Mathew.M vs Cinimol Augustine.P

Sophy Thomas, J.

These  appeals arise out of the common judgment dated 11.08.2015 in OP No.119 of 2014 and 619 of 2013 on the file of Family Court, Kannur.

Smt.Cinimol Augustine was married to Sri.Mathew M on 12.01.2002 at Marygiri Church. The wife was a Nurse working in Kuwait and the husband was a Civil Overseer in Pariyaram Medical College, as on the date of marriage. Subsequently, the husband was taken to Kuwait by the wife and they lived together as husband and wife. According to the wife, she was given 75 sovereigns of gold ornaments from her family at the time of marriage, and soon after the marriage, those ornaments were entrusted with her mother-in-law, and subsequently, it was misused by the husband. She was sending amounts regularly to the Bank Account opened by her in Kerala, as instructed by the husband, and she had entrusted money with the husband and his brother, for purchasing properties in her name. But, on breach of trust, the husband purchased property in his own name and subsequently, he gifted that property to his brother Mr.Joseph Mathew, so as to defeat her right. She had given amounts to the husband to meet the marriage expenses also, and she had also met the expenses for his visa to take him abroad. Later their relationship became strained, and in September 2012, the husband manhandled her and left her company. Since then they are living separate.

On 24.02.2012, the wife came to know that her husband had executed a gift deed with respect to the schedule property in favour of his brother. At that juncture, she filed O.P No.619 of 2013 against her husband and his brother, to declare her title, to declare the gift deed executed by her husband to his brother as null and void, and also for a mandatory injunction to reconvey that property into her name. She filed O.P No.119 of 2014 for recovery of money and gold ornaments.

In both cases, the respondents opposed the claim of the petitioner/wife. According to them, the schedule property was purchased by the husband expending his own money and so, the wife had no right, title or interest over that property. Since the brother of the husband expended considerable amount for purchasing that property, and as he was the one who took care of the education and other expenses of the husband, he executed a gift deed in favour of his brother. No gold ornaments were entrusted by the wife with the mother-in-law, and there was no occasion for the husband to misuse the same. He never received any amounts from the wife, though he is admitting that he was taken to Kuwait by his wife. According to him, he was employed in Kerala and he had sufficient amounts with him to meet the expenses for going to Kuwait.

O.P No.619 of 2013 and O.P No.119 of 2014 were tried together by the Family Court, treating O.P No.619 of 2013 as the leading case. PWs 1 to 3 were examined and Exts.A1 to A25 were marked from the side of the petitioner/wife. RWs 1 and 2 were examined and Exs.B1 to B4 were marked from the side of the respondent/husband. Exts.X1 to X3 were marked as witness exhibits.

On analysing the available facts and evidence, the learned Family Court allowed O.P No.619 of 2013, and partly allowed O.P No.119 of 2014, directing the respondent/husband to pay a sum of Rs.17,25,000/- as the value of 75 sovereigns of gold ornaments. All other prayers in that OP were turned down. The husband has come up with these appeals, challenging the common judgment in O.P No.119 of 2014 and O.P No.619 of 2013.

No appeal has been preferred by the wife against the judgment and decree in O.P No.119 of 2014, which was only partly allowed.

Now let us have a reappraisal of the available facts and evidence, to find out whether any interference is warranted in the impugned judgment and decree.

PW1-the wife deposed that, her husband persuaded her to purchase the schedule property for a total sale consideration of Rs.21 lakh. Though she was not amenable initially, later she inspected the property along with her husband and agreed to purchase the same, on condition that the document has to be executed in her name. She handed over the amounts for purchasing that property and Ext.A4 is the copy of the sale deed by which the schedule property was purchased on 22.04.2009. That document was executed in the name of the husband-Mathew, and the sale consideration shown was Rs.7,51,000/-. PW1 produced Exts.A2 and A3 statements of her accounts in Federal Bank, Chemberi and Cherupuzha branches. Ext.A2 will show that Rs.9,50,000/- was withdrawn from her account on 16.02.2009. Ext.A3 will show that an amount of Rs.10 lakh was withdrawn from her account on 08.10.2010 and 05.04.2011. There is nothing to show, what was the actual sale consideration of Ext.A4 sale deed. If we go by that document, the sale consideration was Rs.7,51,000/-. Prior to execution of that document, Rs.11,50,000/-was withdrawn from her account, as evident from Exts.A2 and A3. Apart from that, there is testimony of PWs 1 to 3 to support the case of the wife that she had expended money to purchase that property. Exts.X2 and X3 also support her case.

