The High Court of Kerala dismissed an appeal against a Family Court decree rejecting a petition for recovery of entrusted gold ornaments and cash. The court held the appellant failed to discharge the burden of proof due to non-production of critical evidence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 MAT.APPEAL NO. 377 OF 2021
AGAINST THE ORDER/JUDGMENT OP 779/2014 OF FAMILY COURT, TIRUR
APPELLANT/PETITIONER IN O.P:
SALMATH C.P
AGED 30 YEARS
D/O.C.P.HAMSA,CHAKANNAPARAMBIL(H),PURATHUR.P.O, TIRUR TALUK, MALAPPURAM DISTRICT-676 102.
BY ADV E.C.AHAMED FAZIL
RESPONDENT/RESPONDENTS IN OP:
1 ABDUL RAHMAN @ HAKKEEM
S/O.KUNNIMARAKKAR,PALAKKAL(H), MUNAKAKADAVU,KADAPPURAM.P.O, IQBAL NAGAR,CHAVAKKAD,THRISSUR DISTRICT-680514.
2 ABDUL KHADER, S/O.KUNNIMARAKKAR,PALAKKAL(H), MUNAKAKADAVU,KADAPPURAM.P.O, IQBAL NAGAR, CHAVAKKAD, THRISSUR DISTRICT-680514.
3 RAHEEMA, W/O.ABDUL KHADAR,PALAKKAL(H), MUNAKAKADAVU,KADAPPURAM.P.O, IQBAL NAGAR,CHAVAKKAD,THRISSUR DISTRICT-680514.
4 ABDUL RASHEED, S/O.ABDUL KHADER, PALAKKAL(H), MUNAKAKADAVU,KADAPPURAM.P.O, IQBAL NAGAR,CHAVAKKAD,THRISSUR DISTRICT-680514.
5 SABEENA, D/O ABDUL KHADER,PALAKKAL(H), MUNAKAKADAVU,KADAPPURAM.P.O, IQBAL NAGAR,CHAVAKAD,THRISSUR DISTRICT-680514.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON
13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Amit Rawal, J.
1 . The present appeal is directed against the judgment and decree dated 31.3.2021 rendered in O.P No.779 of 2014 whereby the petition seeking recovery of the amount of Rs.3 lakhs and sovereigns from the respondents including the husband has been dismissed.
2 . Succinctly, the facts in brief are that the marriage between the petitioner and Abdul Rahman was performed on 13.3.2012 as per the custom of Islam and mehar of 8 sovereigns was given. From 23.3.2014 petitioner was taken to the residence of the respondent and residing as wife. It was alleged that at the time of the marriage husband was entrusted an amount of Rs.3 lakhs and gold ornaments purchased from the Malabar Gold and Dheema Gold. It was 53 sovereigns of gold ornaments and 7 sovereigns waist chain was gifted by the brother of the appellant/petitioner. In all, there were 60 sovereigns of gold ornaments worn by the petitioner at the time of the marriage. In the evening, the appellant was told that there was a locker in the name of the 5 th respondent/sister of the husband. In order to protect them from being stolen or loss, was directed to be kept there but were never returned. After three months of the marriage, the 1 st respondent started harassing the
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petitioner. For the development of the business of mobile shop, he needed five lakhs and for that the remaining gold ornaments lying in the locker of the 5 th respondent were used. Besides, 16 sovereigns gold ornaments were handed over to the 4 th respondent on the demand of the husband. In June 2014, husband demanded ₹ 3,50,000/- from the petitioner. Since the petitioner was unable to raise that amount, she was brutally attacked. The atrocities of the respondents as per the particular dates and events, pleaded in the petition continued and a claim was lodged with regard to the maintenance of 50,000/- as past maintenance and 10,000/- as₹ ₹ future maintenance besides sum of 16,38,480/-. ₹
3 . Respondents appeared and raised the various objections by denying that 8 sovereigns as mehar was given but in fact there were 5 sovereigns. The entrustment of 3,00,000/- was also denied.₹ There was no such demand of the gold ornaments nor any entrustment of 60 sovereigns much less the act of cruelty was also denied. Since the parties were at variance, the learned Family Court framed the following issues:
The points that arise for consideration are:-
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4 . Appellant, plaintiff in support of the case examined 5 witnesses; PW1 brother, PW2 herself, PW3 Manager of the Canara Bank, PW4 and PW5, witnesses and brought on record Exts.A1 to A8. Brother of the appellant when appeared admitted that he was working abroad for the last 10 years and had arranged everything in connection with the marriage of his sister ie., the appellant. When subjected to the cross examination, he conceded that though the marriage was contracted at mosque; all the functions in connection with the marriage were performed at the residence of the brother of petitioner's father. The Family court on the basis of all the preponderance of the oral and documentary evidence, dismissed the case.
