Partly allowed

Darwin Mathew v. C.S.Rajan

Kerala HC23 Mar 2021CO/71/2017

Case brief

AI extract

What is this about?

In matrimonial appeals arising from a Family Court decree decreeing return of gold ornaments and money, the High Court held that the claim was barred by limitation due to lack of evidence for a trust. Consequently, Mat.Appeal No. 788/2015 was allowed, while Mat.Appeal No. 950/2015 was dismissed.

What did the court decide?

Mat.Appeal No. 788/2015 allowed; Mat.Appeal No. 950/2015 dismissed; OP(FC) No.388/2018 closed; Cross objection allowed.

Darwin Mathew Vs C.S.Rajan — Matrimonial and Divorce | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶4

¶5

THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

¶6

TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

¶7

Mat.Appeal.No.788 OF 2015

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AGAINST THE JUDGMENT IN OP 493/2012 DATED 09-06-2015 OF FAMILY COURT, IRINJALAKUDA

¶9

APPELLANTS/RESPONDENTS 1 & 2:

¶10

1 LAILA SURESH AGED 49 YEARS AVASTHAPARAMBIL HOUSE, P.O. ALAGAPPA NAGAR,MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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2 USHA

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AGED 51 YEARS, D/O.RAMDAS, AVASTHAPARAMBIL HOUSE, P.O. ALAGAPPA NAGAR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.

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RESPONDENTS/PETITIONERS & 3RD RESPONDENT:

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1 C.S.RAJAN AGED 65 YEARS, S/O.SANKARANKUTTY, CHERODAN HOUSE,VARANTHRAPPILLY DESAM & P.O, MUKUNDAPURAM TALUK,THRISSUR DISTRICT.

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Mat.Appeal No.788/15 & conn.cases

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-:2:-

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2 K.S. GOURI AGED 61 YEARS, W/O.RAJAN, CHERODAN HOUSE, VARANTHRAPPILLY DESAM & P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

¶19

3 DARVIN MATHEW AGED 48 YEARS, POLICE CONSTABLE, S/O.MATHEW, KALLUPLATHINKAL HOUSE, NENMANIKKARA P.O., PIN680 301, MUKUNDAPURAM TALUK THRISSUR DISTRICT.

¶20

R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) (CAVEATOR) R1 BY ADV. SRI.RAJESH CHAKYAT R3 BY ADV. SMT.R.RAJITHA R3 BY ADV. SRI.SANTHOSH P.PODUVAL R3 BY ADV. SMT.VINAYA V.NAIR

¶21

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021, ALONG WITH CO.71/2017, Mat.Appeal.950/2015, OP (FC).388/2018(R), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

Mat.Appeal No.788/15 & conn.cases

¶23

-:3:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶25

PRESENT

¶26

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶27

¶28

THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

¶29

TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

¶30

CO.No.71 OF 2017 IN Mat.Appeal. 950/2015

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Mat.Appeal 950/2015 OF HIGH COURT OF KERALA

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CROSS PETITIONER/3RD RESPONDENT:

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DARWIN MATHEW,

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AGED 49 YEARS, S/O.MATHEW, KALLUPLATHINKAL HOUSE, NENMANIKKARA P.O., PIN-680 301, MUKUNDAPURAM TALUK THRISSUR DISTRICT.

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BY ADVS. SHRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.VINAYA V.NAIR RESPONDENTS/APPELLANTS & RESPONDENTS 1 & 2:

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1 C.S.RAJAN AGED 66 YEARS, S/O.SANKARANKUTTY, CHERODAN HOUSE,VARANTHRAPPILLY DESAM & P.O, MUKUNDAPURAM TALUK,THRISSUR DISTRICT-68303.

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2 K.S. GOURI AGED 62 YEARS, W/O.RAJAN, CHERODAN HOUSE, VARANTHRAPPILLY DESAM & P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680303.

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3 LAILA SURESH AGED 50 YEARS, D/O RAMADAS, AVASTHAPARAMBIL HOUSE, P.O. ALAGAPPA NAGAR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680302.

