IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Mat.Appeal.No. 413 of 2007() ---------------------------- OP.607/2002 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): APPELLANTS/RESPONDENTS ------------------------------------- 1. B.SUDHEESHKUMAR, S/O.BALAKRISHNA PILLAI, SUDHEESH BHAVAN, KOTTAMAKULANGARA WARD, ARYAD VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. 2. BALAKRISHNA PILLAI, SUDHEESH BHAVAN, KOTTAMAKULANGARA WARD, ARYAD VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. 3. SUBHADRA DEVI, W/O.BALAKRISHNA PILLAI, SUDHEESH BHAVAN, KOTTAMAKULANGARA WARD, ARYAD VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENT(S): PETITIONER ------------------------- DEVI A.PILLA, D/O.AJI S.PILLA, SREESHYLAM HOUSE, PULIYANOOR KARA, PULIYANOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ADV. SRI.JAI GEORGE FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No.413 of 2007 ------------------------------------------------- Dated this the 13th day of August, 2010 JUDGMENT Basant,J. The appellants are husband and parents-in-law of the respondent/wife. The marriage is admitted. That there is a strain in the matrimony and the spouses are residing separately is also not disputed. The wife filed O.P.No.607/02 claiming return of an amount of Rs.2,00,000/- and 52 sovereigns of gold ornaments which were allegedly entrusted to the husband and his parents at the time of betrothal/marriage. She had to leave the matrimonial home with only her thali and all her ornaments and money were retained by the appellants in trust on her behalf, it was alleged. The claimant/wife claimed return of an amount of Rs.2,00,000/- and gold ornaments weighing 52 sovereigns enumerated as items Nos.1 to 16 in schedule 1. Mat. Appeal No.413 of 2007 -: 2 :- 2. The appellants entered appearance. They resorted to a defence of blanket denial of all the claims made. No amount was paid and no ornaments were entrusted, it was contended. In these circumstances, they disputed the liability to return the amounts or return the gold ornaments. 3. Parties went to trial on these contentions. The claimant/wife examined herself as PW1. Exts.A1 to A4 were marked. Ext.A4 is the certificate of marriage to prove the undisputed marriage. Exts.A1 and A3 are documents to indicate that the father and mother of the claimant/wife had obtained loan/closed fixed deposit accounts with the Kizhathadiyoor Service Co-operative Bank. According to the claimant/wife, such amounts were raised to enable her parents to give amounts to the appellants herein in connection with the marriage. Ext.A2 is a receipt issued by the New Fashion Jewellery, Pala which shows that 52 sovereigns of gold ornaments were purchased in the name of the mother of the claimant/wife on 13/05/2002. 416 grams of gold ornaments were purchased. They were valued at Rs.2,01,760/- as the price of gold (at the rate of Rs.3,880/- per sovereign). Ext.A2 shows that a total amount of Rs.2,12,516/- had to be paid including making charges, taxes etc. The wife PW1 had marked Ext.A2. Mat. Appeal No.413 of 2007 -: 3 :- 4. The husband examined himself as RW1 to deny the liability. The husband chose to examine RW2, the proprietor of the New Fashion Jewellery, Pala. RW2 tendered evidence in support of Ext.A2. 5. The court below, on an anxious evaluation of all the relevant circumstances, came to the conclusion that it is absolutely safe to choose to accept and act upon the oral evidence of PW1 and reject the oral evidence of RW1. In coming to this conclusion, the court below drew support from Exts.A1 and A3 certificates issued by the Bank as also Ext.A2 bill issued by the New Fashion Jewellery, Pala, which was proved satisfactorily by the evidence of RW2 introduced and relied upon by the appellants herein. Accordingly, the court below proceeded to pass the impugned order. The court below, it is seen, had directed payment of an amount of Rs.3,12,000/- along with interest. This was so done by the court below taking into reckoning the enhanced value of 52 sovereigns of gold ornaments as on the date of the judgment that is 28/02/2007 (i.e. at the rate of Rs.6,000/- per sovereign). 6. The appellants claim to be aggrieved by the impugned order. What is their grievance? First of all, it is contended that the court below erred grossly in choosing to accept and act upon Mat. Appeal No.413 of 2007 -: 4 :- the oral evidence of PW1 in preference to that of RW1. It is further contended that, at any rate, the oral evidence of PW1 should not have been accepted as sufficient to found a decree for money and return of gold ornaments. The possibility of exaggeration by the interested PW1 was not taken into consideration by the court below, argues the learned counsel for the appellant. 7. It is alternatively contended that the court below had erred grossly in directing payment of an amount of Rs.3,12,000/-, when in the petition, the claimant/wife had only claimed return of 52 sovereigns of gold ornaments or their monetary equivalent of Rs.2,01,760/-. The course adopted by the court below is improper, incorrect and unjustifiable, it is argued. 