Beena vs Anand Raj

V.K. Mohanan, J.—Though the court below by order dated 21.8.2008 in O.P. No. 52 of 2007 had given a decree in favour of the appellant herein for realisation of an amount of Rs. 61,300/- with 6% interest from the date of the order till the realisation of the same, dissatisfied with the order declining her claim for an amount equivalent to the value of 22 sovereigns of gold ornaments, said to have given to her at the time of her marriage with the first respondent, the present appeal is preferred.

Heard.

The case of the appellant before the court below is that the first respondent herein married her on 14.9.2003 at Santhigiri Mahadeva Kshetram through SNDP, Adimali Branch in accordance with the rites among the Hindu religion. According to her, after the marriage, she was residing along with the respondents in her matrimonial house. It is the further case of the appellant that in connection with the marriage, she was given Rupees fifty thousand and 22 sovereigns of gold ornaments as her family share from her parental house. In that wedlock, according to the appellant, a daughter was born to them on 12.9.2004, who is now along with the appellant. It is also the claim of the appellant that after the delivery of the said child, the father of the appellant had given Rs. 10,000/- and household articles worth Rs. 11,300/- to the appellant as gift. According to the appellant, all the gold ornaments, share amount and the above Rs. 10,000/- were entrusted with the respondents and besides the same, the household articles were also entrusted with the respondents. The details of the gold ornaments were mentioned in ''A'' schedule. Thus, the appellant herein preferred the above petition before the court below, for return of share amount, return of gold ornaments and other articles against her husband and father-in-law.

The respondents filed objection admitting the marriage between the appellant and the first respondent. According to the respondents, the gold ornaments given to the appellant were taken away by herself and Rs. 25,000/- paid by the father of the appellant in connection with the marriage was spent for purchasing thali chain of 3 sovereigns and dress for the appellant and they have also denied any subsequent payment.

During the trial of the above petition, the appellant was examined as PW1 and another witness was examined from the said of the appellant as PW2. Respondents 1 and 2 were examined as respectively RWs. 1 and 4. Two more witnesses were also examined as RWs. 2 and 3 from the side of the respondents. From the side of the appellant, Ext. A1 series were marked whereas from the side of the respondents, Exts. B1 to B7 were marked.

After considering the rival contentions and the evidence and materials on record, the trial court formulated five points for its consideration, among which the second point is whether the appellant is entitled to get any amount towards the value of her gold ornaments from the respondents. Third point formulated is whether there was any payment of Rs. 10,000/- after the marriage from the parental house of the appellant, if so, whether she is entitled to get that amount from the respondents. The trial court, finally, found in favour of the appellant under point Nos. 1 and 4, but found against the appellant in point Nos. 2 and 3. Mainly aggrieved by the order of the court below declining the relief sought for connected with the gold ornaments, the present appeal is preferred.

The learned counsel for the appellant vehemently submitted that the learned Judge of the Family court, Thodupuzha, is wrong in his observation that the appellant has not adduced any independent evidence to show that while she was leaving from the house of her husband, she was having only the ''thali'' chain, particularly when the evidence of PW1 in this respect was not challenged effectively. It is the further contention of the learned counsel that in the absence of any positive evidence, the court below has come into an erroneous conclusion that the appellant was having all gold ornaments when she left the matrimonial home. So, according to the learned counsel, the order rejecting the claim for return of gold ornaments or the amount equivalent to the value of such gold ornaments, is illegal and incorrect.

