Allowed

Peethambaran v. Sarojini

Kerala HC12 Feb 2018Mat.Appeal/51/2009

Case brief

AI extract

What is this about?

This matrimonial appeal challenged a Family Court decree granting the wife monetary relief for alleged misappropriation of gold ornaments and joint property sale proceeds. The High Court set aside the decree, dismissing the original suit due to lack of cogent evidence and incorrect reliance on testimony.

What did the court decide?

The impugned judgment and decree passed in OS No.196/1997 are set aside, and the original suit is dismissed.

Peethambaran Vs Sarojini — 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 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939

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Mat.Appeal.No. 51 of 2009

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AGAINST THE ORDER/JUDGMENT IN OS 196/1997 of FAMILY COURT,KOLLAM DATED 29-02-2008

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APPELLANT(S)/APPELLANT/DEFENDANT

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PEETHAMBARAN, VADAKKEDATHU PADINJATTATHIL VEEDU, MANGADU CHERRY, KILIKOLLUR,, KOLLAM.

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BY ADV.SRI.K.SUBASH CHANDRA BOSE

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RESPONDENT(S)/PLAINTIF:

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SAROJINI,KANJIRATHUM VEEDU, SAKTHIKULANGARA VILLAGE,KUREEPUZHA CHERRY,, KOLLAM.

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R,R BY ADV. SRI.B.CHANDRA LAL R,R BY ADV. SRI.C.RAJENDRAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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

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MAT.APPEAL No 51 of 2009

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Dated this the 12^th day of February, 2018

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JUDGMENT

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Harilal, J.

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The appellant and respondent are husband and wife. The respondent filed OS No.196/1997 before the Family Court, Kollam seeking a decree for realising 15 sovereigns of gold ornaments and Rs 1,25,000/- from the appellant. Brief facts of the case can be stated in a nutshell as given below:

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The marriage between the plaintiff and the defendant was solemnised on 23^rd Chingam 1144 ME and two children were born to them in the said wedlock. They lived together in the house of the defendant till 1978 and thereafter the children are also living along with the plaintiff. According to her, at the time of marriage, she was wearing 15 sovereigns of gold ornaments and the defendant was given Rs 15,000/-, for her future welfare and the same were taken into custody by the defendant as trustee of the plaintiff. Thereafter, the defendant appropriated the same for his extravagance and personal needs, without the knowledge or consent of the plaintiff.

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MAT.APPEAL No 51 of 2009

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Immediately after the marriage the defendant began to torture her physically and mentally demanding more dowry. When the torture became intolerable, the plaintiff informed the same to her parents and the parents of the plaintiff purchased 25 cents of property in the name of plaintiff and defendant to satisfy the demand of the defendant. Thereafter, the defendant appropriated the gold ornaments and cash to meet his extravagance and personal requirement without the consent and knowledge of the plaintiff. Subsequently, they sold away the said landed property at the instance of the defendant. The plaintiff was constrained to execute the sale deed, consequent on the persistent torture of the defendant and he appropriated the sale proceeds of the said sale for his own need. The defendant is a spendthrift as well as a drunkard having illicit connection with several other ladies. Now he is living along with one lady by name Vamakshy. The second daughter of the plaintiff and defendant attained the age of 24 years, in connection with the marriage of the second daughter, the plaintiff demanded to return gold ornaments and the amounts appropriated by him for using

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MAT.APPEAL No 51 of 2009

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for her marriage which was scheduled to be solemnised on 24.10.1996. In order to avoid any such payment for the marriage of the daughter he sold away six cents of property which stood in his name and deposited the same in a co-operative bank. In the above context, the plaintiff was constrained to file the original suit and she prayed for a decree as shown above.

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The defendant filed written statement denying the entire allegations of misappropriation levelled against him. He denied the averments that the plaintiff wore 15 sovereigns of gold ornaments at the time of marriage and that he was given Rs 15,000/- by her parents and relatives in connection with the marriage. According to him, he married the plaintiff without any monetary consideration, but while living together she treated him with cruelty and eventually she deserted him without any valid reason. He further denied the allegation that 21 cents of property sold away when persistent torture from the part of the defendant became intolerable. According to him, the plaintiff sold away the property on her own volition in which he also had half right and he denied the allegation that the entire sale proceeds were taken away by him and spent to meet his extravagance and personal

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MAT.APPEAL No 51 of 2009

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needs. Though, there was a settlement before the Dy.S.P, Kollam the plaintiff herself got out of settlement and left from the matrimonial home without his consent. He further denied the allegation that he sold away six cents of property for a sale consideration Rs 1,25,000/- to escape from his liability to meet the marriage expenses of second daughter. Thus, he denied all allegations levelled against him and prayed for dismissal of the original suit.

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Both parties adduced evidence which consists of the oral testimony of PWs 1 and 2 and DW1 and Exts A1 and A2 produced by the plaintiff. On appraisal of the said evidence, the Family Court passed the impugned judgment granting a decree directing the defendant to return 10½ sovereigns of gold ornaments or Rs 42,000/- with interest at the rate of 9% from the date of suit till the date of decree and to pay Rs 1,25,000/- with interest at the rate of 9% . Thus, the legality and correctness of the findings, whereby the Family Court passed the impugned judgment, are challenged in this appeal.