5 Learned counsel appearing on behalf of the appellant submitted that when the case was ripe for orders, an application for additional evidence was submitted for the purpose of confronting the statement of account for the period 1.1.2006 to 6.12.2016 showing the withdrawal of the amount, required for the construction of his house, which would have revealed that whatever the gold ornmanets entrusted were returned/taken back by the brother for the purpose of construction. The trial court vide order dated 23.3.2021 dismissed the application. The said application has also been challenged by invoking the provisions of Order 43 Rule 1A of the Code of Civil Procedure.
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6 . The trial court has committed illegality and perversity not only misreading and misdirecting of the oral and documentary evidence, for, at an earlier point of time, respondents were proceeded as exparte. However on submission of the application, trial court allowed the application subject to deposit of security of ₹ 4,00,000/-, which was assailed in this Court vide O.P (FC) No.362 of 2020 before the Division Bench of this Court. Division Bench of this Court vide judgment dated 17.11.2020 deleted the condition of ₹ 4,00,000/- and allowed the defend ants/respondents in the O.P to lead the evidence. The allegations made in the petition coupled with the statement of the witnesses would prove that there was an entrustment of gold ornaments much less cash of 3,00,000/-. No₹ reasons have been assigned in discarding the estimates of the jewellery Exts.A1 to A8. The Family Court was not justified in arriving at a finding that the pleadings were inconsistent. Little deviations and contradictions in the evidence cannot be a foundation for belying or disproving the case of the appellant, thus urged this Court for set aside the decree as well as the order with a prayer to remand the case.
7 . The appeal aforementioned vide order dated 14.7.2021 was admitted. Service on respondents have been effected but they have not chosen to contest the case. Case is pending since 2021, thus we are deciding the case on merits. Testimony of PW1 did not
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even carry a presumption of truth. In other words, the burden as provided under Section 104 of the Indian Evidence Act has not been discharged. The appellant failed to place on record any document to show that the 5 th respondent ie, the sister of the husband had any locker in the account. Thus the question of entrustment has not been proved. On cumulative reading of the examination in chief and cross examination of PW1, it is evident that the respondents though had admitted the entrustment of 25 sovereigns of the gold as described in A5 series purchased from Malabar gold, Tirur but the categoric case was that it was returned as the brother needed the money for construction of the house. Once the said questions were put in cross examination, concerted effort ought to have been made to bring the evidence which was sought to be projected much later ie., the final stage of the case would reveal that it is an attempt to fill up the lacuna. Even no application for additional evidence in this Court has been filed in order to enable us to form prima facie opinion. To a specific question in cross examination, it was admitted that photographs were taken and there was album but those have been withheld for the reasons best known as they would have proved certain gold ornaments owned by the appellant. Non production of the essential and pertinent evidence would always draw an adverse inference as per the provisions of Section 114(e) of the Indian Evidence Act. PW1 to PW3 conceded that the betrothal discussion
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and marriage celebrations and welcoming of the guest were held at the residence of the brother of petitioner's father. Even the entrustment of 3,00,000/- was also confined in a room as per the₹ assertion of PW5. Photographs in the absence of negatives and also non examination of the witnesses, who attended the marriage would not prove the entrustment of gold. There has to be a categoric and cogent evidence. The statement of account Ext.A8 is of 2016 which also do not reveal the withdrawal of 3,00,000/-. The withdrawal of₹ ₹ 3,00,000/- would not construe that it was meant for entrustment and could have been utilized for other purposes. In our view, the appellant has miserably failed to discharge the onus with regard to the entrustment, not only the gold ornaments but also cash of ₹ 3,00,000/-. Rightly so, the trial court on preponderance of the evidence did not find favour. We do not find any merit in the appeal to form a different opinion than the one arrived at.
Mat. Appeal stands dismissed.
SD/-
AMIT RAWAL
JUDGE
SD/-
sab
C.S. SUDHA
JUDGE
3 issues framed by the court
Whether the appellant successfully discharged the burden of proof regarding the entrustment of gold ornaments and cash to the in-laws.
Whether the evidence on record establishes the misappropriation of entrusted jewelry and money.
Whether the trial court committed perversity or illegality in dismissing the petition for recovery.
Salmath C.P
Abdul Rahman @ Hakkeem
Abdul Khader
Raheema
Abdul Rasheed
Sabeena
Amit Rawal
C.S. Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
