Jyothi Mini v. Rajendran Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941** **Mat.Appeal.No. 616 of 2011** **AGAINST THE JUDGMENT IN OS 96/2003 of FAMILY COURT,KOLLAM DATED 24-05-2011** **APPELLANT/PLAINTIFF NO.1:** **JYOTHI MINI, 44 YRS, D/O RAJAMMA, KADAMANA PUTHUVAL VEEDU, ISLAND NAGAR-41, ULIYAKOVIL CHERRY, KOLLAM WEST VILLAGE.** **BY ADV. SRI.B.MOHANLAL** **RESPONDENT/DEFENDANT:** **RAJENDRAN PILLAI, S/O CHELLAPPAN PILLAI, PARASSERI PUTHEN VEEDU, CHAMAKKADU CHERRY, PERINADU VILAGE, KOLLAM DIST. NOW RESIDNG AT MANGALAZHIKATHU VEEDU-691 601.** **BY ADVS. SRI.JAGADEESH LAKSHMAN SRI.S.PRASANTH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH Mat.Appeal.801/2011, THE COURT ON 03.06.2019 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.616 & 801/11 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941** **Mat.Appeal.No. 801 of 2011** **AGAINST THE JUDGMENT IN OS 96/2003 of FAMILY COURT,KOLLAM DATED 24-05-2011** **APPELLANT/DEFENDANT IN OS:** **RAJENDRAN PILLAI, AGED 50 YEARS, S/O.CHELLAPPAN PILLAI, PARASSERI PUTHEN VEEDU, CHAMAKKADU CHERRY, PERINADU VILLAGE,, KOLLAM DISTRICT, NOW RESIDING AT MANGALAZHIKATHU, VEEDU.** **BY ADVS. SRI.S.PRASANTH SRI.JAGADEESH LAKSHMAN** ## **RESPONDENTS/PLAINTIFFS IN OS NO.96/2003:** **1 JYOTHI MINI, AGED 44 YEARS, D/O.RAJAMMA, KADAMANA PUTHUVAL VEEDU, ISLAND NAGAR-41, ULIYAKOVIL CHERRY,, KOLLAM EAST VILLAGE-691008.** Mat.Appeal Nos.616 & 801/11 ## -:3:- - **2 HARITHA AGED 8 YEARS D/O.JYOTHI MINI, DO. DO.** - **3 HARIKRISHNA AGED 5 YEARS S/O.JYOTHI MINI, DO. DO.** - **BY ADV. SRI.T.R.ASWAS BO** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH Mat.Appeal.616/2011, THE COURT ON 03.06.2019 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.616 & 801/11 -:4:- ## **J U D G M E N T** ## _**Shaffique, J.**_ Both these appeals arise out of an order dated 24/5/2011 in OS No.96/2003 of the Family Court, Kollam. Mat.Appeal No.616/11 is filed by the plaintiff/wife and Mat.Appeal No.801/11 by the defendant/husband. The suit is filed by the wife along with two minor children for recovery of gold ornaments, movables, money and also for maintenance of plaintiffs 2 and 3. The Family Court partly decreed the suit permitting the plaintiff to realise 60 sovereigns of gold ornaments or its value of `2,40,000/- with interest, `25,000/-, `48,550/- and `9,750/-. Maintenance was also directed to be paid for the minor children. The wife had preferred the appeal dissatisfied with the decree passed and the husband has filed the appeal challenging the decree for return of gold ornaments and money. 2. The short facts of the case are as under and the parties are shown as directed in the original suit unless otherwise stated:- Mat.Appeal Nos.616 & 801/11 -:5:- First plaintiff and the defendant got married on 13/11/1992 and two children were born in the wedlock. Matrimonial issues had arisen between the parties which resulted in the filing of the above suit. It is the case of the first plaintiff/wife that at the time of marriage, her parents had given her 60 sovereigns of gold ornaments. That apart, her brother had given to the defendant a gold chain weighing 4 sovereigns and a ring weighing 1 sovereign. After marriage during nallavathil ceremony, first plaintiff gave a bangle weighing 1 sovereign to the defendant's mother. First plaintiff's father had entrusted `1 lakh to the defendant as her parental share two days before the marriage.. Subsequently a further amount of `25,000/- was also given to the defendant and household articles were also given which were not returned. According to the first plaintiff, her husband had taken away all her gold ornaments and had appropriated the money given as parental share and had not returned the household articles. Therefore, she sought for return of the same. 3. Defendant having admitted the marriage and the paternity of the children denied that she was having 60 Mat.Appeal Nos.616 & 801/11 -:6:- sovereigns of gold ornaments and that he had appropriated the same. According to him, the gold ornaments are in the possession of the first plaintiff. He also denied having been given gold chain weighing 4 sovereigns and a ring of 1 sovereign by the first plaintiff's brother. The payment of `1 lakh and a further amount of `25,000/- was also denied. He never demanded any amount and no such amount was paid. According to him, he had expended substantial amounts for the family members of the first plaintiff. 