Fahad v. S/o Ismayil VS Ummuhabeeba D/o Late Hameed
2025-11-03
P.KRISHNA KUMAR, SATHISH NINAN
body2025
DigiLaw.ai
JUDGMENT : P. Krishna Kumar, J. 1. In the Original Petition filed by the respondent herein before the Family Court, she was permitted to recover 52.955 sovereigns of gold ornaments from the appellants or, in the alternative, a sum of Rs. 11,18,410 (Rupees Eleven Lakh Eighteen Thousand Four Hundred and Ten only), as per the judgment impugned in this appeal. Against the said judgment, the husband is in appeal and the wife is in cross-objection. 2. The marriage between the first appellant and the respondent was solemnised on 15.06.2008. The respondent-wife contended that at the time of marriage, she was wearing 65 sovereigns of gold ornaments, of which 53 sovereigns were given to her by her parents and the remaining by her relatives. She further contended that, a week after the marriage, the gold ornaments were handed over to the appellants for safe custody, but the ornaments were misappropriated by the first appellant and his parents for constructing the upper floor of their house and also for the marriage of the first appellant’s elder sister. 3. The first appellant denied the said allegations. According to him, the respondent belonged to a poor family and possessed less than 10 sovereigns of gold ornaments. He further stated that the said ornaments were retained by the respondent herself and that he had never utilised them for the construction of the building or for his sister’s marriage. 4. The evidence in this case consists of the oral testimony of PWs 1 and 2 and RW1, and the documents marked as Exts. A1 to A11 and B1 to B3. After considering the oral and documentary evidence, the learned Family Judge directed the appellants to return 52.955 sovereigns of gold ornaments or, in the alternative, to pay Rs. 11,18,410. The court rejected the claim for 12 sovereigns of gold ornaments on the ground that the respondent had failed to adduce any evidence in support of that claim. 5. We have heard Sri E. Narayanan, the learned counsel for the appellants, and Sri Pramodh Kumar M., the learned counsel for the respondent. 6. Having considered the pleadings, the oral and documentary evidence, and the submissions made at the Bar, the point that arises for consideration is whether the respondent is entitled to recover the gold ornaments from the appellants as claimed. 7.
6. Having considered the pleadings, the oral and documentary evidence, and the submissions made at the Bar, the point that arises for consideration is whether the respondent is entitled to recover the gold ornaments from the appellants as claimed. 7. Sri E. Narayanan, the learned counsel appearing for the appellants, contended that when the wife has set up a specific claim regarding the purpose for which the gold ornaments were allegedly misappropriated by the appellants, it was her bounden duty to substantiate the same with convincing evidence. According to him, Exts. A6–A8 invoices ought not to have been admitted in evidence, as they contravene Rule 58(10) of the Kerala Value Added Tax Rules, 2005, which mandates a specific form for invoices issued for the purchase of gold. Hence, those documents are liable to be excluded from consideration, especially since PW2, the alleged gold merchant, conceded in cross-examination that the jewellery business is governed by the provisions of the said Rules. The learned counsel further submitted that PW1 admitted in cross-examination that the gold ornaments were purchased in her mother’s name, whereas the invoices produced before the court do not contain her mother’s name. In the above circumstances, it was contended that, in the absence of any independent evidence to prove the alleged misappropriation of the gold ornaments, the judgment under challenge is liable to be set aside. 8. Adv. Sri Pramodh Kumar M., the learned counsel appearing for the respondent, invited our attention to the cross-objection filed by the wife and contended that the court ought to have permitted her to recover the entire quantity of gold ornaments claimed. He further submitted that the court erred in fixing the value of the gold ornaments at Rs. 11,18,410, instead of directing recovery based on the value of gold at the time of actual recovery. According to him, the respondent has adduced all the necessary evidence to substantiate her claim. 9. The respondent produced Ext. A10, a photo album, and Ext. A9 series of photographs, relating to their marriage. During cross-examination, the appellants disputed only some of the photographs. The questions put to the witness in this regard are relevant. It is as follows:— First of all, the respondent produced Ext. A9 series of marriage photographs as well, which were not disputed by the appellants. A mere perusal of the Ext.
