Allowed

S.B.Sunil Kumar v. B.Raji

Kerala HC5 Nov 2012Mat.Appeal/273/2008

Case brief

AI extract

What is this about?

Two matrimonial appeals against a Family Court decree. The High Court re-evaluated evidence regarding joint property and gold ornaments. It reversed the finding that the wife was the sole owner of joint property, modified maintenance rates, and ordered the husband to return three sovereigns of gold or its value.

What did the court decide?

Property held as joint shares equal; decree for sole possession of wife vacated; injunction vacated; maintenance fixed at Rs.500/month; husband to return 3 sovereigns gold or value with interest.

S.B.Sunil Kumar Vs B.Raji — Maintenance and Alimony | 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 & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934

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Mat. Appeal. No. 273 of 2008 ( ) -----------------------------OS.21/2001 OF FAMILY COURT, THIRUVANANTHAPURAM

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APPELLANT/DEFENDANT:

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S.B.SUNILKUMAR, S/O.SUKUMARAN, R/AT. PLANGALAVILA PUTHUVAL PUTHEN VEEDU ATHIYANNOOR, ARALUMMOODU P.O., THIRUVANANTHAPURAM.

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BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.

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RESPONDENT(S)/PLAINTIFF: ------------------------

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B.RAJI, D/O.BABY, RESIDING AT ALUVILA PUTHEN VEEDU, ALUVILA ATHIYANNOOR VILLAGE, THALAYAL DESOM, BALARAMAPURAM THIRUVANANTHAPURAM.

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BY ADV. SRI.B.S.SWATHY KUMAR

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2012, ALONG WITH MA. 291/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BKA

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PIUS C. KURIAKOSE &

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BABU MATHEW P. JOSEPH, JJ.

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Mat. Appeal Nos. 273 & 291 of 2008

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Dated this the 5^th day of November, 2012

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J U D G M E N T

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Pius C. Kuriakose, J.

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Mat. Appeal No.273/2008 is filed by the husband and Mat. Appeal No.291/08 is filed by the wife. Both appeals are directed against the judgment and decree in OS No.21/2001 on the files of the Family Court, Thiruvananthapuram.

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The above suit was filed by the wife praying for a declaration of title and possession in respect of the scheduled property and for recovery of money and gold ornaments, maintenance and other reliefs. The case of the wife was that the marriage between the two was solemnized on 17.08.1996 and thereafter, they resided together as wife and husband. On the date of the betrothal ceremony, i.e. on 24.04.1996, property which belonged to the members of the

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Mat. Appeal Nos. 273 & 291 of 2008

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family of the defendant/husband was purchased in the joint names of the plaintiff and the defendant by the plaintiff's parents as per sale deed No.1476/96 of S.R.O., Balaramapuram. The whole sale consideration set out in the above sale deed was received from the plaintiff's parents by the defendant and his parents. At the time of the marriage, the plaintiff was given 20 sovereigns of gold ornaments then worth Rs.80,000/-, household articles then worth Rs.15,000/-, presentation articles then worth Rs.20,000/-. These gold ornaments and articles are presently in the possession of the defendant. Rs.25,000/was spent by the plaintiff's parents as marriage expenses. The defendant is a driver and the plaintiff's parents gave him Rs.40,000/- for purchasing a trucker and he purchased a trucker bearing No.IEV 5434. All through the marriage life, the defendant and his parents manhandled the plaintiff brutally demanding more money. Defendant had no love or affection towards the plaintiff. Even during the pregnancy stage, the plaintiff was completely neglected. The

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Mat. Appeal Nos. 273 & 291 of 2008

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defendant is a drunkard. The defendant is now attempting to encumber the plaint scheduled property. Hence, the suit for declaration of title over the property and for recovery of possession of the same with further prayer for recovery of money being the value of gold ornaments, household articles, presentation articles, marriage expenses and the amount advanced for purchasing trucker. There is a further prayer for granting maintenance @ Rs.3,000/- per mensem to the plaintiff. The plaintiff also seeks a decree of injunction restraining the defendant from alienating or encumbering the plaint scheduled property to his sister or to other strangers.