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Mat.Appeal No.788/15 & conn.cases

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-:4:-

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4 USHA, AGED 52 YEARS, D/O.RAMADAS, C/O LAILA SURESH, AVASTHAPARAMBIL HOUSE, P.O. ALAGAPPA NAGAR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680302.

¶42

THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 23.03.2021, ALONG WITH Mat.Appeal.788/2015, Mat.Appeal.950/2015, OP (FC).388/2018(R), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶43

Mat.Appeal No.788/15 & conn.cases

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-:5:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶46

PRESENT

¶47

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶48

¶49

THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

¶50

TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

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Mat.Appeal.No.950 OF 2015

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AGAINST THE JUDGMENT IN OP 493/2012 DATED 09-06-2015 OF FAMILY COURT, IRINJALAKUDA

¶53

APPELLANTS/PETITIONERS:

¶54

1 C.S.RAJAN AGED 65 YEARS S/O.SHANKARANKUTTY, CHERODAN HOUSE, VARANTHARAPPILLY DESOM & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

¶55

2 E.S.GOURI AGED 62 YEARS W/O.RAJAN, CHERODAN HOUSE, VARANTHARAPPILLY DESOM & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADV. SRI.RAJESH CHAKYAT

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RESPONDENT/PETITIONER:

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1 LAILA SURESH AGED 46 YEARS D/O.RAMADAS, W/O.SURESH AVASTHAPARAMBIL HOUSE, P.O.ALAGAPPA NAGAR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, OFFICE ADDRESS: N.R.LAILA, DEPUTY DIRECTOR SEDIMENTATION DIVISION, K.E.R.I, PEECHI, PIN: 680 653.

¶59

Mat.Appeal No.788/15 & conn.cases

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-:6:-

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2 USHA AGED 48 YEARS D/O.RAMADAS, C/O.LAILA SURESH AVASTHAPARAMBIL HOUSE, P.O.ALAGAPPA NAGAR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT

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3 DARVIN MATHEW AGED 45 YEARS POLICE CONSTABLE, S/O.MATHEW, KALLUPALATHINKAL HOUSE, NENMANIKKARA P.O., PIN: 680 301, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) (CAVEATOR) R3 BY ADV. SMT.R.RAJITHA R3 BY ADV. SRI.SANTHOSH P.PODUVAL R3 BY ADV. SMT.VINAYA V.NAIR

¶64

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021, ALONG WITH CO.71/2017, Mat.Appeal.788/2015, OP (FC).388/2018(R), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶65

Mat.Appeal No.788/15 & conn.cases

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-:7:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶68

PRESENT

¶69

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶70

¶71

THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

¶72

TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

¶73

OP (FC).No.388 OF 2018

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AGAINST THE ORDER IN EA NO.78/2017 IN EP NO.41/2016 IN OP 493/2012 DATED 14-05-2018 OF FAMILY COURT, IRINJALAKUDA

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PETITIONERS/DECREE HOLDERS:

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1 C.S.RAJAN AGED 65 YEARS,S/O.SHANKARANKUTTY,CHERODAN HOUSE,VARANTHARAPPILLY DESOM & P.O.,MUKUNDAPURAM TALUK,THRISSUR DISTRICT.

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2 E.S.GOURI AGED 62 YEARS,W/O.RAJAN,CHERODAN HOUSE,VARANTHARAPPILLY DESOM & P.O.,MUKUNDAPURAM TALUK,THRISSUR DISTRICT.

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BY ADV. SRI.RAJESH CHAKYAT

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RESPONDENTS/JUDGMENT DEBTORS/GARNISHEE:

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1 LAILA SURESH

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AGED 46 YEARS, D/O.RAMADAS,W/O.SURESH,AVASTHAPARAMBIL HOUSE,P.O.ALAGAPPA NAGER,MUKUNDAPURAM TALUK,THRISSUR DISTRICT.OFFICE ADDRESS:N.R.LAILA,ASSISTANT EXECUTIVE ENGINEER,M.I.SUB DIVISION,(MINOR IRRIGATION),KANHANGAD, KASARGODE DISTRICT,PIN-671 315.

