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2020 DIGILAW 399 (KER)

Royson Mathew S/o Mathew v. Minimol K. D/o Xavier

2020-05-19

A.M.SHAFFIQUE, GOPINATH P.

body2020
JUDGMENT : 1. The above appeal arises from the judgment of the Family Court, Kottayam at Ettumanoor, in O.P. No. 3/2007 which was filed by the present 1st respondent. The appellant herein was the 1st respondent in O.P. No. 3/2007. The parties are hereinafter referred to as they appear in the judgment of the Family Court, unless otherwise indicated. 2. The petitioner filed O.P. No. 3/2007 seeking for (i) for return of an amount of Rs. 50,000/- which was allegedly paid as patrimony; (ii) for return of 340 grams of gold ornaments or its equivalent value; (iii) for recovery of Rs. 10,32,500/- alleged to have been remitted by her to the account of her husband (appellant); (iv) return of share certificate of Appolo Hospital and (v) for return of L.I.C. Certificate of Rs. 1 lakh. There are allegations of the 1st respondent having an illicit relationship; of having treated the petitioner with cruelty etc., in the petition. However, for the purpose of this case, we need not advert to those allegations in any detail. 3. The 1st respondent initially did not contest the case and the Original Petition was partly decreed for recovery of Rs. 50,000/- and 35 sovereigns of gold ornaments. That judgment dated 8.12.2009 was set aside by this Court and the matter was remanded back for fresh disposal. The 1st respondent, thereafter, appeared and filed an objection together and also raised a counter claim. According to him, there was no demand for any patrimony. However he stated that an amount of Rs.1 lakh was entrusted with him for marriage expenses, out of which he used Rs. 60,000/- to purchase 10 sovereigns of gold ornaments and bridal costumes for the petitioner. According to him, the balance Rs. 40,000/- was used for the marriage feast and other incidental expenses. He stated that he had given a 'thali chain' and 'thali' weighing a total of 50.300 grams to the petitioner and contended that including the 10 grams of gold ornaments purchased by him, the petitioner was having only 20 sovereigns of gold ornaments at the time of marriage . He also alleged that the petitioner was wearing some imitation gold at the time of marriage. He also alleged that the petitioner was wearing some imitation gold at the time of marriage. He also stated that the entire gold ornaments were in the custody and possession of the petitioner; that the petitioner had not remitted any amount to his account and that the entire amounts remitted actually belonged to him, that he was a responsible and caring husband, that he had no illicit relationship, that he had not ill-treated the petitioner in any manner etc. He sought for recovery of an amount of Rs. 11,68,750/- on the plea that (i) during the period from 1999-2003, he had entrusted 10,500/- Saudi Riyals with the petitioner; (ii) that she had withdrawn 60,000/- Saudi Riyals from his account through ATM and (iii) that when she left the matrimonial home, she had taken away 5000 US dollars and 3000 Saudi Riyals kept by him in his almirah. The amount of Rs. 11,68,750/- was claimed to be the rupee equivalent of the aforesaid amounts of foreign currency. He also sought for recovery of 434.700 grams gold ornaments, which he had allegedly purchased for the petitioner at the time when their marriage was subsisting. 4. The petitioner filed a replication denying the allegations and stating that the counter claim is put-forward to defeat her claim for patrimony and other amounts. 5. In the Family Court, the documents Exts.A1 to A21 were marked on the side of the petitioner and Exts.B1 to B2 and B2(a) to B2(d) were marked on the side of the 1st respondent. The petitioner gave evidence as PW-1. Her brother was examined as PW-2 and her sister's husband as PW-3. For the respondents, the 1st respondent (present appellant) was examined as RW-1. 6. We have heard Sri. John Joseph, learned counsel, for the appellant in this appeal (1st respondent before the Family Court) and Sri. P.C Haridas, learned counsel for the 1st respondent (Petitioner before the Family Court). 7. We propose to deal with each item of claim in the petition filed by the petitioner and those in the counter claim filed by the respondent separately. Claim for return of patrimony of Rs. 50,000/- It is the case of the petitioner that a sum of Rs. 50,000/- was handed over to the 1st respondent on the date of their engagement as patrimony. Claim for return of patrimony of Rs. 50,000/- It is the case of the petitioner that a sum of Rs. 50,000/- was handed over to the 1st respondent on the date of their engagement as patrimony. The Family Court considered the fact that it was case of the 1st respondent himself that he was given Rs. 1 lakh on the date of the engagement. This amount was given, according to the 1st respondent, for marriage expenses, out of which he used Rs. 60,000/- to purchase 10 sovereigns of gold ornaments and bridal costumes for