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2025 DIGILAW 1652 (KER)

XXX v. XXX

2025-06-12

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

body2025
JUDGMENT : Devan Ramachandran, J. The unfailing regularity with which the the assertion of inequity is pressed before this Court by decree holders – enjoying decrees for return of gold issued by the learned Family Courts – qua the alternate direction to judgment debtors to pay its value, on the ground that it invariably represents an exiguous worth by the time its recovery becomes possible - on account of lapse of time spent in appeals and further forensic proceedings - as also considerable appreciation of the actual value of the gold, persuades us to answer it through this judgment, especially since plea for modification of the impugned judgment and decree - to enhance the amount to be paid as per the value of the gold at the time of its actual recovery - has been impelled before us through Cross objections. 2. In challenge in this appeal, is the judgment of the learned Family Court, Thiruvalla, in OP No.36/2015, which was decided on 07.05.2019, along with another matter. 3. The first appellant was married to the respondent, but matrimonial disputes appear to have arisen between them, which led to the latter filing the afore mentioned Original Petition seeking divorce; as also sought for return of her gold, fixed deposits and other articles by the former, which has been now decreed by the learned Family Court through the judgment in question. 4. The specific case of the respondent — wife, in the Original Petition was that she had gold ornaments weighing 115 sovereigns with her at the time of marriage, which was entrusted by her to the third appellant - her mother-in-law on 19.04.2012. She also had a case that she had entrusted certain cash and fixed deposits, but they have now become irrelevant because, it is conceded by her own counsel - Sri.Joseph P.Alex, that all such have been returned. 5. According to the respondent, she, along with the appellants, traveled to Mumbai on 22.04.2012, with her gold being in the custody of her husband — namely the first appellant herein, and her mother-in-law – the third appellant herein; and that subsequently, she left for Dubai for employment on 10.05.2012, to return on 04.06.2012. 5. According to the respondent, she, along with the appellants, traveled to Mumbai on 22.04.2012, with her gold being in the custody of her husband — namely the first appellant herein, and her mother-in-law – the third appellant herein; and that subsequently, she left for Dubai for employment on 10.05.2012, to return on 04.06.2012. She says that all her ornaments, along with the other valuables and fixed deposits, were thereafter transferred to a Bank locker opened by the first appellant in their joint names; and that he operated it on his own at least nine times thereafter, thus removing all of them without her consent or knowledge. She thus prayed that the appellants be directed to return 85 sovereigns of gold - conceding that, out of 115 sovereigns, 30 had been earlier returned to her, along with certain fixed deposits, cash and such other – or Rs.18,70,000/- being its value on the date of petition, along with interest. 6. As we have said above, what is in controversy in this appeal at this stage is only the gold ornaments of weight 85 sovereigns and not any other, though the respondent has filed the afore cited Cross Objection seeking that the admitted gold of 5 sovereigns and Rs.37,000/- (Rs.25,000+Rs.12,000) be ordered to be additionally returned by the appellants herein. Her cross appeal, adscititiously contains a plea that the amounts shown in the decree - being the value of the gold - be altered to be as per the market value at the time of its actual return, since what she sought, as the primary plea, in the Original Petition was return of gold itself in specie, with its value shown only as an alternative one. 7. Sri.K.G.Cleetus - appearing for the appellants, began his submissions arguing that the evidence on record would establish that, neither did the respondent have 115 sovereigns of gold as alleged; nor did she entrust it, to any of the appellants. He asserted that the evidence on behalf of his clients, namely the testimony of RW1, would render this luculent. He then contended that, going by the evidence adduced by the respondent, she asserted that she got the gold ornaments as per Ext.A2 series invoices of a particular jewellery, but that this cannot attract any credence because all of them carry dates between the years 2005 and 2009. He then contended that, going by the evidence adduced by the respondent, she asserted that she got the gold ornaments as per Ext.A2 series invoices of a particular jewellery, but that this cannot attract any credence because all of them carry dates between the years 2005 and 2009. He explained that, admittedly, the respondent had contracted her first marriage on 20.08.2009 and hence that Ext.A2 invoice dated 25.08.2009 would not have been qua gold purchased by her for the said marriage; and that this is apodictic because she admits in her testimony as PW1 that her sister got married in the year 2005, thus rendering it doubtless that Ext.A2 series invoices were all that relating to the gold purchased for her sister's marriage. He thus prayed that this appeal be allowed. 