4. Before the Family Court, evidence consisted of oral testimony of PW1 and PW2 and DW1. Exts.A1 to A4 and Exts.B1 to B10 were marked in the case. In the appeal filed by the wife as Mat.Appeal No.616/2011, the contention urged is that the Court below was not justified in fixing the value of gold ornaments at `2.4 lakhs. The contention urged is that the wife is entitled to recover the value of gold at the prevailing market rate. 5. Learned counsel for the appellant/wife also placed reliance on the judgment in _**William David v. Linu Mary George**_ (2010 (4) KLT 691). Mat.Appeal Nos.616 & 801/11 -:7:- 6. The first question to be considered is regarding the challenge to the decree passed in the case. PW1 is the plaintiff who had spoken in regard to the averments in the petition. PW2 is her brother who stated that 60 sovereigns were given to her at the time of marriage which was used by the defendant for constructing a house in the property. Defendant in his evidence as DW1 denied the entire factual circumstances alleged by the first plaintiff. He however stated that he had constructed the house by availing a loan of `2,50,000/- from HDFC Bank and he had obtained a chitty of `50,000/- from KSFE, Kollam. He had other earnings with him as well. During evidence he stated that even before marriage, he started collecting building materials which he received from the labour work. It is stated that he had no convincing evidence to prove that he had earnings before marriage. Family Court found that though the defendant had taken a contention that he had availed a loan from HDFC after the marriage, no material had been produced to prove the said fact. Ext.B4 is the loan agreement executed by the defendant before HDFC. DW1 in his evidence stated that he had availed a Mat.Appeal Nos.616 & 801/11 -:8:- loan for extension of the building. The evidence would show that the loan from HDFC was jointly taken by the couple. `2½ lakhs was taken in the year 2000. The loan was taken for completing the construction of building. She also deposed that `50,000/- was received from KSFE. She was the guarantor and `6,000/- was recovered from her salary. Evidence ultimately would show that the loan amounts were taken after construction of the building. Therefore it is possible that in all probability, the version of PW1 that her gold ornaments were utilized for construction of the house building is probable. The Family Court also found that an amount of `25,000/- was paid after the marriage and the plaintiff's family had given certain household articles mentioned in the suit. It could be seen that, the defendant had admitted that he defaulted payment of the loan. The first plaintiff was the guarantor and the loan had to be repaid by her. Taking into account the overall factual circumstances, it is noticed that though there is evidence to show that he had taken loan, he had not paid it and loan amount was recovered from the salary of the plaintiff. Such being the situation, the Family Court found that the Mat.Appeal Nos.616 & 801/11 -:9:- blanket denial of the defendant that she did not have 60 sovereigns of gold ornaments cannot be believed and that the gold ornaments were utilized for construction of the house as well. 7. Having regard to the aforesaid factual situation, we do not think that the Family Court had committed any error in granting a decree for return of gold ornaments and money. No grounds are made out for interference and therefore Mat.Appeal No.801/2011 is liable to be dismissed. 8. The next question is concerning the value of gold ornaments fixed by the Court below. There is no dispute about the fact that when a direction is issued to return movable property while granting a decree, the Court will have to fix the value as on the date of decree in terms with Order XX Rule 10 of the Code of Civil Procedure. In the case on hand, the plaintiff had sought for return of 66 sovereigns of gold ornaments or its value of `2,64,000/-. Apparently, the amount claimed was the value of gold as on the date of suit. But under Order XX Rule 10, where a suit is for movable property, and the decree is passed for delivery Mat.Appeal Nos.616 & 801/11 -:10:- of such property, the decree shall also state the amount of money to be paid as an alternative, if delivery cannot be affected. It cannot be disputed that the value of gold varies from time to time. Apparently under Order VII Rule 7, there is no necessity to seek a relief which may alternatively be granted as the Court may think just. Therefore, in cases where the value of movable property is varying and shows an upward trend, it is only appropriate that the value as on the date of decree is fixed as the value of gold ornaments to be returned. The fact that plaintiff had claimed as an alternate relief the value as on the date of suit may not be a reason for denying and granting the value at enhanced rate if the price of movable property had increased as on the date of decree. The decree in the case has been delivered on 24/5/2011 and therefore, plaintiff is entitled for return of 60 sovereigns of gold ornaments or its value as on 24/5/2011 which is to be computed at the time of execution. 9. Even in the judgment relied upon, this Court did not lay down any principle as such. But, the same value is seen to have been given by reducing the quantum of gold from 60 to 30 Mat.Appeal Nos.616 & 801/11 -:11:- and no principle has been stated to be relied upon. In the light of the aforesaid facts, Mat.Appeal No.801/2011 is dismissed and Mat.Appeal No.616/2011 is partly allowed modifying the decree permitting the first plaintiff to realise 60 sovereigns of gold ornaments or the value of the same as on the date of decree of the Family Court with interest at the rate of 6% per annum from the date of decree till realisation. In all other respects, the decree shall stand confirmed. **Sd/A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge