Mat.Appeal Nos. 568 of 2009 & 603 of 2009, High Court of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939** **Mat.Appeal.No.568 of 2009 (A) ------------------------------(AGAINST THE JUDGMENT IN OP 202/2007 of FAMILY COURT, KOTTAYAM, DATED 18-03-2009)** **APPELLANTS/RESPONDENTS:** **-----------------------** **1. JIBU MATHEW THARAKAN, AGED 30 YEARS, S/O.G.MATHEW THARAKAN, PADINJAREVILAYIL, KUNDARA, EZHUKON VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, NOW WORKING AT EMPLOYMENT NO.662, P.B.NO.13164, AL SHAFAR GENERAL CONTRACTING CO.LLC, DUBAI, U.A.E., REPRESENTED BY G.MATHEW THARAKAN, 55 YEARS, S/O. GEE VARGHESE THARAKAN, RESIDING AT PADINJAREVILAYIL, KUNDARA EAST P.O., MULAVANA MURI, MULAVANA VILLAGE, KOLLAM TALUK.** **2. G.MATHE THARAKAN, AGED 55 YEARS, S/O. GEE VARGHESE THARAKAN, RESIDING AT, PADINJARAVILAYIL, KUNDARA EAST PO, MULAVANA MURI, MULAVANA VILLAGE, KOLLAM TALUK.** **3. KUNJAMMA MATHEW THARAKAN, W/O.MATHEW THARAKAN, AGED ABOUT 56 YEARS, RETIRED TEACHER, RESIDING AT PADINJAREVILAYIL HOUSE, KUNDARA PO, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.C.RAJENDRAN** **RESPONDENT/PETITIONER:** **----------------------** **RENILA NINAN, AGED 27 YEARS, D/O.NINAN C.K., CHIRATHALATTU HOUSE, KURISUMMOOD PO, CHANGANACHERRY, VAZHAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT BLOCK NO.13, FLAT NO.69, SHAIKH RASHEED BUILDING, GHUSSIAS, DUBAI, U.A.E.** **ADV. SRI.V.PHILIP MATHEW FOR CAVEATOR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2017** **ALONG WITH MAT.APPEAL NO.603/2009, THE COURT ON 31.05.2017 DELIVERED THE FOLLOWING:** ss ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** -------------------------------------------------------------------- **Mat. Appeal Nos. 568 of 2009 & 603 of 2009** ------------------------------------------------------------------ _Dated this the 31[st] day of May, 2017_ ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Mat. Appeal No.568/2009 was filed by the respondents in O.P. 202/2007 on the file of the Family Court, Kottayam at Ettumanoor, while Mat. Appeal No.603/2009 was filed by the petitioner in the same case. For convenient sake the relationship of the parties is referred to in this judgment as referred to in the court below. 2. The case of the petitioner in the court below was that, the marriage between the petitioner and first respondent was solemnised on 04.01.2004 as per Christian rites. The petitioner is an Engineer and MBA graduate and first respondent is a qualified M.Tech Structural Engineer, who was working at Ernakulam at the time of marriage. Respondents two and three are the parents of the first respondent. At the time of the marriage proposal, petitioners parents agreed to give Rs.15,00,000/- and 125 sovereigns of gold ornaments towards the share of the petitioner. The betrothal ceremony was conducted on 29.12.2003 and on that day, out of Rs.15,00,000/- agreed to be _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 2 given, Rs.7,00,000/- was entrusted to the respondents by petitioner's father. At the time of marriage, 125 sovereigns of gold ornaments were given to the petitioner. They lived for 19 days together in the house of the petitioner and also in the house of the first respondent. After two weeks of the marriage, as directed by the first respondent, 84.5 sovereigns of gold ornaments were entrusted to the third respondent as trustee in the presence of respondents one and two. Petitioner was born and brought up at Dubai and she went to Dubai on 23.01.2004. Parents of the petitioner arranged a visa for the first respondent and he also came to Dubai during 3[rd] week of February 2004. He got an employment at Dubai at the instance of the petitioner's parents and they resided together at Dubai till the end of February 2006. Petitioner's father entrusted the balance amount of Rs.8,00,000/- to the first respondent on 17.11.2004 by way of two cheques which the first respondent had deposited in the joint names of the petitioner and the first respondent at State Bank of Travancore, Kundara Branch. The entire salary of the petitioner was also deposited in the joint account of the petitioner and first respondent from _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 3 17.11.2004 to 31.12.2006, which will come to 86,476 dirhams = Rs.9,83,232/- which was appropriated by the respondents. House hold articles worth Rs.94,788/- were also entrusted to the respondents. The gold ornaments entrusted to the respondents is scheduled as item No.1 and house hold articles were scheduled as item No.2 to the petition. The respondent was an impotent person, incapable of procreating children and respondents were treating the petitioner cruelly which made her living with the first respondent impossible. They were living separately from 08.01.2007 onwards. Since item Nos.1 and 2 to the petition are entrusted with the respondents as trustees and they are liable to return the same or its value. The petitioner is also entitled to realise the amount of Rs.9,83,232/- being the amount misappropriated being the salary of the petitioner which was credited in the joint account of the petitioner and first respondent as directed by the first respondent. Petitioner claimed Rs.15,00,000/being the amount given as patrimony and Rs.9,83,232/- which was the amount deposited in Federal Bank, Kundara Branch which was withdrawn by respondents 2 and 3 with the connivance of the first _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 4 respondent and Rs.5,91,500/- and Rs.94,788/- being the value of the gold ornaments and house hold articles in the event of non-return of the same by the respondents totaling an amount of Rs.24,83,232/together with interest at 12% per annum. Petitioner also filed OP 203/2007 for dissolution of marriage. 