the petitioner. According to him, the balance Rs. 40,000/- was used for the marriage feast and other incidental expenses. The Family Court, on consideration of the oral testimony of PWs. 1 to 3 and the contents of B1 letter which, was produced by the 1st respondent himself, came to the finding that the amount of Rs. 50,000/- was indeed given and that such amount having been given for the benefit of the petitioner, the respondents are not allowed to appropriate the same stating that the same was used for marriage expenses etc. On a consideration of the facts and materials on record, we are unable to take a different view. Claim for return of gold ornaments The petitioner has a claim for return of gold ornaments. She claimed for a return of a total of 340 grams of gold or its equivalent value. This represents the 35 sovereigns of gold ornaments or 280 grams (which was with her at the time of marriage) and another 60 grams which she claimed to have entrusted to her mother-in-law (originally the 3rd respondent - since deceased) in 2004. According to the petitioner, she had left for Saudi Arabia to return to her place of employment in about 26 days after marriage. According to her, while returning to Saudi Arabia, she had entrusted the entire gold ornaments with the 3rd respondent, for safe custody. Again, in April 2004, when she had reached her matrimonial home on leave, she entrusted another 60 grams of gold also with the 3rd respondent. She produced A2 photograph to show that she was wearing 35 sovereigns of gold ornaments at the time of her marriage. Both PW-2 and PW-3 also deposed that the petitioner was wearing 35 sovereigns of gold ornaments at the time of her marriage. She produced A2 photograph to show that she was wearing 35 sovereigns of gold ornaments at the time of her marriage. Both PW-2 and PW-3 also deposed that the petitioner was wearing 35 sovereigns of gold ornaments at the time of her marriage. It is come out in evidence that the petitioner, her brother and her sister were working abroad at the time of her marriage. The 1st respondent also admitted that she was wearing about 20 sovereigns of gold ornaments at the time of marriage. The Family Court relied on the photograph and the admission on the part of the 1st respondent that the petitioner was wearing ornaments at the time of marriage to reach a conclusion that the petitioner was wearing about 35 sovereigns of gold ornaments at the time of marriage. The Family Court also noticed that since the petitioner and her brother as well as her sister were working abroad it was quite reasonable to assume and believe that the petitioner was indeed wearing 35 sovereigns of gold ornaments at the time of marriage. In order to ascertain the veracity of the petitioner's claim that she had entrusted the gold ornaments with her mother-in-law, when she left for Saudi Arabia immediately after marriage, the Family Court also considered the fact that it was unlikely that the petitioner would have taken the entire quantity of gold ornaments back with her to Saudi Arabia. The Family Court found that in addition to the 'thali chain' and 'thali', the petitioner would have taken about five sovereigns along with her, when she went back to Saudi Arabia. The case of the petitioner that she had entrusted further 60 grams of gold with her mother-in-law in April, 2004 was not found in her favour, since there was no evidence to support that claim. The family Court therefore granted a decree for recovery of 30 sovereigns of gold ornaments or its equivalent of Rs. 6,00,000/- to the petitioner. We find absolutely no perversity or illegality in the finding of the Family Court in this regard. A2 photograph itself is sufficient to prove that the petitioner was wearing about 35 sovereigns at the time of marriage. That apart, the finding that the petitioner, her brother and her sister were working abroad at that time is not challenged or disputed before us. Claim for return of an amount of Rs. A2 photograph itself is sufficient to prove that the petitioner was wearing about 35 sovereigns at the time of marriage. That apart, the finding that the petitioner, her brother and her sister were working abroad at that time is not challenged or disputed before us. Claim for return of an amount of Rs. 10,32,500/- (claim in the petition is for an amount of Rs. 10,82,500/- ) 8. The Family Court has allowed an amount of Rs. 10,32,500/- to be recovered by the petitioner, from the 1st respondent. This amount was claimed on account of remittance made by the petitioner to the account of the 1st respondent over a period of time. We notice from Exts. A3 to A.17 that the remittances are over a period of time ranging from 7.8.1999 to 13.7.2005. It was the case of the 1st respondent that he had some difficulty in transferring amounts through his account and that was a reason why the amount was sent through the account of the petitioner. The Family Court found that the case put up by the 1st respondent that he had some difficulty in transferring amounts through his account is false. This finding was essentially on the basis of the fact that even before marriage, the 1st respondent was working in Saudi Arabia and he had not stated the manner in which he was transferring money to India before his marriage to the petitioner. The Family Court relied on Exts.A3 to A17 to establish that an amount of Rs. 10,32,500/- had been transferred by the petitioner to the account of the 1st respondent. The Family Court also noticed the contradiction in the stand of the 1st respondent in his objections/draft affidavit regarding almirah and other household utensils and the stand taken by him when in the box and opined that the 1st respondent had no respect for truth even in simple matters. 