Mat.Appeal No. 440 of 2012 (Raji Rajan v. Pushpa Das and Jagadamma)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** **Mat.Appeal.No. 440 of 2012 ()** **-----------------------------AGAINST THE JUDGMENT IN OP(OS) 633/2005 of FAMILY COURT, ALAPPUZHA DATED 29-11-2008** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **RAJI RAJAN AGED 33 YEARS W/O. VIDHU, VAZHAYIL MEENTHERIL HOUSE, UMBERNADU MURI THEKKEKARA VILLAGE, MAVELIKKARA** **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW SRI.NIRMAL V NAIR** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. PUSHPA DAS** **KOTTILAPPATTU VADAKKETHIL, PATHIYOOR WEST MURI KAREEELAKULANGARA P.O. KAYAMKULAM TALUK-690502** ## **2. JAGADAMMA.** **W/O.GANGADHARAN, KOTTILAPPATTU VADAKKETHIL PATHIYOOR WEST MURI KAREELAKULANGARA P.O. KAYAMKULAM TALUK 690502** **R2 BY ADV. SMT.S.L.SYLAJA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Mat. Appeal No.440/2012** **APPENDIX ANNEX-A1: COPY OF THE I.A.NO.3252/2009 IN O.P.NO.633/2005. ANNEX-A2: COPY OF THE ORDER DATED 01/3/2010 IN I.A.NO.3252/09 IN O.P.NO.633/05 OF THE FAMILY COURT, ALAPPUZHA.** **TRUE COPY PA TO JUDGE.** _acd_ **ANTONY DOMINIC & P.D. RAJAN, JJ.** ------------------------------------------Mat. Appeal No.440 of 2012 ---------------------------------------------Dated this the 29[th] day of August, 2013 ## **JUDGMENT** ## **ANTONY DOMINIC,J.** The appellant filed O.P.No.633/2005 before the Family Court, Alappuzha, against respondents 1 and 2, who are her husband and mother-in-law respectively, for return of 60 sovereigns of gold ornaments or its value and for recovery of Rs.50,000/-. By judgment dated 29[th] November 2008, the Family Court allowed the petition, entitling the appellant to recover and realise 50 sovereigns of gold ornaments including the gold ornaments kept in the locker or its value of Rs.1,82,500/- together with interest at the rate of 6% from 1.3.2000 till date of realisation. Cost was also allowed. It is aggrieved by this judgment to the extent her claims have been negatived and also seeking a direction that instead of value of the ornaments, the ornaments available in the locker itself should be given to her, the appeal has been filed. 2. We heard the learned counsel for the parties. 3. Reading of the judgment of the Family Court itself shows that in the Central Bank, Kayakmkulam Branch, a locker is maintained Mat. Appeal No.440/10 2 by the parties and that even the respondents admitted that except the gold ornaments retained by the appellant for her daily use the balance ornaments are kept in the bank locker. The Commissioner's report before the Family Court showed that weight of the gold ornaments available in the locker was 296.90 grams. The Family Court on evidence also found that the respondents had received 50 sovereigns of gold ornaments including the gold ornaments kept in the locker. It is on the above basis that the Family Court held that she is entitled to get the same or its value from the respondents. Accordingly, the Family Court ordered that the appellant will be entitled to recover 50 sovereigns of gold ornaments including the ornaments kept in the locker or its value of Rs.1,82,500/-. 4. Admittedly, the Family Court has upheld the entitlement of the appellant to get 50 sovereigns of gold. A part of the gold ornaments, viz., 296.90 grams is available in the locker at the Central Bank, Kayamkulam Branch. The fact that the ornaments kept in the locker are that of the appellant is not disputed by the respondents also. In such a situation, the Family Court ought to have passed a decree enabling the appellant to get 296.90 grams available in the locker and should have passed a decree enabling her to get the value of the remaining quantity of gold entrusted to the respondents. 5. Insofar as the value of the gold that is allowed to be Mat. Appeal No.440/10 3 realised is concerned, the learned counsel for the appellant contended that the value adopted by the Family Court is Rs.3,650/per sovereign, which according to the learned counsel for the appellant is too disproportionate to the market value now prevailing. It is common knowledge that the value of the gold has increased several times. When a litigant is allowed to realise the value of the gold, in lieu of the gold misappropriated by the opposite side, the value which is ordered to be paid should have an approximate relation with the market value prevailing, as otherwise, the person, who is deprived of the ornaments cannot be duly compensated. It was therefore that a Division Bench of this Court in _**William David**_ v. _**Bijo & others**_ [2010(4) KLT 691] held that the value to be awarded should be the present market value. If that be the yardstick, Rs.3,650/- per sovereign adopted by the Family Court cannot be accepted as a reasonable estimation of the market value. 6. We therefore, hold that the value that should be paid for the quantity of the gold ornaments, in excess of what is available in the bank locker, shall be at the rate of at least Rs.15,000/- per sovereign. In addition to this, the appellant should also get 6% interest from today. 7. The learned counsel for the appellant contended that the Family Court should have upheld her entitlement for return of 60 sovereigns of gold and also for recovery of Rs.50,000/-. 4 Mat. Appeal No.440/10 8. Having gone through the judgment and also the evidence adduced by the parties before the Family Court, we did not find any evidence substantiating both these claims of the appellant and therefore, we uphold the finding of the Family Court negativing the claims in respect of 10 sovereigns of gold and Rs.50,000/claimed by the appellant. In the result, the appeal is disposed of modifying the judgment of the Family Court and allowing the appellant to recover and realise 50 sovereigns of gold ornaments. Out of this gold ornaments, she will be entitled to realise 296.90 grams of gold ornaments available in the locker at Central Bank, Kayamkulam Branch and for the balance quantity, if gold ornaments is not given, the appellant shall be paid value at the rate of Rs.15,000/- per sovereign with interest at the rate 6% from today. In all other respects, the judgment will stand confirmed. ## **ANTONY DOMINIC, JUDGE** ## **P.D. RAJAN, JUDGE.** acd Mat. Appeal No.440/10 5 Mat. Appeal No.440/10 6