3. The respondents originally filed counter statement admitting the marriage, but denied that an amount of Rs.7,00,000/was paid at the time of betrothal. According to the respondents, the respondents 2 and 3 were working as employees of BSNL and teacher in High School respectively and there was no necessity for receiving any amount from the petitioner and appropriating the same. They denied the allegation that an amount of Rs.8,00,000/- was given towards the balance patrimony on 17.11.2004. In fact a cheque for Rs.2,90,000/- with No.124025 and another cheque for Rs.5,10,000/with No.256231 both dated 04.12.2004 drawn on State Bank of Travancore, Pariyaram Branch of Kottayam District were given and those cheques were deposited in the joint account of the petitioner and the first respondent in State Bank of Travancore, Kundara Branch. _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 5 They had admitted that at the time of marriage, the petitioner's mother had given a bracelet to the first respondent and the mother of the first respondent had given an chain to her. Further a thali chain of 5 sovereigns and marriage ring of two sovereigns were given to the first respondent. He was not aware of the fact that 125 sovereigns of gold ornaments were given to the petitioner by her parents at the time of marriage and they did not enqurie about the same as well. Since they belong to Jacobaya community, there was no custom of giving 'sreedhanam' or gold ornaments. Further the gold ornaments worn by the petitioner were entrusted to her parents before she went to Dubai and they were deposited in the locker operated by her father in State Bank of Travancore, Pariyaram Branch of Kottayam District. They denied the allegation of entrustment of gold ornaments with the third respondent as directed by the first respondent. According to them, no gold ornaments were entrusted to them and it was deposited in the locker of her father. He admitted that he went to Dubai on 03.02.2004 on visiting visa, and he admitted that the amount of Rs.8,00,000/given by way of two cheques were deposited in the joint account of the _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 6 petitioner and first respondent in State Bank of Travancore, Kundara Branch. They denied the allegation that the salary of the petitioner from 17.11.20004 to 31.12.2006 was entrusted to the first respondent and it was appropriated by respondents and they are liable to return the same. In fact, she was using the amount for her expenses. In fact the salary for the month of August 2006, of the first respondent namely 6,000 dirhams was taken by the petitioner's father and it was not returned. Further a loan of 1,00,000 dirhams was taken from Dubai National Bank for the purpose of purchasing a car in the name of the petitioner and a car with Reg. No.C-437626 (New Reg. No.G-9826) of 2004 model Jeep Cherokki was purchased and he had paid 75,603.50 dirhams for discharging the loan and after discharging the loan, the car was sold by the petitioner without his consent and he is entitled to get the entire amount from the petitioner and her parents. Further he had met the entire treatment expenses for removing the utress of petitioner's mother done from Medical Trust Hospital, Ernakulam and also spent an amount of Rs.2,50,000/- for meeting the ayurvedic treatment given for the back pain of the petitioner. Since the _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 7 respondents were against the immoral life lead by the petitioner, she deserted the first respondent on 08.01.2007 and residing with her parents. He denied the allegation of entrustment of house hold articles and misappropriation of the same. According to him, one siemans food processor, samsung mobile phone and some saries were left in the house of the respondents and she is at liberty to take those articles. They denied the allegation of impotency and non-consummation of marriage by the first respondent. While they were residing together, during October 2005, he had purchased a necklace and one ring and on 21.07.2006, he purchased five bangles worth 5,000 dirhams and one chain of 2,800 dirhams and presented the same to the petitioner and she is in possession of the same. They further contended that the first respondent had also spent more than rupees four lakhs for the treatment of the petitioner as no child was born to them in that wedlock. According to the respondents, items 1, 4, 7 and 8 of item 2 schedule are in the house of the respondents and she is liberty to take the same at any time. They prayed for dismissal of the petitions. 