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Mat.Appeal No.788/15 & conn.cases

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-:8:-

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2 EXECUTIVE ENGINEER M.I.SUB DIVISION(MINOR IRRIGATION), KANJANGAD, KASARGODE DISTRICT,PIN-671 315.

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R1-2 BY ADV. SRI.C.P.PEETHAMBARAN

¶86

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23.03.2021, ALONG WITH CO.71/2017, Mat.Appeal.788/2015, Mat.Appeal.950/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.788/15 & conn.cases -:9:-

¶88

J U D G M E N T

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[Mat.Appeal.788/2015, Mat.Appeal.950/2015, CO.71/2017 & OP (FC).388/2018 ]

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Dated this the 23^rd day of March, 2021

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A.Muhamed Mustaque,J.

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Mat.Appeal Nos.788/2015 and 950/2015 arise from the judgment in OP No.493/2012. OP(FC) No.388/2018 tagged along with this matter is arising from the execution of the decree in the aforesaid matter. Since the matters are related and arising from the same proceedings, it is appropriate to dispose of these cases by a common judgment.

¶93

Parties are referred to by their names for easy reference. The marriage between deceased Resmi and deceased Venu was solemnized on 5/10/1998. In the wedlock, a child was born. Resmi along with the child were found murdered between the night 31/8/2000 and 1/9/2000. Venu thereafter committed suicide on 12/10/2000. In a suicide note alleged to have been written by Venu, he confessed about committing the murder of Resmi and the child. He also wrote a letter to the SHO, Pudukkad to close the investigation stating that the accused in mysterious murder has committed suicide. The alleged suicide note and communication

¶94

Mat.Appeal No.788/15 & conn.cases

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-:10:-

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issued to the SHO were marked as Exts.A4 & A5. Parents of Resmi viz., C.S.Rajan and E.S.Gouri filed OP No.493/2012 on 29/7/2011 before the Family Court, Irinjalakuda for recovery of 6,55,500/- being the value of gold ornaments allegedly entrusted to Venu and his sisters-Laila Suresh and Usha. Besides the above claim, a sum of 1,50,000/- was sought to be recovered being the amount given as a trustee to the aforesaid person at the time of marriage. The amount was sought to be recovered by way of charge over the property belonged to Venu. After the demise of Venu, the property belonged to him was transferred in the name of Darwin Mathew. Therefore, Darwin Mathew was also impleaded in the party array. Family Court overlooking the objections regarding limitation ordered return of 38 sovereigns of gold ornaments by Laila Suresh and

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Usha and also a sum of `1,50,000/- within a period of six months.It was further ordered that the value of the gold ornaments can be realised along with 6% interest if there was failure to return the gold ornaments.

¶98

Laila Suresh and Usha challenging the above decree filed Mat.Appeal No.788/2015. Parents of Resmi viz., Rajan and Gouri have come up with Mat.Appeal No.950/2015 aggrieved to the extent of declining the

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Mat.Appeal No.788/15 & conn.cases

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-:11:-

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relief of enforcing charge over the property purchased by Darwin Mathew from Laila Suresh and Usha.

¶102

There was a finding by the Family Court that the transfer effected by Laila Suresh and Usha in favour of Darwin Mathew was a fraudulent transfer and as against that finding, Darwin Mathew filed Cross Objection No.71/2017 in Mat.Appeal No.950/2015.

¶103

We heard Sri.C.P.Peethambaran, learned counsel appearing for Laila Suresh and Usha, Sri.Rajesh Chakyat, learned counsel appearing for the parents of Resmi viz., C.S.Rajan and Gouri and Sri.Santhosh P. Poduval, learned counsel appearing for Darwin Mathew.

