Partly allowed

Shinu Skariah v. John M.John @ Juby and Others

Kerala HC19 Jun 2019CO/33/2011

Case brief

AI extract

What is this about?

The High Court of Kerala, in this matrimonial appeal, partially allowed the challenge to a Family Court decree. The Court set aside the direction for the return of gold ornaments due to lack of proof regarding entrustment, citing a bank locker report showing the items were likely never handed over to the husband. Other claims were affirmed.

What did the court decide?

Set aside the Family Court's direction to return 36.850 sovereigns of gold ornaments; confirmed other parts of the decree. Cross objection dismissed.

Shinu Skariah Vs John M.John @ Juby and Others — Succession and Inheritance | Kerala HC (2019)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941

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Mat.Appeal.No.240 of 2011

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AGAINST THE JUDGMENT IN OP 587/2010 of FAMILY COURT, KOTTAYAM, AT ETTUMANOOR DATED 17-01-2011

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APPELLANTS/RESPONDENTS:

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1 JOHN M.JOHN @ JUBY, S/O.M.C.JOHN,RESIDING AT MYLAKKATTU HOUSE, PUTHUPPALLY.P.O., KANJIRAMTHUMOODU, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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2 JOHN M.KURIAKKOSE @ JOGY S/O.M.C.JOHN AGED 36 YEARS,RESIDING AT MYLAKKATTU HOUSE, PUTHUPPALLY.P.O., KANJIRAMTHUMOODU, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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3 ALIEYAMMA JOHN W/O.M.C.JOHNY AGED 59 YEARS, RESIDING AT MYLAKKATTU HOUSE, PUTHUPPALLY. P.O.,

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KANJIRAMTHUMOODU, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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BY ADV. SRI.TOM JOSE (PADINJAREKARA)

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RESPONDENT/PETITIONER:

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SHINU SKARIAH, D/O SKARIAH, AGED 32 YEARS, RESIDING AT VELIYANKUNNATHU HOUSE,, PEREMPUZHA.P.O., MANAROADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. 686619

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BY ADVS. SRI.DOMSON J.VATTAKUZHY SRI.MATHEW JOHN (K)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2019, ALONG WITH CO.33/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal 240/2011 & CO.33/2011

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941

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CO.No.33 of 2011 IN Mat.Appeal. 240/2011

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CROSS OBJECTOR-RESPONDENT:

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SHINU SKARIAH, D/O SKARIAH, VELIYANKUNNATHU HOUSE, PARAMPUZHA POST, MANARCADU VILLAGE, KOTTAYAM TALUK & DISTRICT. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY

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RESPONDENTS/APPELLANTS:

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1 JOHN M.JOHN @ JUBY, S/O.M.C.JOHN,RESIDING AT MYLAKKATTU HOUSE, PUTHUPPALLY.P.O., KANJIRAMTHUMOODU, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.686011

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2 JOHN M.KURIAKKOSE @ JOGY S/O.M.C.JOHN RESIDING AT MYLAKKATTU HOUSE, PUTHUPPALLY.P.O., KANJIRAMTHUMOODU, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.686011

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3 ALIEYAMMA JOHN W/O.M.C.JOHNY MYLAKKATTU HOUSE, PUTHUPPALLY. P.O., KANJIRAMTHUMOODU, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.686011

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BY ADV. SRI.TOM JOSE (PADINJAREKARA)

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THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2019, ALONG WITH Mat.Appeal.240/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal 240/2011 & CO.33/2011

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JUDGMENT

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SHAFFIQUE, J

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This appeal is filed by the respondents in O.P.No.587/2010 of the Family Court, Kottayam at Ettumanoor. The petitioner had filed a cross objection for the disallowed portion of the claim as well.

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The appellants are challenging the decree passed in the case by which they were directed to return Rs.4,00,000/- and 36.850 sovereigns of gold ornaments or its approximate value of Rs.5,10,000/with interest at the rate of 9% per annum and a further amount of Rs.5,000/- for the movable articles and Rs.2,000/- as costs.