4. Originally this petition was tried along with OP 203/2007, _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 8 which was taken as the leading case and the petitioner and her mother were examined on the side of the petitioner and none were examined on the side of the respondents. The court below by common judgment dismissed OP 203/2007 and allowed OP 202/2007 in part, directing the respondents to return Rs.15,00,000/- with 9% interest from the date of the suit namely 28.02.2007 and return 84.5 sovereigns of gold ornaments or its value for Rs.7,00,000/- with 9% interest from the date of judgment. Dissatisfied with the decree passed in OP 202/2007, earlier the respondents filed Mat.Appeal No.467/2008 and dissatisfied with the rejection of certain claims, wife filed Mat.Appeal No.506/2008 and both these appeals were allowed by a common judgment dated 19.11.2008 and remanded to the court below for fresh disposal permitting both parties to adduce further evidence. An appeal was filed against the decree in OP 203/2007, the same was allowed and divorce has been granted. 5. After remand, the respondents filed IA 145/2009 for amendment of the counter statement incorporating a counter claim claiming an amount of 6,000 dirhams = Rs.72,000/- being the amount _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 9 received by the father of the petitioner from the first respondent and 75,603 dirhams = Rs.9,07,236/- being the amounts spent by him for purchasing the car and Rs.70,000/- being the value of chain and gold ring given and Rs.93,600/- being the value of the gold ornaments purchased and given to the petitioner by the first respondent totaling an amount of Rs.11,42,836/- by adjusting the amount with the joint fixed deposit in the joint names of the petitioner and the first respondent and recover the balance amount payable by the petitioner and the same was allowed and it is incorporated. 6. The petitioner filed counter to the amendment application and to the counter claim wherein she had denied the allegations and according to her, the documents produced were fabricated documents and prayed for dismissal of the counter claim. Though a petition has been filed for amendment of the counter claim as IA 433/2009 by enhancing the claim to Rs.17,69,820/- by amending the claim of Rs.72,000/- to Rs.7,20,000/-, but that application was dismissed by the court below as it is highly belated and filed after the evidence. After remand, the petitioner filed additional proof affidavit and she was _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 10 again examined and Exts. A3 to A8 were marked. But she was not cross examined. A petition was filed to recall and cross examine her as IA 191/2009 and the same was dismissed as per order dated 20.02.2009. The father of the first respondent was examined as RW1 and first respondent was examined as RW2, and Exts.B1 to B3 were marked on their side. After considering the evidence on record, the court below allowed the petition in part, permitting the petitioner to realise Rs.7,00,000/- with 9% interest from the date of suit namely 28.02.2007 and allowed the petitioner to withdraw the fixed deposit amount of Rs.8,00,000/- with interest accrued till date from the bank lying in the joint names of the petitioner and first respondent and also granted a decree to realise 84.5 sovereigns of gold ornaments or its present value of Rs.8,50,000/- with 9% interest from the date of suit and directed State Bank of Travancore, Kundara Branch to disburse the fixed deposit amount of Rs.8,00,000/- with interest accrued to the petitioner till date together with a cost of Rs.3,000/- to be realised from the respondents and dismissed the counter claim. Aggrieved by the rejection of certain claims, the petitioner filed Mat.Appeal _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 11 No.603/2009 and regarding allowing of the claim and dismissal of the counter claim, the respondents filed Mat.Appeal No. 568/2009. Since both these appeals arose out of a common judgment based on common evidence, we are disposing both the appeals by a common judgment. 7. Heard the counsel for the petitioner and respondents. 8. The counsel for the petitioner submitted that, the petitioner had file an additional proof affidavit and examined again after remand but she was not cross examined. The court below ought to have allowed the claim of Rs.9,83,232/-, which was the amount given by her being her salary to the respondents and appropriated by them as she was not cross examined at all. Further the court below ought to have granted the relief in respect of item No.2 movables. Further the court below was perfectly justified in rejecting the counter claim as no acceptable evidence was adduced on the side of the respondents in this regard. He had relied on the decisions reported in _**Sarwan Singh v. State of Punjab** (AIR 2002 SC 3652)_ and _**Gayathri v. M. Girish** (2016 KHC 6557)_ , and also _**Jahuri Sah and Others v. Dwarika**_ _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 12 _**Prasad Jhunjhunwala and Others** (AIR 1967 SC 109)_ in support of his case. He had also argued that, there was no specific denial of giving of 125 sovereigns of gold ornaments at the time of marriage to the petitioner and he has only evasively stated in the counter statement, that he was not aware of the quantity of gold ornaments given, which cannot be treated as specific denial as contemplated under Order 8 Rule V of the Code of Civil Procedure. 