Dismissed

Bijukumar v. Manjusha.M.Kumar and Another

Kerala HC14 Aug 2013Mat.Appeal/389/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against a Family Court order upholding the wife's claim for return of misappropriated gold ornaments and a loan amount. The court held that the appellant must return 58 sovereigns of gold that were not gifts and accepted the evidence regarding the Rs.3 lakh loan given by the in-laws to the husband for property purchase.

What did the court decide?

The appeal was dismissed; the judgment and decree of the Family Court allowing the return of 58 sovereigns of gold and Rs.300,000 loan are upheld.

Bijukumar Vs Manjusha.M.Kumar and Another — Matrimonial and Divorce | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

¶4

¶5

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶6

WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935

¶7

Mat.Appeal.No. 389 of 2010 ( )

¶8

AGAINST THE JUDGMENT IN OP(0S) 810/2006 of FAMILY COURT, ALAPPUZHA DATED 15-01-2010

¶9

APPELLANT(S)/RESPONDENT:

¶10

BIJUKUMAR B., AGED 33, S/O.BHASKARAN NAIR, VATTAKKUNNIL VEEDU, MANTHANAM THIRUVALLA REPRESENTED BY THE POWER OF ATTORNEY HOLDER SRI.BHASKARAN NAIR, AGED 75 YEARS S/O.VELAYUDHAN PILLAI -DO-.

¶11

BY ADVS.SRI.P.HARIDAS

¶12

SRI.CHERIAN GEE VARGHESE

¶13

RESPONDENT(S)/PETITIONERS:

¶14

MANJUSHA M.KUMAR, AGED 24 YEARS, D/O.N.MOHANKUMAR, S.M.PALACE, KOTTAKKAKAM MAVELIKKARA.

¶15

N.MOHANKUMAR, S/O.LATE NARAYANAPILLAI, S.M.PALACE, KOTTAKKAKAM, MAVELIKKARA.

¶16

R1 & R2 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL BY ADV. SMT.ASHA ELIZABETH MATHEW

¶17

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

ANTONY DOMINIC & P.D.RAJAN, JJ.

¶19

Mat.A.No.389 of 2010

¶20

------------------------------------------Dated this the 14^th day of August, 2013

¶21

JUDGMENT

¶22

Antony Dominic, J.

¶23

1.This appeal is filed against the judgment of the Family Court, Alappuzha in OP.810/06. The OP was filed by the respondents herein for recovery of gold and patrimony. By the judgment under appeal, the Family Court partially allowed the claim. It is aggrieved by that judgment and decree of the Family Court, the respondent husband has filed this appeal.

¶24

2.Briefly stated, the case is that the marriage between the appellant and the first respondent was solemnised on 8.12.2003. In the wedlock, a child was born in the year 2004. Soon thereafter, the parties separated and the wife filed OP (HMA).694/05 for divorce. That OP was allowed by the Family Court and an ex parte decree was passed which has become final. Subsequently, the respondents filed OP.810/06 seeking return of 93.5 sovereigns of gold ornaments worth Rs.6,24,580/- and Rs.3,00,000/- which, allegedly, was

¶25

Mat.A.389/10

¶26

¶27

borrowed by the appellant from the second respondent on 6.12.2003.

¶28

3.In so far as the claim for return of 93.5 sovereigns of gold is concerned, the case of the first respondent is that the appellant is distantly related to her and that their marriage was an arranged one. It is stated that at the time of marriage, her parents had given her 101 sovereigns of gold. In addition to that, she also received 23.5 sovereigns of gold by way of presents. Further, she claimed that a ring of one sovereign and a chain of 5 sovereigns were presented to the appellant. Thus, according to the first respondent, she had a total of 130.5 sovereigns of gold ornaments. It was stated that when she left the matrimonial home, she had only 37 sovereigns of gold with her and that the balance 93.5 sovereigns entrusted to the appellant were misappropriated and sold by the appellant for his own purposes. It was on this, that the claim was made.

¶29

¶30

Mat.A.389/10

¶31

Before the Family Court, to substantiate this claim of return of 93.5 sovereigns of gold, the first respondent examined PWs.1 to 3 who are she herself, her father and her brother-in-law. These witnesses uniformly deposed before the Family Court that the first respondent had a total of 130.5 sovereigns of gold ornaments and that 93.5 sovereigns were misappropriated by the appellant. In fact, evidence of all these witnesses also show that PW2, the second respondent, was employed in Dubai and that most of the ornaments that were given by him to his daughter was brought from abroad. Apart from that, he had also purchased 40 sovereigns of gold from Thrissur Fashion Jewellery, Mavelikkara. Further, Exts.A2 and A2(a) photographs of the first respondent in her bridal attire also showed the substantial quantity of gold ornaments owned by her. The evidence of PW2 also showed that in 1991 and 2001, when he married away his elder daughters, they were given more than 50 and 70 sovereigns of gold ornaments respectively. All these certainly probablised the case canvassed by the first respondent that at the time of marriage, the first respondent was given 101 sovereigns of gold.

