J U D G M E N T

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 plai