IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 179 of 2006()
1. SOBY BABU @ SHIBU, AGED 30, S/O. BABU
... Petitioner
2. BABU JOSEPH, AGED 60 YRS,
Vs
1. SHEEBA SARA DANIEL, AGED 26 YRS,
... Respondent
For Petitioner :SRI.BIJU M.JOHN
For Respondent :SRI.V.PHILIP MATHEW
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :17/07/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No.179 of 2006
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Dated this the 17th day of July, 2009
JUDGMENT
BASANT, J.
This appeal is preferred by the appellants, who have
suffered a decree directing them to pay an amount of Rs.2.5
lakhs to the respondent herein.
2. The respondent/claimant is the wife and the
appellants are the husband and father in law respectively of the
respondent/claimant. The wife contended that in connection
with her marriage, an amount of Rs.2.5 lakhs was handed over to
the appellants herein representing her share of her father’s
wealth. The claimant claimed return of the said amount.
3. That the marriage took place on 27.11.2000 was
admitted. The theory of handing over Rs.2.5 lakhs was disputed.
The parties went to trial on these contentions. The claimant/wife
examined herself as PW1. Her father was examined as PW2.
Her paternal uncle was examined as PW3. PW1 spoke about the
marriage and the fact of handing over a bag containing Rs.2.5
lakhs to both the appellants. The same was handed over to the
2nd respondent to be paid to the 1st respondent, it was asserted.
PW2, the father of PW1, also spoke about the handing over of a
Mat.Appeal No.179 of 2006 2
bag containing Rs.2.5 lakhs on the date of engagement not in
front of the audience/spectators who had come for the
engagement ceremony, but behind the stage. PW3 also
confirmed the evidence of PWs 1 and 2. PWs 1 and 2 were cross
examined. PW3 was not cross examined. Exts.A1, A1(a), A2 and
A2(a) were marked. Exts.A1 and A1(a) are documents to show
that PW2, the father of the claimant/wife, had received amounts
by way of terminal benefits on his leaving his service. Ext.A1
shows payment of amounts under the Provident Fund Scheme,
whereas Ext.A1(a) shows payment of amounts as gratuity. Those
two amounts together far exceed Rs.2.5 lakhs, which was
allegedly handed over. Ext.A2 is a photograph taken on the date
of the engagement ceremony. Ext.A2(a) is the negative. They
support the case of PWs 1 to 3 that a bag was handed over in
connection with the marriage. RWs 1 and 2 are the appellants
herein. They stated that no amount was handed over. Obliged
to explain Ext.A2 photograph and A2(a) negative, they came out
with the story that they had received a bag. But according to
them the bag contained not cash of Rs.2.5 lakhs, but a simple
Bible. That Bible was handed over in connection with the
marriage as a gift, it was contended.
Mat.Appeal No.179 of 2006 3
4. The court below had only these pieces of evidence.
The court was obliged to resolve the factual controversy as to
whether the amount of Rs.2.5 lakhs had actually been handed
over to the appellants by and on behalf of the claimant on the
date of engagement.
5. We find that the court below looked at the oral
evidence for its intrinsic worth and also on broad probabilities.
The court took note of the fact that the explanation that a Bible
handed over was pressed into service only after the appellants
found themselves in an inconvenient position after Ext.A2 and A2
(a) were pressed into service. It is their case that the bag which
was admittedly handed over contained not currency, but a Bible.
Why was the Bible handed over in such a money bag as can be
seen from Ext.A2 ? No explanation is seen offered. Why was the
Bible not handed over in front of the audience/spectators and
why did they choose to hand it over behind the curtain at the
stage ? No explanation whatsoever was offered. Though there is
a contention that the parties being Pentecost Christians, no
dowry was handed over and received, we have the undisputed
admission that Rs.1.5 lakhs was agreed to be given to the
bridegroom on the retirement of the bride’s mother, which was
to take place after some time.
Mat.Appeal No.179 of 2006 4
6. The learned counsel for the appellants contends that
sufficient evidence to found a direction for return of money has
not been adduced. This is not a loan transaction. The liability
arises from the amount paid at the time of engagement
representing the share of wealth which the bride is entitled. It
would be idle for any Court to naively look for documentary
evidence in support of such a transaction. Oral evidence will
have to be alertly appreciated. The totality of inputs will have to
be realistically evaluated. We find that the court below has
adverted to various relevant inputs. We are satisfied that the
court below committed no error or indiscretion in choosing to
accept and act upon the oral evidence of PWs 1 to 3 in
preference to that of RWs 1 and 2. The court below has adverted
to the inter se incongruities between the evidence of RWs 1 and
2. While one stated that there is no such practice of handing
over of the Bible, the other asserted that such a practice exists.
7. We must further note that we are in appeal
considering the challenge against the appreciation of oral
evidence. The evident advantage which a trial court has in the
matter of appreciation of evidence cannot be ignored or
overlooked by the appellate court. The trial courts see the
witnesses perform before them in flesh and blood. The alert trial
Mat.Appeal No.179 of 2006 5
Judge gathers many input in the course of examination of
witnesses which may help such Judge in the matter of
appreciation of evidence. The conclusion of the trial Court that
the oral evidence of PWs 1 to 3 can be preferred to that of RWs 1
and 2 does appear to us to be eminently reasonable, fair, just and
correct. The same does not warrant any interference.
8. A question is posed that there is no convincing
evidence to show that it was cash and it was Rs.2.5 lakhs which
was there inside the bag. The bag may have contained any
amount and there is nothing to show that it actually contained
Rs.2.5 lakhs, contends counsel. We agree with the learned
counsel for the appellant on that aspect. A Court may at times
have to place reliance on the oral evidence of witnesses. We
cannot lose sight of the fact that even according to the
appellants they had expected Rs.1.5 lakhs to be given in
connection with the marriage, that according to them, was to be
paid only long later after the superannuation of the mother of
the bride. The idea about the expectation and the worth of the
parties and the probabilities are available from this input also.
Conscious of the fact that there is no convincing evidence to
prove the quantum of currency note which was available inside
the bag except the oral evidence of PWs 1 to 3, no Court can
Mat.Appeal No.179 of 2006 6
throw its hands up and lament in despair that convincing
evidence is not available. Totality of inputs have to be
considered. The probabilities have to be evaluated and assessed.
The general presumption in law that a witness is expected to and
must be presumed to speak the truth on oath can also be taken
into account. At any rate, we are not persuaded to agree that
sitting as an appellate court, there is any sufficient material to
interfere with the conclusion of facts arrived at by the trial court
on the basis of the oral evidence placed before it supported on
broad probabilities by the documents produced. The challenge
raised in this appeal must, in these circumstances, fail.
9. In the result:
a) This appeal is dismissed;
b) The impugned order is upheld;
c) In the circumstances, we direct the parties to suffer
the respective costs.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-