Allowed

Aleyamma Chandy v. Liji.C.Mathew

Kerala HC9 Aug 2018Mat.Appeal/525/2009

Case brief

AI extract

What is this about?

In a matrimonial appeal arising from a family court suit for possession of gold ornaments and money, the High Court held that the petitioners failed to prove their financial capacity to provide the alleged large sums. The court found the petitioners' explanation regarding the source of funds unbelievable and set aside the Family Court's judgment, dismissing the original petition.

What did the court decide?

The appeal was allowed; the Family Court judgment was set aside and the original petition dismissed.

Aleyamma Chandy Vs Liji.C.Mathew — Succession and Inheritance | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 9TH DAY OF AUGUST 2018 / 18TH SRAVANA, 1940

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Mat.Appeal.No. 525 of 2009

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AGAINST THE JUDGMENT IN OP 292/2008 of FAMILY COURT, KOTTAYAM DATED 12-12-2008

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APPELLANT/1ST RESPONDENT

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ALEYAMMA CHANDY, W/O. CHANDY, MURINGATHARA HOUSE, PANACHYUATTUKARA P.O., TALAPPILLY, THRISSUR.

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BY ADVS.SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS

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RESPONDENTS/PETITIONERS:

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1. LIJI.C.MATHEW, RESIDING AT PULICKAMATTATHIL HOUSE, MANARCAD VILLAGE FROM, CHETHIMATTATHIL HOUSE, PAMPADY KARA AND VILLAGE.

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2. C.V.MATHEWKUTTY, PALICKAMATTHIL HOUSE, MANARCAD VILLAGE.

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BY ADV. SRI.MICHAEL POOVATHANY BY ADV. SRI.RAJEEV V.KURUP

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2018, THE COURT ON 9.08.2018 DAY DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE & P.SOMARAJAN, JJ

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- - - - Mat.A. No. 525 of 2009

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- - - - Dated this the 9^th day of August, 2018

JUDGMENT

SHAFFIQUE, J.

This appeal is filed by the 1^st respondent in O.P.No.292 of 2008 challenging the judgment dated 12.12.2008 of the Family Court, Kottayam. The short facts that has arisen in the matter are as under and the parties are described as shown in the original petition.

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The 1^st petitioner married Arun M Chandy on 17.2.2003 as per Christian religious rites and ceremony. The 2^nd petitioner is 1^st petitioner's father. 1^st respondent is the mother of Arun M Chandy and respondents 2 to 5 are his siblings. Case of the petitioners is that an amount of Rs.6,00,000/- (Rupees six lakhs) and 55 sovereigns of gold ornaments were entrusted with the 1^st respondent and as share of the 1^st petitioner. Rs.6 lakhs was given at the time of of betrothal on 30.1.2003. The 1^st petitioner was wearing the ornaments at the time of marriage. Except for the ornaments for daily use, she has entrusted the balance gold ornaments for safe custody. In addition to 55 sovereigns of gold ornaments, the 1^st petitioner received 8 sovereigns of gold ornaments as

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Mat.A. No. 525 of 2009 -2-

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gift. At the time of house visit, her parents gave household items worth Rs.35,000/-. A child was born in the wedlock and during baptism of the child, 2 ½ sovereigns of gold ornaments were given besides household items worth Rs.2,000/-.

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Arun M Chandy died on 13.10.2005 in an accident. It

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is also contented that though they jointly constructed the house, before house warming Arun died. Mr. M.M. Chandy, husband of 1^st respondent died in 2003. It is alleging that all the gold ornaments were entrusted to respondents and that they had appropriated the same, the original petition has been filed.

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The 4^th respondent remained ex-parte. Other Respondents filed objection denying the allegations. According to them the 1^st respondent or her husband was not entrusted with any gold ornaments. In fact, Arun M Chandy had been sending money to the 1^st petitioner which she had appropriated. She had also appropriated the gold ornaments. It is stated that 1^st petitioner's brother Lijo is a habitual drunkard and he has taken away the amount that has been send by Arun M Chandy. The 2^nd respondent also filed objection denying the allegations. Before the Family Court PW1 to 3 were examined on the side of petitioners and RW1 and 2 on the side of the respondents.

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Mat.A. No. 525 of 2009 -3-

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Petitioners relied on Exts.A1 to A3 and respondents relied on Exts.B1 to B12.

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The Family Court after considering the evidence decreed the claim, directing payment of Rs.6 lakhs with 9% interest from date of suit and return of 55 sovereigns of gold ornaments or its present approximate value with interest at the rate of 9% per annum from date of judgment to be realised from 1^st respondent and property of 1^st petitioner which is inherited by respondents 2 to 5.

