Partly allowed

Abubakker Labba & Another v. Shameena K.B. & Another

Kerala HC19 Feb 2018Mat.Appeal/167/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the matrimonial appeal in part. The court set aside the Family Court decree holding the appellants (parents of the husband) liable to return money and gold ornaments, finding no specific pleadings or evidence of entrustment. The decree against the husband remained undisturbed.

What did the court decide?

Impugned judgment and decree against appellants/respondents 2 and 3 set aside; judgment against second respondent/first respondent stands; appellants allowed to withdraw deposited amount.

Abubakker Labba & Another Vs Shameena K.B. & Another — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE K.HARILAL &

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THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939

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Mat.Appeal.No. 167 of 2010

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AGAINST THE JUDGMENT AND DECREE DATED 06-08-2009 IN O.P. NO. 1071/2008 of FAMILY COURT, KOTTAYAM

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APPELLANTS/RESPONDENTS 2 & 3:

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1 ABUBAKKKER LABBA, S/O.ABDUL WAHAB @ SALI, KUMMANAM PO, CHENGALAM VILLAGE, KOTTAYAM TALUK.

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2 SUHARA BEEVI, W/O.ABDUL WAHAB, PALLINADACKAL HOUSE, KUMMANAM P.O., CHENGALAM VILLAGE, KOTTAYAM TALUK.

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BY ADV.SRI.SURIN GEORGE IPE

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RESPONDENTS/PETITIONER AND 1ST RESPONDENT:

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SHAMEENA K.B., D/O.E.A.BASHEER, EDATHARA HOUSE, KANGAZHA P.O., KANGAZHA VILLAGE, CHANGANACHERRY, KOTTAYAM DISTRICT.

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ABDUL WAHAB @ SALI, S/O.ABUBAKKER, PALLINADACKAL HOUSE, KUMMANAM P.O., CHENGALAM VILLAGE KOTTAYAM TALUK.

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R1 BY ADVS. SRI.DELEEP RAJ SRI.K.S.MURALIKRISHNAN NAIR SRI.T.M.RAMAN KARTHA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = Mat. Appeal No.167 of 2010(C)

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- - - - - - -- - - - - - - - - - - - - - Dated this the 19^th day of February, 2018

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K. Harilal, J.

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The appellants are respondents 2 and 3 in O.P

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No.1071/2008 of the Family Court, Kottayam at Ettumanoor. They are the father and mother of the second respondent. The second respondent, who is the husband of the first respondent herein. The aforesaid original petition was filed by the first respondent herein, seeking a decree for realization of `1,50,000/- and 25 sovereigns of gold ornaments or its value from the second respondent and appellants herein. The facts of the case can

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Mat. Appeal No.167 of 2010 (C)

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-: 2 :-

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be summarised as follows: The parties are referred

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to as in the original petition.

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The petitioner is the wife of the first respondent and respondents 2 and 3 are the father and the mother of the first respondent. The marriage between the petitioner and the first respondent was solemnised on 18.12.2005 in accordance with the Mohammedan Law. An amount of 1,50,000/- and 25 sovereigns of gold ornaments were given as share of the petitioner to the respondents by the father of the petitioner. But, after the marriage, the respondents have appropriated the amount and 25 sovereigns of gold ornaments for their needs without the knowledge and consent of the petitioner. The first respondent was set _ex parte_ and the respondents 2 and 3 filed objection denying the averments in the petition. According to them, the suit against them was filed in collusion with the first respondent. No amount or gold ornaments had been entrusted with the respondents 2 and 3. But 50,000/- was entrusted with the first

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Mat. Appeal No.167 of 2010 (C)

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-: 3 :-

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respondent and the same has not been entrusted with them as alleged in the original petition. The allegation that the petitioner had 25 sovereigns of gold ornaments at the time of marriage is not true. The petitioner was taken to her house for delivery and at that time she was wearing her entire gold ornaments.

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On the aforesaid pleadings, both parties adduced evidence which consists of oral testimony of PWs. 1 to 3 and RWs. 1 to 4 and documentary evidence Exts. A1 to A5 and B1 were marked.