8. The learned counsel for the respondent, on the contrary, contends that the court below had the evident advantage of seeing the witnesses perform in the witness stand before it. The discretion exercised by the trial court, which had such evident advantage, in relying on the oral evidence of PW1 in preference to that of RW1, does not, at any rate, warrant interference by this Court in exercise of its appellate jurisdiction under Section 19 of the Family Courts Act. The discretion exercised by the court below is eminently reasonable, fair and Mat. Appeal No.413 of 2007 -: 5 :- just. The conclusion of the court below rhymes eminently with reason, logic, common sense and justice. The evidence of PW1 does not deserve to be rejected. The evidence of RW1 does not deserve to be accepted in preference, argues the learned counsel for the respondent. 9. The learned counsel for the respondent submits that the appellant is not justified in raising a grievance against the grant of Rs.3,12,000/-. If that be the objections, the respondent will be satisfied, if the claim made in the petition is allowed. Even then, the respondent/claimant will be at a huge loss as the value of gold has shot up and is at present valued at above Rs.13,000/- per sovereign. Justice does not demand interference with the impugned judgment, argues the learned counsel for the respondent. 10. We have considered the rival submissions. The oral evidence of PW1 and RW1 have been read over to us in detail. In a situation like this, the court has to realistically and reasonably take note of the totality of circumstances. The court cannot, for a moment, lose sight of the plight of the wife, who wants to establish the quantum of ornaments and money entrusted at the time of marriage. It would be puerile and unreasonable for any court to expect the wife and her parents to Mat. Appeal No.413 of 2007 -: 6 :- insist on and obtain acknowledgment from the husband and parents-in-law for the gold and money which she carried to the matrimonial home in connection with the marriage. A court would be acting unrealistically, if it were to throw its hands up and refuse the decree to such a claimant/wife on the mere plea that documentary evidence is not made available. Law cannot be far removed from life. Only such reasonable and humanly possible evidence can be expected from a litigant. The court must be alertly conscious of the possibility of exaggeration. The inability of the claimant/wife to adduce better evidence cannot persuade a prudent mind to swallow whatever version she advances. A balance has to be struck. To summarise, we may say, the standards of a prudent person which Section 3 of the Evidence Act expects from all courts, must be pressed into service while evaluating the rival contentions and the rival evidence tendered. 11. So reckoned, we take note of the fact that it is only absolutely reasonable in the Kerala context to expect the wife to have carried ornaments and money to her matrimonial home in connection with her marriage. No one has a case that this would not be a reasonable inference. The wife has asserted that 52 sovereigns of gold ornaments and an amount of Rs.2 lakhs was Mat. Appeal No.413 of 2007 -: 7 :- carried by her to the matrimonial home in connection with the marriage. It does not require the wisdom of Solomon to conclude that some amounts and some ornaments must have been carried by the wife to the matrimonial home in connection with the marriage. The appellants in the pleadings did not in terms admit that reality; but we find that in the course of evidence tendered by R.W.1 he was constrained to admit that his wife had ornaments. He pleads blissful ignorance of the quantum of such gold ornaments. He pleads ignorance as to whether they were gold or not. Less said about this version of R.W.1, the better. A prudent mind is unlikely to swallow that version of R.W.1. It is contended that the wife and her parents did not have the requisite means to send an amount of Rs.2 lakhs and gold ornaments of 52 sovereigns with the wife to the matrimonial home. We have evidence coming from Exts.A1 and A3. We have the admitted and undisputed circumstance that the father of the wife was employed in Saudi Arabia at the relevant time. Of course, human ingenuity knows no bounds and the husband in the course of evidence has attempted to advance a version that his father-in-law was in jail in Saudi Arabia at the time when the marriage took place. This remains in the realm of an empty and unsubstantiated assertion and no court would Mat. Appeal No.413 of 2007 -: 8 :- be justified in giving any credence to such assertion. Such a plea, it is significant, was not raised at any stage prior to the stage of tendering evidence. 