Abubakkker Labba v. Shameena K.B.

K. Harilal, J.:— The appellants are respondents 2 and 3 in O.P No. 1071/2008 of the Family Court, Kottayam at Ettumanoor. They are the father and mother of the second respondent. The second respondent, who is the husband of the first respondent herein. The aforesaid original petition was filed by the first respondent herein, seeking a decree for realization of Rs. 1,50,000/- and 25 sovereigns of gold ornaments or its value from the second respondent and appellants herein. The facts of the case can be summarised as follows: the parties are referred to as in the original petition.

2. The petitioner is the wife of the first respondent and respondents 2 and 3 are the father and the mother of the first respondent. The marriage between the petitioner and the first respondent was solemnised on 18.12.2005 in accordance with the Mohammedan Law. An amount of Rs. 1,50,000/- and 25 sovereigns of gold ornaments were given as share of the petitioner to the respondents by the father of the petitioner. But, after the marriage, the respondents have appropriated the amount and 25 sovereigns of gold ornaments for their needs without the knowledge and consent of the petitioner. The first respondent was set ex parte and the respondents 2 and 3 filed objection denying the averments in the petition. According to them, the suit against them was filed in collusion with the first respondent. No amount or gold ornaments had been entrusted with the respondents 2 and 3. But Rs. 50,000/- was entrusted with the first respondent and the same has not been entrusted with them as alleged in the original petition. The allegation that the petitioner had 25 sovereigns of gold ornaments at the time of marriage is not true. The petitioner was taken to her house for delivery and at that time she was wearing her entire gold ornaments.

3. On the aforesaid pleadings, both parties adduced evidence which consists of oral testimony of PWs. 1 to 3 and RWs. 1 to 4 and documentary evidence Exts. A1 to A5 and B1 were marked.

4. On appraisal of the aforesaid evidence, the Family Court passed the impugned judgment granting a decree to realise Rs. 50,000/- with 9% interest and 24 sovereigns of gold ornaments or Rs. 2,50,000/- as its value with 9% interest from the respondents 1 to 3. The petitioner was also allowed to realise a cost of Rs. 2,000/- from the respondents. The legality and correctness of the findings whereby the Family Court passed the impugned judgment against the appellants/respondents 2 and 3 are assailed in this appeal.

5. Heard the learned counsel for the appellants/respondents 2 and 3 and the learned counsel for the first respondent/petitioner.

6. The sum and substance of the arguments advanced by the learned counsel for the appellants/respondents 2 and 3 is that absolutely there is no evidence to prove the entrustment of money or gold ornaments with the appellants, who are the parents of the second respondent/first respondent, in connection with the marriage of the first respondent in the original petition. But, the Family Court miserably failed to evaluate the evidence correctly; had the Family Court evaluated the evidence in its correct perspective, the respondents 2 and 3 could have been exonerated from the liability. It is also contended that there is no specific pleadings with respect to entrustment of money or gold ornaments with them in connection with the marriage. But, the Family Court failed to appreciate the pleadings and evidence in its correct perspective and granted a decree for realising the money and gold ornaments from the appellants also.

7. Per contra, the learned counsel for the first respondent/petitioner advanced arguments to justify the findings whereby the appellants also were held liable to return the money and gold ornaments to the petitioner. The learned counsel for the first respondent invited our attention to paragraph 4 of the petition and contended that there are sufficient pleadings to constitute entrustment with the appellants/respondents 2 and 3 also. Further it is contended that the oral testimony of PWs. 1 to 3 would prove that the money and gold ornaments were entrusted with the appellants also.

8. In view of the submission at the bar, the point to be considered in this appeal is whether the Family Court is justified in granting a decree to realise Rs. 50,000/- and 24 sovereigns of gold ornaments from the appellants/respondents 2 and 3 in view of the evidence available on record.

9. The marital relationship between the petitioner and the first respondent was admitted. It is the case of the petitioner that at the time of marriage she was wearing 25 sovereigns of gold ornaments and Rs. 1,50,000/- was entrusted with the respondents in connection with the marriage. On the other hand, the respondents 2 and 3 denied the allegations that the petitioner was wearing 25 sovereigns of gold ornaments at the time of marriage and Rs. 1,00,000/- was entrusted with them also. But they admitted that at the time of marriage Rs. 50,000/- was entrusted with the first respondent only towards the marriage expense in connection with the marriage. The first respondent was set ex parte.

