Subaida and others v. T.K. Abdulla

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935 Mat.Appeal.No. 268 of 2008 ( ) ------------------------------- OS 85/1999 of FAMILY COURT, KOLLAM APPELLANT MAT.A./PLAINTIFFS IN SUIT: ---------------------------------------------- 1. SUBAIDA, D/O.KASSIMKUNJU, AGED 51, THAIVALAPPIL, MANALIL, KUREEPUZHA WEST KAVANAD P.O., KOLLAM. 2. HAFIS, S/O.SUBAIDA,LATE A MINOR NOW A MAJOR, IN DO. 3. HARIS, S/O. DO., LATE A MINOR NOW A MAJOR, IN DO. 4. AFSAL @ HYDER ALI, S/O. DO., LATE A MINOR NOW A MAJOR, IN DO. BY ADVS.SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SMT.V.DEEPA RESPONDENT IN MAT.A./DEFENDANT IN SUIT: ---------------------------------------------------- T.K.ABDULLA, S/O.KOCHUNNY, AGED 53, THAIVALAPPIL HOUSE CHERAI MURI, PALLIPPURAM VILLAGE, KOCHI TALUK ERNAKULAM DISTRICT. BY ADV. SRI.T.H.ABDUL AZEEZ THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25-062013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** --------------------------------------------MAT.APPEAL NO.268 OF 2008 --------------------------------------------Dated 25[th] June, 2013 ## JUDGMENT ## Antony Dominic, J The appeal is filed against the judgment and decree passed by the Family Court, Kollam in O.S.85/1999. The first appellant is the divorced wife of the respondent and appellants 2,3 and 4 are the children born in the wedlock. The appellants filed the suit praying for declaration of title in respect of E and F scheduled properties, for return of 75 sovereigns of gold ornaments described in B schedule, for recovery of `.3,00,000/- mentioned in A schedule and for recovery of movables mentioned in C schedule to the plaint. The defendant filed his written statement disputing the entire plaint claim. MA.268/08 2 The evidence adduced by the plaintiffs consist of oral evidence of Pws.1 and 2 and Exts.A1 to A4(b). On behalf of the defendant, the defendant himself has examined as DW1 and Exts.B1 to B10 were marked. 2. On completion of the trial, by judgment dated 31/1/2008, the Family Court rejected the prayer for declaration of title in respect of E schedule property on the ground that consequential reliefs were not prayed for. However, first plaintiff's joint title with the defendant, in respect of F schedule was declared. The defendant was also directed to pay `.18,240/- to the first plaintiff with interest at the rate of 9% from the date of the suit till the date of decree with future interest at the rate of 6% till realisation. The defendant was also directed to return 12 sovereigns of gold MA.268/08 3 ornaments or the value thereof at the rate of `.3,000/-per sovereign with interest at the above rate. The prayer for return of the movables included in the C schedule was rejected. It is aggrieved by the judgment of the Family Court, the plaintiffs are come up in appeal. 3. The first issue that arises for consideration is whether the Family Court was correct in declining the prayer for declaration of title in respect of E schedule property. In so far as this issue is concerned, although it was the case of the first plaintiff that the property was acquired with her contribution also, the finding of the Family Court is that the property in question is in the possession of the defendant. Perusal of the plaint shows that though MA.268/08 4 prayer for declaration of title was sought for, there was no consequential relief sought for. In other words, the plaintiffs did not comply with the requirements of the proviso to Section 34 of the Specific Relief Act which prohibits a Court from making declaration of title where the plaintiff in spite of being able to seek further relief than a mere declaration of title omits to do so. The legal position in this behalf has been explained by the Apex Court in its judgment in Union of India v. Ibrahim Uddin and another (2012 (8) SCC 148). Admittedly, in respect of E schedule property there was no consequential relief sought for by the plaintiffs. In such a situation in view of the provisions of Section 34 of Specific Relief Act, the Family Court could not have granted declaration MA.268/08 5 sought for. If that be so, we cannot find fault with the Family Court in having declined the prayer for declaration of title in respect of E schedule property. 4. The learned counsel for the appellants then contended that in the suit the claim was for return of 75 sovereigns of gold ornaments included in B schedule or its equivalent value and that the Family Court has directed return of only 12 sovereigns of gold. It was also their complaint that the market value fixed is `.3,000/- per sovereign is abnormally low. We have gone through the evidence available in this case and in our view in the light of the materials that were available before it, the Family Court could not have come into a different finding on the quantity of gold which was to be returned by the defendant. Therefore, MA.268/08 6 we sustain the finding of the Family Court, directing return of 12 sovereigns of gold. 5. However, there is substance in the complaint of the appellants that the value of gold fixed at the rate of `.3,000/- per sovereign is abnormally low. When the Family Court passes an order for payment of market value,it should be equivalent to the prevailing market price so that the party who deprived of the ornaments is adequately compensated. However, in so far as this appeal is concerned, we are relieved of the burden of fixing the market value for the reason that the counsel for the defendant undertook before this Court that 12 sovereigns of gold itself will be returned to the first appellant. In such circumstances, we record the submission made MA.268/08 7 and leave the matter at that. 6. Then the surviving complaint of the appellants is that though the Court has accepted the case that the defendant is bound to return 4560 Riyals, the Court ordered payment of only `.18,240/- towards its exchange rate. Although this argument might sound attractive, we notice that the exchange rate adopted by the Court is based on the evidence adduced by the plaintiffs themselves. In such a situation we are unable to find any illegality in the impugned order passed by the Family Court. Similarly, in the light of the evidence available, we are also not persuaded to interfere with the decree, in so far as C schedule movable items are concerned. In the result, the appeal will stand disposed MA.268/08 8 of as above. We clarify that this judgment will not stand in the way of the appellants in pursuing remedies, if any, available to them in law against immovable properties in question. **(ANTONY DOMINIC) Judge.** **(P.D.RAJAN)** **JUDGE.** uj.