9. On the other hand, the counsel for the respondents submitted that, though an application has been filed for cross examination of PW1, that was dismissed by the court below and an opportunity has been denied to the respondents to cross examine PW1 after remand and her evidence to that extent should not be accepted. Further there is no evidence adduced to prove the entrustment of Rs.7,00,000/- at that time of betrothal and entrustment of 84.5 sovereigns of gold ornaments as claimed by the petitioner. Further he had also argued that the court below was not justified in decreeing the petition in part and rejecting the counter claim. 10. The points that arise for consideration are: _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 13 1.Whether the court below was justified in granting a relief of Rs.15,00,000/- and 84.5 sovereigns of gold ornaments in favour of the petitioner? 2. Whether the court below was justified in rejecting the claim of the petitioner for Rs.9,83,232/- ? 3.Whether the court below was justified in rejecting the claim of the petitioner regarding the movables claimed in the petition? 4.Whether the court below was justified in rejecting the counter claim of the respondents? 11. We are considering these points together as the evidence adduced on these aspects are interlinked and also to avoid repetition of evidence. 12. The fact that there was a betrothal conducted on 29.12.2003 at St.Joseph Church Parish Hall, Veror, Changanassery and marriage was conducted on 04.01.2004 at Jacobite Syrian Church, Kundara, Kollam is not in dispute. It is also not in dispute that the petitioner also filed a petition for divorce as OP 203/2007 and that was jointly tried along with this case and the petition for divorce was dismissed and an appeal has been filed and marriage was dissolved by this court in the appeal. The factum of entrustment of Rs.8,00,000/- _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 14 though on a different date was admitted by the respondents and according to them, it was deposited in the joint names of the petitioner and first respondent in State Bank of Travancore, Kundara Branch evidenced by Exts.A5 to A7 fixed deposit receipts. So to that extent, the decree granted by the court below permitting the petitioner to realise the amount of Rs.8,00,000/- standing in the fixed deposit in the joint names of the petitioner and first respondent together with interest cannot be interfered. 13. The case of the petitioner in the petition was that, at the time of fixing the marriage proposal, her patents agreed to give Rs.15,00,000/- and 125 sovereigns of gold ornaments towards the share of the petitioner in her family property and on 29.12.2003, on the date of betrothal, an amount of Rs.7,00,000/- was entrusted to the respondents by her father and this fact was denied by the respondents. According to her, at the time of marriage 125 sovereigns of gold ornaments were given to her and after two weeks of the marriage, 84.5 sovereigns of gold ornaments were entrusted to the third respondent as directed by the first respondent in the presence of _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 15 respondents 1 and 2 and they are with the respondents as trustees and they are liable to return the same. According to the petitioner, the first respondent was also taken to Dubai at the instance of her parents and he got an employment there with the help of her parents and they were living together in their house at Dubai and this fact was not denied by the respondents and in a way admitted by them as well in their evidence. The case of the petitioner in the petition was that, her salary was credited in the Federal Bank Account of Kundara Branch, and from 17.11.2004 to 31.12.2006 she had deposited 86.476 dirhams = Rs.9,83,232 which was withdrawn by respondents 2 and 3 with the connivance of first respondent and she is entitled to get that amount. This fact was denied by respondents. Though PW1 was examined, after remand by filing a further proof affidavit, she did not produce any document to support the same. Though the matter was remanded by this court for giving opportunity to the parties to prove their claims by adducing further evidence, she did not take any step to produce any document to prove that these amounts were deposited in the account of the respondents and they misappropriated the same. _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 16 Merely because the respondents did not cross examine her on this aspect after remand alone is not sufficient to grant a decree as claimed by her unless it was proved to the satisfaction of the court by adducing best evidence available with her. The dictum laid down in the decision reported in _**Sarwan Singh v. State of Punjab** (AIR 2002 SC 3652)_ , where it has been held that, when the opponent declining to avail himself of opportunity to put his case in cross examination then, evidence tendered on that issue by the other side has to be accepted is not applicable to the facts of this case. Further it is admitted by PW1 that they were living together till they separated in 2007 and the amounts were used for their common purpose as well. The dictum laid down in the decision reported in _**Jacob Kuruvila v. Merly Jacob** (2010(1) KLT 503)_ , wherein it has been held that, the Christian husband is liable to maintain his wife is not applicable to the facts of this case as the dictum laid down in that case is not in dispute and that is not helpful to the petitioner to claim the amount claimed being the amount misappropriated from her salary deposited by her in the account which was denied by the court below in the absence of _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 17 convincing evidence adduced on this aspect. So we do not find any reason to interfere with the finding of the court below on this aspect so as to grant a relief to the petitioner in this regard. 