Dismissed

Jiji.K.N @ Joseph.K.N & Others v. Valsala @ Anikutty

Kerala HC6 Feb 2018Mat.Appeal/195/2009

Case brief

AI extract

What is this about?

The High Court dismissed the matrimonial appeal challenging a Family Court decree. Upholding the trial court's findings, it held that the appellants failed to disprove the entrustment of marriage shares (money and gold) and the respondents' subsequent misappropriation based on corroborated witness testimony and documents.

What did the court decide?

The appeal was dismissed; the Family Court's decree for recovery of marriage shares and misappropriated gold with interest and household articles was upheld.

Jiji.K.N @ Joseph.K.N & Others Vs Valsala @ Anikutty — Matrimonial and Divorce | Kerala HC (2018)

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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 K.HARILAL

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THE HONOURABLE MR. JUSTICE A.M.BABU

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TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939

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Mat.Appeal.No. 195 of 2009

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AGAINST THE ORDER/JUDGMENT IN OP 74/2005 of FAMILY COURT, KOTTAYAM DATED 18-03-2008

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APPELLANT(S)/APPELLANTS/RESPONDENTS/ADDL.R3 TO 5

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1 JIJI K.N. @ JOSEPH K.N.,

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AGED 49 YEARS, S/O. K.N.NOHA, KUNNEL HOUSE,, PUTHUPALLY P.O.

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2 LISSY D/O. K.N.NOHA,

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-DO-

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3 JOSY D/O. K.N.NOHA,

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-DO-

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4 PONAMMA D/O. K.N.NOHA,

-DO-

BY ADV.SRI.B.PREMOD

RESPONDENT(S):

VALSALA @ ANIKUTTY, D/O. A.J.MATHAI, ETTUPARAYIL HOUSE, MANGANAM P.O.,, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT.

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R,R BY ADV. SRI.PHILIP T.VARGHESE R,R BY ADV. SRI.THOMAS T.VARGHESE

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.HARILAL & A.M.BABU, JJ.

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

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MAT.APPEAL No. 195 of 2009 --------------------------Dated this the 6^th day of February, 2018

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JUDGMENT

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K.Harilal, J.

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The first appellant and the respondent are husband and wife. The respondent filed OP No.74/2005 before the Family Court, Kottayam seeking a decree to realize Rs 1,00,000/- and 13 sovereigns of gold ornaments or its approximate value of Rs 1,20,000/- with 9% interest. The parties are referred to as in the original petition. The brief facts of the case necessary for determining this appeal can be summarized as follows:

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The marriage between the petitioner and the first respondent was solemnised on 3.7.2004 in accordance with the religious rites and ceremonies and at the time of proposal the first respondent and his mother, the 2^nd respondent. demanded Rs 1,00,000/- and 13 sovereigns of gold ornaments as share of the petitioner. Since the first respondent's father was not alive, the petitioner's father entrusted Rs 1,00,000/- to the mother of the first respondent as her share before the marriage and at the time of marriage ceremony she was wearing gold ornaments weighing 13 sovereigns and in addition to this, she got some

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MAT.APPEAL No. 195 of 2009

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household articles as presentation at the time of marriage and the respondents were entrusted with the same after the marriage. Thus the gold ornaments, money and other valuable articles were entrusted with the respondents. From the very beginning of the marriage itself the respondents started to behave cruelly by demanding more gold ornaments and money from her house. The above amount and gold ornaments have been misappropriated by the respondents within a short span of time after the marriage. The first respondent misappropriated the amount and sold away the gold ornaments one by one to meet his own personal needs. However, they lived together for 1½ months only. At last the respondent dropped her in her house after misappropriating the money and gold ornaments given to her in connection with the marriage. So they are liable to return the money and gold ornaments which was entrusted with them as trustees.

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The respondents filed an objection denying the averments in the petition that the second respondent was entrusted with Rs 1,00,000/- by the father of the petitioner in connection with the marriage. So also, they denied averments

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MAT.APPEAL No. 195 of 2009

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that she was wearing 13 sovereigns of gold ornaments at the time of marriage and she entrusted the same with the first respondent as trustee and subsequently he sold away all the gold ornaments one by one and misappropriated the amount for his personal need. But he admitted that he was given Rs 30,000/- and the petitioner was wearing a necklace, a chain and three bangles at the time of marriage. With the above averments, the respondents prayed for dismissing the original petition.

