Partly allowed

Abdulla Konthalam @ Shaji and Another v. M.H.Shyja

Kerala HC18 Sept 2019Mat.Appeal/796/2008

Case brief

AI extract

What is this about?

In this matrimonial appeal, the High Court examined a Family Court decree directing respondents to pay the petitioner Rs.1 lakh with 12% interest arising from a divorce settlement agreement. The Court upheld the decree confirming the debt but reduced the interest rate from 12% to 6% per annum.

What did the court decide?

The rate of interest is reduced from 12% to 6%. In all other respects the decree shall stand confirmed.

Abdulla Konthalam @ Shaji and Another Vs M.H.Shyja — Matrimonial and Divorce | 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 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941

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Mat.Appeal.No.796 OF 2008

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AGAINST THE JUDGMENT IN OP 872/2005 DATED 15-05-2008 OF FAMILY COURT, ERNAKULAM

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APPELLANTS/RESPONDENTS:

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1 ABDULLA KONTHALAM @ SHAJI S/O.HASSAN KANI, MALIYEKKAL VEEDU, MYLAPPURAMKARA, KARIMANNOOR VILLAGE,, THODUPUZHA TALUK.

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2 HASSAN KANI SO.SULAIMAN -DO- -DO- -DO-

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BY ADV. SRI.MANSOOR.B.H.

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RESPONDENT/PETITIONER:

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M.H.SHYJA, D/O ABDUL HAMEED, MANAPPAL VEEDU, KARIMATTAM KARA,, ENANALLOOR VILLAGE, MUVATTUPUZHA.

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R1 BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-042018, THE COURT ON 18-09-2019 DELIVERED THE FOLLOWING:

Mat.A.No.796/2008

JUDGMENT

Dated this the 18th day of September 2019

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SHAFFIQUE, J

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This appeal is filed by the respondents in O.P.No.872/2005 of the Family Court, Ernakulam. By the impugned judgment the Family Court directed the respondents to pay to the petitioner an amount of Rs.1,00,000/- with interest at the rate of 12% per annum from 27.7.2005 till the date of payment.

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The learned counsel for the appellants submits that there is no evidence to grant a decree for payment of Rs.1,00,000/- and that apart, the interest granted by the trial court was exorbitant.

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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: The petitioner and the 1^st respondent got married on 13.07.2003 as per Muslim law. Rs.1,00,000/- was entrusted as patrimony on 02.06.2003 and 28.6.2009. The allegation is that the 2^nd respondent received the amount as a trustee on behalf of the 1^st respondent. She was also adorned with 80 sovereigns of gold ornaments at the time of marriage. On account of the matrimonial dispute, she was compelled to return back to her home in November, 2004. There was a settlement talk between the relatives and on 23.11.2004, the 1^st respondent agreed to repay Rs.50,000/- on 23.4.2005, and the balance

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Mat.A.No.796/2008

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amount of Rs.50,000/- on 23.10.2005. An agreement was executed between the parties based on the said arrangement. Though 'Thalak' was pronounced on 28.12.2004, the amount as stipulated in the agreement has not been paid. Lawyer's notice has been issued alleging breach of contract. But no action was taken to pay the amount and hence the original petition was filed by the wife.

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In the counter statement filed by the respondents, they denied having been entrusted with any amount. He however contended that the relationship got strained on account of other reasons. He also denied having executed the agreement. According to him blank signed stamp paper which was retained by the 1^st respondent was taken away by the petitioner and it was misusing the said stamp paper she managed to create the document and the same was produced before court. Evidence in the case consisted of the oral testimony of the petitioner as PW1 and on the side of the respondents RW1 and RW2 were examined. Exts.A1 to A8 and B1 were the documents relied upon.

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Ext.A1 is the copy of the agreement which was duly signed by the 1^st respondent. Even in the objection, he has no dispute that his signature has been forged. His contention was that the blank signed stamp papers which was in his possession was taken by the wife and the document is prepared. This contention has not been proved. It is quite common that when a matrimonial dispute is resolved, the parties

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Mat.A.No.796/2008

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may agree to repay the parental share and all other issues will be settled. Apparently, it is pursuant to Ext.A1 agreement that the 'Thalak' was pronounced and the parties got divorced. The Family Court had relied upon Ext.A1 which was followed by the lawyer's notice and the oral testimony of PW1 in order to grant the decree. Though contra evidence had been adduced by RW1 and RW2, their version was found to be not believable.

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Under such circumstances, in the absence of any perversity, we don't think that the judgment requires to be set aside. With reference to the argument regarding the rate of interest, we are of the view that it is only appropriate to reduce the interest from 12% to 6%. The amount already deposited shall be adjusted to the claim under the decree.

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In the result, this appeal is allowed in part. The rate of interest is reduced from 12% to 6%. In all other respects the decree shall stand confirmed.

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR

True copy

JUDGE

P.A. To Judge.

Abdulla Konthalam @ Shaji and Another v. M.H.Shyja

Case brief

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Abdulla Konthalam @ Shaji and Another v. M.H.Shyja

Case brief

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