M.B.Snehalatha.J

1. This matrimonial appeal is directed against the judgment and decree in O.A.No.178/2013 on the file of Family Court, Kozhikode by which appellant’s claim for return of gold ornaments and realisation of amount from the respondents was declined.

2. Parties in this appeal shall be referred to by their rank in O.A.No.178/2013. R2 died during the pendency of this appeal and his legal heirs were brought on record.

3. Petitioner's case is that her marriage with Muhammed Asharaf who is the son of respondents 1 and 2 and the brother of respondent No.3 was solemnized on 18.10.2008; that after the marriage, she resided along with her husband in his tharawad house at Mavoor. Three children were born in the said wedlock. At the time of marriage, she was given 60 sovereigns of gold ornaments and ₹3 lakhs from her house. In the evening of the wedding day itself, respondent Nos.1 and 2 took her 50 sovereigns of gold ornaments and ₹3 lakhs for keeping the same in their safe custody. Since the petitioner’s husband Muhammed Asharaf has no house or landed property of his own, respondents agreed to transfer 10 cents of property in his name on payment of ₹1 lakh. Accordingly, petitioner gave ₹1 lakh to the respondents and a karar for conveying the property in the name of petitioner’s husband Muhammed Asharaf was executed on 25.11.2009 and thereafter, petitioner started construction of a house in the said property. But the respondents failed to transfer the property in the name of petitioner’s husband as agreed. Respondents 1 to 3 tortured the petitioner demanding more gold and cash and accordingly on 10.1.2011 petitioner again brought ₹2 lakhs from her home. On the said date, R3 took the remaining 10 sovereigns of gold ornaments and cash of ₹2 lakhs from the petitioner and utilized the same for her own needs. On 28.12.2011, respondents again demanded ₹2 lakhs from the petitioner. When the petitioner refused to oblige to the said demand, R3 manhandled the petitioner and the respondents ousted the petitioner and her children from the house. R1 and R2 are liable to return 50 sovereigns of gold ornaments and cash of ₹3 lakhs to the petitioner. R3 is liable to return 10 sovereigns of gold ornaments and ₹2 lakhs.

4. The respondents resisted the claim contending that the petitioner filed the OA in collusion with her husband Muhammed Asharaf who is on inimical terms with the respondents and who is trying to snatch the landed properties which stand in the name of his parents. Respondents are unaware about the alleged solemnization of marriage on 18.10.2008 and respondent do not know how much gold ornaments were given to the petitioner from her house. Muhammed Asharaf brought the petitioner to the residence of R1 and R2 and introduced her as his wife and thereafter they used to reside in the residence of R1 and R2 occasionally. When Muhammed Asharaf was working at Vandoor, petitioner was also residing at Vandoor. Respondents have not taken any gold ornaments or cash of the petitioner and never demanded any gold or cash as alleged. Muhammed Asharaf was given share from the property of R1 and R2 and he alienated the said property. His two brothers have intellectual disability. By committing impersonation, Muhammed Ashraf availed loan from the bank by mortgaging the property of his brother Shamsuddin and pursuant to the complaint of R1, the police has filed charge sheet against Muhammed Asharaf. Thereafter, Muhammed Asharaf criminally intimidated R1 to withdraw the said case and based on the complaint of R1, the police has registered another case against him. As a counterblast to the said cases, petitioner has filed this petition raising false claims at the instance of her husband. M.C filed by the petitioner against the respondents under the Protection of Woman from Domestic Violence Act, 2005 was also dismissed. Petitioner is not entitled to any reliefs.

5. R3 filed counter statement raising similar contentions and refuting the claim of the petitioner.

6. The evidence consists of the oral testimonies of PW1, PW2 and RW1 and the documents marked as Exts.A1 to A6 and Ext.B1. Though six documents were seen to have marked through PW1, in the appendix of the impugned judgment, there is no mention regarding Ext.A4 to A6.

7. Upon hearing both sides, and after analysing the evidence both oral and documentary, the learned Family Court dismissed the petitioner’s claim for return of gold ornaments and cash against which the petitioner has preferred this appeal.

8. Heard the learned counsel for the petitioner and the respondents.

9. The point for consideration in this appeal is whether the impugned judgment and decree warrants any interference by this Court.

10. Admittedly, the petitioner is the wife of Muhammad Asharaf. Respondent Nos.1 and 2 are his parents and 3rd respondent is his sister.

