Nellikot Shaji vs Subitha

R. Basant, J.—This appeal is preferred by the appellant/husband, who was the respondent before the court below in O.P. No. 538 of 2009. That was a claim staked by the respondent herein, the wife of the appellant. She had, inter alia, claimed that the appellant is liable to return an amount of Rs. 50,000/- (Rupees Fifty thousand only), which she had obtained from her father during the currency of the matrimony and had handed over to the appellant on the specific understanding that the same shall be returned.

In O.P. No. 538 of 2009, several other claims have also been made. It is unnecessary to refer to all such claims as the decree relates to only that amount of Rs. 50,000/-.

The proceedings were preceded by Ext.A8 notice of demand issued by the respondent to the appellant and Ext.A9 reply issued by the appellant to the respondent - both through counsel. The court below placed heavy reliance on an alleged admission made by the appellant in that reply notice marked as Ext.A9. Accordingly the court below while rejecting the other claims, proceeded to grant the relief primarily on the basis of that alleged admission.

Our attention has been drawn in detail by the learned Counsel for the appellant to the relevant averments in Exts.A8 and A9. We wanted the counsel to take us through those crucial documents in which there is the alleged admission on which admission is founded the impugned direction is to pay an amount of Rs. 50,000/-.

We have been taken through the averments in Ext.A8 notice of demand dated 26.09.2006. It is specifically averred that an amount of Rs. 50,000/- was demanded by the husband; the wife had prevailed upon her father to pay that amount to her; such amount was given; such amount was deposited in an account and the same was given to the husband/appellant. Return of that amount of Rs. 50,000/- was demanded. This notice of demand Ext.A8 evoked Ext.A9 reply dated 09.10.2006. The crucial and relevant averments in Ext.A9 are seen in the fifth paragraph (not numbered). We extract the relevant portion below:

Similarly the financial help rendered by your client's father was only a voluntary financial support rendered by a father-in-law to a son-in-law at a time when there was a necessity and with the understanding that my client will repay the same as and when demanded. There are no ingredients of compulsion or torture in availing the said amount by my client.

The learned Counsel for the appellant argues that notwithstanding this admission, the claim of Rs. 50,000/- must he held to be not proved. In support of this contention, he argues that there is nothing to show that a cheque was issued by the wife to the husband to enable him to withdraw the amount.

We must say that this contention and submission do not at all impress us. A reading of the relevant averments in Exts.A8 and A9 must compellingly persuade a prudent mind whose standard the courts are bound to adopt u/s 3 of the Evidence Act that the admission in Ext.A9 is related to the financial help/claim of Rs. 50,000/- referred to in Ext.A8. Receipt of that amount of Rs. 50,000/- is unambiguously admitted in Ext.A9. Liability to return the amount is also unquestionably conceded in Ext.A9. The question is not whether the averments in Ext.A9 is proved to the hilt has been literally approved or not. The liability is admitted. The quantum of liability is not disputed. Liability to return is also admitted.

In the nature of the averments/assertions in Exts.A8 and A9, we are of the opinion that the court below committed no error whatsoever warranting our interference u/s 19 of the Family Courts'' Act with the finding that the appellant/husband is liable to return the said amount of Rs. 50,000/- at the instance of the appellant. We are informed that the respondent has not preferred any appeal so far. To us it appears that it would be heartless, nay insensitive to issue notice in this appeal compelling the 1st respondent to come all the way to the High Court, engage a counsel and contest the matter unnecessarily. No worthwhile plea is seen to have been raised. The finding is found to be absolutely justified, reasonable and cogent. Admission of an appeal cannot be an act of indulgence of the Court. Every appeal must rightfully earn its place in this Court by the merit of the contentions raised. We find no merit in the contentions raised.

This Matrimonial Appeal is, in these circumstances, dismissed in limine.