Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Ker) 149

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.Muhamed Mustaque, Sophy Thomas, JJ.
Syamini S Nair, W/O. Sreekanth and Ors. – Petitioners
Versus
Sreekanth R S/O. Rajasekharan Nair – Respondent
Mat.Appeal No.46 of 2022
Decided On : 28-02-2022

Advocates:
Advocate Appeared:
For the Petitioner: Sheji P.Abraham, Adv.
For the Respondent: Vinod Kumar Cr, Vinuchand, Anilkumar C.R., Advs.

Point of Law : Duty cast upon the Family Court is so sublime to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit. Family Courts should see that in every case, trial is proceeded with only after taking all efforts of settlement.

Headnote:
Return of gold ornaments - whether the Family Court was justified in granting the alternative relief alone without granting a decree for recovery of gold, and what shall be the crucial date for determining the value of gold, while granting the alternative relief of its market value, the date of purchase, date of petition, date of decree or the date of payment?.
Finding of the Court :
Once the Family Court is convinced of the genuineness of the claim made by the petitioner, it need not hesitate to grant the relief. In the case in hand, the Family Court found that, the respondent was entrusted with 521.600gms of gold ornaments of the appellant. But, the Family Court failed to grant a decree for return of the gold ornaments in specie, but granted a decree for the alternative relief alone, that too, by awarding the value of gold as on the date of its purchase, which was 14 years ago. So, definitely, it will workout injustice to the appellant. As we have already seen, even without asking for a specific relief for the same, for doing justice to the parties, the Family Court could have granted the market value as on the date of payment.
Result : appeal is allowed

Judgement Key Points

Key Points: - The Family Court has a duty to assist parties toward settlement before trial (!) (!) (!) . - Where movable property is entrusted to a spouse, it gives rise to a trustee obligation to return the item in specie under Sections 7 and 8 of the Specific Relief Act (!) (!) (!) . - Section 7 of the Specific Relief Act permits recovery of specific movable property through the civil procedure code (!) . - Section 8 of the Specific Relief Act supports compelling delivery when compensation would not afford adequate relief (!) (!) (!) (!) . - An alternative relief of value must be valued as on the date of payment, not the date of purchase, petition, or decree, to avoid injustice (!) (!) (!) . - Order VII Rule 7 of CPC allows courts to grant relief not specifically asked for, if it appears just to do so (!) . - Where a decree is passed for alternative value, an appellate court generally cannot alter it without an appeal from the party claiming relief (!) (!) .

Whether the Family Court was justified in granting only the alternative relief without a decree for recovery of the gold ornaments?

What is the crucial date for determining the value of gold when granting alternative relief?

What are the limits of appellate court power to modify alternative relief concerning value of movable property?

JUDGMENT :

Sophy Thomas, J.

The questions arising for consideration in this appeal are, whether the Family Court was justified in granting the alternative relief alone without granting a decree for recovery of gold, and what shall be the crucial date for determining the value of gold, while granting the alternative relief of its market value, the date of purchase, date of petition, date of decree or the date of payment?

2. The appellants are the wife and children of the respondent. They are the petitioners in O.P.No.617 of 2016 on the file of the Family Court, Nedumangad. They filed that O.P for return of gold ornaments weighing 521.600 gms or in the alternative, its equivalent value, along with maintenance, past and future. The respondent/husband remained ex-parte. The Family Court, vide judgment dated 30.04.2021, decreed the O.P., allowing the first appellant to realise a sum of Rs.5,59,100/-towards value of 521.600gms of gold ornaments with interest at the rate of 6% per annum from the date of petition, along with maintenance to the appellants, both past and future. The appellants are challenging that judgment and decree with respect to relief No.1, awarding an amount of Rs.5,59,100/-only towards value of 521.600gms of gold ornaments. The Family Court did not consider their claim for prevailing market value of gold ornaments. The gold ornaments given to the 1st appellant at the time of marriage were taken away by the respondent/husband after one month of marriage, making her to believe that, it will be kept in bank locker for safe custody. She has got every right to get back her gold ornaments or its equivalent value at the time of return. The Family Court valued her 521.600gms of gold ornaments @ Rs.5,59,100/-and it is arbitrary and illegal. Hence this appeal.

3. Even after service of notice, the respondent remained ex-parte before the Family Court. PW1 was examined and Exts.A1 to A4 were marked to prove the case of the appellants. The Family Court found that, the 1st appellant was having 521.600 gms of gold ornaments at the time of marriage and it was entrusted with the respondent/husband, as a trustee for safe keeping in bank locker. In the decree there was no direction to return the gold ornaments in specie. For 521.600 gms of gold ornaments the market value awarded was only Rs.5,59,100/- and that is under challenge.

4. The respondent remained ex parte in the appeal also, even after service of notice.

5. Let us see whether the Family Court was justified in granting only the alternative relief, without giving a decree for return of 521.600gms of gold ornaments.

6. The Specific Relief Act, 1963 contemplates recovery of movable property, only in cases, which can be brought under Sections 7 and 8, which relate to specific movable property.

7. It may be beneficial to extract Sections 7 and 8 of the Specific Relief Act, 1963 for a proper understanding of the statutory provisions dealing with recovery of specific movable property. Section 7 reads thus:

Recovery of specific movable property.—A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).

Explanation 1.—A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2.—A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

8. Section 8 of the above Act deals with liability of person in possession, not as owner, to deliver to persons entitled to immediate possession. It says that 'any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:—

(a) when the thing claimed is held by the defendant as the agent or trustee of the plainti

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