Vinod, Simon and Radha v Soumya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943 MAT.APPEAL NO. 597 OF 2013** **AGAINST THE JUDGMENT DATED 25.06.2013 IN OP 1806/2011 OF** **FAMILY COURT, NEDUMANGAD** ## **APPELLANTS/RESPONDENTS IN OP:** - **1 VINOD, S/O.SIMON, RAJADHANI, KILIYOOR, VELLARADA VILLAGE, THIRUVANANTHAPURAM-695001.** - **2 SIMON, RESIDING AT RAJADHANI, KILIYOOR, VELLARADA VILLAGE, THIRUVANANTHAPURAM-695001.** - **3 RADHA, W/O.SIMON, RESIDING AT RAJADHANI, KILIYOOR, VELLARA VILLAGE, THIRUVANANTHAPURAM -695001.** **BY ADVS. SRI.V.SURESH SRI.G.SUDHEER** ## **RESPONDENT/PETITIONER IN OP:** **SOUMYA, D/O.VIJAYAKUMARI, SOUMYA NIVAS, OTTASEKHARAMANGALAM VILLAGE, NEYYATTINKARA-695121.** **BY ADVS. SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN SRI.THOMAS M.JACOB** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON 14.01.2022 DELIVERED THE FOLLOWING:** Mat.Appeal No.597 of 2013 2 ## **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** **------------------------------------------------** ## **Mat.Appeal No.597 of 2013** **-------------------------------------------------** Dated this the 14[th] day of January, 2022 ## **J U D G M E N T** ## SOPHY THOMAS, J. The appellants herein are the respondents in O.P.No.1806 of 2011 on the file of Family Court, Nedumangad. The respondent/wife filed that O.P. for recovery of gold ornaments and movables entrusted with the appellants and also to get back the documents of her property, which was given as security for a loan availed by the 3[rd] appellant-mother-in-law. 2. The 1[st] appellant husband had filed O.P.No.688 of 2011 for dissolving his marriage with the respondent. That O.P. was tried jointly with O.P.No.1806 of 2011 and a common judgment was passed on 25.06.2013 granting a decree of divorce in O.P.No.688 of 2011 in favour of the Mat.Appeal No.597 of 2013 3 1[st] appellant, and partly allowing O.P.No.1806 of 2011 directing the appellants to return 130 sovereigns of gold ornaments to the respondent-wife, or to pay its market value as on the date of realization, and to return the original title documents of the respondent to her after discharging the liability of the 3[rd] appellant with KSFE, Vellarada Branch. Aggrieved by the judgment and decree in O.P.No.1806 of 2011, this appeal has been preferred by the respondents therein. 3. The case put forward by the respondent/wife in O.P.No.1806 of 2011 was that she was given 130 sovereigns of gold ornaments, movables worth Rs.50,000/and also landed property extending 91.99 Ares with a two storied building, as her paternal share, at the time of marriage. After 2 weeks of marriage, her entire gold ornaments were received by appellants 1 and 2 i.e., her husband and father-in-law. According to her, they were in the habit of pledging and redeeming her gold Mat.Appeal No.597 of 2013 4 ornaments. When she had to attend some functions, they used to give some of her ornaments, but immediately after attending the function, they used to get it back from her. The movables/household articles worth Rs.50,000/- given from her family were also entrusted with the appellants. In order to secure a loan availed by the 3[rd] appellant from KSFE, Vellarada Branch, the title deeds of the respondent were given as security, and she wanted to get back those documents, on clearing the loan liability by the 3[rd] appellant. 4. The appellants flatly denied the allegations of entrustment of the gold ornaments, movables as well as the title documents of the respondent. The parties went on trial by examining PWs.1 to 8 and marking Exts.A1 to A17 from the part of appellants, CPWs.1 to 5 and Exts.B1 to B11 from the side of the respondent and Exts.X1 to X14 as witness Exhibits and Ext.C1 as Court Exhibit. After analysing the facts and evidence, the Mat.Appeal No.597 of 2013 5 Family Court found that the respondents/appellants are liable to return 130 sovereigns of gold ornaments or its market value, and also the original title documents of the petitioner/wife. 5. Though, the 1[st] appellant-husband denied entrustment of title deeds of the respondent, appellants 2 and 3 had admitted in their counter that the respondent had voluntarily given her title documents as security for receiving the kuri amount of Rs.10 lakh in Chitty No.6/2008 subscribed by the 3[rd] appellant in KSFE, and that amount was fully paid of in September, 2011. 