Now let us consider the evidence on record, in the light of the above contention. A sworn affidavit was filed by the appellant, and she had also adduced evidence by examining herself as PW1. In her affidavit, PW1 has stated that at the time of her marriage with the first respondent, as her family share, she was given Rs. 50,000/- and 22 sovereigns of gold ornaments and after the delivery, she was given Rs. 10,000/- and certain other household articles, but all such properties were mis-appropriated by the respondents. In her affidavit, she had specifically stated that she was given 22 sovereigns of gold ornaments on the date of her marriage and during the year 2003, the value of one sovereign of gold was Rs. 5,500/- and the total value of the gold ornaments given was Rs. 1,21,000/- and at the time of filing of the petition, the value of gold per sovereign was Rs. 6690/-. Thus, according to the appellant, the total value of the gold ornaments would come to Rs. 1,53,120/-. She had specifically stated that except the thali chain, all other gold ornaments and the household articles as well as the amount given to her as her family share were taken by the respondents. Though PW1 was subjected to lengthy cross-examination, she had sticked on her version in the sworn affidavit and she had deposed that all the ornaments, except the thali chain, were taken by the respondents and she had also deposed about the occasions under which the gold ornaments were taken by the respondents. Though PW1 was subjected to lengthy cross-examination, nothing brought on record to discredit her version. In this juncture, it is relevant to note as we have indicated, the first respondent herein was examined as RW1. In the chief examination itself, though he had denied that he is not given Rs. 50,000/-, he had admitted that Rs. 25,000/- was given by his father-in-law, which was entrusted with his father and using the said amount, according to the first respondent, he had purchased a thali chain and ring, which are having a total weight of 3= sovereigns and given to the appellant. He also deposed that on the date of the marriage, the appellant had worn gold ornaments, but he does not know the exact weight or quantity of the same. It is the further case of the first respondent that gold ornaments were neither entrusted with him nor he demanded for the same. According to him, on the fourth day of the marriage, himself and the appellant went to the house of the appellant and at that time, the appellant had worn the entire gold ornaments. He had also denied the claim of the appellant about the entrustment of the gold ornaments, amount as well as the household articles. But, it is relevant to note that during the cross-examination of RW1, he had admitted that there was an offer to give 22 sovereigns of gold ornaments and Rs. 25,000/-.

On a careful analysis of the evidence of PW1 and RW1, it can be seen that the claim of the appellant that on the date of her marriage with the first respondent, she was given 22 sovereigns of gold ornaments, appears to be correct and we find no reason to disbelieve the version of the appellant given in her evidence as PW1. In the sworn affidavit as well as in the cross-examination of PW1, she had categorically deposed that when she had left the company of the first respondent, she was having only her thali chain. She had also given a correct account about the entrustment of the gold ornaments as well as the amount with the first respondent. But, during the cross-examination of PW1, no effort was made to shake the evidence of PW1 that when she left the company of the first respondent, she had only the thali chain. In this connection, it is also relevant to note that the first respondent/husband during his examination as RW1 has also admitted that there was an understanding to give him a sum of Rs. 50,000/- and 22 sovereigns of gold ornaments. The above version of the husband/RW1 again probabilise the case of the appellant/wife. Since the main grievance of the appellant is connected with 22 sovereigns of gold ornaments as the court below has declined to grant the same, we are not concerned with the other evidence and materials on record.

We have already found that the specific case of the appellant is that except the thali chain, all the other gold ornaments and the cash were mis-appropriated by the respondents and the said allegation of the appellant and the evidence adduced in support of such allegation are not effectively challenged by the respondents. In this connection, it is relevant to consider the reasons given by the learned Judge of the Family Court to disbelieve the version of PW1/the appellant. According to the learned Judge, the appellant failed to examine any person to establish her case that when she left the house of the first respondent, she was having only the thali chain. We are unable to appreciate the above approach of the learned Judge of the Family Court, particularly when PW1 has given a clear-cut account about the entrustment of the gold ornaments as well as cash. The appellant gave evidence before the court below that when she left the house of the first respondent, she was having only the thali chain. That part of evidence of PW1 is not cross-examined effectively and nothing brought on record to shake her evidence. Therefore, according to me, the trial court is not justified in holding that the appellant failed to establish the fact that she was having gold thali chain when she left the company of the first respondent. For the aforesaid reasons, we find that the learned Judge of the trial court is wrong in his finding that the appellant was wearing gold ornaments when she left the matrimonial home and the respondents are not liable to pay any amount as well as the gold ornaments to the appellant and accordingly, the same is set aside.

In the result, this appeal is allowed in part, allowing the petitioner to recover Rs. 1,53,120/-, equivalent to the value of 22 sovereigns of gold ornaments, which is scheduled in the ''A'' schedule from the respondents and from their assets, with 12% interest, from the date of petition till the date of decree and with 6% future interest for the said amount. The appellant is entitled to get the proportionate cost through out.