Though the husband has got a case that, he purchased the schedule property by selling away his property at Mathamangalam, Ext.B2 sale deed of that property will show that he sold away that property only on 12.06.2009 i.e. after the schedule property was purchased as per Ext.A4 document. Though the husband put forward a case that, he had received amounts from his brother for purchasing that property, no evidence is forthcoming to support that plea. Admittedly, the marital relationship between the appellant/husband and respondent/wife went into rough weather in the year 2012. Ext.A5 gift deed was executed by the husband in favour of his brother on 22.09.2012. Obviously, no circumstances existed for executing such a gift deed by the husband in favour of his brother, which leads to an inference that, in order to defeat the wife and her claim over the schedule property, the husband executed Ext.A5 gift deed in favour of his brother. So, the learned Family Court rightly found that the schedule property absolutely belonged to the wife, as she expended money for purchasing that property, and there was nothing to show that the husband paid the sale consideration and he purchased the property in his own name. So, we find nothing to interfere with the finding of the Family Court that the wife is the actual owner of the petition schedule property, and the gift deed was fraudulently executed by the husband in favour of his brother. Since it was declared that the wife was the absolute owner of the petition schedule  property,  there  was  no  need  for  any  further  direction  to reconvey that property in her favour. So, relief © is set aside and relief (a) and (b) granted in O.P No.619 of 2013 are confirmed.

In Mat.Appeal No.1067 of 2015, the husband is challenging the decree for payment of Rs.17,25,000/- towards the value of 75 sovereigns of gold ornaments. The other reliefs prayed for by the wife in O.P No.119 of 2014 were declined by the Family Court but there is no appeal from the part of the wife. So, now we are called upon to answer the legality of the decree granted for Rs.17,25,000/- towards the value of gold.

In O.P No.119 of 2014, the pleadings of the wife is to the effect that, she was given 75 sovereigns of gold ornaments by her parents, and immediately after solemnisation of the marriage, her mother-in-law demanded all the gold ornaments saying that, it was not safe to wear. She was not specific as to the date or time of such entrustment. She has also no case that, even for her daily use, she had kept some gold ornaments with her, and only the remaining was entrusted with the mother-in-law. The mother-in-law was not made a party in the O.P. Her case is that, though the entrustment was with the mother-in-law, her husband misused the same. She has not stated when, how or for what purpose her husband received those gold ornaments from his mother. She is relying on Exts.A22 to A25 photographs to say that, she was wearing 75 sovereigns of gold ornaments at the time of marriage. But, by no stretch of imagination, the ornaments seen in the photographs will come to 75 sovereigns. No bills for purchase of gold were produced by her or by her father. She has not stated when those ornaments were purchased. If it was a recent purchase for the purpose of marriage, definitely, purchase bills might have been there. Otherwise, she has to plead that, herself or her parents were in the habit of purchasing gold since her childhood, for the purpose of her marriage. As she had no such case, her statement that she was having 75 sovereigns of gold ornaments and all those ornaments were entrusted with her mother-in-law and it was subsequently misused by her husband etc. cannot be believed without a pinch of salt. Her father has no direct information regarding entrustment of gold ornaments by his daughter with her mother-in-law or about its misappropriation. So, we are of the view that the wife failed to prove entrustment of 75 sovereigns of gold ornaments with her mother-in-law, if at all she was having that much of gold given from her family. There is nothing to show that, her husband or in-laws misused or misappropriated any of her gold ornaments, as alleged by her. It is pertinent to note that, she had not prayed for recovery of the gold ornaments in specie but, instead she prayed for its value alone. That also is a ground to doubt the case put forward by her. She has not stated when or for what purpose her husband misused her gold ornaments which was originally entrusted with his mother.

The lower court, without analysing the evidence in its correct perspective, granted a decree in favour of the wife directing the husband to pay Rs.17,25,000/- to her as the value of gold ornaments. We are inclined to set aside that finding, and to allow Mat.Appeal No.1067 of 2015.

In the result, Mat.Appeal No.1067 of 2015 is allowed, setting aside the judgment and decree in O.P No.119 of 2014. Mat.Appeal No.1068 of 2015 is allowed in part, setting aside relief © and upholding relief (a) and (b) granted in O.P No.619 of 2013.