Partly allowed

S.Veena v. Jayakumar

Kerala HC12 Jul 2021Mat.Appeal/682/2016

Case brief

AI extract

What is this about?

In an appeal arising from a divorce decree, the High Court examined claims for recovery of gold and construction expenses. The court overturned the Family Court's disallowance regarding construction material invoices, allowing recovery of that claim, but rejected the claim for gold ornaments as not established.

What did the court decide?

Appellant entitled to recover Rs.4,32,797/- with 6% interest from the date of petition for construction materials; dismissal of claim for gold ornaments.

S.Veena Vs Jayakumar — Succession and Inheritance | Kerala HC (2021)

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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.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 12^TH DAY OF JULY 2021 / 21^st ASHADHA, 1943

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MAT.APPEAL NO. 682 OF 2016

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AGAINST THE ORDER/JUDGMENT IN OP 361/2013 OF FAMILY COURT, MAVELIKKARA, ALAPPUZHA

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APPELLANT/PETITIONER:

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S.VEENA, AGED 34 YEARS, D/O.SANTHAMMA, PALLITHEKKETHIL, KOMALLOOR P O, CHUNNAKKARA. BY ADV SRI.V.PHILIP MATHEW

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RESPONDENTS:

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1 JAYAKUMAR. R, AGED 44 YEARS, S/O.RAJAN, RAJA SADANAM, PADANILAM P O, NOORANAD, MAVELIKKARA, ALAPPUZHA DISTRICT-690 529.

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2 RAJAN, AGED 70 YEARS, RAJA SADANAM, PADANILAM PO, NOORANAD, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN690529,

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3 PRABHAVATHI, AGED 65 YEARS, W/O.RAJAN, RAJA SADANAM, PADANILAM PO, NOORANAD, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN-690529,

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4 VIJAYAKUMAR, AGED 44 YEARS, S/O.RAJAN, RAJA SADANAM, PADANILAM PO, NOORANAD, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN-690529 BY ADVS. SRI.T.S.HARIKUMAR SRI.P.B.SAHASRANAMAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2021, THE COURT ON 12.07.2021 DELIVERED THE FOLLOWING:

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-:1:-

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A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

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MAT.APPEAL NO.682/2016

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JUDGMENT

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Dated this the 12th day of July 2021

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A.MUHAMED MUSTAQUE, J.

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The present appeal arises from a matrimonial dispute raised by the appellant against the respondents for recovery of gold ornaments, household articles and money. The case was tried along with a divorce petition filed by the first respondent. Respondents before the family court were the husband and his parents and his brother. Divorce petition has been allowed as per the Hindu Marriage Act, 1955 and it has become final.

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The appellant's monetary claims were partially allowed. No challenge has been laid against the partial award of claim by the respondents. In the appeal, we have been called upon to decide certain claims which were disallowed by the family court.

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MAT.APPEAL NO.682/2016

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-:2:-

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For easy reference, we summarize various claims made by the appellant, as follows:-

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I. Claim for gold ornaments of 85

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sovereigns.

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II. Money given by the appellant to respondents totalling 31 lakhs.

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III. Rs.5 lakhs being the value of timber for construction of the family house of the respondents.

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IV. Rs. 1.50 lakhs paid to the third respondent.

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V. Movables worth Rs.50,000/- given at the time of marriage.

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4.The Family Court allowed the following claims:

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I. The claim against the first respondent for recovery of Rs.2,55,000/- with interest.

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II. The claim against the fourth respondent for recovery of Rs.2,05,000/- with interest.

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MAT.APPEAL NO.682/2016

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-:3:-

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III. Claim for Rs.50,000/- towards household articles given at the time of marriage.

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Assailing the judgment disallowing certain claims, the learned counsel for the appellant, Shri Philip Mathew argued in extenso. Summing up his arguments, he mainly focussed on three claims, one is related to claim for gold ornaments, second is based on Exts.A3 and A4. Exts.A3 and A4 are the retail invoices for purchasing materials for construction. Third claim is for value of timber.

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The learned counsel Sri.T.S.Harikumar

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appearing for the respondents, refuting the arguments of the learned counsel for the appellant, submitted that the appellant failed to make out any case warranting interference by this Court. It was submitted by the learned counsel that the claim for gold ornaments was declined in the light of Ext.X2, a letter issued by the SNDP Sakha and oral testimony of RW2 and RW3, Secretaries of the SNDP local branch. It is further submitted that merely because retail invoices have been produced for purchase, there is nothing on record to indicate that those purchases were

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MAT.APPEAL NO.682/2016

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-:4:-

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made in respect of the construction undertaken by the respondents. It is further submitted that the retail invoices are forged one.