¶32

Mat.A.389/10

¶33

¶34

While PWs.1 to 3 thus uniformly deposed about the quantity of gold that was given to the first respondent at the time of marriage, the case of the appellant was that all that she had at the time of marriage was 37 sovereigns of gold and that on the third day of the marriage, when she left for her home, she had taken the entire quantity with her. It was also his case that 37 sovereigns of gold so taken by her were kept in a locker at the Catholic Syrian Bank, Mavelikkara branch.

¶35

Nobody had a case that on the third day of the marriage, when the first respondent left the matrimonial home, she had no intention to go back. In such a situation, it is unlikely that she would have taken the entire ornaments with her. That apart, RW2, the Manager of the Bank, also had deposed that the second respondent did not have a locker in his bank. In such circumstances, we are uphold the finding of the Family Court that the first respondent had 101 sovereigns of gold ornaments at the time of her marriage.

¶36

Mat.A.389/10

¶37

¶38

Another claim that the respondents had was in relation to 23.5 sovereigns of gold allegedly received by the first respondent at the time of the marriage as presents. Apart from making an oral claim to that effect, there was no dependable evidence, either regarding its receipt or regarding its entrustment with the appellant. It was for that reason that the Family Court disbelieved that claim of the first respondent and there is no appeal by the respondents in so far as that issue is concerned.

¶39

8.Now what remains is 6 sovereigns of gold allegedly gifted by the first respondent to the appellant. As rightly pointed out by the Family Court, a gift made cannot be claimed back and therefore, the respondent should not have claimed its return. It was on these reasoning that the Family Court finally upheld the claim of the respondents and held finally that the first respondent is entitled to return of 58 sovereigns of gold ornaments. On an overall consideration of the entire evidence adduced and the in the light of the materials available before the Family Court, we do not find any reason to take a different view on this aspect.

¶40

Mat.A.389/10

¶41

¶42

9.Thus, what remains is the claim of the respondents that on 6.12.2003, the appellant had borrowed Rs.3 lakhs from the second respondent. The case pleaded before the Family Court was that on 5.12.2003, the appellant had contacted the second respondent and informed him that he has given advance for purchasing a neighbouring property and that to make up the shortage in the sale consideration, he wanted a loan of Rs.3 lakhs. It is pleaded that it was thereupon that the second respondent contacted a relative of the appellant, one Somanathan, and that with his knowledge and concurrence, the amount was given as patrimony on 6.12.2003. It is also pleaded in the petition that on 6.12.2003, the amount was given in the presence of PW3 and one Thulaseedhara kurup.

¶43

On the other hand, in his objection before the Family Court, the appellant contended that he did not contact the second respondent as alleged, nor did he borrow any amount from him. Before the Family Court, the case that Rs.3 lakhs was given to the appellant was testified by PWs.1 to 3. The evidence adduced by them would show that on 6.12.2003, PW2

¶44

Mat.A.389/10

¶45

¶46

had withdrawn Rs.3,70,000/- from the Catholic Syrian Bank, Mavelikkara branch. It stands proved by Ext.X1 document produced by RW2, the Manager of the Bank. Apart from the oral evidence of PWs.1 to 3 and Ext.X1 document, there is no documentary evidence adduced by the respondents evidencing the entrustment of Rs.3 lakhs with the appellant. However, the consistent case of the respondents as disclosed in the pleadings in the petition and evidence adduced before the Family Court supports this contention and despite the cross examinations made, nothing has been brought out to disbelieve their version. As rightly pointed out by the learned counsel for the respondents, in matrimonial matters, when transactions are carried out in strict confidence, this Court cannot expect that all transactions should be covered by documentary evidence. On the other hand, if oral evidence is dependable and acceptable, there is no reason to discard the same.

¶47

11.In so far as this case is concerned, the pleadings in the petition and the evidence let in by PWs.1 to 3 proves the case

¶48

Mat.A.389/10

¶49

¶50

that the amount has been given to the appellant on 6.12.2003. Even in the petition itself, the names of the persons who witnessed the transaction have been given and among them, one has been examined before the Family Court as PW3. As already mentioned, despite the cross examination, the evidence thus let in by these witnesses has not been discredited in any manner. In such circumstances, we do not find any fault with the Family Court in accepting the case of the respondents on this behalf also.

¶51

In the result, we do not find any merit in the appeal. The appeal fails. It is accordingly dismissed.

¶52

Sd/ANTONY DOMINIC, Judge.

¶53

Sd/-

¶54

P.D.RAJAN, Judge.

¶55

kkb.

Bijukumar v. Manjusha.M.Kumar and Another

Case brief

What is this about?

What did the court decide?

Bijukumar v. Manjusha.M.Kumar and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Unnikrishnan Marar Vs Rugmini Amma

Brigittha Vs Commissioner of Police

Jasmine Vs State of Kerala

R.Vijayan Vs Sajani

Bhaskaran Satheish Vs Sheeba.P.

Hanan U Vs Muhammes Shafeeque