6. CPW4, the Assistant Manager of KSFE, Vellarada Branch, produced Ext.X2 series original title deeds of the respondent, before the Family Court. His evidence is to the effect that Ext.X2 series title deeds of the respondent was produced as security to chitty Nos.6/2008, 16/2007 and 14/2006. Chitty Nos.6/2008 and 16/2007 were subscribed by the 3[rd] appellant and Chitty Mat.Appeal No.597 of 2013 6 No.14/2006 was subscribed by the respondent as stated by him. His testimony further shows that Chitty No.6/2008 and 16/2007 were already closed clearing the liabilities. So, the title document of the respondent is no more needed as far as the liability of the 3[rd] appellant is concerned with respect to Chitty Nos.6/2008 and 16/2007. But the liability of the respondent with respect to Chitty No.14/2006 is yet to be cleared and according to CPW4, the original documents could be returned to the respondent on clearing her liability with respect to Chitty No.14/2006. The respondent has no case that the said chitty was not subscribed by her, or she had already cleared that liability. Since the liability of the 3[rd] appellant with respect to the kuri transactions in which Ext.X2 series documents were given as security is already cleared, the respondent is entitled to get back the title deeds of her property, on clearing her liability with respect to Chitty No.14/2006 Mat.Appeal No.597 of 2013 7 in KSFE, Vellarada Branch. On getting proof from KSFE, Vellarada Branch discharging her liability with respect to Chitty No.14/2006, she can get back Ext.X2 series title deeds directly from the Family Court. 7. The appellants contended that the respondent/wife was not given 130 sovereigns of gold ornaments from her family. It was agreed that the bride will be given 40 sovereigns of gold at the time of marriage. The ornaments worn by her at the time of marriage were never entrusted with the appellants, and still she is possessing all her ornaments. So, according to them, the Family Court went wrong in passing a decree directing the appellants to return 130 sovereigns of gold ornaments to the respondent/wife. 8. Exhibit-B8 wedding album of the 1[st] appellant and the respondent shows that the respondent was wearing considerable amount of ornaments at the time of marriage though we could not ascertain its quantity from the Mat.Appeal No.597 of 2013 8 photograph. The definite case of the respondent was that her entire ornaments were entrusted with appellants 1 and 2, and they were in the habit of pledging her ornaments. At the same time, she would admit that for attending functions they used to give back some of her ornaments, but immediately after the function, they used to get it back from her. It is difficult to believe that her entire 130 sovereigns of gold ornaments were entrusted with the appellants without keeping atleast some ornaments for her daily use. The appellants flatly denied the quantum of gold ornaments as well as its entrustment pleaded by the respondent. When the wedding album was shown to appellants 1 and 2 during their cross examination, they were not even ready to identify their own photographs seen in the wedding album. It has come out in evidence that when the respondent filed case against the appellants under Domestic Violence Act, the 1[st] appellant clandestinely transferred his property into Mat.Appeal No.597 of 2013 9 the name of 3[rd] appellant mother. So their credentials are doubtful. 9. Though, the respondent had a definite case in her original petition that her gold ornaments were pledged by the appellants in KSFE, in the written statement, they have pleaded that they never pledged her gold ornaments. But when the respondent called for records from the KSFE Vellarada Branch to prove pledging of gold ornaments by appellants 1 and 2 after her marriage, they improved their case saying that the gold ornaments pledged belonged to appellants 1 and 3. PW1, the 1[st] appellant as well as PW8, the 2[nd] appellant deposed before the Family Court that the 3[rd] appellant, who is mother of the 1[st] appellant and the wife of the 2[nd] appellant, had more than 80 sovereigns of gold ornaments at the time of marriage, and they used to pledge her ornaments for their personal purposes. But such a contention was not seen in their pleadings. PW8, Mat.Appeal No.597 of 2013 10 the 2[nd] appellant, during his cross examination detailed the ornaments of his wife, who is the 3[rd] appellant. The total weight of gold ornaments stated by him exceeds even 100 sovereigns. If the 2[nd] appellant could marry the 3[rd] appellant years back, with more than 100 sovereigns of gold ornaments, it is difficult to believe that his son married the respondent receiving only 40 sovereigns of gold ornaments. The testimony of PW8 with respect to the gold ornaments of his wife seems to be highly exaggerated and untrustworthy. The testimony of CPW1, coupled with Ext.B8 Album probabilizes the case of the respondent that she was having 130 sovereigns of gold at the time of marriage. 