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2020 DIGILAW 16 (KER)

Bindulakshmi v. Remesan

2020-01-07

A.M.SHAFFIQUE, MARY JOSEPH

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JUDGMENT : A.M. SHAFFIQUE, J.:— This appeal is filed by petitioner in O.P. (O.S. No).988/209 by the Family Court, Alappuzha. The claim is for return of 65 sovereigns of gold ornaments. Admittedly, the petitioner married the 1st respondent on 16.01.2003 and during 2005, matrimonial issues, had arisen between the parties, as a result of which, they decided to separate. According to the petitioner, a mediation took place and the mother-in-law along with sister-in-law, 2nd respondent, executed an agreement to return 65 sovereigns of her gold ornaments within a period of 3 months. Since the same had not been returned, she had approached the Family Court for return of gold ornaments. Respondents took up a contention that they have not executed any such agreement. There was a financial transaction with the father of petitioner. He obtained a promissory note from the 2nd respondent, she had also signed and given certain blank stamp papers. A suit was filed on the basis of promissory note for recovery of money as O.S. No. 79/2006 which was later decreed and after 4 years, a claim has been made after satisfying the said decree. The petitioner had made a claim after a considerably long period to recover 65 sovereign of gold ornaments. It is therefore submitted that though the signature in the agreement is that of respondents 2 and 3, the contents were fabricated by the petitioner or her father. 2. Family Court dismissed the suit on a finding that the agreement was not proved. 3. Apparently, this is a case in which all the parties were not examined. Evidence had been adduced only on the side of petitioner. She was examined as PW1. PW2 is her father, and PW3 is a witness to Ext. A2. When a claim is made based on Ext. A2, an agreement definitely the claim has to be made within the period of limitation. The Family Court observed that in the light of Section 29(3) of the Limitation Act, 1963 and as the dispute has arisen with reference to the marital tie, the suit is not barred by limitation. 4. The learned counsel for the appellant would argue that though respondents have taken a contention that they have not executed the agreement, Ext. A2, they did not care to enter the box. Therefore, the court below ought to have enforced Ext. A2. 5. 4. The learned counsel for the appellant would argue that though respondents have taken a contention that they have not executed the agreement, Ext. A2, they did not care to enter the box. Therefore, the court below ought to have enforced Ext. A2. 5. On the other hand, the learned counsel appearing for the respondents 2 and 3 would argue that Ext. A2 is a fabricated document. After the parties have got separated in 2005, a claim is made only by filing a suit in the year 2009. It is submitted that on account of a financial transaction with the 2nd respondent, and the father of the petitioner, 2nd respondent had executed a promissory note and certain signed blank stamp papers were also entrusted which was utilized for fabricating the agreement. Even otherwise, it is submitted that the court below was not justified in arriving at a conclusion that the claim was not barred by limitation. The claim is made based on Ext. A2. The suit ought to have been filed within a period of 3 years and there is no pleading whatsoever to indicate that the trust was created between the parties. 6. First we shall consider whether the court below was justified in arriving at a conclusion that the suit was not barred by limitation. Perusal of the pleadings would indicate that the suit is filed based on Ext. A2 agreement. In Ext. A2, the 2nd respondent and her mother had offered to return 65 sovereigns of gold ornaments or its value of Rs. 3,57,500/- within a period of 3 months. The agreement is apparently dated 31.05.2005. The promise is to return the gold ornaments within a period of 3 months. The suit is filed after 3 years from the date of expiry of 3 month period specified in the agreement. Prima facie, the claim is barred by limitation. 7. Learned counsel for the appellant however would submit that when a claim is made by the wife for return of gold ornaments, it amounts to trust and therefore Limitation Act would not apply. But perusal of the pleadings would indicate that the claim is based on the agreement and not based on the fact that trust was created and the respondents 2 and 3 were trustees. But perusal of the pleadings would indicate that the claim is based on the agreement and not based on the fact that trust was created and the respondents 2 and 3 were trustees. In the said circumstances, when there is no specific pleadings regarding the creation of trust, it is not open for the petitioner to invoke Section 10 of the Limitation Act, 1963 and claim exemption from period of limitation. 8. Family Court however placed reliance on Section 29(3) and arrived at a conclusion that Limitation Act will not apply. Section 29(3) reads as under; 29.Savings.- (3) “Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.” 9. The savings clause under Section 29(3) of the Limitation Act applies only in respect of “marriage” and “divorce” and will not apply to claims made between the married couple or in relation to other marital disputes. If it is a question relating to marriage or divorce, Limitation Act may not apply. The present case is not with reference either to marriage or divorce and therefore, Section 29(3) of the Limitation Act has no application. Hence, we are of the view that the claim is hopelessly barred by limitation. 10. As far as the agreement is concerned, though it is contended by respondents 2 and 3 that they have not executed the same and it is fabricated, they have not denied their signature. Though the petitioner's father, PW2 and the witness to the agreement, PW3, has been examined, the respondents did not choose to enter the box and therefore, the court below was not justified in arriving at a conclusion that there is no evidence for execution of the agreement. If the respondents 2 and 3 have a case that it is fabricated, they should have entered the box and spoken to that effect. In the absence of any such evidence, the trial court went wrong in coming to a conclusion that the agreement was not valid. 11. However, taking into consideration the fact that the claim is barred by limitation. The suit can only be dismissed. We, therefore, sustain the judgment of the trial court however on different grounds. The security furnished by the respondents 2 and 3 shall be returned to them. 12. Hence, Mat. 11. However, taking into consideration the fact that the claim is barred by limitation. The suit can only be dismissed. We, therefore, sustain the judgment of the trial court however on different grounds. The security furnished by the respondents 2 and 3 shall be returned to them. 12. Hence, Mat. appeal is dismissed.