Shahida Beevi and Rahi Sudeen v. Kamarudheen Kunju and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **Mat.Appeal.No. 630 of 2010** **AGAINST THE JUDGMENT IN OS 451/2001 of FAMILY COURT,KOLLAM DATED 30-03-2010** ## **APPELLANTS/PLAINTIFFS:** - **1 SHAHIDA BEEVI, AGED 35 YEARS, D/O.HALEEMA BEEVI, MUTTATHU VEEDU, VADAKKUMTHALA P.O., VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.** - **2 RAHI SUDEEN, AGED 9 YEARS, MINOR REPRESENTED BY ITS MOTHER AND NEXT FRIEND THE 1ST APPELLANT HEREIN.** **BY ADVS. SRI.T.MADHU SRI.B.K.RAJAGOPAL** ## **RESPONDENTS/DEFENDANTS:** **1 KAMARUDHEEN KUNJU, AGED 39 YEARS, S/O. SHIHABUDEEN, KUDUMBAVILAKOM, TC H5 HOUSE NO.144, KAMALESWARAM, AYIKKARA MURI, MANAKKAD VILLAGE, THIRUVANANTHAPURAM.** Mat.Appeal No.630/10 -:2:- - ***2 SUHRA BEEVI AGED 60 YEARS W/O.SHIHABUDEEN, KUDUMPAVILAKOM, TC H5 HOUSE NO.144,, KAMALESHWARAM, AIKKARA MURI, MANAKKAD VILLAGE,, THIRUVANANTHAPURAM. (DIED*)** - **3 ADDL.R3 HUSSAIN S AGED 47 YEARS** - **S/O SHIHABUDEEN, RESIDING AT PALLIVADAKATHIL, PULAMAN, KOTTARAKKARA, PULAMAN POST.** - **4 ADDL.R4 ABDUL RASHEED AGED 45 YEARS** - **S/O SHIHABUDEEN, RESIDING AT RASHEED MANZIL, ALAMKODE PO, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.** - **5 ADDL.R5 JALEELA AGED 35 YEARS** - **RESIDING AT KUDUMBAVILAKAM HOUSE, CHAPPATH PO, VIZHINJAM, THIRUVANANTHAPURAM DISTRICT. (*THE LEGAL REPRESENTATIVES OF THE DECEASED R2 ARE IMPLEADED AS ADDL.R3 TO R5 VIDE ORDER DATED 03/07/2015 IN IA.NO.2707/2012)** **BY ADV. SRI.T.H.ABDUL AZEEZ** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.630/10 ## -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the plaintiffs in OS No.451/2001 challenging the judgment dated 30/3/2010 of the Family Court, Kollam by which the decree had been restricted to the value of gold as on the date of suit. 2. The suit was filed for recovery of 75 sovereigns of gold ornaments and Court below passed the following decree:- _“Defendants are directed to return 75 sovereigns of gold ornaments or_ ` _2,62,500/- the value of the same to the 1[st] plaintiff, with interest at the rate of 9% from the date of suit till the date of decree with future interest at the rate of 6% till realisation._ _Defendants are directed to return B schedule movables or_ ` _42,150/- the value of the same to the 1[st] plaintiff._ ” 3. Learned counsel for the appellants submits that the appellants are entitled for the value of the gold as on the date when it is returned. He placed reliance upon the judgment of this Court in _**William David @ Bijo v. Linu Mary George**_ (2010 (4) KHC 748) wherein a Division Bench of this Court had occasion to consider a similar issue and it was held at paragraphs 32 to 34 as Mat.Appeal No.630/10 -:4:- ## under:- _“32. In the instant case, it is significant that the respondent has not in the petition shown the monetary equivalent of the gold ornaments which she claimed return of. She had not stated any specific value of the gold ornaments in her plaint. Even in her evidence that aspect has not been adverted to at all. Under O.7 R.7 CPC every plaint must specifically state the relief which the plaintiff claims either simply or in the alternative, but it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. We extract O.7 R.7 below:_ ## _xxxxx_ _In a case where the alternative relief is significantly not asked for and claimed, we are of the opinion that the relief which the Court thinks just can be granted to the same extent as if it had been asked for._ _33. It will not be inapposite in this context to refer to O.20 R.10 of CPC, which stipulates that the Court has the discretion to stipulate the alternative relief in a claim for return of movable property. We extract below O.20 R.10: xxxx_ _34. We are satisfied that a conjoint reading of all these provisions can certainly clothe the Court with power/discretion to issue appropriate directions regarding alternative general relief that can be granted in cases, where specific immovable property is not returned to the plaintiff in pursuance of the direction issued in the suit”._ 4. As far as the present contention of the appellants are Mat.Appeal No.630/10 -:5:- concerned, it cannot be disputed that the suit was filed inter alia