K.C.BALACHANDRAN PILLAI v. RAJALEKSHMI

BY ADVS. SRI.I.V.PRAMOD SRI.B.VINOD THIS MAT.APPEAL HAVING BEEN FINALLY HEARD ON

16.1.2024, ALONG WITH RP.1245/2023, THE COURT ON 24.1.2024 DELIVERED THE FOLLOWING: Mat.Appeal 37 of 2017 & R.P.1245 of 2023 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN & THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 24TH DAY OF JANUARY 2024 / 4TH MAGHA, 1945 RP NO. 1245 OF 2023 Mat.Appeal 331/2005 OF HIGH COURT OF KERALA REVIEW PETITIONER(S)/RESPONDENTS IN THE MAT.APPEAL 1 2 RAJALEKSHMI AGED 53 YEARS R/AT SARASWATHI MANDIRAM MEENATHUCHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM TALUK, PIN - 691003 REVATHI AGED 27 YEARS SARASWATHI MANDIRAM MEENATHUCHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM TALUK,, PIN - 691003 BY ADV B.VINOD RESPONDENT(S)/APPELLANT BALACHANDRAN PILLAI AGED 60 YEARS S/O CHELLAPPAN PILLAI, KANNATHUNDIL VEEDU, KANNIMEL CHERRY, KIDANGAYAM, SOORANAD SOUTH VILLAGE., PIN - 690522 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON

16.1.2024, ALONG WITH Mat.Appeal.37/2017, THE COURT ON

24.1.2024 DELIVERED THE FOLLOWING: Mat.Appeal 37 of 2017 & R.P.1245 of 2023 3 ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ. --------------------------------------------------------------------- Mat.Appeal No.37 of 2017 & Review Petition No.1245 of 2023 --------------------------------------------------------------------------- Dated : 24th January, 2024 JUDGMENT C.Pratheep Kumar, J.

1. The Mat.Appeal is filed by the defendant in O.S.No.345/2000 on the file of the Family Court, Kollam against the judgment and decree dated 31.10.2016 directing him to return 43 sovereigns of gold ornaments or its present market value to the respondents/plaintiffs. The Review Petition was filed by the plaintiffs in the Suit praying for including the claim of 43 sovereigns of gold ornaments which was omitted to be included in the judgment and decree dated

20.09.2012 in Mat.Appeal 331/2005 of this Court.

2. The above Suit was filed for realization of patrimony, gold ornaments and also for maintenance. The respondents are the wife and daughter of the appellant. Initially the Suit was decreed ex parte on 2.8.2001 by the Family Court, allowing to realise Rs.1,72,000/- being the value of 43 sovereigns of gold ornaments, another sum of Rs.1,75,000/- with interest at 6% per annum and also maintenance at the rate of Rs.1,500/- and 1,000/- respectively to the review petitioners 1 and 2, in addition to a sum of Rs.90,000/- being past maintenance. Though the appellant filed I.A.2303/2004 praying for setting aside the ex parte Mat.Appeal 37 of 2017 & R.P.1245 of 2023 4 decree, the Family Court dismissed the application. Against the said order, the appellant preferred Mat.Appeal 331/2005 before this Court. As per judgment dated 20.9.2012, this Court set aside the ex parte order in part to the extent it pertains to the award of Rs.1,75,000/- in favour of the respondents. The judgment further states that the order for maintenance will stand confirmed. However, nothing was mentioned about 43 sovereigns of gold ornaments in the above judgment. It was in the above context the respondents filed R.P.No.1245/2023 praying for correcting the judgment in the Mat.Appeal so as to include the claim of return of value of 43 sovereigns of gold ornaments. The Mat Appeal was filed by the hisband challenging the decree of the Family Court directing return of 43 sovereigns of gold or it's value.

3. Now the points that arise for consideration are the following : (i) Whether the prayer for including the claim of 43 sovereigns of gold ornaments in the judgment in Mat.Appeal 331/2005 is liable to be allowed ? (ii) Whether the impugned judgment of the Family Court dated 31.10.2016 calls for any interference ?

