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2010 Supreme(Ker) 617

High Court of Kerala
THE HONOURABLE MR. JUSTICE R. BASANT & THE HONOURABLE MR. JUSTICE M.L. JOSEPH FRANCIS
William David @ Bijo & Others
Versus
Linu Mary George
Mat.Appeal No.207 of 2007
Decided on : 29-10-2010

Advocates appeared: For the Appellants :P. Santhosh (Poduval), Advocate. For the Respondent:R1, Philip T. Varghese, Thomas T. Varghese, Advocates.

Headnote:

Family Courts Act, 1984 - Section 7(c) - Civil Procedure Code, 1908 - Order 20 - Rule 10 - Decree for delivery of movable property - Marriage between the first appellant/husband and the respondent took place on 14.5.2001. No issues were born in the wedlock. Subsequently the marriage has been dissolved - Wife claimed return of 60 sovereigns of gold ornaments, an amount of Rs. 3 lakhs and a washing machine which was left in the possession of appellants - Appellants assail impugned direction to them to return 60 sovereigns of gold ornaments (or its monetary value of Rs.3,60,000/-), an amount of Rs.3 lakhs and a washing machine to respondent herein - whether the Courts would be justified in issuing directions, which will effectively do justice to the parties when it comes to a claim for return of movable articles - Held, court satisfied that conjoint reading of all these provisions can certainly clothe Court with power/discretion to issue appropriate directions regarding alternative general relief that can be granted in cases, where specific immovable property is not returned to the plaintiff in pursuance of the direction issued in the suit - while allowing the appeal and reducing quantum of gold ornaments to be returned - It can be held that if 30 sovereigns of gold ornaments are not returned, entire amount of Rs. 3,60,000/-must be paid by appellants to respondent - Directions issued - Appeal Partly allowed.

Judgment :-

Basant, J.

Was the Family Court correct in accepting the evidence of the claimant/wife ignoring Ext.B1? This is the specific question that arises for consideration. A larger question arises as to whether the Courts would be justified in issuing directions, which will effectively do justice to the parties when it comes to a claim for return of movable articles.

2. The appellants in this appeal assail the impugned direction to them to return 60 sovereigns of gold ornaments (or its monetary value of Rs.3,60,000/-), an amount of Rs.3 lakhs and a washing machine to the respondent herein.

3. To the crucial and vital facts first. Marriage between the first appellant/husband and the respondent took place on 14.5.2001. No issues were born in the wedlock. Subsequently the marriage has been dissolved. The wife claimed return of 60 sovereigns of gold ornaments, an amount of Rs.3 lakhs and a washing machine which was left in the possession of the appellants. The appellants are the husband, mother-in-law and father-in-law respectively of the claimant/wife/respondent herein.

4. The contestants took up a blanket and complete denial. According to them, no amount was paid, on gold ornaments were given and none was retained by them. However, it was admitted that a washing machine belonging to the claimant/wife is available with the appellants. It was offered that the same can be returned. It remains unreturned even now.

5. The wife examined herself as PW1. The father-in-law was examined as RW1, the mother-in-law was examined as RW2 and an uncle of the husband was examined as RW3. Exts.A1 to A5 were marked on the side of the claimant/wife and Exts.B1 to B15 were marked on the side of the appellants/respondents. Ext.A1 is the marriage certificate. The marriage is not disputed and the same is irrelevant now. Exts.A2, A4 and A5 are documents relating to S.B. accounts maintained by the wife and her parents to broadly suggest that amounts were available with them. Ext.A3 series are marriage photographs to show that the bride was decked in gold ornaments. These are obviously relied on by the wife in support of her assertion that she did bring gold ornaments with her to the matrimonial home.

6. Ext.B1 relied on by the husband is a notice demanding restitution of conjugal rights issued by the claimant/wife through her counsel after the parties started separate residence. There is an incidental statement in Ext.B1 that an amount of Rs.3 lakhs and 30 sovereigns of gold ornaments are available with the husband and his parents, though she asserted, consistent with her present assertion that at the time of marriage she had 60 sovereigns of gold ornaments. The appellants rely on Ext.B1 with great emphasis to contend that the version of the respondent/wife was different in Ext.B1. Exts.B2 to B13 do appear to us to be irrelevant. The husband heroically claims that he had spent amounts for the treatment of his wife while she was residing with him. Ext.B14 is the deposition of the claimant/wife in a criminal prosecution. No part of that deposition is specifically relied on as an admission and she has not been confronted with any particular portion of Ext.B14. The manner in which Ext.B14 is intended to be made use of is not made clear from the proceedings.

7. Ext.B15 is a photograph, that is relied on by the husband to show that the wife had atleast some gold ornaments when she attended a wedding shortly prior to the date on which the spouses started separate residence. The court below, on an anxious evaluation of all the inputs, came to the conclusion that the oral evidence of PW1 can safely be relied on. The court below did not accept the evidence of RWs.1 to 3. Accordingly, the court below proceeded to pass the impugned order directing return of the admitted washing machine, 60 sovereigns of gold ornaments valued by the court at Rs.3,60,000/- as on the date of the judgment along with interest at 6% p.a. and the amount of Rs.3 lakhs with interest at 6%





































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