14. As regards the movables are concerned, the respondents had admitted that Items 1, 4, 7 and 8 are available with them and they are prepared to return the same. They are siemens food processor worth Rs.11,370-/, samsung mobile phone worth Rs.7,939/-, crockery items worth Rs.14,781/- and wedding saree worth Rs.10,000/-. So the court below ought not to have rejected the claim but should have directed the respondents to return the same or in the alternate directed them to pay the value claimed which will come to Rs.44,120/- (Rs.11,370/- + Rs.7,959/- + Rs.14,781/- + Rs.10,000/-). So the petitioner is entitled to get the decree directing the respondents to return times 1, 4, 7 and 8 of item 2 scheduled to the petition or its value of Rs.44,110/- together with 9% interest from the date of the suit till payment. 15. As regards the amount of Rs.7,00,000/- said to have been entrusted at the time of betrothal, which is denied by the respondents, _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 18 the petitioner is relying on the evidence of PWs 4 to 6 and Ext.A3 statement of account issued from State Bank of Travancore, Pariyaram Branch, which will go to show that on 24.12.2003, an amount of Rs.7,00,000/- was withdrawn and the evidence of PW4, the father of the petitioner and PWs 5 and 6 the relatives of the petitioner who attended the betrothal and marriage will go to show that on the date of betrothal an amount of Rs.7,00,000/- was entrusted with the respondents towards the amount of Rs.15,00,000/- agreed to be given towards the patrimony of the petitioner. The respondents have no case that, the petitioner's parents have no capacity to raise the amount. According to them, the amount was withdrawn for meeting the marriage expenses which was denied by PW4. So under such circumstances, the court below was perfectly justified in relying on Ext.A3 and the oral evidence of PWs 1, 4 to 6 and rightly came to the conclusion that Rs.7,00,000/- was given as part payment of the patrimony agreed to be given and rightly granted a decree in favour of the petitioner, directing the respondents to pay the amount of Rs.7,00,000/- also together with interest and we do not find any _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 19 reason to interfere with the same. 16. As regards the gold ornaments are concerned, it is true that no documents have been produced to prove that 125 sovereigns of gold ornaments were given at the time of marriage. They are relying on the oral evidence of PWs 1, 2, 4 to 6 and Ext.A8 series and B10 photographs to prove this fact. It will be seen from Ext.A8 series and B10 photographs that large number of gold ornaments were given to the petitioner which she was wearing at the time of marriage. It is settled law that it is not possible for the bride to prove the actual entrustment of gold ornaments by producing documentary evidence. Court must be practical on this aspect and court can rely on the oral evidence and the photographs or album produced containing the gold ornaments worn by the bride at the time of marriage for this purpose. Further in the written statement filed by respondents, they did not deny the quantum of gold ornaments given at the time of marriage and they have only stated that, they did not know the quantum of gold ornaments given and they did not care to enquire about the same as well. This cannot be taken as a specific denial as required to be denied _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 20 as contemplated under Order VIII Rule 5 of Code of Civil Procedure. In the decision reported in _**Jahuri Sah and Others v. Dwarika Prasad Jhunjhunwala and Others** (AIR 1967 SC 109),_ it has been held that Order VIII Rule 5 of the Code of Civil Procedure provides that every allegation of fact in plaint, if not denied specifically, or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted to say that the defendant has no knowledge of a fact pleaded by the plaintiff does not tantamount to denial of existence of the fact, not even an implied denial. Further the respondents have no case that the petitioner's parents have no financial capacity to give so much gold ornaments as well. So under such circumstances, the court below was perfectly justified in coming to the conclusion that 125 sovereigns were given at the time of marriage to the petitioner by her parents. 