for recovery of movable property. Section 7 of the Specific Relief Act clearly indicates that a person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure. 5. Apparently, in the case on hand, plaintiffs had sought for return of 75 sovereigns of old ornaments or its value of `2,62,500/- with future interest. Learned counsel for the appellants submits that the value shown in the petition was as on the date of petition. Therefore, while granting a decree, the court below ought to have granted a decree for realisation of the value as on the date of decree and since the matter is pending in appeal, present value has to be granted. 6. There is no dispute about the fact that under Order VII in Code of Civil Procedure, there is no specific provision to make a claim for value of the property, which is sought to be recovered from the defendant. Order VII Rule 7 only indicates that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given as Mat.Appeal No.630/10 -:6:- the Court may think just to the same extent as if it had been asked for. Order XX Rule 10 imposes an obligation on the Court to pass a decree with reference to the recovery of movable property. Order XX Rule 10 reads as under:- _“_ _**Decree for delivery of movable property.** -- Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.”_ 7. By virtue of the aforesaid provision, when a decree is passed by the Court for delivery of movable property, necessarily, the decree should also state the amount of money to be paid as an alternative, if delivery of property is not given. When the Court is empowered to pass a decree for return of the movable or its value, necessarily, the Court will have to consider the value of the property also while granting a decree. In the case on hand, the Court has directed payment of `2,62,500/- with interest since the plaintiff had quantified its value as on the date of petition. But gold being a valuable property, the rate of which varies considerably on a day-to-day basis, in the interest of justice, the Court should direct the value to be paid as on the date of decree. In this case, the Family Court did not take into Mat.Appeal No.630/10 -:7:- consideration the value of the property as on the date of decree. 8. Of course, in this case, the plaintiffs had claimed the value of gold as an alternative relief. But, as already stated, there is no such necessity to specify the value of movable property in the absence of any such provision under Order VII of CPC. As already mentioned, when a decree is being passed for delivery of movable property, the Court is bound to state the amount of money to be paid as an alternative, if delivery cannot be given. Therefore, while granting a decree, it is incumbent on the Court to fix the value of the movable article and in instances where the value of movable property has increased during the pendency of the suit, the value as on the date of decree if ascertainable can be decreed by the Court. Otherwise, it will render substantial hardship to the decree holder. 9. In the light of the above discussion, we are of the view that instead of the value as on the date of suit, the plaintiffs are entitled for the value of gold to be returned as on the date of decree itself. As we understand, the value of one sovereign of gold as on 31/3/2010 when the decree was passed was `12,280/(as per the information from _www.keralagold.com_ ). Mat.Appeal No.630/10 -:8:- 10. As far as the rise of price from the date of decree is concerned, when the Family Court has to fix the value as on the date of decree, it may not be possible for this Court to grant a decree taking into account the value as on date. In the result, this appeal is allowed as under:- (i) The decree granted by the Court below shall stand modified as under:- (a) Defendants are directed to return 75 sovereigns of gold ornaments or `12,280x75 = `9,21,000/- (Rupees Nine lakh twenty one thousand only), being the value of the same to the first plaintiff with interest @6% from the date of decree of the Family Court till realisation. - (b) In all other respects, the decree shall stand confirmed. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** ## **A.M.BABU** Rp //True Copy// PS to Judge **JUDGE**