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On appraisal of the aforesaid evidence, the Family Court passed the impugned judgment granting a decree to realise 50,000/- with 9% interest and 24 sovereigns of gold ornaments or 2,50,000/- as its value with 9% interest from the respondents 1 to 3. The petitioner was also allowed to realise a cost of `2,000/- from the respondents. The legality and correctness of the findings whereby the Family Court

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Mat. Appeal No.167 of 2010 (C)

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-: 4 :-

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passed the impugned judgment against the appellants/

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respondents 2 and 3 are assailed in this appeal.

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Heard the learned counsel for the

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appellants/respondents 2 and 3 and the learned counsel for the first respondent/petitioner.

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The sum and substance of the arguments

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advanced by the learned counsel for the appellants/respondents 2 and 3 is that absolutely there is no evidence to prove the entrustment of money or gold ornaments with the appellants, who are the parents of the second respondent/first respondent, in connection with the marriage of the first respondent in the original petition. But, the Family Court miserably failed to evaluate the evidence correctly; had the Family Court evaluated the evidence in its correct perspective, the respondents 2 and 3 could have been exonerated from the liability. It is also contended that there is

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Mat. Appeal No.167 of 2010 (C)

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-: 5 :-

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no specific pleadings with respect to entrustment of

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money or gold ornaments with them in connection with the marriage. But, the Family Court failed to appreciate the pleadings and evidence in its correct perspective and granted a decree for realising the money and gold ornaments from the appellants also.

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Per contra, the learned counsel for the

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first respondent/petitioner advanced arguments to justify the findings whereby the appellants also were held liable to return the money and gold ornaments to the petitioner. The learned counsel for the first respondent invited our attention to paragraph 4 of the petition and contended that there are sufficient pleadings to constitute entrustment with the appellants/respondents 2 and 3 also. Further it is contended that the oral testimony of PWs. 1 to 3 would prove that the money and gold

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ornaments were entrusted with the appellants also.

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Mat. Appeal No.167 of 2010 (C)

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-: 6 :-

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In view of the submission at the bar, the

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point to be considered in this appeal is whether the Family Court is justified in granting a decree to realise `50,000/- and 24 sovereigns of gold ornaments from the appellants/respondents 2 and 3 in view of the evidence available on record.

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The marital relationship between the

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petitioner and the first respondent was admitted. It is the case of the petitioner that at the time of marriage she was wearing 25 sovereigns of gold ornaments and 1,50,000/- was entrusted with the respondents in connection with the marriage. On the other hand, the respondents 2 and 3 denied the allegations that the petitioner was wearing 25 sovereigns of gold ornaments at the time of marriage and 1,00,000/- was entrusted with them also. But they admitted that at the time of marriage `50,000/- was entrusted with the first respondent

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Mat. Appeal No.167 of 2010 (C)

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-: 7 :-

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only towards the marriage expense in connection with

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the marriage. The first respondent was set ex parte .

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On an analysis of the pleadings, we find that the pleadings are vague with respect to the entrustment of money and gold ornaments with the respondents 2 and 3. There is no specific pleading as to the identity of the person to whom money was handed over or with whom the gold ornaments were entrusted. In order to prove the entrustment, though, the same is vague the petitioner examined PWs. 1 to 3. PW1 is the petitioner herself. In her

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evidence she stood by the pleadings that she was wearing 25 sovereigns of gold ornaments at the time

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of marriage. But, she has no case that she has entrusted the gold ornaments with the 2^nd and 3^rd respondents after the marriage.

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PW.2 is the father of PW.1. He also

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Mat. Appeal No.167 of 2010 (C)

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deposed that PW.1 was wearing 25 sovereigns of gold

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ornaments at the time of marriage. He has not given

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any evidence, as to the entrustment of gold ornaments with the respondents 2 and 3. PW.3 is a relative of PW.1 and he deposed to the effect that he participated in the marriage and PW.1 was wearing 25 sovereigns of gold ornaments at the time of marriage.

