Kerala High Court
Vinod vs Soumya on 14 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 14TH 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.
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Mat.Appeal No.597 of 2013
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Dated this the 14th 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 3rd appellant-mother-in-law.
2. The 1st 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
1st 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
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 3rd 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 3rd 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
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 1st 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
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 3rd 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
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 1st 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
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
1st appellant clandestinely transferred his property into
Mat.Appeal No.597 of 2013
the name of 3rd 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 1st appellant as well as PW8, the 2 nd appellant
deposed before the Family Court that the 3 rd appellant,
who is mother of the 1st appellant and the wife of the
2nd 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
the 2nd 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
3rd 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
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
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 3rd 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 1st appellant and the respondent was on 26.12.2005.
Mat.Appeal No.597 of 2013
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
the 3rd 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
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 2nd 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
17. In O.P.No.1806 of 2011 though the petitioner-
wife 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 respondent-
wife 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
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
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
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
