K.L.RAJU v. SIBIK.VARGHESE

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS TUESDAY,THE22[ND]DAYOFAUGUST2023/31STSRAVANA,1945 MAT.APPEALNO.273OF2020 ``` ``` AGAINSTTHEORDER/JUDGMENTINOP48/2016OFFAMILYCOURT, IRINJALAKUDA ``` ``` APPELLANT/RESPONDENT: ``` ``` K.L.RAJU S/O.K.C.LONAPPAN,KALLIYATHHOUSE,ALOOR VILLAGE,ALOORP.O.,CHALAKUDYTALUK, THRISSURDISTRICT-680683. BYADVS. K.JAGADEESH N.L.BITTO ``` ## **`RESPONDENT/PETITIONER:`** ``` SIBIK.VARGHESE D/O.K.K.VARGHESE,KALLELIHOUSE, KANJIRAPPILLIP.O.,PARIYARAM VILLAGE,CHALAKUDYTALUK,THRISSUR - DISTRICT680721 BYADVS. SRI.M.SHAJUPURUSHOTHAMAN SRI.K.S.RAJESH ``` ``` THISMAT.APPEALHAVINGBEENFINALLYHEARDON 11.07.2023,ALONGWITHCO.79/2020,THECOURTON22.08.2023 DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.273 of 2020 & 2 Cross Objection No.79 of 2020 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS TUESDAY,THE22[ND]DAYOFAUGUST2023/31STSRAVANA,1945 CONO.79OF2020 ``` ``` (OPNo.48OF2016OFFAMILYCOURT,IRINJALAKUDA) ``` ## **`CROSS OBJECTOR/RESPONDENT/PETITIONER IN OP:`** ``` SIBI.K.VARGHESE, D/O.K.K.VARGHESE,KALLELIHOUSE, KANJIRAPPILLIP.O.,PARIYARAMVILLAGE, CHALAKUDYTALUK,THRISSURDISTRICT. ``` ``` BYADVS. M.SHAJUPURUSHOTHAMAN SRI.K.S.RAJESH ``` ## **`RESPONDENT/APPELLANT/RESPONDENT IN OP:`** ``` K.L.RAJU S/O.K.C.LONAPPAN,KALLIYATHHOUSE,ALOOR VILLAGE,ALOORP.O.,CHALAKUDYTALUK, THRISSURDISTRICT,PIN-680683. ``` ``` THISCROSSOBJECTIONHAVINGBEENFINALLYHEARDON 11.07.2023,ALONGWITHMat.Appeal.273/2020,THECOURTON 22.08.2023DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 3 ## **J U D G M E N T** ## Sophy Thomas, J. The husband, who is aggrieved by the decree in OP No.48 of 2016 on the file of Family Court, Irinjalakuda, filed the appeal, and the wife filed the Cross Objection against the declined reliefs. ## 2. The facts in brief are as follows: The appellant/husband married the respondent/wife on 28.08.1994 as per Christian religious rites and ceremonies. Three children were born out of their wedlock. Two of them are major, and the youngest is a minor boy. The respondent/wife is a Teacher and the appellant/husband is a businessman. Their matrimonial life went into rough weather, and they started living separate since 2016. The wife filed OP No.48 of 2016 for recovery of patrimony and other amounts which were due from the husband. According to her, she was given 45 sovereigns of gold ornaments and 15 cents of landed property as her share Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 4 from her family. After marriage, she had purchased five sovereigns of gold ornaments availing loan from Provident Fund, and those ornaments are also with the husband. Moreover, during their matrimonial life, the husband received Rs.16 lakh out of her salary, and a loan amount of Rs.5 lakh from her, for his business purposes. She would say that, the husband was not looking after the affairs of the family or the children, and she was taking care of everything, and later on she had to leave the matrimonial home. So, she wanted to get back 50 sovereigns of gold ornaments, 15 cents of landed property or the market value equivalent thereof, along with Rs.16 lakh given out of her salary, and Rs.5 lakh availed as loan for the husband. 3. The appellant/husband opposed that petition and according to him, the respondent/wife was having only 24 sovereigns of gold ornaments at the time of marriage, and it was never entrusted with him, and is still in her possession. He was abroad for about five years, and he was sending money to the Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 5 respondent for the affairs of the children and the family. He never received any salary from the respondent, and he never received any loan amount availed by the respondent. The respondent received only 10 cents of land from her family as per the Will Deed executed by her father, and she sold away that property to her own brother, and the sale consideration was never entrusted with the appellant. She purchased a flat at Thrissur using her money and gold, and the appellant never misused her gold ornaments, property or salary. 4. The Family Court formulated necessary issues and thereafter the parties went on trial. PWs 1 to 4 were examined and Exts.A1 to A16 were marked from the side of the respondent/wife. RWs 1 and 2 were examined and Exts.B1 to B36 were marked from the side of the appellant/husband. Ext.X1 was also marked as witness exhibit. 5. After analysing the facts and evidence, the Family Court decreed the OP in part, for 24 sovereigns of gold ornaments or Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 6 its market value Rs.4,80,000/- to the wife, with interest @ 6%, in case of default. Aggrieved by that decree, the husband preferred the Mat.Appeal and against denial of her remaining claims, the wife filed the Cross Objection. 6. Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 7. Heard learned counsel for the appellant and learned counsel for the respondent. 8. The case of the respondent is that, she was given 45 sovereigns of gold ornaments and 15 cents of land as her patrimony. No documents are there to prove purchase of 45 sovereigns of gold ornaments at the time of her marriage. No witnesses are also there except the respondent, to say that, she was having 45 sovereigns of gold ornaments at the time of marriage. She is relying on Ext.A14 photograph to say that she was wearing 45 sovereigns of gold ornaments at the time of Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 7 marriage. But, at no stretch of imagination, the ornaments seen in Ext.A14 photograph will weigh 45 sovereigns. The appellant admitted that, the respondent was given 24 sovereigns of gold ornaments from her family at the time of marriage. Ext.A14 photograph also will suggest that the ornaments worn by her at the time of marriage may not exceed 24 sovereigns. 