Remanded

Kavitha Eapen v. Giju George

Kerala HC19 Oct 2012Mat.Appeal/103/2012

Case brief

AI extract

What is this about?

An appeal against a Family Court order dismissing a claim to remove the respondent's name from joint fixed deposits. The High Court held that receipts alone were insufficient to establish the respondent was merely a trustee but remanded the case to allow the appellant to adduce further evidence.

What did the court decide?

The impugned judgment and decree were set aside; the matter was remanded to the Family Court to allow the appellant to adduce further evidence.

Kavitha Eapen Vs Giju George — Matrimonial and Divorce | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE &

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THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934

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Mat.Appeal.No. 103 of 2012 (B)

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-------------------------------------OP(DA).1371/2010 of FAMILY COURT, TRIVANDRUM

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APPELLANT/PETITIONER:

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KAVITHA EAPEN

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D/O.ACHAMMA EAPEN, T.C.15/2850, PRA 145 CHITHRA, PATTOOR, PETTAH THIRUVANANTHAPURAM-695 004.

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BY ADV. SRI.T.K.ANANDA KRISHNAN

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RESPONDENT/COUNTER PETITIONER:

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GIJU GEORGE

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S/O.A.G.GEORGE, ARKANATTIL, GIJU BHAVAN MULAKUZHA, CHENGANNUR, KERALA-689 123.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.

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Mat. Appeal No.103 of 2012

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Dated this the 19^th day of October, 2012

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JUDGMENT

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Pius C. Kuriakose, J

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Under challenge in this appeal preferred by the appellant who is the wife of the respondent is the judgment and decree of the Family Court, Thiruvananthapuram by which OP(DA) No.1371/10 filed by the appellant was dismissed. The above OP was for a declaration that the respondent should get his name deleted from the joint fixed deposits Nos.065921 and 065922 with Catholic Syrian Bank, Changannur branch within the stipulated time failing which the bank should be directed to delete the name of the respondent from the two fixed deposits receipts accounts and the appellant should be permitted to withdraw the proceeds of the accounts. The respondent did not contest the OP. However, the learned Family Court has taken the

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Mat. Appeal No.103 of 2012 -2-

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view that the evidence adduced by the appellant falls short of upholding his claim that name of the respondent was included in the fixed deposits receipts only as a trustee for the appellant and that the real beneficiary of the deposits is the appellant alone. In that view of the matter the OP was dismissed by the learned Family Court. The respondent remains ex parte in this appeal also.

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We have heard the submissions of Sri.T.K.Ananda Krishnan, the learned counsel for the appellant who argued that in the absence of any counter evidence from the side of the respondent, the Family Court should have upheld the appellant's claim. We have read through the impugned judgment. The two relevant items of evidence before the Family Court were Exts.A1 and A2, the two fixed deposits receipts. Going by them the first name in the account is that of the respondent and the appellant's name is only a joint name. In other words per se the documents will show that at best the appellant can claim that she is a joint owner of the amounts standing in the two fixed deposit accounts.

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Mat. Appeal No.103 of 2012 -3-

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According to us the learned Judge of the Family Court was justified in taking the view that these two fixed deposits receipts by themselves are not sufficient for upholding the appellant's claim that it was her father Eapen, who actually deposited the amounts and that the appellant was intended to be the beneficiary of the proceeds of the account and the respondent's name was shown only because at that time the appellant had been betrothed to the respondent. The learned counsel for the appellant submitted that if opportunity is given the appellant will be able to adduce proper evidence to substantiate her claims over the amounts. He requested that an opportunity be given.

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We feel that there is justification for giving opportunity to the appellant to adduce evidence for the purpose of proving her claim. We therefore set aside the impugned judgment and decree and remit OP(DA) No.1371/10 to the Family Court, Thiruvananthapuram for fresh consideration. The Family Court is directed to allow the appellant to adduce further evidence. If the respondent is

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Mat. Appeal No.103 of 2012 -4-

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desirous of adducing counter evidence he also should be permitted to adduce such evidence. The learned Judge is directed to pass a revised judgment on the basis of the evidence already on record and further evidence adduced by the parties pursuant to this judgment. The learned Judge will expedite matters and will pass revised judgment early and at any rate within three months of receiving copy of this judgment. If the appellant applies for impleading the Catholic Syrian Bank, the garnishee as an additional defendant, the application should be allowed by the Judge of the Family Court.

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Sd/PIUS C. KURIAKOSE JUDGE

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Sd/BABU MATHEW P. JOSEPH JUDGE

kns/-

//TRUE COPY//

P.A. TO JUDGE

Mat. Appeal No.103 of 2012 -5-

Kavitha Eapen v. Giju George

Case brief

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Kavitha Eapen v. Giju George

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