8. However, in response, Sri.Joseph P.Alex – learned counsel for the respondent, submitted that there is absolutely no ambiguity or lacunae in the evidence tendered by his client, since she has testified specifically that Ext.A2 series invoices were relating to her gold ornaments which she brought to the matrimonial home. He submitted that the causal connection between the germane events is established in her deposition, when PW1 deposed that she entrusted the gold ornaments to her mother-in-law — namely the third appellant, on 19.04.2012; that the parties thereafter travelled along with her on 22.04.2012 to Mumbai, when the gold was in the custody of appellants 1 and 3; and finally that, in September 2012, the said appellants had deposited all of them, along with the fixed deposits and such other, in a Bank locker, which the first appellant opened in the joint name of his client and himself on 17.08.2012. He argued that Ext.X1 — which is the extract of the safe deposit locker from the Federal Bank Limited, Mumbai — would establish this; and further that the factum of the operation of the same at least nine times by the first appellant stands uncontested. 9. He argued that Ext.X1 — which is the extract of the safe deposit locker from the Federal Bank Limited, Mumbai — would establish this; and further that the factum of the operation of the same at least nine times by the first appellant stands uncontested. 9. Sri.Joseph P.Alex then predicated that this appeal is only an experimental one, intended to protract the recovery of the gold by his client and asserted that this becomes unmistakable from the fact that the two persons, against whom specific allegations have been made, namely appellants 1 and 3 – the husband and the mother-in-law of his client – refused to take the box; while the third appellant did not even file a written statement/objection before the learned Family Court. He contented that, therefore, every allegation against respondents 1 and 3 remains uncontroverted and untraversed; and hence that any contention to the contrary in this appeal is only speculative and conjectural; consequently praying that this appeal be dismissed. 10. Sri.Joseph P Alex, thereafter argued on the counter claim, asserting that RW1 - namely the 2 nd appellant, has expressly conceded in his testimony that 20 grams of gold and Rs.12,000/- were with the appellants and had unequivocally agreed to return the same. He submitted that, therefore, his client's claim in this counter claim becomes wholly tenable; and further, that she is also entitled to the value of the entire gold ornaments at the rate when it is actually returned, rather than what has been ordered by the learned Family Court. 11. We have considered the afore rival submissions, taking into account all the materials on record and evidence of the parties. 12. We notice that the evidence consists of the oral testimony of PW1 - who is the respondent herein, and that of PW2 - who is her father; and she has marked Exts.A1 to A4 (c) documents on her side. As far as the appellants are concerned, their evidence consists only of the oral testimony of RW1, namely the 2 nd among them; and they did not produce any documentary evidence. The extract of the Fixed Deposit Register maintained by the Federal Bank has been placed on record in Ext.X1 and it is conceded by the learned counsel on both sides that it remains uncontested, hence fully acceptable in evidence. 13. The extract of the Fixed Deposit Register maintained by the Federal Bank has been placed on record in Ext.X1 and it is conceded by the learned counsel on both sides that it remains uncontested, hence fully acceptable in evidence. 13. As noticed in the prefatory paragraphs of this judgment, it is the specific case of the respondent that she had gold ornaments weighing 115 sovereigns at the time of marriage and that she entrusted the same to the 3 rd appellant - her mother-in-law, on 19.04.2012, at Muvattupuzha. As rightly argued by Joseph P. Alex, this has not been controverted by the said appellants through a written statement / objections; and indubitably, therefore, the Family Court was without error in having accepted such version, as being not traversed. 14. The respondent, thereafter, has alleged that she and the appellants traveled to Mumbai on 22.04.2012, with the gold remaining with respondents 1 and 3; and that they thereafter transferred the same, along with other articles, including Fixed Deposits, into a Bank Locker covered by Ext.X1. She has also explained that, in the interregnum, she once went to Dubai, to return thereafter; but that except 30 sovereigns, which was given back to her, the rest had been retained by appellants 1 and 3. She imputes that, though the Locker was opened by the 1 st appellant in the joint names of the former and herself, it was operated exclusively by the said respondent at least nine times, as evident from Ext.X1, which, according to her, cements her case that he removed all the gold ornaments for his own use without her permission. 15. The contra-case of the appellants is that the 1 st among them had operated the locker every time in the presence of the petitioner; but it is established in evidence that, at least on the four dates mentioned in Ext.X1, the respondent was admittedly away from Mumbai. That apart, no evidence or document has been produced, either in the form of testimony of the official concerned of the Bank or otherwise, to prove that the locker was operated by the 1 st appellant in the presence of the respondent; and hence, one can only take all such assertions solely to build a defence, remaining unsubstantiated and uncorroborated. 16. 