9. It is true that the documents produced by the petitioner clearly show that she had remitted the said amount to the account of the 1st respondent. The 1st respondent also does not have a case that such amounts were not remitted. 9. It is true that the documents produced by the petitioner clearly show that she had remitted the said amount to the account of the 1st respondent. The 1st respondent also does not have a case that such amounts were not remitted. In her petition filed before the Family court, the only pleadings relevant to the issue regarding payment of money into the account of the 1st respondent 1st respondent is the following:- “The 1st respondent insisted the petitioner to send all the salary to his account immediately after the receipt of salary. If the salary was belayed the 1st respondent scolded her through telephone” (Paragraph 5 of the petition) “He threatened her that if she is not taking overtime and is not sending more money he would divorce her” (Paragraph 10 of the petition) “He considered her as a source of money for himself and his family.” “The petitioner asked the 1st respondent to purchase some land or a house since there are three other brothers in his family, but the respondent was not willing to purchase any landed property. He spent all the money for the personal use of himself and his family members.” There is no further pleading regarding the nature of the entrustment. In this connection we must refer to Section 70 of the Indian Contract Act, which reads as follows:- “70. Obligation of person enjoying benefit of non-gratuitous act - Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” It is clear from a reading of Section 70 that, if an act is done for another, intending to do so gratuitously, the person, who received the favour, cannot be proceeded against for recovery. In other words, where one person delivers to another goods or money intending to do so gratuitously, he cannot, thereafter, claim the price of goods or return of money. The evidence tendered by PW-1 (petitioner) also does not make out any better case regarding the nature of entrustment. We are unable to find any such pleadings in the petition or any suggestion of coercion in the testimony of PW-1. The evidence tendered by PW-1 (petitioner) also does not make out any better case regarding the nature of entrustment. We are unable to find any such pleadings in the petition or any suggestion of coercion in the testimony of PW-1. The testimony of PW-1 suggests that she had paid the money to the account of her husband as requested for by him. She would also say that this money was misused by her husband and respondents 2 and 3. In our view, the pleadings and the oral evidence fall short of the requirements in law to establish a case of threat, coercion etc. We cannot therefore extend the provisions of Section 72 of the Contract Act, to the petitioner. We feel that there may be several such transactions between the spouses during the time when the marriage was subsisting and such amount cannot be sought to be recovered by either of them, unless there were sufficient pleadings and evidence to show that such entrustment was not gratuitous or was under threat, coercion etc. There is a classic statement on the nature of voluntary payments, in the judgment of the Court of Appeal in Morgan vs. Ashcroft, 1937 (3) All ER 92, which holds:- “........It appears to me that a person who intends to make a voluntary payment, and thinks that he is making one kind of voluntary payment, whereas, upon the true facts, he is making another kind of voluntary payment, does not make the payment under a mistake of fact which can be described as fundamental or basic. The essential quality of the payment, namely, its voluntary character, is the same in each case. If a father, believing that his son has suffered a financial loss, gives him a sum of money, he surely could not claim repayment if he afterwards discovered that no such loss had occurred.” We must apply this principle here. We must hold that unless there are pleadings/evidence to suggest that the entrustment was for a specific purpose or that the entrustment was in the nature of trust or under the specific understanding that the amounts will be returned etc. an action for recovery as in this case may not succeed. We have not attempted to enumerate in any detail the circumstances under which recovery would be possible and the circumstances mentioned above are only illustrative and not intended to be exhaustive in any manner. an action for recovery as in this case may not succeed. We have not attempted to enumerate in any detail the circumstances under which recovery would be possible and the circumstances mentioned above are only illustrative and not intended to be exhaustive in any manner. 