A9 series of photographs, relating to their marriage. During cross-examination, the appellants disputed only some of the photographs. The questions put to the witness in this regard are relevant. It is as follows:— First of all, the respondent produced Ext. A9 series of marriage photographs as well, which were not disputed by the appellants. A mere perusal of the Ext. A9 series of photographs clearly shows that the respondent was wearing more than 50 sovereigns of ornaments at the time of her marriage. Secondly, the contentions raised by the appellants regarding the quantity of gold ornaments possessed by the wife at the time of marriage are wholly inconsistent. In the objection filed against the original petition, they stated that she had only 10 sovereigns of gold ornaments. However, when the first appellant was examined as RW1, he stated in his chief examination that she had 20 sovereigns of gold ornaments. As noted above, when PW1 was cross-examined, it was suggested to her that she possessed nearly 25 to 30 sovereigns of gold ornaments. 10. The genuineness of Exts. A6–A8 invoices have to be tested in the light of these circumstances. The said documents were marked in evidence through PW2, the owner of the jewellery shop. We find no merit in the contention that merely because the invoices are not in the form prescribed by the taxation authorities, they should be presumed to be fabricated. Non-compliance with the statutory form may entail penal consequences, but that by itself cannot be a ground to challenge the authenticity of a document. Although the respondent contended that her relatives had gifted her 12 sovereigns of gold ornaments, she chose not to examine any of them or any other person acquainted with that fact. Therefore, on considering the evidence of PW1 and PW2, together with Ext. A6 to A8, we have no difficulty in concluding that the respondent possessed at least 53 sovereigns of gold ornaments at the time of her marriage. 11. The contention that the respondent failed to prove the specific purposes for which the appellants misappropriated the gold ornaments is also untenable. PW1 has specifically stated as follows:— She had also made similar allegations in her chief examination. The answers elicited from the 1st Appellant/RW1 must be read along with this version. He admitted that one of his sisters was married two years after his marriage with the respondent.
PW1 has specifically stated as follows:— She had also made similar allegations in her chief examination. The answers elicited from the 1st Appellant/RW1 must be read along with this version. He admitted that one of his sisters was married two years after his marriage with the respondent. He also stated that their house was repaired before his sister’s marriage. The statement reads as follows:— 12. This Court, in Syamini S. Nair and Others v. Sreekanth R. 2022 (3) KHC 145 , held that even if an alternative relief for the market value of gold ornaments as on the date of recovery is not sought, in view of Rule 7 of Order VII of the Code of Civil Procedure, the court has the discretion to grant such relief in a claim for the return of movable property, where the specific movable property is not returned to the claimant pursuant to the directions of the court. The relevant observation reads thus: “36. Going by the above Rule, 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. So, for doing complete justice, the Court can grant a general or other relief even if it was not asked, as if it had been asked for. This position has been fortified by a Division Bench of this Court in Anilkumar K. v. Ajith and Others, 2012 (4) KHC 546 : 2012 (4) KLT 545 : 2012 (4) KLJ 624 : ILR 2012 (4) Ker. 632. It was held in that decision that the general principle is that every relief shall be stated specifically in the plaint. However, the power of the Court to grant just and proper relief to a party without its being specifically prayed for is also recognised by the second part of Order VII Rule 7 CPC. When the Family Court was convinced of the factum of entrustment of gold ornaments with the husband and in-laws in trust for the wife, and they were not returned after long years of entrustment, nothing prevents the Family Court from granting an alternative relief by awarding the value of the gold ornaments as on the date of payment.
When the Family Court was convinced of the factum of entrustment of gold ornaments with the husband and in-laws in trust for the wife, and they were not returned after long years of entrustment, nothing prevents the Family Court from granting an alternative relief by awarding the value of the gold ornaments as on the date of payment. The rate of gold is readily available on the internet, and hence there is no difficulty in calculating the market value as on the date of payment. When the decree is for the return of the value of gold as on the date of payment, obviously, it shall not carry any interest.” In the present case, we find no reason to deny the respondent-wife the right to recover the actual market value of the gold ornaments, if the appellants fail to return them in specie. In the result, the appeal and the cross objection are allowed in part. The appellants are directed to return 45 sovereigns of gold ornaments to the respondent within one month from today, failing which the respondent shall be entitled to recover the market value of 45 sovereigns of gold ornaments as on the date of recovery from the appellants and their assets.