10. On an analysis of the pleadings, we find that the pleadings are vague with respect to the entrustment of money and gold ornaments with the respondents 2 and 3. There is no specific pleading as to the identity of the person to whom money was handed over or with whom the gold ornaments were entrusted. In order to prove the entrustment, though, the same is vague the petitioner examined PWs. 1 to 3. PW1 is the petitioner herself. In her evidence she stood by the pleadings that she was wearing 25 sovereigns of gold ornaments at the time of marriage. But, she has no case that she has entrusted the gold ornaments with the 2 and 3 respondents after the marriage.

11. PW.2 is the father of PW.1. He also deposed that PW.1 was wearing 25 sovereigns of gold ornaments at the time of marriage. He has not given any evidence, as to the entrustment of gold ornaments with the respondents 2 and 3. PW.3 is a relative of PW.1 and he deposed to the effect that he participated in the marriage and PW.1 was wearing 25 sovereigns of gold ornaments at the time of marriage.

12. In the case of the claim of return of movables, more specifically, money and gold ornaments, which were allegedly given to the wife in connection with the marriage, from the parents of the husband, there cannot be a constructive or presumptive entrustment, without actual physical delivery of the same to them and it must be specifically pleaded and proved by sufficient evidence, by the claimant wife. Merely on the evidence that the bride had worn gold ornaments, at the time of marriage, it cannot be held that the ornaments, which were worn at the time of marriage, were entrusted with the father and mother of the bridegroom. Unless there is sufficient evidence from the wife, to prove the entrustment of gold ornaments with the parents of the husband, after the marriage, the parents of the husband cannot be held liable to return the same. Normally there cannot be a joint entrustment of money or gold ornaments with three persons, the husband and his parents, without disclosing the mode of entrustment or the identity of the person to whom the money or gold ornaments were actually handed over. The absence of specific pleadings and sufficient evidence to prove the manner in which the entrustment of money and gold ornaments were made with the parents of the husband will be fatal, to the claim for returning the same by them.

13. In short, absolutely there is no evidence to prove that the respondents 2 and 3 were entrusted with Rs. 1,50,000/- or 25 sovereigns of gold ornaments, which were allegedly wore by the petitioner at the time of marriage. Hence, the Family Court is not justified in granting a decree for realising 25 sovereigns of gold ornaments or its value from the respondents 2 and 3.

14. Coming to the entrustment of Rs. 1,50,000/-, as we have already held that there was no specific pleadings disclosing the mode of entrustment or the person to whom the entrustment was made. It is needless to say money in cash cannot be handed over physically to more than one person at a time, in connection with the marriage. PW.1 has deposed that on 15.12.2005, PW.2 has entrusted Rs. 1,50,000/- with the respondents. But, Ext.B1 certificate issued by the employer of RW.1/second respondent shows that on that day, he was on duty in the said establishment. It is pertinent to note that the said date, on which the amount was entrusted with the respondents, was not disclosed in the pleadings. PW.3 has stated that either on the date of marriage or on the date of betrothal, no amount had been paid to the respondents in connection with the marriage. So, his evidence is of no consequence at all in proving the entrustment of money with the respondents 2 and 3. In the above view, We find that absolutely there is no specific pleadings or evidence to prove the entrustment of money or gold ornaments with the appellants/respondents 2 and 3.

15. In the above context, it is to be borne in mind that RW.1 admitted in his evidence that Rs. 50,000/- was entrusted with the 1 respondent in connection with the marriage for marriage expenses. RW.2 was also examined to prove the entrustment of Rs. 50,000/- with the 1 respondent. He also deposed that RW.1/2 respondent was not present in the house at the time, when the 1 respondent was entrusted with Rs. 50,000/-. Thus, the petitioners failed to prove the entrustment of money or gold ornaments with the respondents 2 and 3. But, the Family Court failed to appreciate the evidence on record in its correct perspective.

16. Thus, this appeal is allowed in part accordingly. The impugned judgment and decree against the appellants/respondents 2 and 3 only are set aside. The judgment and decree against the 2 respondent herein/first respondent will stand undisturbed and enforcible. It is evident from the records that this Court granted an interim stay, on deposit of Rs. 50,000/- before the Family Court, Kottayam, and in compliance with the said order the appellants have deposited Rs. 50,000/- before the Family Court. The appellants are allowed to withdraw the said amount from the Family Court, Kottayam.

17. This Mat. Appeal is allowed in part accordingly. All pending Interlocutory Applications will stand closed.