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

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The sum and substance of the arguments advanced by

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MAT.APPEAL No 51 of 2009

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the learned counsel for the appellant is that absolutely there is no evidence to prove the granting of 15 sovereigns of gold ornaments and appropriation of Rs 1,25,000/- which was the sale proceeds from the sale of 21 cents of property. It is further contended that the Family Court went wrong by granting a decree as shown above by relying on the questions put by the counsel for the defendant during the cross-examination of the plaintiff only. The plaintiff has miserably failed to discharge the burden of proof by adducing cogent and convincing evidence to prove her claim.

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On the other hand, the learned counsel for the respondent advanced arguments to justify the findings, whereby the Family Court passed the impugned judgment and decree thereunder. According to him, the answer to the question put to PW1 during the cross-examination with respect to the amount of sale proceeds and gold ornaments amounts to admission of the defendant. So the Family Court is justified in relying on the said admissions.

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In view of the arguments, the point to be considered is whether the Family Court is justified in granting a decree on the basis of the evidence available on record. In order to prove the averments in the plaint, the plaintiff has sworn proof affidavit and

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MAT.APPEAL No 51 of 2009

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she was subjected to cross-examination. PW2 is the brother of PW1 and he was examined in evidence to support the evidence of PW1. We have meticulously gone through the oral evidence of PW1 and PW2. It is a specific case of the plaintiff that she was given 15 sovereigns of gold ornaments at the time of her marriage. No documentary evidence has been adduced to substantiate the said contention. So also no independent witness was examined to prove her case that she was wearing 15 sovereigns of gold ornaments at the time of her marriage. Thus, her claim that she was given 15 sovereigns of gold ornaments by her parents rests on the oral testimony of PW1 and PW2 only. PW1 has deposed that 15 sovereigns of gold ornaments which consists of one gold chain of six sovereigns, six bangles of six sovereigns two rings and two studs. But PW2 deposed that 15 sovereigns of gold ornaments which was given to PW1 at the time of marriage consists of two gold chains, three bangles, one stud and one ring. It is pertinent to note that there is no schedule of gold ornaments in the plaint and the description and weight of the items stated by PW1 and PW2 are contradictory and mutually destructive. But, in the absence of any other independent evidence to corroborate the evidence of PW1, the Family Court

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MAT.APPEAL No 51 of 2009

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went wrong by granting a decree directing the defendant to return 10½ sovereigns of gold ornaments. In the above analysis, we find that the Family Court is not justified in directing the defendant to return 10½ sovereigns of gold ornaments.

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Coming to the appropriation of Rs 1,25,000/- which was sale proceeds from the sale of 21 cents of property, both parties admitted that after the marriage the father of the plaintiff had purchased 21 cents of property in the name of plaintiff and defendant and subsequently, the said property was sold away. According to the plaintiff, when the persistent demand to sell the property became intolerable, she was constrained to sign the sale deed with the defendant and the sale deed was executed without her free mind. Further, it is contended that immediately after the marriage, the defendant demanded more dowry and when she informed the same to her parents, they had purchased the said property in the name of the plaintiff and the defendant, to meet the demand of the defendant for more dowry. It is not disputed that the property stood in the name of the plaintiff and the defendant and subsequently sold away the same by both. No evidence was adduced to prove that the plaintiff was constrained to execute the sale deed at the instance of the defendant only

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MAT.APPEAL No 51 of 2009

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and the defendant got the entire sale consideration from the vendee.

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According to the pleadings, the said property was sold away for a consideration of Rs 2,50,000/- and she is entitled to get Rs 1,25,000/- as half of the entire sale proceeds. It is pertinent to note that neither the said sale deed was produced nor did she examine the vendee of the said sale deed. In other words, absolutely there is no evidence to show that the sale was effected for a consideration of Rs 2,50,000/- as claimed by the plaintiff. Coming to the oral evidence of PW1 and DW1, when DW1 was examined, he deposed that he was not aware of the exact amount received as consideration of the said sale. The only available evidence is the oral assertion of PW1. Going by the impugned judgment, it could be seen that the court below granted the decree for realising Rs 1,25,000/- from the defendant on the sole ground that when plaintiff was examined, the defence suggestion was that sale consideration of the property was only Rs 1,25,000/-. We have meticulously gone through the said deposition of PW1 and we find that the Family Court has went wrong by misreading the questions put to PW1 while crossexamining her. As a matter of fact, absolutely there is no

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MAT.APPEAL No 51 of 2009

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admission from the part of the defendant that exact amount of sale consideration from the said sale was Rs 1,25,000/-. Further,

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we find that the plaintiff could have proved the receipt of Rs 2,50,000/- as consideration of the sale of 21 cents of property, by either examining the vendee of the said sale or producing the sale deed. But, the plaintiff herself withheld the available best evidence with her. Thus, the claim for Rs 1,25,000/- lacks evidence. In the above analysis, we find that the Family Court went wrong by granting a decree directing the defendant to return Rs 1,25,000/- to the plaintiff. The impugned judgment and decree passed thereunder stand set aside. The original suit will stand dismissed. This appeal is allowed, accordingly.

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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/17.2.2018

Peethambaran v. Sarojini

Case brief

What is this about?

What did the court decide?

Peethambaran v. Sarojini

Case brief

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What did the court decide?

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