IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 849 of 2007()
1. K.GEETHA, W/O.LATE RAJIMON, AGED YEARS
... Petitioner
Vs
1. KARTHIYANI, S/O.SANKARAN KESAVAN, AGED
... Respondent
2. THANKACHAN @ SOMAN,
For Petitioner :SRI.O.V.MANIPRASAD
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/01/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 849 OF 2007
............................................
DATED THIS THE 2nd DAY OF JANUARY, 2008
JUDGMENT
Plaintiff in O.S.92 of 2002 on the file of Sub Court,
Kattappana is the appellant. Respondents are the defendants.
Appellant is the widow of Rejimon. First respondent is the
mother and second respondent, the brother of Rejimon.
Marriage of appellant with Rejimon was solemnised on 5.2.1995.
According to appellant, at the time of marriage, Rs.20,000/- was
paid in cash and 128 gms of gold ornaments worth Rs.60,000/-
was also given, apart from house-hold articles worth Rs.24,500/-.
Appellant contended that after four months of the marriage,
respondents started ill-treating her demanding more money
and respondents and Rejimon used the gold ornaments and
money for clearing the encumberances of their family properties
with Malanadu Agricultural Development Bank and the
relationship of appellant and her husband became worse and she
complained to the SNDP Yogam and mediation took place and on
12.3.1997, Rejimon insisted that he should get more money and
on 13.3.1997, he came to the house in a drunken condition and
attempted to pour kerosine on the body of appellant and
RSA 849/2007 2
appellant somehow escaped from the house and started living
with her mother. She filed CC 510 of 1997 before Judicial First
Class Magistrate, Nedumkandam. Even though appellant
demanded back money as well as ornaments, respondents did
not return the same. Rejimon later committed suicide.
Appellant instituted the suit seeking a decree for realisation of
the amount and value of gold ornaments and household articles
which is claimed as Rs.1,04,500/-. Respondents resisted the suit
contending that appellant had filed Ext.B1 petition before the
Lok Adalath which was numbered as AP 49 of 2000 and AP 146
of 2000 and there was a settlement before the Udumbanchola
Taluk Legal Services committee in respect of the said claims and
Ext.B2 award was passed and in view of the said settlement,
appellant is not entitled to claim any other amount and the suit is
only to be dismissed.
2. Learned Munsiff, on the evidence of PWs 1 to 3, Dw1,
Exts.A1 to A4 and B1 and B2, granted a decree directing
respondents to return Rs.60,000/- being the value of gold
ornaments and Rs.20,000/- which was entrusted at the time of
marriage as cash with 6 % interest. Defendants challenged that
judgment before District Court, Thodupuzha in A.S.35 of 2005.
The learned District Judge, on reappreciation of evidence, found
that trial court did not properly appreciate Ext.B1 complaint and
RSA 849/2007 3
Ext.B2 award. It was found by learned District Judge that under
Ext.B1, appellant sought the share due to appellant and her
daughter, being the legal heirs of deceased Rejimon. In addition
Rs.1,00,000/- was also claimed as the amount paid at the time of
marriage as cash, ornaments and value of articles. Under Ext.B2,
the entire claim was settled and an award was passed. In view of
that award, appellant is not entitled to claim the amount sought
for in the suit. Learned District Judge set aside the judgment of
the trial court and dismissed the suit. It is challenged in the
second appeal.
3. Learned counsel appearing for the appellant was heard.
The argument of the learned counsel is that first appellate court
did not properly appreciate Ext.B1 and B2. It was argued that
Ext.B2 award shows that there were two claims numbered as AP
49 of 2000 and AP 146 of 2000 and Ext.B2 award is only on the
basis of the compromise arrived at in AP 49 of 2000 and the only
relief granted is with regard to the share due to appellant and
her minor daughter on the death of Rejimon and nothing is
stated in Ext.B2 award or the compromise regarding the claim
for cash or gold ornaments entrusted, which is the subject
matter of the present suit and therefore based on Ext.B2, first
appellate court was not justified in non-suiting the appellant.
Learned counsel vehemently argued that when Ext.B2 award
RSA 849/2007 4
was only in respect of the claim for a share due to the widow and
the minor daughter of deceased Rejimon and Ext.B2 does not
show anything on the claim for return of cash and gold
ornaments received from the appellant at the time of marriage,
first appellate court should not have interfered with the decree
passed by the trial court when trial court, on appreciation of
evidence, found that Rs.20,000/- was paid as cash and gold
ornaments worth Rs.60,000/- was utilised by respondents which
belong to appellant and was given at the time of marriage.
4. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. True, Ext.B2
award does not show that the claim for cash and gold ornaments
raised in Ext.B1 was not granted or expressly rejected. But on
that basis, it cannot be held that the claim with regard to gold
ornaments and cash and household articles, which was raised in
Ext.B1 complaint still subsists after Ext.B2 award was passed.
Ext.B1 shows that apart from the share in the properties due to
appellant and her daughter, Rs.1,00,000/- was claimed, being the
gold ornaments, cash and household articles entrusted at the
time of marriage. It is that claim which was settled under Ext.B2
award, pursuant to the compromise petition. Though the
compromise petition does not expressly show that appellant is
not entitled to the amount of cash or value of gold ornaments
RSA 849/2007 5
and household articles sought for, Ext.B2 shows that the said
claim was not left open to be settled in a separate proceedings.
On the otherhand, as rightly found by first appellate court,
Ext.B2 shows that compromise was arrived at on the entire claim
based raised in Ext.B1 complaint. When under Ext.B2 award,
the claim of appellant for cash, gold ornaments and household
articles was not left opened, it can only be found that Ext.B2 is a
full and final settlement of all disputes raised in Ext.B1
complaint. A perusal of Ext.B1 shows that claim raised was not
only in respect of the share due to appellant and her daughter in
the immovable properties, but also for return of Rs.1,00,000/-
which is the amount paid in cash and value of gold ornaments
and household articles entrusted at the time of marriage. In
such circumstances, first appellate court rightly found that
appellant is not entitled to the decree granted by the trial court,
in view of Ext.B2 award.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-