¶104

Learned counsel Sri.C.P.Peethambaran submits that the petition instituted by the parents of Resmi was barred by limitation as there is no effective pleadings or evidence to establish a case of trust and therefore any recovery that can be effected as against Venu is barred by limitation as the petition itself was filed after a decade, in the year 2011. Learned counsel appearing for Darwin Mathew submits that the finding of the Family Court that transfer effected by Laila Suresh and Usha in his favour is fraudulent, is without any evidence. Further, it is submitted that the subject matter of the transfer itself is not in question in the matter and therefore such finding and observation is

¶105

Mat.Appeal No.788/15 & conn.cases

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-:12:-

¶107

unwarranted. Learned counsel Sri.Rajesh Chaktyat submitted that the entrustment of the gold is proved from the suicide note of Venu and in view of Section 10 of the Limitation Act, 1963, such a petition is not barred by limitation.

¶108

The Family Court answering the question of limitation held that the ornaments were entrusted with Venu, Laila Suresh and Usha as trustees and therefore the petition is not barred by limitation.

¶109

The entire claim as against Laila Suresh and Usha would depend upon the alleged trust. It is the case of parents of Resmi that 38 sovereigns of gold as well as `1,50,000/- were entrusted with deceased Venu, Laila Suresh and Usha at the time of marriage. There was absolutely no evidence available to substantiate the claim of the parents of Resmi that the gold ornaments and money were entrusted with Laila Suresh and Usha. On the other hand, the suicide note produced by the parents of Resmi and marked as Ext.A4 would show that Venu himself has misappropriated the gold ornaments. Therefore, the claim only would lie against Venu or against his legal heirs who inherited any property from Venu. However, it is to be noted that consequent upon the death (murder) of Resmi, the trust

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Mat.Appeal No.788/15 & conn.cases

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-:13:-

¶112

has been extinguished. Therefore, right to sue would accrue either on the death of Resmi or on the death of Venu in the year 2000. S.10 of Limitation Actcannot be applied to save such claims in as much as there exists no trust. The claim therefore falls under residual clause under Schedule of the Limitation Act as prescribed under Article 113. Petition was only filed in the year 2011. Since no petition or suit was filed within three years, such claim is barred by limitation. Under such circumstances, the impugned judgment is legally unsustainable.

¶113

In view of the discussion as above, the impugned judgment is set aside. Consequently Mat.Appeal 788/2015 is allowed. Mat.Appeal No.950/2015 is dismissed. OP(FC) No.388/2018 is closed. Cross objection filed in Mat.Appeal No.950/2015 is also allowed.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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¶121

Mat.Appeal No.788/15 & conn.cases

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-:14:-

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APPENDIX OF OP (FC) 388/2018

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PETITIONERS' EXHIBITS:

¶125

EXT.P1:	A TRUE COPY OF THE EXECUTION PETITION IN E.P.NO.41/2015 IN O.P.NO.493/2012 ON THE FILE OF FAMILY COURT, IRINJALAKUDA.
EXT.P2:	A TRUE COPY OF THE E.A.78/2017 IN E.P.41/2016.
EXT.P3:	A TRUE COPY OF THE OBJECTION FILED IN E.A.NO.78/2017 BY THE 1ST RESPONDENT.
EXT.P4:	A TRUE COPY OF THE ORDER IN E.A.NO.78/2017 IN E.P.NO.41/2016 DATED 25.11.2017.
EXT.P5:	A TRUE COPY OF THE REVIEW PETITION FILED BY THE 1ST RESPONDENT AS E.A.NO.112/2017 IN E.A.NO.78/2017 IN E.P.NO.41/2016.
EXT.P6:	A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN E.A.NO.112 IN E.A.NO.78/2017 IN E.P.NO.41/2016.
EXT.P7:	A TRUE COPY OF THE ORDER IN E.A.NO.78/2017 IN E.P.NO.41./2016 IN O.P.NO.493/2012 DATED 14.05.018.

Darwin Mathew v. C.S.Rajan

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Darwin Mathew v. C.S.Rajan

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