11. The petitioner who was examined as PW1 has testified that her marriage with Muhammad Asharaf Maulavi was solemnized on 18.10.2008; that at the time of marriage, she was given 60 sovereigns of gold ornaments and cash of ₹3 lakhs from her family. Her further version is that on the date of marriage itself, her 50 sovereigns of gold ornaments and cash of ₹3 lakhs were taken by respondent Nos.1 and 2 under the guise of keeping it in safe custody. Her version is that at the time when R1 and R2 demanded her to hand over the gold ornaments for safe custody, they misrepresented her that her husband Muhammed Ashraf had directed her to entrust the gold ornaments and cash to his parents.

PW1 has further testified that since there was no land or house in the name of her husband, R1 and R2 agreed to transfer 10 cents of property in his name on payment of ₹1 lakh. Accordingly, she paid ₹1 lakh to respondents and on 25.11.2009 an agreement for conveyance of 10 cents property was executed and thereafter she started construction of a house in the said property. But the respondents failed to transfer the property in her husband’s name as agreed to. Her further version is that on 10.1.2011 third respondent, who is the sister of her husband took her remaining 10 sovereigns of gold ornaments and cash of ₹2 lakhs.

12. Per contra, the case of the respondents is that there was neither any entrustment of gold or cash nor any misappropriation of the same by them. Though the respondents would admit that the petitioner is the wife of Muhammed Asharaf, they would deny the case of the petitioner that her marriage with Mohammed Asharaf was on 18.10.2008. According to the respondents, Mohammed Asharaf brought the petitioner to their residence and introduced her as his wife and they are not aware of the alleged solemnization of the marriage on 18.10.2008 as contended by the petitioner.

13. The specific case of the respondents is that the petitioner has filed the OA at the instigation of her husband Muhammed Asharaf, who is trying to grab the property which stands in the name of his father namely the 2nd respondent (since deceased). According to R1 and R2, Muhammed Asharaf used to harass them demanding to convey their landed property in his name and since he could not succeed in the said attempt, he instigated his wife, namely, the petitioner to file this false and frivolous case demanding return of gold ornaments and cash.

14. The learned counsel for the petitioner/appellant contended that the oral and documentary evidence let in by the petitioner would prove the entrustment of gold ornaments to respondent Nos.1 to 3 and the misappropriation committed by them; that the Family Court has not analysed the evidence in its correct perspective in declining the petitioner's/appellant's claim for return of gold ornaments.

15. Per contra, the learned counsel for the respondent supported the findings of the Family Court and submitted that there is absolutely no evidence to substantiate petitioner’s claim for gold ornaments and cash and therefore, the Family Court was right in dismissing the petition and there is no infirmity in the impugned judgment and decree.

16. In view of the rival contentions, let us see whether the petitioner has succeeded in establishing that the respondents misappropriated her 60 sovereigns of gold ornaments and cash of ₹5 lakhs as contended by her.

17. In a claim for return of gold ornaments and patrimony, the wife has to prove that the gold ornaments were owned by her and that it was entrusted to the husband and in laws and they failed to return it to her.

18. The standard of proof in such cases would be the same as in civil cases ie. the court has to decide the cases based on preponderance of probabilities. The court has to consider, evaluate and weigh the rival contentions and rival evidence and to see whether the burden cast on the claimant has been discharged or not. The party on whom the burden of proof lies has to show that his or her version of the event is more plausible or probable than the case of the opposite party.

19. Section 101 of Indian Evidence Act states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

20. Section 102 of the Indian Evidence Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

21. In view of Sections 101 and 102 of the Indian Evidence Act, 1872 the burden is on the petitioner to establish the entrustment of the gold ornaments and cash with the respondents.

22. Proof of entrustment is the key element in a claim for return of gold ornaments and patrimony. The wife has to prove that the gold ornaments were owned by her and they were entrusted to the husband/in-laws and they failed to return it. Entrustment refers to the act of placing the gold ornaments in the custody or possession of the in-laws with trust and confidence. The petitioner/wife must substantiate her claim by adducing evidence of entrustment, failing which her claim will fail. In a legal claim for return of gold ornaments by a wife against her in laws, the primary issue often revolves around proving entrustment namely the act of placing the ornaments in the custody or possession of husband and in laws. This requires a detailed analysis of the factual matrix, legal principles and evidentiary requirements. Proving entrustment in a claim for return of gold ornaments is a fact intensive process. The wife must present cogent evidence of ownership, entrustment and the failure by the respondent to return it. The success depends on the strength of evidence and the credibility of witnesses.