4. Heard both sides.

5. Point No.1:- It was argued by the learned counsel for the appellant that this Court in Mat.Appeal 331/2005 omitted to grant the relief of return of gold to the respondents and as such, it is to be presumed that the above relief was denied by Mat.Appeal 37 of 2017 & R.P.1245 of 2023 5 this Court. Therefore it was argued that the Family Court was not justified in granting the very same relief in the impugned judgment. It was also contended that in the impugned judgment, no issue was framed regarding return of 43 sovereigns of gold ornaments and that the appellant was not given opportunity to adduce evidence in that respect. Therefore, according to the appellant, the Family Court ought to have declined the relief of return of 43 sovereigns of gold ornaments. Further, it was contended that the denial of the counter claim raised by the appellant is also not correct.

6. As we have already noted above, in the judgment dated 2.8.2001, the Family Court has allowed the OP in full. The review petitioners were allowed to realize Rs.1,72,000/- being the value of 43 sovereigns of gold ornaments, another Rs.1,75,000/- with interest at 6% per annum and also maintenance to the review petitioners 1 and 2. In Mat.Appeal 331/2005 filed against the above judgment of the Family court, this Court considered only the claim of Rs.1,75,000/- as well as maintenance and omitted to mention anything about 43 sovereigns of gold ornaments. The claim of 43 sovereigns of gold ornaments is neither allowed nor disallowed in that judgment. Therefore, it is crystal clear that it is only an omission on the part of this Court in not mentioning anything about the 43 sovereigns of gold ornaments in the judgment in the Mat.Appeal 331/2015. In the above circumstances the review petition is liable to be allowed so as to include 43 sovereigns of gold ornaments also in the judgment in Mat.Appeal 331/2015. Point No.1 answered accordingly. Mat.Appeal 37 of 2017 & R.P.1245 of 2023 6

7. Point No.2:- It is true that in the impugned judgment dated 31.10.2016, no issue was framed regarding 43 sovereigns of gold ornaments claimed by the respondents in the appeal. The reason for not framing any separate issue for the 43 sovereigns of gold ornaments is specifically mentioned in paragraph 6 of the impugned judgment that, “though no order was passed regarding the gold ornaments the defendant submitted before the court that he is not challenging the claim of the 1st plaintiff regarding the gold ornaments and he is ready to return 43 sovereigns of gold ornaments or its market value to the 1st plaintiff.”

8. The above admission made by the appellant before the learned Family Court that he is ready to return 43 sovereigns of gold ornaments or its market value to the 1st respondent, being made before a Court of law, the same is binding on the appellant and as such, the impugned judgment directing the appellant to return 43 sovereigns of gold ornaments or its present market value cannot be assailed in any manner.

9. In this context, it appears that before this Court also the appellant has not disputed the claim of the respondents for return of 43 sovereigns of gold ornaments and that is why in paragraph 2 of the judgment in Mat.Appeal 331/2005 this Court permitted the appellant to contest only the claim of respondents for a total sum of Rs.1,75,000/- and not inclined to interfere with other findings in the judgment of the Family Court. The reason for this Court to set aside the order passed by the Family Court to the limited extent it pertains to the award of Rs.1,75,000/- also can only be for the very same reasons. In the Mat.Appeal 37 of 2017 & R.P.1245 of 2023 7 above circumstances we do not find any irregularity or illegality in the impugned judgment of the Family Court directing the appellant to return 43 sovereigns of gold ornaments or its present market value to the respondents.

10. With regard to the claim for return of wedding chain and for not allowing the counter claim, the Family Court has given cogent reasons and we do not find any irregularity or illegality in the above finding also. Before us the above finding was also not seriously raised by the learned counsel for the appellant. Therefore, this appeal filed challenging the judgment of the Family Court in O.S.No.343/2000 is liable to be dismissed. Point No. 2 answered accordingly.

11. In the result, R.P.1245/2023 is allowed as follows : Add the words “and claim of return of value of 43 sovereigns of gold ornaments” after the words “Rs.1,75,000/-” in line Nos.5 and 13 in page No.2 of the judgment in Mat.Appeal No.331/2005 dated 20.09.2012.

12. In the result, the appeal stands dismissed with costs. Sd/- Anu Sivaraman, Judge Sd/- C.Pratheep Kumar, Judge Mrcs/17.1.2024