he had gone to Kuwait. He also stated that the gold was brought from Kuwait. Though there is no documentary evidence to support the acquisition of gold, taking into consideration the factual aspects involved in the matter especially the pleadings on record and the supporting evidence, we are of the view that the version of the appellant/petitioner can be believed as far as the entrustment of gold ornaments are concerned. CPW1, mother of the respondent, of course had denied having received any gold ornaments as alleged. Her deposition is that when the petitioner and the 1st respondent had gone to the petitioner's house on the same day of marriage and returned after 3 days, she did not have any gold ornaments with them. After two days, both of them left to Kuwait. She stated that she does not know whether PW1 and her daughter had gone to the Bank for opening a locker and none of the members in their family has a locker facility. She denied having received the gold ornaments on the previous day. 21. Taking into consideration the aforesaid evidence adduced on either side, we are of the view that the Family Court's findings are perverse which requires interference by this Court. The very fact that the respondents did not deny existence of 125 sovereigns of gold ornaments and the fact that the allegation of the respondent that she had entrusted the gold ornaments to her parents on the very same date of marriage is not proved by cogent evidence, the version given by the petitioner is believable and probable and therefore she is entitled for a decree for return of 125 sovereigns of gold ornaments or its value. 22. Another claim which was rejected by the Family Court was in respect of payment of Rs. 2 lakhs as cash. The Family Court observed that there is no evidence to prove the said fact. In this claim also, evidence of PWs 1 to 3 are relevant. All of them categorically submits that Rs. 2 lakh was paid on 26/1/1999 and that was the arrangement between the parties. The said amount was paid as cash. Family Court observed that the petitioner could not adduce any documentary evidence to prove payment of Rs. 2 lakh. In this claim also, evidence of PWs 1 to 3 are relevant. All of them categorically submits that Rs. 2 lakh was paid on 26/1/1999 and that was the arrangement between the parties. The said amount was paid as cash. Family Court observed that the petitioner could not adduce any documentary evidence to prove payment of Rs. 2 lakh. There is no material to indicate that such an amount was withdrawn from the Bank. But the Family Court observed that it is highly improbable that when Rs. 10 lakhs is paid by way of cheque, Rs. 2 lakh will be paid in cash. It is argued by the learned counsel for appellant that it is quite normal in marriages of the same community that certain amounts are entrusted towards marriage expenses, other than patrimony and gold ornaments. If the amount is given towards marriage expenses, it is not proper to demand it. Of course, as rightly pointed out by the Family Court, the withdrawal of Rs. 2 lakhs from the Bank could have been proved. In the absence of such evidence, which is the best evidence, the Family Court was justified in rejecting the said claim. In so far as the said finding is arrived at on a possible approach that could be made in the matter and as there is no perversity in the said finding, we do not think that any interference is possible to the said finding. 23. The respondent had filed a cross objection with reference to the decree for Rs. 10 lakhs. Payment of Rs. 10 lakhs was admitted as the same was by way of cheque. The only contention urged is that, utilizing the said amount, certain item of property was purchased in the joint names of the petitioner and respondent. But it could be seen from the materials placed on record that the property has been purchased in the joint names and the consideration shown is Rs. 2 lakhs. Though it is contended by the learned counsel for cross objector that the property was undervalued, this Court cannot make such assumptions without any evidence in that regard. As to what was the actual value of the property is borne out from the document itself and a different view cannot be taken. Under such circumstances we do not think that the contention urged by the cross objector in that regard was justified. 24. As to what was the actual value of the property is borne out from the document itself and a different view cannot be taken. Under such circumstances we do not think that the contention urged by the cross objector in that regard was justified. 24. In the result, we do not find any reason to allow the cross objection. The same is dismissed. The appeal is therefore allowed as under:- (i) The judgment in OP No.309/2006 declining to grant decree for 125 sovereigns of gold ornaments is set aside (ii) In addition to the decree already passed, appellant/petitioner shall be entitled for the following decree:- (a) That the respondent shall return 125 sovereigns of gold ornaments to the petitioner or its equivalent value of Rs. 9,10,000/- with interest at the rate of 6% per annum from the date of filing of the petition till realisation. (b) Parties shall bear their own costs.