23. Though the petitioner would contend that she was given 60 sovereigns of gold ornaments and cash of ₹3 lakhs from her house at the time of her marriage, no photographs or video were produced to show that she had 60 sovereigns of gold ornaments on the date of her marriage. None of her relatives or friends or persons who participated in the marriage of the petitioner were examined to prove that she was adorning 60 sovereigns of gold ornaments at the time of her marriage. Likewise, no relatives were examined to substantiate her case that cash of ₹3 lakhs was given to her on the date of her marriage. There is no valid explanation from the side of the petitioner for non-production of any videos or photographs and non examination of any relatives or friends to substantiate her claim. It is to be borne in mind that though her case is that she entrusted 50 sovereigns of gold ornaments and cash of ₹3 lakhs to the respondents 1 and 2 on the date of her marriage itself and at the time of R1 and R2 taking it for safe custody they had made a misrepresentation that her husband Muhammed Asharaf has directed her to handover the gold and cash to his parents, she has not arraigned her husband as a party in the petition nor he was examined as a witness for reasons best known to her. The burden of proof is on the person who alleges misrepresentation and fraud. The version of PW1 that her husband was unaware of the entrustment of her gold ornaments to the respondents and he came to know about the entrustment and the subsequent misappropriation only at the time of construction of the house is quite unbelievable. During her cross-examination, PW1 admitted that her husband is facing criminal prosecution on the allegation of impersonation and forgery pursuant to a complaint lodged by his mother. She would also admit that the case filed by her against the respondents herein seeking relief under the Protection of Women from Domestic Violence Act was also dismissed. The fact that she has not made her husband as a respondent in her claim for return of gold and cash looms large in the facts and circumstances of the case and the said conduct of the petitioner probabilise the case of respondents that this Original Petition was filed at the behest of her husband Muhammed Asharaf as a counterblast to the criminal cases filed by the 1st respondent against him.

24. The version of PW2 and Ext.A1 series documents do not help the petitioner in substantiating her case that she had 60 sovereigns of gold ornaments and she entrusted her 50 sovereigns of gold ornaments with the respondents on the date of marriage itself. The genuineness of Ext.A1 series documents is doubtful as rightly observed by the learned Family Court. Neither in the pleadings nor in the affidavit filed in lieu of chief, petitioner has furnished the details and description of the gold ornaments allegedly entrusted with the respondents. Except the oral interested version of the petitioner that her 50 sovereigns of gold ornaments and ₹3 lakhs were entrusted with R1 and R2 on the date of her marriage, there is absolutely no reliable and acceptable evidence in support of the said case canvassed by the petitioner. Likewise, there is also no evidence to show that the 3rd respondent took her 10 sovereigns of gold ornaments and ₹2 lakhs. On the other hand, the very fact that she has not made her husband in the party array speaks volumes in the facts and circumstances of the case and it probabilise the case of respondents that her petition for return of gold ornaments and cash was engineered by her husband Mohammed Asharaf with a view to pressurise his parents to convey the landed property in his name and as a counterblast to the criminal cases filed against him by R1, who is none other than his own mother.

25. In a catena of decisions this Court has held that in order to grant a decree for return of gold ornaments and money, there should be specific pleadings and evidence regarding the entrustment of gold ornaments to the husband and in-laws and in the absence of any proof regarding entrustment, the relief sought for return of gold and cash cannot be granted. Abubakker Labba V. Shameena.K.B (2018(3) KHC 219), Binitha vs. Hareendran (2023 KHC OnLine 99), Mohandas v. Sunitha Mohandas (2024(7) KHC 273) and Binod v. Sophy (2019 KHC 5624).

26. Mere assertions of the petitioner without any reliable evidence regarding entrustment are not sufficient to grant a decree for return of gold and money. In the case at hand, petitioner has failed to prove that she entrusted 60 sovereigns of gold ornaments and cash of ₹5 lakhs to the respondents as rightly held by the learned Family Court.

27. We find no reason to interfere with the impugned judgment and decree. Accordingly, the appeal stands dismissed.

28. The parties shall suffer their respective costs.

29. Interlocutory applications, if any pending, shall stand closed.