10. There is yet another reason why we cannot permit the petitioner to recover the amount of Rs. 10,32,500/-. It is her case, apart from this being evident from Exts.A3 to A17, that the payments were made during the period between 7.8.1999 to 13.7.2005. As long as it is not pleaded or established that the entrustment was in the nature of trust, in which case Section 10 of the Limitation Act, 1963 would apply, recovery of most of the amounts covered by Exts.A3 to A17 documents would be barred by limitation as on the date of presentation of petition, which is seen to be 1.1.2007. 11. Therefore for all the reasons set out above, we are unable to hold that the petitioner was entitled to recover an amount of Rs. 10,32,500/- which she had paid into the account of the 1st respondent during the period from 7.8.1999 to 13.07.2005. COUNTER CLAMS OF THE 1st RESPONDENT Claim for recovery of an amount of Rs. 11,68,750/- from the petitioner 12. The 1st respondent sought for recovery of an amount of Rs. 11,68,750/- on the plea that (i) during the period from 1999-2003, he had entrusted 10,500/- Saudi Riyals with the petitioner; (ii) that she had withdrawn 60,000/- Saudi Riyals from his account through ATM and (iii) that when she left the matrimonial home, she had taken away 5000 US dollars and 3000 Saudi Riyals kept by him in his almirah. The amount of Rs. 11,68,750/- was claimed to be the rupee equivalent of the aforesaid amounts of foreign currency. Apart from the assertion of the 1st respondent, there is not even an iota of evidence to suggest that the claim of the 1st respondent regarding entrustment / removal of foreign currency to/by the petitioner. There is nothing to establish that the petitioner had used the ATM card of the 1st respondent to withdraw cash as alleged. There was nothing to show that the amounts of foreign currency alleged to have been in the almirah was actually there. There is nothing to establish that the petitioner had used the ATM card of the 1st respondent to withdraw cash as alleged. There was nothing to show that the amounts of foreign currency alleged to have been in the almirah was actually there. To our question as to whether such large amounts of foreign currency could be kept as such and as to whether these amounts have been declared to the Indian Authorities, there is no answer. We therefore have no hesitation to hold that the view taken by the family court is the correct view since there was not even an iota of evidence to prove this claim of the 1st respondent. Claim for return of gold ornaments by the 1st respondent The 1st respondent also sought for recovery of 434.700 grams gold ornaments, which he had allegedly purchased for the petitioner at the time when their marriage was subsisting. The Family Court found that the 1st respondent failed to produce the originals of Ext.B2 series of invoices/bills in support of his claim that he had purchased 434.700 grams of gold ornaments. It was also found that the handwriting in two bills (Ext.B2 bill dated 7.4.2000 and Ext.B2(c) bill dated 4.1.2002) are identical, which cast a doubt regarding the authenticity of the bills. Further it was found that a husband, who was having several complaints (as seen from Ext.A19) against his wife would have purchased so much of gold ornaments for her as claimed. It was also found that even if the purchases by the 1st respondent vide Ext.B2 series of bills is accepted, there is nothing to show that he had entrusted such gold ornaments with the petitioner. We find no perversity or illegality in the finding rendered by the family court in this regard. 13. We, therefore, find that the Family Court was justified in rejecting the counter claims raised by the petitioner except to the extent of directing the return of ‘thali’ and ‘thali chain’ or its money equivalent, to the 1st respondent. 14. In the light of our findings as above we allow the appeal in part. The judgment and decree of the Family Court, Kottayam at Ettumanoor in O.P. No. 3 of 2007 is modified by rejecting the claim of the petitioner therein for recovery of Rs. 10,32,500/-. In all other respects the judgment and decree of the family court stands confirmed. In the light of our findings as above we allow the appeal in part. The judgment and decree of the Family Court, Kottayam at Ettumanoor in O.P. No. 3 of 2007 is modified by rejecting the claim of the petitioner therein for recovery of Rs. 10,32,500/-. In all other respects the judgment and decree of the family court stands confirmed. In the circumstances of the case there will be no order as to costs.