IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 56 of 2003(F)
1. K.M.MATHEW, S/O. MATHEW,
... Petitioner
2. MATHEW, FATHER OF 1ST RESPONDENT,
Vs
1. JOLLY MATHEW, D/O. V.T.LUKOSE,
... Respondent
For Petitioner :SRI.M.NARENDRA KUMAR
For Respondent :SRI.P.R.VENKITESH
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :04/03/2009
O R D E R
P.R.RAMAN & P.S.GOPINATHAN, JJ.
-------------------------------
Mat. Appeal No.56 of 2003
-------------------------------
Dated this the 4th March, 2009
J U D G M E N T
Raman, J.
This appeal is filed by the husband against the
judgment and decree in O.P.No.391 of 1998, on the file of the
Family Court, Kottayam, which is a petition filed by the wife for
return of gold ornaments and money. It was the case of the
wife-respondent that originally a suit was filed before the Sub
Court, Kottayam, and on the establishment of Family Court, the
same was transferred to Family Court and re-numbered.
2. The claim is for a total amount of Rs.75,000/=
with 12% interest thereon. According to the plaint averment,
the marriage between the parties was solemnised on 14.9.1980
at Neerikkadu St.Mary’s Catholic Church. After marriage they
resided together and two children were born. Due to the cruelty
by the husband, both physically and mentally, she left the
M.A.No.56 of 2003
2
matrimonial home on 1.6.1993. In the mediation talk between
the parties, an extent of 32 cents of land and building therein
was settled in favour of the petitioner and the respondent, as per
settlement deed dated 15.6.1993. Though they lived together
thereafter, again the tie was broken. She claimed an amount of
Rs.25,000/= towards her paternal share, which amount is stated
to have entrusted by her father at the time of marriage; an
amount of Rs.6000/= towards the stamp duty and other
expenses of settlement deed as aforesaid, and Rs.26,000/= said
to have been paid for the purpose of constructing a bath room
with pipe connection in the property of the respondents. She
also claimed an amount of Rs.16,000/= towards the value of 4 =
sovereigns given at the time of marriage.
3. Respondent-husband resisted the claim and
denied the allegation that she was meted out with any cruelty by
him. But the execution of the settlement deed was admitted. It
was submitted that it was in consideration of the paternal share
that the settlement deed was executed by his father and the
M.A.No.56 of 2003
3
other amounts made mention of in the petition were not
received.
4. The evidence consists of oral testimony of PW.1,
RW.1 and Exts.B1 to B3. The court below, by the judgment
under appeal, allowed a sum of Rs.73,000/= in all with 6%
interest from the date of the decree, against which the present
appeal is preferred.
5. We have heard both sides, perused the
judgment and the materials on record. The point that arise for
consideration is as to whether the court below was right in
decreeing the suit for an amount of Rs.73,000/=, and whether
the claim made in the petition stands proved.
6. Admittedly there was an extent of 32 cents of
land along with a building therein, in respect of which a
settlement deed was executed by the father of the first appellant,
in favour of the appellant and his wife, the petitioner in the O.P.
She would not have been entitled for any share in the property,
M.A.No.56 of 2003
4
but for the settlement deed and her own saying in the plaint that
the settlement was executed in view of the patrimony paid at the
time of marriage. If so, she cannot claim again an amount of
Rs.25,000/= as her paternal share, said to have been entrusted
at the time of marriage. However, since the property along with
the building stands in the name of both the husband and the
wife, she is entitled to half share of the property, and as such,
she can deal with the half right over the property. If she wants
enjoyment of the property separately, she is also entitled for a
partition. Then, the amount of Rs.6000/= spent by her towards
the stamp duty for execution of the settlement deed, does not
entitle to be re-imbursed. Likewise, the amount said to have
been spent for construction of a bath room is not be re-imbursed,
since the house belongs to both the husband and the wife.
7. The only other claim that remains to be
considered is regarding the value of gold ornaments. The court
below has appreciated the evidence on record and held that she
is entitled for an amount of Rs.16,000/= as the value of gold
M.A.No.56 of 2003
5
ornaments. We do not think that the decree passed by the court
below for return of the gold ornaments or to pay Rs.16,000/= is
in any way perverse or unsupported by the evidence in the case.
We sustain the decree for the aforesaid amount of Rs.16,000/=
together with interest at the rate of 6%. The other amount as
decreed by the court below will stand set aside. The decree and
judgment passed by the court below will stand modified.
In the result, the appeal is partly allowed. The
parties are directed to bear their respective costs.
P.R.RAMAN, JUDGE
P.S.GOPINATHAN, JUDGE.
nj.