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Statement of objections was filed by the defendant raising various contentions. The claim that 20 sovereigns of gold ornaments were given at the time of marriage was denied. It was contended that a 'thali' chain weighing two sovereigns and another chain weighing three sovereigns was given by the defendant to the plaintiff and the plaintiff had only six sovereigns at the time of marriage.

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Mat. Appeal Nos. 273 & 291 of 2008

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The presentation articles received by the plaintiff at the time of marriage were never brought by her to the matrimonial home and no trucker was purchased as alleged by the plaintiff. The defendant is maintaining the plaintiff and children properly. Even though, the plaintiff's name is also shown in the title document, she has no right over the property. The plaintiff and the defendant were residing together till 2000. When the plaintiff deserted the defendant, she took away all her belongings. Thereafter, as per the judgment in OP(HMA) No.539/2000, the plaintiff and the defendant resided together till 2003. The plaint scheduled property is in the absolute possession and enjoyment of the defendant. The Family Court formulated the following issues for decision under the suit;

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1.Is the prayer for declaration and recovery of possession allowable?

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2.Is the prayer for recovery of gold ornaments or its value allowable?

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3.Whether the plaintiff is entitled to get amounts spent for

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Mat. Appeal Nos. 273 & 291 of 2008

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marriage and if so, its quantum?

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4.Is the prayer for recovery of the value of household articles and presentation articles allowable?

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5.Is the prayer for maintenance allowance allowable and if so, its quantum?

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6.Is the prayer for recovery of Rs.40,000/- allowable?

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7.Reliefs and costs.

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The plaintiff and her children filed MC No.20/01 against the defendant for maintenance of Rs.500/- each per mensem. The Family Court conducted a joint trial of the OS as well as the MC in which the evidence consisted of the oral evidence of parties PW1 and DW1 apart from the documents, Exts.A1 to A5. A1 was the Marriage Certificate. A2 was the Sale Deed. A3 was the certificate issued by the Kalyanamandapam where the marriage ceremony was conducted. A4 and A5 were related to making of some gold ornaments. On evaluating evidence, the Family Court would come to the conclusion that the evidence adduced on the side of the plaintiff was credible and plaintiff's version

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Mat. Appeal Nos. 273 & 291 of 2008

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was much more probable. Accordingly, issue no.1 was answered by holding that the plaintiff was the absolute owner of the property including the buildings situated thereon and recovery of possession of the building was allowed. Coming to issue no.2, however, the court came to the conclusion that the plaintiff's claim was not substantiated. Accordingly, that issue pertaining to 20 sovereigns of gold ornaments was answered against the plaintiff. Issue no.3 regarding incurring Rs.25,000/towards marriage expenses was also decided against the plaintiff. Issue no.4, which pertains to household articles, presentation articles etc., was also answered against the plaintiff for want of evidence. Issue no.6 pertaining to Rs.40,000/- allegedly advanced to the defendant for purchasing trucker was also answered against the plaintiff. Issue no.5 in the suit, which was considered along with the point, which arose in the maintenance case was answered by the finding that maintenance @ Rs.350/- can be awarded to the plaintiff and her two children from the date of

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Mat. Appeal Nos. 273 & 291 of 2008

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petition till the judgment and thereafter @ Rs.500/- each to the plaintiff and her two children. Grounds raised in Mat. Appeal No.291/2008 are directed against that part of the judgment declining the reliefs which he had sought for. But, the grounds raised in Mat. Appeal No.273/2008 challenge the decree passed by the Family Court in respect of the immovable property in favour of the wife.

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We have heard the submissions of Sri.G.Ram Mohan, the learned counsel for the appellant in Mat. Appeal No.273/2008 and those of Sri.Swathikumar, the learned counsel for the appellant in Mat. Appeal No.291/2008. The learned counsel addressed submissions based on the grounds raised in memoranda of appeal filed by the respective parties. According to Sri.Ram Mohan, while the decision of the Family Court to decline reliefs in respect of gold ornaments, various kinds of articles, marriage expenses and amounts allegedly advanced towards purchase of trucker are perfectly correct, the Family Court went wrong in its decision relating to the immovable

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Mat. Appeal Nos. 273 & 291 of 2008

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property. Per contra, the submission of Sri.Swathikumar was that the Family Court ought to have decreed the suit in full.