10. Admittedly for attending functions, the appellant used to give some ornaments for the respondent. Exts.A3 and A4 photographs will show that on 03.07.2006 and 20.02.2009 the respondent attended two marriage functions wearing huge quantity of gold Mat.Appeal No.597 of 2013 11 ornaments. 11. Learned counsel for the appellants invited our attention to the fact that on 01.09.2008, there was a marriage function of a relative in which the respondent attended. Since the 1[st] appellant could not attend that function on time, there occurred quarrel between them, and on reaching the house of the appellants, the respondent created problems, and on the very same night she went back to her paternal house. As she was in the habit of wearing huge quantity of gold ornaments while attending marriage functions, the ornaments, worn by her to attend the marriage on 01.09.2008, might have been with her, when she left her matrimonial home. So the case of the respondent that her entire 130 sovereigns of gold ornaments are with the appellants is difficult to be believed. 12. Admittedly, the respondent went back to her paternal house on 01.09.2008, thereafter there was re- Mat.Appeal No.597 of 2013 12 union on 01.01.2009, and they started residence in a rented house. Again, their relationship became strained, and according to the appellants, she went back to her paternal house on 01.05.2009, but, according to the respondent, it was on 29.05.2009. 13. The appellants failed to prove that the 3[rd] appellant was having 80 or more sovereigns of gold at the time of her marriage, which they used to pledge even prior to the marriage of the 1[st] appellant with the respondent. No documents were called for by the appellants to prove that they had pledged the gold ornaments of the 3[rd] appellant, before KSFE, Vellarada Branch even prior to the marriage of the 1[st] appellant. 14. Exts.X3 to X14 documents produced from KSFE, Vellarada Branch, at the instance of the respondent are with respect to pledging of gold ornaments by appellants 1 and 2 from 16.03.2007 onwards. The marriage between the 1[st] appellant and the respondent was on 26.12.2005. Mat.Appeal No.597 of 2013 13 The ornaments pledged were all ladies items such as bangles, necklaces, bracelet, ear stud etc. The trial court rightly observed that ornaments such as kammal matti and finger matti might not have been there in olden days during the period of marriage of appellants 2 and 3. Ext.B8 wedding Album shows photographs of the respondent wearing finger matti and kammal matti. So in all probability those ornaments might have been the ornaments of the respondent-wife. 15. Learned counsel for the respondent invited our attention to the fact that major portion of the ornaments covered by Exts.X3 to X14 documents were redeemed only after the respondent returned to her paternal house. If the appellants were so confident that the ornaments pledged as per Ext.X3 to X14 documents were of the 3[rd] appellant, they could have asked for comparing those ornaments with the ornaments of the respondent seen in Ext.B8 Wedding Album. Moreover Mat.Appeal No.597 of 2013 14 the 3[rd] appellant did not enter into the box to say, what all ornaments she had at the time of marriage of her son, or to say that the ornaments pledged as per Ext.X3 to X14 documents belonged to her only. As long as the appellants failed to show that the ornaments covered by Ext.X3 to X14 belonged to the appellants, the only possible inference is that those ornaments were of the respondent. 