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The learned counsel for the appellant while impugning the judgment contends that there is absolutely no evidence for the entrustment of gold ornaments or money. The Family Court had erroneously considered the evidence which requires reappreciation. On the other hand learned counsel appearing for the petitioners while supporting the judgment of the Family Court contended that she had been completely ousted from the family house and even from the building owned by her husband.

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PW1 is the petitioner. She has filed an affidavit in lieu of chief examination reiterating the contentions. She has stated that she has seen the money being paid and the source of money was lease of the property belonging to her mother to mother's

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sister. They received Rs.10,00,000/- (Rupees ten lakhs) one month prior to the marriage. She however admitted the fact that her husband had given her the power of attorney to carry on the bank transaction. As far as gold ornaments are concerned she deposed that it was purchased from different jewellery. The last purchase was of 35 sovereigns of gold ornaments and she deposed that only her father knows its value. During reexamination she deposed that her mother's sister had paid the amount but no records are available regarding the same. When she was asked whether the house and money belonging to her husband is in her possession, she denied the said fact. According to her she is not even permitted to enter the house.

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PW2 is the father of 1^st petitioner. He also reiterated the fact of payment of money as well as gold ornaments and other household articles. He also deposed that except PW1, all other members are belonging to Brethren community and other than respondents 2, 3 and late Arun M Chandy, all others are in Pentecost faith. Other than PW1 nobody used to wear gold ornaments in their home. PW3 is the brother of the 2^nd petitioner. He also supported the version of the 2^nd petitioner. In cross examination he deposed that he was present when the money

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was paid. RW1 is the power of attorney holder of the 3^rd respondent. RW2 is the 1^st respondent who has spoken to in accordance with the contentions urged.

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The main contention urged by the respondents is regarding the capacity of the petitioners to pay Rs.6 lakhs and 55 sovereigns of gold ornaments. Ext.A2 is a photograph produced to prove that the bride was wearing gold ornaments at the time of marriage. Photograph would show that she was wearing a few ornaments but it cannot be discerned that she was having 55 sovereigns of gold ornaments. Other than photographs and oral testimony of PW1 to 3 there is no other evidence. In the objection filed by the respondents they have denied having received or appropriated any of the gold ornaments, money or articles. They have also taken up a contention that respondents does not have financial capacity to pay such amount and give that much gold ornaments. Therefore it is for the petitioners to prove that they were in possession of sufficient funds for payment of Rs.6 lakhs as well as for acquisition of the gold ornaments.

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According to the 1^st petitioner, the money was paid by her mother's sister when there was a promise to release mothers

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right in a property to her sister. Rs. 10 lakhs was received on that count. Her mother's sister was residing abroad. If any money had been paid from abroad, necessarily there will be some record like bank statement, receipts etc. No such evidence is forthcoming. Further even as on date there is no material to indicate that mother had actually released her right on her property to her sister nor is there any proof to show the money was repaid to mother's sister. Therefore the contention that Rs. 6 lakh was paid at the time of betrothal cannot be believed. Same is the situation as far as gold ornaments are concerned. When petitioners' capacity to give that much gold ornaments is in dispute, necessarily it has to be proved. From the photograph it is seen that she had some gold ornaments. But it is not possibly to say anything regarding the quantity of gold ornaments. At any rate, that she had some gold ornaments is a fact. Respondents have a case that during the life time of Arun, he had constructed a house investing all the money he had and whatever articles had been brought by his wife was managed by him alone.

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One aspect which is pertinent to be noted is that there

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was no matrimonial dispute between the 1^st petitioner and her husband. In fact she was managing all his assets and was

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operating the bank accounts. They would have expended the amounts, if any, or would have taken the gold for the purpose of constructing the house. Therefore until the husband died, there was no claim and the present petition is filed 5 years after the death of 1^st petitioner's husband. The Family Court just believed the version of PW1 to 3 and omitted the crucial fact of the capacity of petitioners to pay such amount and to acquire such quantity of gold ornaments. We are of the view that the explanation offered by petitioners in that regard is not believable and in the absence of any such evidence the judgment is liable to be set aside.

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Accordingly, the appeal is allowed. The judgment dated 12.12.2008 in O.P.No.292 of 2008 is set aside. The original petition stands dismissed. No costs.

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sd/- A.M.SHAFFIQUE, JUDGE

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sd/-

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P.SOMARAJAN, JUDGE

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Aleyamma Chandy v. Liji.C.Mathew

Case brief

What is this about?

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Aleyamma Chandy v. Liji.C.Mathew

Case brief

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