17. As regards the entrustment of gold ornaments is concerned, PW1 had categorically stated that, two weeks after the marriage as directed by the first respondent, she had entrusted 84.5 sovereigns of gold ornaments to the third respondent in the presence _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 21 of respondents 1 and 2 and the ornaments are in possession of the respondents as trustees. Even prior to the remand, she had categorically stated this fact. After remand, though she was examined again, she was not cross examined on this aspect. It is true that the respondent filed IA 191/2009 for cross examination of PW1, but that was dismissed by the court below. Further in the decision reported in _**Gayathri v. M. Girish** (2016 KHC 6557)_ , the Apex Court has deprecated the practice of granting unnecessary adjournments for cross examination of the plaintiffs and held that a counsel appearing for the litigant has to have institutional responsibility for cross examination of the witness on the date of the appearance and they are not expected to seek for adjournment for cross examination of the witness. Further it was a case where the case was remanded by this court in an appeal filed by respondents on an earlier occasion for giving opportunity to the parties to adduce evidence. It is after remand that the petitioner filed further proof affidavit and she was available for cross examination, but she was not cross examined by the respondents. No reason was given for not cross examining the witness _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 22 on that day as well. Further apart from the evidence of PW1, PWs 4 to 6 were also examined for proving the fact of giving 125 sovereigns of gold ornaments and PWs 2 and 4 had categorically stated that at the time when the petitioner came to Dubai, she was only in possession of 40.5 sovereigns of gold ornaments and the remaining gold ornaments were with the respondents. Further when RW1 was examined, nothing was mentioned about the same in his proof affidavit. They had only made claims regarding the counter claim made and nothing more. Further RW2 also did not deny this fact in his proof affidavit as well. So under such circumstances, there is no merit in the submission made by the counsel for the respondents that they want an opportunity to cross examine PW1 and for that purpose, the matter has to be remitted to the court below. So the court below was perfectly justified in directing the respondents to return 84.5 sovereigns of gold ornaments or its value to the petitioner and we do not find any reason to interfere with this aspect. 18. As regards the value of gold ornaments is concerned, in the petition, the petitioner has valued the value of the gold ornaments _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 23 as Rs.5,91,500/-, but the court below had directed the respondents to pay an amount of Rs.8,50,000/- after remand, which appears to be wrong. In the case of conversion, if the petitioner had quantified the amount of the converted articles and claimed that amount as compensation, then she is entitled to get only that amount and not anything more. But if the amount was not quantified, but wanted only the return of the gold ornaments misappropriated, then court has to fix the value of the gold ornaments in the alternate as on the date of the decree. So under such circumstances, the court below ought to have decreed the claim only to the extent of Rs.5,91,500/- claimed by her in the petition as value of gold ornaments and to that extent the decree passed by the court below has to be modified. So the alternate relief allowing the petitioner to realise Rs.8,50,000/- being the value of gold ornaments is set aside and the same is restricted to Rs.5,91,500/claimed by the petitioner in the petition. 19. As regards the counter claim is concerned, it is seen that no separate appeal has been filed regarding the same and even if a single appeal is maintainable, no separate court fee has been paid for _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 24 that purpose. Further as rightly pointed out by the court below, there is no acceptable evidence adduced on the side of the respondents to prove their claim made as counter claim and the court below was perfectly justified in coming to the conclusion that the oral evidence adduced on the side of the respondent is not sufficient to grant the relief claimed in the counter claim and rightly rejected the same. We do not find any reason to interfere with the finding of the court below on this aspect. So both the appeals are allowed in part. Mat.Appeal No.568/2009 is allowed in part to the extent of reducing the value of gold ornaments granted by the court below from Rs.8,50,000/- to Rs.5,91,500/- as claimed by the petitioner in the petition together with interest at 9% from the date of the judgment and on all other aspects the finding of the court below is hereby confirmed. Mat.Appeal No.603/2009 is allowed in part. The order of the court below declining to grant relief in respect of movables in _toto_ is set aside and respondent is directed to return item Nos.1, 4, 7 and 8 of items No.2 of the petition, which were admitted to be in their _**Mat. Appeal Nos. 568 of 2009 & 603 of 2009**_ 25 possession or its value of Rs.44,110/- claimed in the petition together with interest at the rate of 6% from the date of the suit till realisation and on all other aspects, the finding of the court below is confirmed. Considering the circumstances of the case, the parties are directed to bear their costs in both the appeals. _Sd/-_ **(A.M.Shaffique, Judge)** _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// _P.A. to Judge_ ss