9. The case of the respondent is that, when the appellant purchased the residential plot extending 18½ cents, her entire gold ornaments were used for the same. If at all she was having only 24 sovereigns of gold as admitted by the appellant, if her gold ornaments were utilised for purchasing the residential plot, in normal course, ornaments for daily use would have been spared. So, though there is admission from the part of the appellant that the respondent was having only 24 sovereigns of gold ornaments, the Family Court ought not have given a decree for the entire 24 sovereigns, as, in normal course, she might have retained at least 4 sovereigns of gold for her daily use. Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 8 10. It is a matter of common knowledge that, when residential plots are purchased for the family, normally, gold ornaments of the wife would be utilised, especially when she had no job or income to support that purchase. PW1-the respondent admitted that, at the time of marriage or even at the time of purchase of the residential plot, she was not having any job or income. So, there was every probability for utilising her gold ornaments for purchasing that land. Though the appellant contended that, he purchased that plot using his own money and by availing personal loans, we find no reason to disbelieve the case of the respondent that her gold ornaments were utilised for purchasing that property. In normal course, personal loans on interest will be availed, after exhausting all possible resources of the family, including gold ornaments. So, we are inclined to find that, for purchasing the residential property, 20 sovereigns of gold ornaments might have been utilised by the appellant, leaving at least four sovereigns for her daily use. Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 9 11. Though the respondent contended that, she had purchased 5 sovereigns of gold ornaments by availing loan from Provident Fund and those ornaments were entrusted with the appellant, there is no evidence, either to prove the purchase, or to prove the entrustment. The respondent filed the OP claiming 50 sovereigns of gold ornaments in total. But, the Family Court granted a decree for 24 sovereigns. In the Cross Objection filed by her, Ground ‘A’ reads as follows: “A. The order of the trial court, to the extent it disallows the present market value of the gold ornaments at the time of the order is incorrect and hence liable to be set right”. 12. It is pertinent to note that, the respondent was not disputing the quantum of gold ornaments decreed in her favour. So much so, her claim for 50 sovereigns of gold ornaments is given a go bye. The appellant himself admitted that, the respondent was having 24 sovereigns of gold ornaments at the time of marriage. As already stated, in normal human conduct, Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 10 there was no possibility for taking the entire gold ornaments without even leaving the thali chain and a pair of studs for her daily use. So, we are inclined to modify the decree for gold ornaments as 20 sovereigns. 13. The Family Court directed the appellant to return 24 sovereigns of gold ornaments or its market value Rs.4,80,000/within a period of three months and to pay interest @ 6% in case of default. According to the respondent, since the gold ornaments were not returned to her so far, she is entitled to get the value of gold as on the date of realisation. 14. In _**Syamini S Nair**_ vs. _**Sreekanth**_ [2022 (2) KLT 896], this Court observed that, considering the increase in the value of gold ornaments over a period of time, the Family Courts should take into consideration the increase in price as well. Paragraph 33 of that judgment reads as follows: “33. Let us think of a case where the petitioner had asked for alternative relief, but the prayer was for value of the gold as on the date of purchase, date of petition or Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 11 date of decree along with interest for delayed payment. As we have already seen the gold ornaments might have been purchased in the year 2007 at the time of marriage, the petition for its recovery might have been filed in the year 2016 and the decree might have been passed in the year 2021. The appeal if any may go upto 2025. So, even if the prayer for alternative relief was absent, or the prayer was for value of gold as on the date of purchase, date of petition, or date of decree as the case may be, Family Court cannot keep a blind eye towards ground realities and while passing a decree, the Family Court can very well grant a decree of alternative relief of the gold value, as on the date of payment, in case the gold ornaments in specie are not returned by the respondent. Otherwise, it will cause gross injustice to the party claiming recovery and unlawful enrichment to the other party who is holding the gold ornaments. If the party possessing the gold ornaments need to pay only its value which was prevailing long back, he may conveniently opt only for return of the value which is much less than the actual market rate”. 