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The short facts of the case are as under and the parties are described as shown in the original petition unless otherwise stated:

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The petitioner and the 1^st respondent got married on 30.10.2005 as per Christian religious rites and ceremonies. According to her at the time of marriage she was working as a nurse at Delhi. The 1^st respondent was expecting job profiles at Gulf countries. Even before the marriage an amount of Rs.4,00,000/- was paid as parental share, on 25.10.2005. At the time of marriage she was wearing 40 sovereigns of gold ornaments. She further contended that there were

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Mat.Appeal 240/2011 & CO.33/2011

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matrimonial issues between the parties and on one such occasion she was compelled to spend Rs.1,47,000/- for the purpose of the 1^st respondent. That apart, she received Rs.5,65,000/- as terminal benefits and the money was deposited in the joint account which has been withdrawn by the 1^st respondent and he had appropriated the same for his own use. Claiming the aforesaid amounts and also the value of house hold articles given at the time of marriage the original petition is filed.

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The respondents denied the allegations. According to them, the 1^st respondent has not received any amount and he had not appropriated any of her gold ornaments as alleged. According to him the original petition had been filed in collusion with one Uthup. The amount which was withdrawn by the 1^st respondent from her bank account was used for her purpose. He further submitted that the petitioner was keeping all her earning in SBT Thiruvanchoor Branch and her father was handling the account and now he was asked to return the entire amount used for her own use. He also contended that all her gold ornaments were kept in the locker facility at the same bank and therefore he is not liable to return the gold ornaments.

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As evidence in the case, on behalf of the petitioner PW1 and PW2 were examined. The 1^st respondent was examined as RW1. Exts.A1 to A7 and B1 to B13 are the documents relied upon by either

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Mat.Appeal 240/2011 & CO.33/2011

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side. As far as the claim for money is concerned, the Family Court found that there is evidence to prove payment of Rs.4,00,000/-. With reference to the other amounts there is no evidence to indicate that the respondents had appropriated the same for their own purpose and accordingly a decree had been passed for return of Rs.4,00,000/which was paid as parental share. It was also found that the claim of the petitioner for 36.850 sovereigns of gold ornaments entrusted to the 1^st respondent stands proved and therefore he is liable to return the same as well. The Family Court also granted a decree for return of Rs.5,000/- as well towards depreciated value of house hold articles.

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In so far as the petitioner/respondent herein has filed a cross objection, first we shall consider whether the other claims raised by the petitioner which had been rejected by the Family Court requires to be modified as claimed by the petitioner. The petitioner's contention is that during the marital life an amount of Rs.1,47,000/was paid which was appropriated by the respondents. This fact is denied. Even according to the petitioner Rs.1,47,000/- was entrusted on different occasions and on various dates. There is no evidence to prove the same. That apart, it is quite usual that when a wife is employed abroad she may sent some money to the husband and merely for the reason that he had utilised the same, there is no reason why he should be directed to return it back. In the absence of any

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Mat.Appeal 240/2011 & CO.33/2011

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evidence to prove the entrustment of Rs.1,47,000/-, the Family Court is justified in rejecting the same.

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Yet another claim is return of Rs.5,65,000/-. It is stated that an amount of Rs.5,65,000/- is received by her as terminal benefits and a further amount of Rs.1,00,000/- was deposited in the joint account which also appropriated by the 1^st respondent. The appropriation of the said amount has been denied by the 1^st respondent. The Family Court found that the documents produced from the side of the petitioner did not prove that the 1^st respondent had appropriated the said amount. Admittedly, certain amounts were withdrawn by the 1^st respondent at the instance of the petitioner and the same was given to the person whom she had mentioned. That apart in the absence of any evidence to prove the appropriation of the said amount and for what purpose the said amount has been given and withdrawn, the Family Court is justified in rejecting the same.

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In fact, certain payments are given by the spouse during the marital life, it being a voluntary payment, it is not open for the person who sends the money to claim it back unless there is a promise to return it. Even otherwise, in the absence of any proof for appropriation, the claim for the aforesaid amount is rightly rejected by the Family Court.

