IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 AS.No. 58 of 1999() ----------------------------- OS.389/1985 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S): DEFENDANT ------------------------ K.P.SASIKUMAR, S/O.KANHILI MADAM KARTHYAYANI AMMA, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN RESPONDENT(S): PLAINTIFF ------------------------- INDIRA, D/O.THIRUTHIYIL LEELA AMMA, LEELA NILAYAM, VENGANELLUR VILLAGE, TALAPPILLY TALUK ADV. SRI.T.M.CHANDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. 430/1999 IN AS. NO.58/1999 DISMISSED 01.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== A.S. No.58 OF 1999 & CROSS OBJECTION ===================== Dated this the 1st day of January 2009 JUDGMENT This unfortunate litigation is an outbreak of the failure of the marital relationship between the husband and wife. The suit is filed by the wife against the husband for return of gold ornaments and in the alternative for the realisation of the value of the gold. The couple got married way back on 19.4.1979 and the wife had left the matrimonial home on 23.9.1979. I am informed that the marriage has ended in divorce and the present suit is filed for the return of the gold ornaments given to the wife at the time of marriage alleging that it was in the custody of the husband which has not been returned to her. It is the case of the plaintiff-wife that at the time of the marriage 35 sovereigns of gold had been given to her and when they were returning from the house of the wife after a party on 22.4.1979 the husband asked the wife to keep the ornaments in his suitcase and thereafter she had never been handed over the gold ornaments. On the contrary, the husband would contend that only about 15 sovereigns of gold was given to her at the time of marriage and that she had taken away the same at the time of AS 58/99 & cross objection -:2:- leaving in the matrimonial house. There is no document or evidence to establish the precise weight of the gold that had been given to the wife at the time of her marriage. We are in a society where one can imagine about the custom, usage and the factum of giving ornaments to the daughters by the parents at the time of marriage on account of their affection and in some cases on account of the demand. The father of the plaintiff was a retired Superintendent of Police and the mother is the daughter of a Doctor and it is deposed by the mother as PW2 that at the time of marriage, she had parted with 35 sovereigns of gold out of 75 sovereigns which she had been given at the time of her marriage by her father. The detailed description of the gold ornaments is mentioned in the plaint and is spoken to by Pws 1 and 2. It is seen that PW2 had stated at some point of time that the gold ornament is about 38 sovereigns and not 35 sovereigns. But the court below did not consider it as a serious folly to discredit her evidence. It has also to be remembered that the defendant in the case is an Engineer and his father a retired Postmaster and at the time of marriage he had three unmarried sisters. Going by the prevailing system in our community and considering the status of the parents of the girl at the time of marriage it cannot be said that giving of 35 sovereigns of gold is unbelievable. It is quite possible and appears to be natural and truthful. So I find that the trial court has not erred AS 58/99 & cross objection -:3:- in arriving at a decision that 35 sovereigns of gold had been given to the wife at the time of her marriage. 2. The crucial point to be considered in this case is whether the husband had deprived her of the 35 sovereigns of gold. Pws 1 and 2 would say that this gold was in the custody of the husband ever after 22.4.1979. A perusal of the materials would reveal that the husband and wife had fallen out and she had started living with her parents from September, 1979. The plaintiff has produced Exts.A1 to A3. All these documents were produced by the husband in a case filed by the wife for maintenance. Ext.A1 is the copy of a letter dated 9.10.1979 written by the wife to the husband and an overall reading of that letter would reveal that gold cannot be pledged without her permission. She had categorically stated in that letter that she will not permit her gold ornaments to be pledged or sold hereafter. Ext.A2 is a letter dated 21.12.1979 written by the mother of the plaintiff to the defendant wherein there is a specific recital that he must bring back the gold ornaments. It is also stated in that letter that the defendant should not get perturbed because the ornaments are demanded back, the reason being that people say different things about the defendant. Ultimately in a letter cursing the husband and his family members is written by the wife wherein the quantity of gold is also mentioned and also mention is made about the AS 58/99 & cross objection -:4:- deprivation of the gold by the husband. A perusal of Exts.A1 to A3 which had come into being immediately after the falling out would indicate that the gold ornaments given at the time of the marriage were in the custody of the husband and the wife wanted back the ornaments. So, it is in this back ground the evidence of Pws 1 and 2 had been analyzed and appreciated. The court below on the back drop of these documentary evidence analyzed the evidence of Pws 1 and 2 and arrived at a decision regarding the deprivation of gold ornaments to a tune of 35 sovereigns by the husband. I do not find any ground to interfere with the decision rendered by the court below on that point. 3. The next question is regarding the cross objection. The demand is to return back the gold ornaments and the decree is to return the gold ornaments or in the alternative to pay an amount of Rs.52,500/-. Learned counsel would submit that the direction to give only Rs.52,500/- on failure to return the gold ornaments is grossly inadequate and it has to be interfered with. We are in the year 2009 where one sovereign of gold costs almost Rs.10,000/-. The suit is of the year 1985 and the value of the gold as shown on the date of marriage in 1979 is Rs.1,500/-. Therefore directing to pay only at the rate of Rs.1,500/- as a substitute for the gold will be really insufficient and therefore I feel some modification has to be done though AS 58/99 & cross objection -:5:- not at the prevailing rate which had all happened on account of the longevity of litigation. I feel it will be sufficient if I direct to pay at the rate of Rs.2,500/- which means in the alternative to pay an amount of Rs.87,500/- with 9% interest on the said sum from the date of suit till the date of decree, i.e. 29.9.1998 and at the rate of 6% from 30.9.1998 till realisation. In the result, the appeal is dismissed and the cross objection is allowed and the amount is revised on failure to give back the gold ornaments at Rs.87,500/- with 9% interest from the date of suit till 29.9.1998 and at the rate of 6% from 30.9.1998 till realisation from the defendant. As a part of the expenses of the litigation, the court fee paid by the plaintiff shall also be realised from the defendant, as the plaintiff has paid that amount as court fee. Parties are directed to bear their respective costs in the appeal. M.N.KRISHNAN, JUDGE Cdp/-