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We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a thorough reappraisal of the evidence adduced by the parties before the Family Court. Ext.A2 is the sale deed. Going by the express recitals in that sale deed, the title over the plaint scheduled property is conveyed jointly in favour of the appellant and the respondent/the husband and the wife. The transfer under Ext.A2 is obviously a joint transfer for consideration as envisaged by Section 45 of the Transfer of Property Act. The recitals in the document are to the effect that the consideration is being paid by the purchasers jointly. According to us, in the absence of a contract to the contrary contained in the document, it has to be presumed that the property to be held jointly by the two assignees in equal shares. True, oral evidence has been let in by PW1 and that oral evidence inspired the Family Court more than

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Mat. Appeal Nos. 273 & 291 of 2008

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the counter evidence adduced by the husband. But, in the teeth of Ext.A2, which is a written registered document, the scope of oral evidence to show that the express terms of Ext.A2 are wrong or different, is very limited in view of Section 92 of Indian Evidence Act. It is true that in civil cases, decision can rest on a mere preponderance of probabilities and it is not necessary to insist on absolute proof. But, regard should be had to the burden of proof. Here, in the teeth of Ext.A2, the burden was very heavy on the wife to have proved that the entire consideration for the purchase under Ext.A2 was advanced by her or on her behalf and that her husband's name was included in the document only as a name lender. Our impression on the basis of reappraisal of the evidence on record is that the evidence adduced by the wife falls short of establishing that title under Ext.A2 was conveyed to the wife only.

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While we can agree with the Family Court in its findings on the issues pertaining to marriage expenses and household articles and presentation articles, we are of the

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..10..

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Mat. Appeal Nos. 273 & 291 of 2008

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view that the court below was not justified in completely disallowing the wife's claim for return of gold ornaments. We find that there is admission in pleadings and evidence to conclude that three sovereigns of gold ornaments belonging to the wife has not been accounted for by the husband. The husband is bound to return the above three sovereigns of gold or its present market value (value as on this date) to the wife.

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We also find some infirmity about the quantum of maintenance awarded by the Family Court. We find that under the impugned judgment, the court below has awarded maintenance to the wife only at different rates, i.e. @ Rs.350/- per mensem from the date of petition till the date of the judgment and thereafter, @ Rs.500/- per mensem. We are of the view that for the entire period, maintenance can be awarded @ Rs.500/- per mensem considering the fact that the respondent was a lorry driver, who can be reasonably presumed to have income enough to pay maintenance to his wife and children @ Rs.500/- per

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Mat. Appeal Nos. 273 & 291 of 2008

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mensem.

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The result of the above decision is, therefore, as follows;

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1.Mat. Appeal No.273/2008 is allowed. The finding of the Family Court that the immovable property belongs to the wife only is set aside. It is found that the property belongs to the husband and wife in equal shares. The decree and recovery of the possession passed in favour of the wife is, therefore, vacated. The remedy of the parties, if they are desirous of getting separate possession, is to go in for a suit for partition.

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2.The decree of injunction passed against the husband is vacated. It is clarified that any alienation or encumbrance effected by the husband shall bind only his one half share of the property only.

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3.The husband shall pay maintenance to his wife and children @ Rs.500/- (Rupees five hundred only) each per mensem from the date of application till the date of payment. The wife and children are given liberty to

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Mat. Appeal Nos. 273 & 291 of 2008

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approach the Family Court for variation in the rate of maintenance on the basis of change in circumstances.

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4.Mat. Appeal No.291/2008 is also allowed. There will be a

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decree in favour of the wife directing the husband to return three sovereigns of gold or its present market value in money within a period of three months from today. If the husband fails to do so within three months, he will become liable to make payment together with interest @ 6% per annum till date of payment.

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The parties will suffer the respective costs.

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Sd/-

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PIUS C. KURIAKOSE, JUDGE

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Sd/- BABU MATHEW P. JOSEPH, JUDGE

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bka/-

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//True copy//

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PA to Judge

S.B.Sunil Kumar v. B.Raji

Case brief

What is this about?

What did the court decide?

S.B.Sunil Kumar v. B.Raji

Case brief

What is this about?

What did the court decide?

What the court decided

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