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Mat.Appeal 240/2011 & CO.33/2011

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As far as the appeal is concerned, the first claim is for return of Rs.4,00,000/- which was paid as parental share. Though the respondents had denied the receipt of aforesaid amount, evidence adduced by the petitioner, especially the bank accounts would prove that there was sufficient funds in the account which were withdrawn immediately before 25.10.2005 which was the date on which they had paid the amount. When there is sufficient evidence to prove that an amount of Rs.4,00,000/- were available with the petitioner/father at the relevant time, the version of the petitioner that Rs.4,00,000/- was paid is believable and therefore we don't think it necessary to interfere with the said judgment.

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The main moot question in the case is with reference to the direction to return the gold ornaments. According to the 1^st respondent, he was not entrusted with any of her gold ornaments nor has he appropriated the same. According to him, the gold ornaments belonging to the wife were kept in a locker opened with State Bank of Travancore. Whereas according to the petitioner, while they came back from Abudabi, except a chain, ear stud and ring all other gold ornaments weighing 36.850 sovereigns of gold ornaments were entrusted to her husband for safe custody. Whereas according to the 1^st respondent, the petitioner had opened a locker facility and the gold ornaments were kept in the said locker.

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Mat.Appeal 240/2011 & CO.33/2011

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During the pendency of the original petition, an Advocate Commissioner was deputed. Though the report of the Advocate Commissioner was not marked in the case, it forms part of the records and there is no reason why we should not treat the same as evidence. The Advocate Commissioner has reported that a locker facility was opened by the petitioner and her father on 08.01.2009 and it was operated by the petitioner on 12.01.2009 and by her father V.E. Scharia on 3.06.2010. The Advocate Commissioner verified the contents of the locker and it was noticed that there was nothing in the locker. When PW1 was examined in the case, in her affidavit in lieu of chief examination she stated that she had come back from Abudabi on 15.7.2009. Therefore as on the date she had come back from Abudabi it is apparent that she already had a locker facility which was taken in the name of herself and her father. As per the commission report and documents produced with the commission report she herself had opened the locker on 12.01.2009. Therefore she was very much available in India during the relevant time when the locker was opened and operated the locker on 12.01.2009. She does not have any explanation as to why she had opened the said locker facility on the said date and nothing had been stated in her evidence in the affidavit filed in lieu of chief examination regarding the opening of locker facility. In such circumstances, we have to proceed on the basis that the locker was opened by her for the purpose of keeping her gold

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Mat.Appeal 240/2011 & CO.33/2011

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ornaments. If as contended by the learned counsel for the petitioner/respondent that the locker facility was opened for keeping some records, the same would have been available when the Advocate Commissioner had verified the locker in the presence of the parties. There was nothing in the locker when the Advocate Commissioner opened the locker in the presence of the parties and Bank authorities. That apart, it was clear from the Commission report that the locker was opened on 3.6.2010 by petitioner's father. When a locker facility had been opened and there is no explanation from the side of the petitioner regarding, for what purpose the locker was opened and what was the contents of the locker during the relevant time, we don't think that the contention regarding the entrustment of gold ornaments to the husband is genuine.

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Under such circumstances, we don't think that the Family Court was justified in granting a decree for return of gold ornaments, more so when the material aspects relating to the locker facility being opened has not been considered in the case in the proper manner. As far as the direction to return Rs.5,000/- being value of the house hold articles, we don't think that any error is committed by the Family Court.

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In the result, the appeal is allowed in part. We set aside the direction of the Family Court directing return of 36.850 sovereigns of

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Mat.Appeal 240/2011 & CO.33/2011

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gold ornaments. In all other respects the decree shall stand

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confirmed. The cross objection is dismissed. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR

True copy

JUDGE

P.A. To Judge

Shinu Skariah v. John M.John @ Juby and Others

Case brief

What is this about?

What did the court decide?

Shinu Skariah v. John M.John @ Juby and Others

Case brief

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What did the court decide?

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