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In the case of the claim of return of

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movables, more specifically, money and gold

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ornaments, which were allegedly given to the wife in connection with the marriage, from the parents of

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the husband, there cannot be a constructive or presumptive entrustment, without actual physical

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delivery of the same to them and it must be specifically pleaded and proved by sufficient evidence, by the claimant wife. Merely on the evidence that the bride had worn gold ornaments, at

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Mat. Appeal No.167 of 2010 (C)

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-: 9 :-

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the time of marriage, it cannot be held that the ornaments, which were worn at the time of marriage, were entrusted with the father and mother of the bridegroom. Unless there is sufficient evidence from the wife, to prove the entrustment of gold ornaments with the parents of the husband, after the marriage, the parents of the husband cannot be held liable to return the same. Normally there cannot be a joint entrustment of money or gold ornaments with three persons, the husband and his parents, without disclosing the mode of entrustment or the identity of the person to whom the money or gold ornaments were actually handed over. The absence of specific pleadings and sufficient evidence to prove the manner in which the entrustment of money and gold ornaments were made with the parents of the husband will be fatal, to the claim for returning the same by them.

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Mat. Appeal No.167 of 2010 (C)

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-: 10 :-

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evidence to prove that the respondents 2 and 3 were entrusted with `1,50,000/- or 25 sovereigns of gold ornaments, which were allegedly wore by the petitioner at the time of marriage. Hence, the Family Court is not justified in granting a decree for realising 25 sovereigns of gold ornaments or its value from the respondents 2 and 3.

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Coming to the entrustment of 1,50,000/-, as we have already held that there was no specific pleadings disclosing the mode of entrustment or the person to whom the entrustment was made. It is needless to say money in cash cannot be handed over physically to more than one person at a time, in connection with the marriage. PW.1 has deposed that on 15.12.2005, PW.2 has entrusted 1,50,000/- with the respondents. But, Ext.B1 certificate issued by the employer of

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Mat. Appeal No.167 of 2010 (C)

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RW.1/second respondent shows that on that day, he

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was on duty in the said establishment. It is pertinent to note that the said date, on which the amount was entrusted with the respondents, was not disclosed in the pleadings. PW.3 has stated that either on the date of marriage or on the date of betrothal, no amount had been paid to the respondents in connection with the marriage. So, his evidence is of no consequence at all in proving the entrustment of money with the respondents 2 and 3.

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In the above view, We find that absolutely there is no specific pleadings or evidence to prove the entrustment of money or gold ornaments with the appellants/respondents 2 and 3.

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In the above context, it is to be

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borne in mind that RW.1 admitted in his evidence

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that `50,000/- was entrusted with the 1^st respondent

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in connection with the marriage for marriage

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Mat. Appeal No.167 of 2010 (C)

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-: 12 :-

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expenses. RW.2 was also examined to prove the entrustment of 50,000/- with the 1st respondent. He also deposed that RW.1/2nd respondent was not present in the house at the time, when the 1st respondent was entrusted with 50,000/-. Thus, the petitioners failed to prove the entrustment of money or gold ornaments with the respondents 2 and 3. But, the

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Family Court failed to appreciate the evidence on record in its correct perspective.

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Thus, this appeal is allowed in part accordingly. The impugned judgment and decree against the appellants/respondents 2 and 3 only are set aside. The judgment and decree against the 2^nd respondent herein/first respondent will stand undisturbed and enforcible. It is evident from the records that this Court granted an interim stay, on deposit of `50,000/- before the Family Court, Kottayam, and in compliance with the said order the

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Mat. Appeal No.167 of 2010 (C)

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appellants have deposited `50,000/- before the

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Family Court. The appellants are allowed to withdraw

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the said amount from the Family Court, Kottayam.

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This Mat.Appeal is allowed in part accordingly. All pending Interlocutory Applications will stand closed.

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Sd/-

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K. HARILAL, JUDGE

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Sd/- A.M. BABU, JUDGE

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SKS/DST

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//True copy//

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P.A. To Judge

Abubakker Labba & Another v. Shameena K.B. & Another

Case brief

What is this about?

What did the court decide?

Abubakker Labba & Another v. Shameena K.B. & Another

Case brief

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