15. In the case on hand, marriage of the appellant and respondent was in the year 1994. According to the appellant, Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 12 the residential plot was purchased in the year 1999. If the gold ornaments taken by the appellant is to be valued as per the price prevailing in the year 1999, or on the date of filing the OP, or on the date of decree, it will work out injustice to the respondent, as the gold ornaments are not returned even in the year 2023. It is true that, the respondent had claimed an alternate relief of Rs.10 lakh towards the market value of 50 sovereigns of gold. The Family Court granted a decree for 24 sovereigns, and its market value was assessed as Rs.4,80,000/-. Now the respondent has preferred Cross Objection against the market value of the gold fixed by the Family Court. Since the finding of the Family Court regarding alternate relief of market value of gold is under challenge, though 6% interest was awarded for the delayed payment, it is liable to be modified, taking into account the ground realities, otherwise it will cause gross injustice to the party claiming the gold, and unlawful enrichment to the other party who is holding the same. So, the Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 13 judgment of the Family Court with respect to recovery of gold is modified and reduced to 20 sovereigns, or its market value as on the date of realisation. 16. Now coming to the claim of Rs.15 lakh towards the share of her family property utilised for purchasing the residential plot, the respondent would say that, she got 15 cents of land as per the Will Deed executed by her father. According to her, she sold that property and the sale consideration was utilised for purchasing the residential property extending 18½ cents in the name of the appellant. But, the appellant produced Ext.B1-the Will Deed executed by her father, which will show that she was given only 10 cents of land. According to her, for the remaining 5 cents, she was given Rs.5 lakh from her family. There is no factual foundation for that contention. Ext.B2 sale deed will show that, she sold away that 10 cents of land to her own brother and the sale consideration shown in that document was only Rs.10,000/-. Though the respondent contended that, Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 14 Rs.10 lakh was the consideration for that sale, there is no evidence to support. If such an amount was received from her brother, it would have been deposited in her Bank Account. If that amount was utilised for purchasing the residential plot, there would have been evidence to show payment of that amount either to the appellant or to the vendor of that property. Since no such transfer is proved by the respondent, we cannot find fault with the Family Court finding that she was not entitled to get Rs.15 lakh as the value of the property given as her family share. Moreover, that property stands in the exclusive name of the appellant. So also her case that she had given Rs.15 lakh to the appellant for purchasing the residential plot cannot be believed. 17. Now coming to the allegation of the respondent that Rs.16 lakh out of her salary was received by the appellant, she herself admitted that, she got the job of a Teacher only in the year 2007. She took B.Ed after her marriage. She was Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 15 receiving her salary in her Bank Account. So, if any amount was withdrawn or transferred into the account of the appellant, there should have been corresponding entries in the account statement. According to the respondent, she was taking care of the affairs of the children and family, when the appellant was abroad, and he was paying nothing to her. But, she herself admitted that she had withdrawn about Rs.7 lakh from the Bank Account of the appellant using his cheque leaves, but according to her, that amount was withdrawn for making payment to some other persons from whom the appellant had received money on promise of arranging them a job. But, no evidence is forthcoming to show that, the appellant owed money to any other persons, as alleged by the respondent. Obviously, the appellant and respondent were expending money for the affairs of the family, as well as for the children. Moreover, it has come out in evidence that, the respondent had purchased a car, property, and also a flat worth more than Rs.10 lakh at Thrissur. Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 16 For all these purposes, she might have used, income from her salary also. 18. Ext.X1 the salary report of the respondent shows the net amount received by her after recovery towards loan. There is no reason to think that the salary received in her account was misused or misappropriated by the respondent/husband. In a family life, both parties might have expended money for the affairs of the family and children, and it cannot be treated as an amount given on trust, to be returned on demand. So, the Family Court rightly found that the respondent was not entitled to get Rs.16 lakh, as the amount given to the appellant from her salary. 19. The respondent contended that, she availed a loan of Rs.5 lakh and entrusted that amount to the appellant for his business purposes. For that also, no evidence is forthcoming. Even according to her she had purchased a car, property, flat etc. by availing loan. There is no evidence to show that, the Mat.Appeal No.273 of 2020 & Cross Objection No.79 of 2020 17 loan amount if any availed by her was entrusted with the appellant for his business purposes. So, the denial of that prayer by the Family Court is only to be justified. So, the Cross Objection fails except to the extent of granting market value of gold as on the date of realisaiton. 20. In the result, Mat.Appeal No.273 of 2020 is allowed in part, modifying and reducing the decree for gold as 20 sovereigns or its market value as on the date of realisation. The Cross Objection also stands allowed in part, on awarding market value of gold as on the date of its realisation. The Mat.Appeal and the Cross Objection are allowed in part to the extent as above, without any order as to costs. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- ## **SOPHY THOMAS JUDGE** smp