Allowed

Suseela Nair v. Vijayan V.N.

Kerala HC13 Dec 2013Mat.Appeal/33/2008

Case brief

AI extract

What is this about?

This matrimonial appeal challenges the Family Court's judgment denying return of gold ornaments and certain monetary claims. The High Court upheld the rejection of the gold claim as duplicative of monetary recovery and rejected unsupported claims. However, it found the Family Court illegal in rejecting a ₹54,000 loan closure claim lacking discussion and in unjustifiably reducing a ₹67,000 claim to

What did the court decide?

Appellant allowed to recover ₹64,000 in addition to what was allowed by Family Court, along with interest at 6% from 30.09.2002.

Suseela Nair Vs Vijayan V.N. — Matrimonial and Divorce | Kerala HC (2013)

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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 ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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FRIDAY, THE 13TH DAY OF DECEMBER 2013/22ND AGRAHAYANA, 1935

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Mat.Appeal.No. 33 of 2008 (A) -----------------------------JUDGMENT & DECREE DATED 8.3.2007 IN OP NO.498/2002 BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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APPELLANT/PETITIONER:

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SUSHEELA NAIR, AGED 44 YEARS, W/O. VIJAYAN V.N., 'VYSAKHASANDYA' HOUSE, PERUNNA KARA PERUNNA VILLAGE, CHANGANACHERRY, TALUK KOTTAYAM DISTRICT.

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BY ADVS.SRI.P.SANJAY SRI.A.PARVATHI MENON

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RESPONDENT(S)/RESPONDENT:

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VIJAYAN V.N., S/O. NARAYANAN NAIR, AGED 48 YEARS, VALAMPARAMBIL HOUSE, MYLAPRA KARA MYLAPRA VILLAGE, KOZHENCHERRY TALUK PATHANAMTHITTA DISTRICT, NOW RESIDING AT 'VYSAKHA SANDYA', PERUNNA KARA, PERUNNA VILLAGE CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.

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BY ADV. SRI.M.P.MADHAVANKUTTY

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BKA/-

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ANTONY DOMINIC &

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A. V. RAMAKRISHNA PILLAI, JJ.

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Mat. Appeal No. 33 of 2008

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Dated this the 13^th day of December, 2013

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J U D G M E N T

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Antony Dominic, J.

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The petitioner in OP No.498/2002 on the file of the Family Court, Kottayam at Ettumanoor is the appellant. She filed the OP against the respondent raising a claim for return of 32 sovereigns of gold ornaments and for recovery of a sum of 9,96,000/-.₹

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The appellant and the respondent were husband and wife. They have a child in their wedlock. Due to strain in the matrimonial relationship, the couple are separated and, thereafter, the original petition in question was filed raising the aforesaid claims against the respondent. After recording evidence, the Family Court negatived the claim of the appellant for return of 32 sovereigns of gold ornaments, but, allowed her to recover

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Mat. Appeal No. 33 of 2008

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a sum of ₹5,42,000/- together with interest. It is

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aggrieved by this judgment of the Family Court that the appeal has been filed.

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We have heard the learned counsel for the appellant and have also considered the submissions made at the Bar.

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The pleadings before the Family Court show that according to the appellant, at the time of her marriage on 22.07.1985, she was given 40 sovereigns of gold ornaments of which 32 sovereigns were misappropriated by the respondent. She also claimed that she was initially given 50,000/- towards her share,₹ that the respondent was given 1,40,000/- in 1986, that₹ ₹3,85,000/- was paid to him in 1994 for purchasing a property, that 1,00,000/- was given for the construction₹ of a house in 1998, that 54,000/- was given in June for₹ closing the house loan availed from the Vijaya Bank, that he was given 67,000/- for getting the gold pledged in the₹ bank released, and that he was paid 2,00,000/- for₹

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Mat. Appeal No. 33 of 2008

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getting the wood work of the house completed. It was on the above basis that a total claim of 9,96,000/- was₹ made by the appellant. The Family Court, by the impugned judgment, permitted the appellant to recover ₹3,85,000, 1,00,000/- and 57,000/- out of 67,000/-₹ ₹ ₹ claimed by her.

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Insofar as the claims that are negatived by the Family Court are concerned, the first one is her claim for return of 32 sovereigns of gold. Insofar as this particular claim raised by the appellant is concerned, going by her own pleadings, it was by selling the gold ornaments owned by her that 3,85,000/- was deposited in the bank,₹ which was allegedly withdrawn by the respondent in 1994. The Family Court has allowed the appellant to recover 3,85,000/- from the respondent. Once that claim₹ is allowed by the Family Court, again allowing the claim for return of the very same gold would amount duplication and; it was, therefore, that the Family Court rejected her claim for return of the gold in question. This

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Mat. Appeal No. 33 of 2008

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view taken by the Family Court, according to us, is perfectly legal and cannot be impugned.

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Another claim of the appellant that was negatived by the Family Court is for recovery of 50,000/-₹ allegedly paid prior to the marriage. Apart from the oral claim raised by the appellant, which was disputed by the respondent, there was no evidence whatsoever to substantiate this claim. Similar is the claim made by the appellant for return of 2,00,000/- allegedly paid for₹ completing the woodwork of the house constructed by the respondent. It was in such circumstances that the Family Court negatived these claims of the appellant.

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The appellant had also claimed that 1,40,000/-₹ was paid to the respondent in 1986 and the same should be repaid by him. However, when she gave evidence, she herself conceded that he was not paid 1,40,000/-, but,₹ was paid only 20,000/-. It was on account of this₹ contradiction on her own evidence that the Family Court refused to believe her version.

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Mat. Appeal No. 33 of 2008

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However, the appellant had a claim that in June 2000, the respondent was paid 54,000/- for closing a₹ house loan. Ext.A3, the ledger account of the SBI, Changanassery, shows that ₹54,406/- was withdrawn from her account on 30.06.2000. She had also deposed about this payment in her deposition. It was overlooking these pieces of evidences that the Family Court rejected her claim and that too without any discussion in the judgment. In our view, the rejection of this claim of the appellant is illegal and, therefore, she should be held entitled to recover 54,000/- paid to the respondent in₹ June 2000.

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Another claim of the appellant was for recovery of 67,000/- paid to the respondent for releasing certain₹ golden ornaments pledged in the bank. Although this claim has been allowed by the Family Court, without stating any reason whatsoever, only ₹57,000/- was allowed to be realized. In our view, once a claim has been upheld by the Family Court, without any justification

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Mat. Appeal No. 33 of 2008

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for reducing the such claim, the Family Court could not have reduced the amount claimed. Therefore, in our view, the appellant should be held entitled to recover ₹67,000/- itself instead of 57,000/- allowed by the₹ Family Court.

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For the aforesaid reasons, this appeal will stand disposed of, allowing the appellant to recover 64,000/- in₹ addition to what was allowed by the Family Court. She will also be allowed interest at 6% from the date of petition (30.09.2002) till date of realization. In other respects, the order will stand confirmed.

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The appeal is disposed of as above.

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Sd/- ANTONY DOMINIC, JUDGE.

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Sd/- A. V. RAMAKRISHNA PILLAI, JUDGE.

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bka/-

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//True copy//

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PA to Judge

Suseela Nair v. Vijayan V.N.

Case brief

What is this about?

What did the court decide?

Suseela Nair v. Vijayan V.N.

Case brief

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