Pazhayavalappil Shaji vs Reshma

P.G. Ajithkumar, J.

The respondent in O.P.No.741 of 2013 on the files of the Family Court, Tirur is the appellant. He filed this appeal under Section 19(1) of the Family Courts Act, 1984 challenging the order of the Family Court, whereby he was directed to pay Rs.6 lakhs as value of 30 sovereigns of gold ornaments to the respondent.

On 19.02.2016, this appeal was admitted. Execution of the decree in O.P.No741 of 2013 was stayed as per the order in I.A.No.599 of 2016 on the condition of furnishing security to the satisfaction of the Family Court, Tirur.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

The case of the respondent was that at the time of marriage she was given 35 sovereigns of gold ornaments and all the said gold ornaments were misappropriated by the appellant. Since their marital relationship was estranged, the respondent had to leave the matrimonial home and thereafter she filed O.P.No.741 of 2016. She also filed M.C.No.33 of 2013 seeking maintenance.

The appellant filed a counter refuting the contentions of the respondent. He denied the claim of the respondent that she had 35 sovereigns of gold ornaments and also that the gold ornaments were misappropriated by him. His contention was that he ran his business by availing loan from the bank and he did not take or appropriate gold ornaments of the respondent. It was also alleged that whatever gold ornaments she had were taken by her while leaving the matrimonial home.

Before the Family Court, the respondent had examined three witnesses, including herself, as Pws.1 to 3. Ext.A1 and Ext.A2 series were produced. On the side of the appellant, himself and RW2 were examined. Exts.B1 to B4 series were marked. After considering the said evidence, the Family Court concluded that misappropriation of 30 sovereigns of gold ornaments by the appellant was proved and accordingly the decree for payment of Rs.6 lakhs as its value was granted.

The learned counsel appearing for the appellant would contend that the oral testimonies of PWs.1 and 3 were given undue importance by the Family Court. Only documentary evidence produced by the respondent is Ext.A1 quotation and Ext.A2 photographs, which were not acceptable in evidence and hence there was total lack of evidence to reach a finding that the respondent had 30 sovereigns of gold ornaments at the time of marriage. PW1 deposed that 30 sovereigns of gold ornaments were purchased from Balakrishna Jewellery at Parappanangadi and a few ornaments were given by her relatives. She admitted that it was his father who purchased the ornaments for which he availed loan also. Her father was, however, not examined. Non-examination of the father of PW1 is highlighted as a reason to discard the entire evidence on the side of the respondent.

PW3 deposed before the court that his father K.P.Balakrishnan was the proprietor of Balakrishna Jewellery and had issued Ext.A1. PW3 identified the signature of Sri.K.P.Balakrishnan in Ext.A1. Of course, it is only a quotation and not a cash bill. PW3 deposed before court that Ext.A1 was issued while selling 30 sovereigns of gold ornaments from his father’s jewellery and that there is no reason to disbelieve that version. Whether there was tax evasion or not, the said evidence stands testimony to the fact of sale of gold ornaments. The Family Court on believing the said evidence and also Ext.A2 photographs, which were proved to be taken at the time of marriage, held that the respondent had 30 sovereigns of gold ornaments at the time of marriage. We find no reason to reverse the said finding.

The contention of the appellant is that he was running a grocery shop, making use of the fund availed by way of loan. He examined RW2 to prove details of the loan he had availed. Admittedly, the appellant had been conducting a grocery shop during the relevant period. Evidence of RW2 together with Exts.B2 series and B3 would show that the appellant had loan transactions with the bank. The said aspect has two angles; firstly, he was in need of money; and secondly, he had run the business using the amount of loan, which he availed from the bank. PW1 deposed in categoric terms that her gold ornaments were entrusted with the appellant. Of course, he had denied. When the said rival versions of the parties to the litigation are considered in the light of the facts and circumstances, especially that the appellant was in need of money for the purpose of his business, during the relevant period, the probability is that he would have appropriated the gold ornaments of his wife, the respondent.

In such circumstances, the view taken by the Family Court cannot be said to be incorrect. Accordingly, we hold that the Family Court rightly had held that 30 sovereigns of gold ornaments belonging to the respondent was appropriated by the appellant and he is liable to pay its value. We find no reason to interfere with the decree impugned in this appeal. The appeal is accordingly dismissed.