In this matrimonial appeal seeking to challenge a Family Court order dismissing a petition for recovery of gold ornaments and money, the High Court upheld the lower court's finding that the appellant failed to prove entrustment of the claimed assets to the third respondent.
The appeal is dismissed; parties to bear their respective costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938
Mat.Appeal.No. 269 of 2005 ( )
AGAINST THE ORDER IN OP 327/2001 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR
APPELLANT/PETITIONER::
LEELAMMA VARKEY, AGED 49, W/O. VARKEY, RESIDING AT PRINCE HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM.
BY ADV. SRI.SOORAJ T. ELANJICKAL
RESPONDENTS/RESPONDENTS:
1. KERALA STATE ROAD TRANSPORT CORPORATION, REP. BY MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM.
2. ASSISTANT TRANSPORT OFFICER, K.S.R.T.C., CHANGANACHERRY DEPOT.
3. P.M. VARKEY, AGED 54, DRIVER (K.S.R.T.C) CHANGANACHERRY DEPOT., KOTTAYAM DISTRICT.
R3 BY ADV. SRI.K.JAGADEESCHANDRAN NAIR R1 & R2 BY ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.
Mat.A.No.269 of 2005
........................................ Dated this the 1st day of March, 2017.
JUDGMENT
K. Ramakrishnan, J:
The petitioner in OP.No.327/2001 on the file of the Family Court, Kottayam at Ettumanoor is the appellant herein. The original petition was filed by the appellant for realization of money and gold ornaments said to have been given at the time of marriage. It is alleged in the petition that the marriage between the appellant and the third respondent was solemnized on 29.4.1971 at Kottakapuram St. Mathew's Church. They lived together as husband and wife for 18 years. Thereafter he deserted her. At the time of marriage, her father entrusted Rs.15,000/- and 25 sovereigns of gold with the 3rd respondent as trustee as her share from the paternal property. Though he deserted her, the same has not been returned. She claimed Rs.85,000/-being the value of 25 sovereigns of gold ornaments and Rs.15,000/-being the amount paid.
Mat.A.No.269 of 2005 2
order to prove the case of the third respondent, Rws 1 and 2 were examined. After considering the evidence on record, the Court below found that the appellant had failed to prove her case and dismissed the petition. Aggrieved by the same, the present appeal has been preferred by the appellant/petitioner before the Court below.
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the petition.
7.The factum of marriage and living together for 18 years was not disputed by the parties. Even assuming that the appellant was able to establish some gold ornaments were given at the time of marriage, in order to make the third respondent responsible for return of the gold ornaments, there must be evidence to prove entrustment of those gold ornaments with him. As per the pleadings, at the time of marriage Rs.15,000/- and 25 sovereigns of gold ornaments were entrusted to the third respondent by her father. It was admitted by PW1 that at the time of marriage, her brother and other relatives were also present and mother was also available and she was aware of this aspect. But at the time of evidence, her case was that the gold ornaments were given to the third respondent on three occasions, but that was not the pleadings in the petition. As per the pleadings, the entire gold ornaments and amount of RS.15,000/- were entrusted to the third respondent by the father. It is true that the father of the petitioner was not alive. But mother and her brothers were alive and they were not examined. Instead, she examined only her employee in the property apart from hearing and he also did not state about the date of betrothal and how the amounts were entrusted etc. Further no document has been produced to prove the purchase of gold ornaments as well. In the absence of any
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evidence to prove the entrustment of gold ornaments and money to the third respondent as claimed by the appellant in the petition, the Court below was perfectly justified in coming to the conclusion that the appellant had failed to prove her case and rightly dismissed the petition. We do not find any reason to interfere with the finding arrived at by the Court below on this aspect. The appeal lacks merits and the same is hereby dismissed. Considering the circumstances, the parties are directed to bear their respective costs in the appeal.
Sd/-
A.M. SHAFFIQUE, JUDGE.
Sd/-
K. RAMAKRISHNAN, JUDGE.
/true copy/
P.S to Judge
cl
3 issues framed by the court
Whether the High Court should interfere with the Family Court's finding that the appellant failed to prove entrustment of gold ornaments and money to the third respondent.
Whether the evidence examined was sufficient to establish the alleged claim for return of matrimonial property.
Whether the appeal filed by the appellant has any merit based on the evidence on record.
Leelamma Varkey
Kerala State Road Transport Corporation
Assistant Transport Officer
P.M. Varkey
A.M. Shaffique
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
