Partly allowed

Dietz Gen Credo Sooner v. Jithu Mohan

Kerala HC15 Jul 2013Mat.Appeal/48/2008

Case brief

AI extract

What is this about?

In a matrimonial appeal, the High Court modified a Family Court decree. It upheld the respondent's claim for 68 sovereigns of gold misappropriated by the appellants but rejected the claim for 6 sovereigns as presents and money grains due to lack of evidence, modifying the valuation rate based on an estimate.

What did the court decide?

Decree modified: Respondent entitled to 68 sovereigns of gold or its value at Rs. 514/gram with 6% interest from 12/11/2007.

Dietz Gen Credo Sooner Vs Jithu Mohan — Succession and Inheritance | 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 P.D.RAJAN

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MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935

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Mat.Appeal.No. 48 of 2008 (A )

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AGAINST THE JUDGMENT IN OP 430/2006 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 12-11-2007

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APPELLANTS/RESPONDENTS:

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---------------------------------------------

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1. DIETZ GEN CREDO SOONER, AGED 33 YEARS, S/O.C.P.SOONER, CHUDUKATTUNGAL HOUSE, PUTHUVYPE (*)REP. BY POWER OF ATTORNEY HOLDER P.M.SUNILKUMAR, AGED 41 YEARS, S/O.P.K.MADHAVAN PERUMBODATH HOUSE, S.R.M.ROAD, COCHIN.

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**(REP.BY POWER OF ATTORNEY HOLDER SRI.C.P.SOONER, AGED 68, S/O PADMANABHAN, CHUDUKATTUNGAL HOUSE, PUTHUVYPE P.O, PUTHUVYPE VILLAGE, KOCHI THALUK, ERNAKULAM DISTRICT.*

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*SRI.C.P.SOONER IS PERMITTED TO APPEAR ON BEHALF OF THE 1ST APPELLANT IN THE PLACE OF PREVIOUS POWER OF ATTORNEY HOLDER SRI.P.M.SUNIL KUMAR AS PER ORDER IN IA NO.1493/09 DATED 15/7/2013)

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2. SATHI SOONAR, W/O.C.P.SOONER, CHUDUKATTUNGAL HOUSE, PUTHU VYPE.

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BY ADVS.SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K. SRI.M.KABANI DINESH SRI.JOBI.A.THAMPI SMT.BOBY M.SEKHAR

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RESPONDENT(S)/PETITIONER:

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JITHU MOHAN, AGED 25, D/O.MOHANA PANICKER, PADIYATH HOUSE, MEENACHIL TALUK KOTTAYAM DISTRICT, EADANADU P.O.

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BY ADV. SRI.A.K.HARIDAS

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== Mat. Appeal No. 48 OF 2008 =======================

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Dated this the 15^th day of July, 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 appeal arises from the judgment and decree of the Family Court, Kottayam at Ettumanoor in OP No.430/2006 filed by the respondent. The marriage between the first appellant and the respondent was solemnized on 16/01/2003. In so far as this appeal is concerned, OP No.430/06 was filed by the respondent for return of 87 sovereigns of gold, 50,000/- and another 50,000/- towards the value of the movables.

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The case of the respondent was that the marriage was on 16/1/2003 and that a female child was born in the wedlock on 14/5/2004. She stated that at the time of marriage, she was given 75 sovereigns of gold ornaments and she obtained another 6 sovereigns of gold as present from her relatives. She alleged that the entire ornaments were entrusted to the appellants for keeping in safe custody and that they did not return the ornaments thereafter. According to the respondent, on 19/1/2003 and 26/1/2003, her father gave the first appellant `10,000/- and

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Mat.Appeal No.48/2008

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40,000/- respectively. She also stated that subsequently her father gave another 6 sovereigns of gold, which was also misappropriated by the appellants. She also contended that she was given household items worth 50,000/-, which according to her were still with the appellants. It was alleged that she was treated with cruelty with a demand to sell 50 cents of land belonging to her. It is stated that the cruelty and the desertion by the first appellant led her to file the petition in question.

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Appellants filed objections before the Family Court admitting the marriage and paternity of the child. They also stated that the respondent was wearing gold ornaments, which according to them was in the exclusive possession and enjoyment of the respondent herself. They denied the allegation that she was given 75 sovereigns of gold at the time of her marriage. They also denied that she got present of 6 sovereigns of gold ornaments from her relatives. According to them, on the second day of the marriage, the father of the respondent came to the matrimonial home, when the respondent entrusted some gold ornaments to him saying that the ornaments belonged to her mother. The appellants denied the allegation that the father of

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the respondent gave 10,000/- and 40,000/- on 19/1/2003 and 26/1/2003. In so far as the household articles are concerned, they said that those articles are still lying idle in their house and that the same can be returned. The allegations of cruelty raised against the husband were all denied. They also raised a counter claim for return of 5 sovereigns of thali chain given at the time of marriage, which according to them was in the custody of the respondent wife.

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Before the Family Court, on behalf of the wife, PWs 1 and 2 and on behalf of the first appellant, his power of attorney holder and two witnesses were examined. Exts.A1 to A9 and Exts.B1 to B3 were marked. The Family Court considered the evidence and allowed the petition entitling the respondent to realise 50,000/- and 81 sovereigns of gold or its present approximate value of 5,50,000/-. Interest at the rate of 6% was granted on 50,000/- from the date of petition and on 5,50,000/-, interest was granted at the rate of 6% from the date of the decree. The counter claim of the appellants was also rejected. It is aggrieved by the judgment and the decree, the respondents before the Family Court have come up in appeal.