16. On going through Exts.X8 to X14 documents which contain the details of gold loan availed by the 2[nd] appellant, it could be seen that Ext.X11 to X14 are repetition of the ornaments covered by Exts.X8, X9 and X10. As per Exts.X9 and X10 documents, the total ornaments pledged were 697.4 gms (87.175 sovereigns). The subsequent pledging of gold ornaments as per Exts.X11 to X14 were less than the ornaments redeemed on 15.03.2008. At that time the respondent was residing with the appellants. So, we are not sure whether any of Mat.Appeal No.597 of 2013 15 the redeemed ornaments covered by Exts.X9 and X10 were returned to the respondent. Exts.X6 and X7 shows pledging of gold ornaments by the 1[st] appellant-husband which he had redeemed only on 03.04.2010 i.e. after the respondent left her matrimonial home. Exts.X13 and X14 documents show that the said gold ornaments were redeemed by the 2[nd] appellant, after the respondent left her matrimonial home. On going though Exts.X3 to X14 documents, and considering the gold ornaments redeemed by the appellants after the respondent left her matrimonial home, and as there is nothing to prove return of any gold ornaments to the respondent, after she left her matrimonial home, we can safely conclude that the gold ornaments pledged and redeemed by the appellants as per Exts.X6, X7, X13 and X14 belonged to the respondent amounting to 366.80 gms in total (45.85 sovereigns) and they are liable to return the same to the respondent. Mat.Appeal No.597 of 2013 16 17. In O.P.No.1806 of 2011 though the petitionerwife had prayed for return of 130 sovereigns of gold ornaments, there was no prayer for an alternative relief to get back the value of gold ornaments. The Family Court while decreeing that O.P. the alternative relief was granted directing the respondents to pay the market value of the gold at the time of realization. In the Mat. Appeal, we have found that the respondents/appellants are liable to return 45.85 sovereigns of gold ornaments to the respondent-wife. The value of gold in June, 2013 i.e., during the date of decree was only Rs.20,800/- per sovereigns. But at present, the value of gold has risen upto Rs.35,680/per sovereigns. The gold ornaments of the respondentwife is yet to be returned to her. So, the appellants may opt for the alternative relief of paying the market value, instead of returning the gold ornaments as such, if they have to pay only the market value of gold as on Mat.Appeal No.597 of 2013 17 the date of decree in O.P.No.1806 of 2011 i.e., 25[th] June, 2013 which may work out injustice for the respondent-wife. 18. In **William David v. Linu Marry George [2010 (4) KLT 691]** , this Court ruled that in a case where the alternative relief is significantly not asked for and claimed, the relief which the Court thinks just can be granted to the same extent as if it had been asked for. Order 20 Rule 10 CPC stipulates that the court has the discretion to stipulate alternative relief in a claim for return of movable property, where specific immovable property is not returned to the plaintiff in in pursuance of the direction issued in the suit. Order 20 Rule 10 of CPC empowers the Court to issue appropriate directions regarding alternative general relief that can be granted. 19. The gold ornaments of the respondent is yet to be returned. The market value of gold has been sky Mat.Appeal No.597 of 2013 18 rocketed during the past 10 years. If the appellants are directed in the alternative to pay the market value of gold as on June, 2013, definitely it will work out injustice to the respondent-wife. In the original O.P., instead of gold no alternative relief was prayed for by the wife. So, in the interest of justice as well as relying on the decision cited supra, this Court has no hesitation to direct the appellants to pay the present market value of 45.85 sovereigns of gold ornaments, in case they are not returning the gold ornaments as such. 20. In the result, the appeal is allowed in part modifying the decree directing the respondents/appellants to return 45.85 sovereigns of gold ornaments belonging to the petitioner-wife and in the alternative, to pay its present market value i.e., Rs.35,680/- per sovereigns, within three months from today. In default, the respondent can recover the amount from the appellants and their assets, with 6% Mat.Appeal No.597 of 2013 19 interest per annum till realisation. 21. On discharging the liability of the respondent/wife with respect to Chitty No.14/2006 in KSFE, Vellarada branch, she can get back Ext.X2 series title deeds directly from the Family Court. 22. The parties are directed to suffer their respective costs. In the result, the Mat. Appeal is allowed in part modifying the impugned judgment and decree as above. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** AS