16. That apart, when the allegation is specific that the 1 st appellant had operated the Bank Locker without the permission of the respondent, it was up to him to have traversed it properly; but pertinently, even though he filed a written statement/ objection, he refused to mount the box to tender oral evidence. 17. The only oral evidence available on the side of the appellants is the testimony of RW1; but, who is inconclusive as to the afore allegations, though he spoke about the improbability of the respondent having 115 sovereigns with her, as also that she could not have brought it from abroad - after having purchased it through Exts.A2 series of invoices - without proper documentation. The evidence tendered by RW1 does not answer any of the specific allegations of the respondent; and as we have said above, the only two persons who could have done so were appellants 1 and 3, but they chose not to do so; with the 2 nd among them not even filing a counter statement/ objection as noticed above. 18. When one reads Ext.X1 - which is the extract of the Safe Deposit Locker maintained by the Federal Bank - it is perspicuous that it was opened on 17.08.2012, as stated by PW1; and operated by the 1 st appellant on 08.09.2012, 13.10.2012, 22.12.2012, 05.01.2013, 09.01.2013, 12.02.2013, 20.07.2013, 23.08.2013 and finally on 18.10.2013. As said above, the respondent has asserted - without being controverted, that she left for Dubai on 10.05.2012, to return only on 04.06.2012. Further, PW1 has deposed that she became pregnant in 2012 and traveled to Kerala for delivery on 10.01.2013; and therefore, that the operation of Ext.X1 on at least four of the above days, was at a time when she was not even in Mumbai. When this version of PW1 has not been even attempted to be impeached in cross examination, it becomes rather limpid that the operation of the Bank Locker, at least on 12.02.2013 and 20.07.2013, was a time when she was not even in Mumbai, since she admittedly delivered her child only on 30.03.2013. The evidence of PW1 regarding these dates are also without dispute. 19. The evidence of PW1 regarding these dates are also without dispute. 19. Therefore, as any one would now see it, the assertions of the respondent, that the gold ornaments were entrusted to the 3 rd appellant on 19.04.2012, remains without traverse by her, since she did not file even counter pleadings and did not mount the box; while, the further allegation that the gold was transferred to the Bank Locker in September, 2012, by the 1 st appellant and the 3 rd appellant, also remains without contest since neither of them mounted the witness box, though the 1 st among them had filed objections. Since the 1 st appellant did not offer any testimony, the further assertions of the respondent - as corroborated by Ext.X1 - that he operated the locker on his own without her permission, remain unimpeached. The lengthy cross examination of PW1 by the appellants does not persuade any contra impression, since she has stood firm with respect to the dates and the sequence of the events. 20. Interestingly, the deposition of RW1 is that the respondent must be assumed to have not purchased 115 sovereigns of gold from Dubai during the years 2005-2009, since it could have been brought to India only on proper documentation, which has not been placed on record. Incredulously, he then has a case that the transport of this gold to Mumbai on 22.04.2012 is also not believable because, the respondent did not produce the necessary permissions or such other from the competent Authorities. He further contends that Ext.A2 dated 25.08.2009, could not have been purchased for the respondent because her 1 st marriage was five days before that, namely on 20.08.2009; and that it is improbable that gold would be purchased for a bride after the marriage. His case to controvert Exts.A2 to A2(d) series of invoices is built on the fact that the respondent admitted her sister's marriage to be in the year 2005; and he then tried to conjecturally impel that the gold ornaments covered by the same must be seen to be that purchased for the sister. 21. It does not require us to elaborate or expatiate when we say that all the above assertions are based solely on conjectures, without any evidence or validation having been offered by either RW1 or the appellants, through cogent testimony or documents. 22. 21. It does not require us to elaborate or expatiate when we say that all the above assertions are based solely on conjectures, without any evidence or validation having been offered by either RW1 or the appellants, through cogent testimony or documents. 22. The fact remains that the respondent maintains that she had 115 sovereigns of gold, out of which, 30 had been returned to her, with the balance 85 being with appellants 1 and 3. The evidence of RW1 does not touch upon this, except in the manner as we have said above; and the factum of appellants 1 and 3 refusing to tender evidence, with the latter among them even not filing counter pleadings, in our firm view, is a death knell to the defence attempted to be put up by the appellants. We are consequently left with no doubt that the learned Family Court has acted correctly, in having allowed the claim of the respondent as prayed for. 23. Coming to the Cross Objections, as rightly argued by Sri.Joseph P. Alex, RW1 has admitted in his chief examination (paragraph 12 thereof), that 20 grams of gold and Rs.12,000/- are with the appellants. However, as found by the learned Family Court, it has been asserted by the appellant also that he had given a gold chain and “cross” of seven sovereigns in weight to the cross objector, which was not denied by the latter; which led the said court to conclude that such exchanges can only be seen to be as part of gifts between the husband and wife at the time of marriage or thereafter, since they were done without any specific condition that the same will be returned to each other. We are in approval of this reasoning and holdings; and cannot, therefore, find the claim for five sovereigns to be either tenable or valid. 