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We have heard the learned counsel for the appellants and also the learned counsel appearing for the respondent.

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The first claim dealt with by the Family Court is regarding the 75 sovereigns of gold ornaments allegedly given by the parents of the wife at the time of her marriage. Although this claim has been denied by the appellants, Exts.A4 and A5 are the bill and estimate issued by Pankaj Jewellers of Pala, from where according to the respondent, the ornaments were purchased. These documents show that 600 gms of gold were purchased by the father of the respondent and both the estimate and bill were issued in his name on 15/1/2003, the day prior to the marriage. It is also in evidence that he had borrowed necessary amounts for purchasing the gold from his father-in-law and his brother. He has also stated during his examination that to repay the said amounts, he had availed loans from the Co-operative Society where he was employed. Exts.A7 and A9 certificates issued by the Co-operative Society substantiated this assertion. Therefore, the fact that gold was purchased, that he had borrowed necessary funds to pay to the dealer and that he had availed loans to repay the amounts were proved by the evidence adduced on behalf of

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the respondent. Although the witnesses examined on behalf of the respondent were cross examined, nothing has been brought out to discredit this testimony. Therefore, we are inclined to uphold the finding of the Family Court to the extent it has uphold the case of the respondent that she was given 75 sovereigns of gold at the time of her marriage.

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Now the surviving question is whether the ornaments in question were entrusted to the appellants to seek a decree for its return. This question has been rightly answered in favour of the respondent in view of Ext.A6. Ext.A6 is a letter written by none other than the first appellant to the father of the respondent where he has confessed that he will return the gold ornaments misappropriated by him. Therefore, the misappropriation of gold ornaments is seen admitted in Ext.A6. If that be so, the Family Court was justified in its conclusion that the ornaments in question were entrusted to the appellants and were misappropriated by them.

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Now the question is whether the whole 75 sovereigns of gold ornaments has been proved to be misappropriated. In this context, from the judgment itself, what we notice is that,

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according to the respondent, except her studs and anklet, other items were taken by the appellants. This therefore means that, from the total quantity of gold ornaments that she had, except the studs and anklet, only the remaining quantity was entrusted to the appellants and that the same was misappropriated. Going by the schedule to the petition filed by the respondent before the Family Court, the weight of one pair of anklet was 6 sovereigns and the studs were weighing 1 sovereign. If that be so, out of the 75 sovereigns, necessarily 7 sovereigns should have been deducted. Consequently, it can be concluded that only 68 sovereigns were entrusted to the appellants.

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From the judgment, we notice that the Family Court had adopted the value of the gold ornaments at 5,50,000/-. This value has been adopted on the basis of Ext.A4, the bill issued by Pankaj Jewellers, Pala on 15/1/2003. Although Ext.A4 issued by the aforesaid jeweller on 15/1/2003 is for 5,25,000/- adopting the rate per gram at 875, we find that Ext.A5, the estimate was also issued by the same jeweller on 15/1/2003 itself for 3,60,785/adopting `514/- as the rate per gram. Ext.B2 produced by the appellant also show that, as on 15/1/2003, the prevailing rate was

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`514/-. Although the learned counsel for the respondent sought to explain the disparity in rates between Exts.A4 and A5 by contending that the rate shown in Ext.A4 bill is the rate at which the father of the respondent had to pay for the gold ornaments which he purchased on credit, from the evidence of PWs 1 and 2, we do not find that they have set up any such case. In such a situation, having regard to the value as disclosed in Ext.B2, we are inclined to adopt the value as shown in Ext.A5 estimate.

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Therefore, the judgment of the Family Court accepting the case of the respondent that she had entrusted 75 sovereigns of gold and that on failure to return the same, she is entitled to get 5,50,000/- is modified and the respondent will be entitled to realise 68 sovereigns of gold or on the failure of the appellants to return the same, the value thereof adopting the rate of 514/- per gram should be paid.

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Now what remains is the claim of the respondent that she was given 6 sovereigns of gold as present. In so far as this claim of the respondent is concerned, apart from the oral evidence of herself, there is no acceptable evidence substantiating her claim, which was denied by the appellants. In

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such circumstances, we do not find any justification for the Family Court to have sustained this claim of the respondent.

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Similar is the claim of the respondent for return of 10,000/- and 40,000/- allegedly paid on 19/1/2003 and 26/1/2003. Here again, apart from the oral assertion made by PWs 1 and 2, no documentary evidence of any nature has been produced to substantiate the claim and therefore the Family Court was not justified in upholding the same. In the result, we dispose of this appeal modifying the decree and allowing the petition in part.

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In the result, the decree is modified entitling the respondent to realise 68 sovereigns of gold or on the failure to return the same, its value adopting `514/- as the value per gram with interest should be paid at the rate of 6% from 12/11/2007, when the Family Court rendered its judgment under appeal.

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Sd/- ANTONY DOMINIC, Judge

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Sd/- P.D.RAJAN, Judge

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//True Copy//

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PA TO JUDGE

Dietz Gen Credo Sooner v. Jithu Mohan

Case brief

What is this about?

What did the court decide?

Dietz Gen Credo Sooner v. Jithu Mohan

Case brief

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