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In regard to the claim of gold ornaments: -

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There cannot be much dispute in regard to possession of 85 sovereigns as claimed by the appellant. Admittedly, the appellant was working abroad and she and her family were capable to purchase 85 sovereigns. Ext.X1 is the register maintained by SNDP sakha. That would show that the appellant adorned 80½ sovereigns at the time of marriage. When a dispute arose between parties, it appears that SNDP sakhas were involved. Exts.B6 and X2 are the crucial documents, relied by the Family Court to disallow the claim for value of gold ornaments. According to the appellant, these gold ornaments were entrusted with the respondents and later the same had been misappropriated by the respondents. Ext.B6 is the letter of SNDP Sakha, Naduvile muri, Padanilam, addressing the Branch Secretary of SNDP Komalloor. It appears that a demand was raised before the Secretary, SNDP Sakha, Naduvile Muri to keep the entire gold ornaments in the locker in

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MAT.APPEAL NO.682/2016

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the name of the mother of the appellant. In the light of Ext.B6, SNDP Sakha Branch, Komalloor, intervened and ensured that the entire gold ornaments entrusted to Smt.Santhamma, the mother of the appellant. As evident from Ext.X2 letter of SNDP Sakha, Komalloor, these gold ornaments were kept in the name of Santhamma in a locker maintained with SBT Branch at Charummoodu.

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As rightly noted by the Family Court, these gold ornaments are in the custody of the mother of the appellant. The appellant failed to prove entrustment and misappropriation by the respondents. We, in such circumstances, find no reason to interfere with the impugned findings.

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In regard to the claim based on purchase of materials for house construction:-

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As seen from Ext.A3 series retail invoices, an amount of Rs.2,19,736/- was spent for purchase of wirecut brick.

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In Ext.A4 also, the following amount reflected in the invoice: Rs.2,13,061/- for purchase of steel and wire.

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MAT.APPEAL NO.682/2016

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-:6:-

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Besides the above claim, the appellant has a case that timber worth Rs.5 lakhs was cut and removed from the property of her father for the purpose of house construction. We do not find any materials on record to show cutting of trees or using the same for construction. The respondents on the other hand produced documents to show that they purchased timber utilizing their own fund.

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According to the appellant, she has spent money for construction of the family house. Ext.A3 series invoices are regarding construction materials purchased from Siva Wirecut Bricks, totalling Rs.2,19,736/-. Ext.A4 series are the invoices in respect of purchase of wire, steel etc. totalling Rs.2,13,061/-. The learned counsel for the respondents points out that some of the invoices are related to the year 2008, however, construction of the house was started only in the year 2009 and therefore, those invoices cannot be relied upon. These invoices are in the name of the father of the appellant, namely, Bharatan. The first of the purchase was made on 24/12/2008 and followed in the year 2009. Admittedly, construction materials were purchased. Respondents

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MAT.APPEAL NO.682/2016

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have no case that these constructions were in respect of any building constructed by the appellant or his father. Admittedly, the respondents also undertook construction of the family house at that time. It is to be noted that the payments made by the appellant during 2008 by Ext.A6 series till 26/11/2010 were acknowledged by the first respondent. By the impugned judgment also, the first respondent is directed to refund the amount. This would show that the parties were in good terms at the time when the alleged purchases were made. In such circumstances, it is quite probable that these purchases were made for house construction undertaken by the respondents. We need not disbelieve the invoices produced by the appellant. Though the respondents in the chief affidavit have stated that these invoices were forged, no steps were taken by them to prove the same. When documents which prima facie are shown to be a genuine, it is the bounden duty of the party who set up the case of forgery, to prove the same. In a proceedings before the family court which is of a summary nature, denial of non existence based on forgery, will have to be proved by the person who set up such case. We, in such

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MAT.APPEAL NO.682/2016

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circumstances, are of the view that the Family Court erred in disallowing the claims based on Exts.A3 and A4. The family court, in fact, failed to advert to the claim based on Exts. A3 and A4. We, therefore, allow these claims. Thus, the appellant would be entitled to recover a sum of Rs.4,32,797/- along with 6% interest from the date of petition till realisation besides the decree already granted in their favour. Appeal is partly allowed. The parties are directed to suffer their respective costs.

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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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S.Veena v. Jayakumar

Case brief

What is this about?

What did the court decide?

S.Veena v. Jayakumar

Case brief

What is this about?

What did the court decide?

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