24. Coming to the decree providing the alternate relief – which has also been impugned in the Cross Objection, thus seeking the market value of the gold at the time of recovery - we see from the Original Petition that, what has been sought for is the return of 85 sovereigns of gold in specie; and only in the alternative, that an amount of Rs.18,70,000/- be decreed, along with interest. This has been acceded by the learned Family Court in the judgment and decree. 25. This has been acceded by the learned Family Court in the judgment and decree. 25. It has to be borne in mind that, what has been primarily decreed is the return of 85 sovereigns of gold ornaments by the appellants; and it is only as an alternative – to subserve the requirements of Order XX, Rule 10 of the Code of Civil Procedure (CPC) - that an amount of Rs.18,70,000/- with the interest at the rate of 7.5% per annum, has been ordered to be paid by them. Obviously, the decree mandates the appellants to honor it in the manner as directed and not in any other. 26. To paraphrase, since the decree orders that 85 sovereigns of gold ornaments be returned by the appellants, we are of the opinion that it is incumbent upon them to do so. We have no doubt that every decree has to be interpreted and obeyed in the manner framed; and that it is only if thus becomes impossible for any valid reason, that the alternate relief would come to play. This is irrefragable because, Order XX, Rule 10 of the CPC provides that 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. 27. The primary prayer of the cross objector herein before the learned Family Court in her Original Petition was for the return of the gold in weight; with an alternative plea for the return of its value only if delivery of such gold cannot be had. No doubt, the cross objector had sought for the value of the gold at the sum fixed in the decree, and interest was also allowed; but it must be borne in mind that the claim was for specific movable property and not for a general type. 28. The cross objector had fixed the value of the gold as Rs.19,80,000/- to align with the requirements under Order XX Rule 10 of the CPC; and this obviously represented its value as on 24.1.2015, when the Original Petition was preferred. 28. The cross objector had fixed the value of the gold as Rs.19,80,000/- to align with the requirements under Order XX Rule 10 of the CPC; and this obviously represented its value as on 24.1.2015, when the Original Petition was preferred. When the statutory provision provides that the decree shall state the amount of money to be paid as an alternative, if delivery cannot be had of the movable article, then it becomes irrefutable that the said sum must have real relevance and connection to the actual rate of the gold. 29. It is well known and hence justified to be taken judicial notice of, that gold is one valuable which has appreciated in its pecuniary worth much above the normal inflationary tendencies in the past. The present value of 115 sovereigns of gold -- as found entitled to the appellant -- would be easily Rs.64-65 lakhs and the increase of its value for the last ten years is thus three or four times. When Order XX Rule 10 of the CPC requires the amount of money - to be paid as an alternative to the delivery of the movable article, if it cannot be had – to be specified, it is imperative that such figure should represent its actual value and cannot be left to surmises or conjectures. 30. We are, therefore, without doubt that the requirements of law and the rival interests of the parties, would both be subserved - particularly in the case of gold, the value of which can reasonably be only expected to rise - to be that which it is at the time when it is recovered, or as ordered in the decree, whichever is higher. 31. It is obligated for us to declare so as afore because we are procedurally governed by the provisions of Order 41 Rule 33 of the CPC which, mandates that an Appellate Court do what was expected in law from the Trial Court. It would be highly iniquitous to direct the appellants to return only the value of the gold, even with its interest fixed, as available in the year 2015; and the learned Family Court ought to have framed the decree, allowing the recovery of its value at the time when it is actually returned. It would be highly iniquitous to direct the appellants to return only the value of the gold, even with its interest fixed, as available in the year 2015; and the learned Family Court ought to have framed the decree, allowing the recovery of its value at the time when it is actually returned. In summation, we dismiss Mat.Appeal.No.755/2020, and allow Cross Objection No.33/2025; thus modifying the decree to the limited extent of ordering the appellants of permitting the cross objector to realise the value of the 85 sovereigns of gold at the rate available on the date of its realisation from the appellants and their assets. In every other respect, the decree will remain unaltered. In order to ensure that there is no breach of privacy of the parties, we direct that the names and identities remain anonymised on all papers.