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On the rival pleadings both parties adduced evidence which consists of oral testimony of PWs 1 and 2 and RWs 1 to 3 and Exts A1 to A3. On appraisal of the aforesaid evidence, the Family Court allowed the original petition by granting a decree to realise Rs 1,00,000/- with 6% interest and 13 sovereigns of gold ornaments or its approximate value of Rs 1,20,000/- with 9% interest and Rs 2000 as value of household articles. The legality and correctness of the findings whereby the Family Court allowed the original petition are challenged in this appeal.

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Heard the learned counsel for the appellants and the learned counsel for the respondent.

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In view of the arguments advanced at the bar, the

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MAT.APPEAL No. 195 of 2009

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point to be considered is whether the Family Court is justified in finding that the petitioner has succeeded in proving the granting of Rs 1,00,000/-, 13 sovereigns of gold ornaments and household articles worth Rs 2,000/- in connection with the marriage and the same were entrusted with the respondents and they misappropriated the same.

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Going by the impugned judgment, it could be seen that the court below has relied on the oral testimony of PWs 1 and 2. In order to prove the averments in the petition, the petitioner has sworn the proof affidavit and in the oral evidence, during the cross-examination, she stood by the averments in the petition that her father had given Rs 1,00,000/- to the second respondent before the marriage in connection with the marriage, as her share and at the time of marriage she was wearing 13 sovereigns of gold ornaments and she was given household articles.

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We have meticulously gone through the oral evidence of PWs 1 and 2. As rightly observed by the Family Court, the respondents miserably failed to shatter the oral testimony of PW2,the petitioner, as regards the entrustment of money and gold ornaments with the 2^nd and 1^st respondents respectively. PW1 was

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MAT.APPEAL No. 195 of 2009

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a neighbour and he was examined to prove the entrustment of Rs 1,00,000/- with the second respondent before the marriage as share of the petitioner. Though, he was also cross-examined, he stood by the facts spoken to by him in his chief affidavit. Thus, the evidence on PW2 stands corroborated by the evidence of PW1.

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The court below further found that though RW1 to RW3 were examined to disprove the facts spoken to by PWs 1 and 2, they miserably failed to give any reliable evidence. RWs 2 and 3 are the persons who claim that they witnessed the marriage and the betrothal ceremony. What they have spoken to is that they have not witnessed the granting of Rs 1,00,000/-. Even if the said evidence is taken at its face value, it cannot be held that no amount was paid in connection with the marriage on the date of betrothal though they have not witnessed the same. If they came late or went out earlier before the ceremony, they might have missed the handing over the money. So it cannot be said that money was not handed over to the 2^nd respondent in connection with the marriage on the date of betrothal. The said witness has no case that money was not handed over, in connection with the

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MAT.APPEAL No. 195 of 2009

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marriage on the date of betrothal. Therefore the evidence of RW2 and RW3 is of no consequence at all with regard to the entrustment of money.

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As against the gold ornaments, during the crossexamination of RW1, he himself admitted that she had 5 sovereigns of gold ornaments at the time of marriage. But such a contention does not find a place in the written statement filed by the respondents. So the contents in the counter objection have lost its credibility. On the other hand, as we have held above, PW1 deposed that the petitioner was found wearing 13 sovereigns of gold ornaments when he visited her day before the marriage. That apart, the petitioner have succeeded to prove the source of Rs 1,00,000/- by the production of Exts A2 and A3. It is pertinent to note that when PW2 was examined no question was put to her challenging the genuineness or reliability of Ext A2 and A3. Thus, Ext A2 and A3 which proved the sources of Rs 1,00,000/- stands unchallenged by the respondents.

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In the above analysis, we find that the court below is justified in granting a decree as prayed for by relying on the oral testimony of PWs 1 and 2 and Exts A2 and A3. There is no reason

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MAT.APPEAL No. 195 of 2009

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to interfere with the findings of the Family Court . Hence this

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appeal will stand dismissed.

sd/-

K.Harilal Judge

sd/-

A.M.Babu Judge

sks/7.2.2018

Jiji.K.N @ Joseph.K.N & Others v. Valsala @ Anikutty

Case brief

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Jiji.K.N @ Joseph.K.N & Others v. Valsala @ Anikutty

Case brief

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