12. The wife, in addition to reliance placed on her own oral evidence and the totally artificial version advanced by R.W.1 on oath, has placed reliance on Exts.A1 and A3 certificates issued by the bank which at least show that an amount of Rs.2,25,000/- was handy and was available with the parents of the wife at the time of the marriage. Read this along with the evidence that the father of the wife was employed in Saudi Arabia at the relevant time, the bottom is knocked out of the theory that the wife and her parents did not have the resources to send Rs.2 lakhs and 52 sovereigns along with the wife to the matrimonial home. 13. We now take note of Ext.A2. Ext.A2 shows that 416 grams of gold ornaments (corresponding to 52 sovereigns) was purchased by the mother of P.W.1 prior to the marriage. R.W.1 in evidence admitted that he has not made any enquiry with the jewellery which issued Ext.A2. But surprisingly he chose to examine R.W.2 who, it is shown, had issued Ext.A2. The evidence of R.W.2 examined by the appellants clearly supports the version of P.W.1 as Ext.A2. Mat. Appeal No.413 of 2007 -: 9 :- 14. Broad probabilities convincingly point to the acceptability of the oral evidence of P.W.1 and the need to reject the oral evidence of R.W.1. The oral evidence of P.W.1 gets satisfactory support and corroboration from Exts.A1, A2 and A3 as also the oral evidence of R.W.2. We are, in these circumstances, satisfied that we will not be justified in interfering with that finding of fact arrived at by the trial court. The said finding does appear to us to be absolutely reasonable, fair, just and cogent. The challenge on this ground must, in these circumstances, fail. There is no denial of the fact that P.W.1 is interested. She is the one who has claimed a decree for return of money and ornaments. Such interest on her part cannot persuade the court to reject her testimony in a myopic and unreasonable manner. She could of course have examined her father and mother. It would be unreasonable to expect absolutely disinterested testimony on this aspect as to what amount and ornaments were handed over to the husband and in-laws in connection with marriage. May be in some cases, temples or churches where the marriages are performed might make record of the ornaments and cash handed over. But that is not invariably. In this case evidently that has not happened. If there were any such documents, we would have expected the Mat. Appeal No.413 of 2007 -: 10 :- respondent to call for such records. It would be idle to deny the relief to the claimant on the assumption that better evidence could have been adduced. We are conscious of the possibility of exaggeration. We are conscious of the need for circumspection before the self-serving testimony of an interested claimant is accepted. But in the totality of facts and circumstances of this case, we are satisfied that the evidence of P.W.1 does not suffer from any such taint as to persuade us at the appellate stage to overrule the discretion exercised by the trial court and reject the oral evidence of P.W.1. 15. It is contended that Ext.A2 must have been created or manipulated subsequently. The total amount payable under Ext.A2 is Rs.2,12,516.60; whereas the value of 52 sovereigns of gold ornaments claimed in the plaint is only Rs.2,01,760/-. A reading of Ext.A2 reveals why that particular amount was claimed. The rest of the amounts constitute the sales tax and other charges payable and the core value of Rs.2,01,760/- representing the value of 52 sovereigns of gold ornaments. The fact that only Rs.2,01,760/- is claimed as the value of the gold does not militate against the genuineness of Ext.A2. 16. The next grievance is about the award of Rs.3,12,000/- with 6% interest. The court below realistically took note of the Mat. Appeal No.413 of 2007 -: 11 :- value of the gold ornaments at the time of the judgment. We do come across several instances of injustice resulting from the statement of and claim for approximate value of gold stated in the claim petition. More often that not the claim is for return of a specified quantum of gold ornaments. By way of abundant caution, the claimants alternatively claim monetary equivalent of the amount as ascertained on the date of the claim. The increase in price of gold is such that often it works out great prejudice and injustice, if courts were to mechanically award only the value of gold as on the date of the claim. The courts cannot lose sight of the fact that primarily what is claimed is return of gold ornaments. After finding that such gold ornaments have been entrusted and are liable to be returned, the courts direct payment of equivalent value if the gold in specie is not returned. We are certainly of the opinion that courts would do better to direct return of gold ornaments in specie and if the same is not returned to direct payment of the equivalent value as on the date of execution. The execution court under Sec.47 of the CPC may have to ascertain the value of gold as on the date of execution. A direction to pay value of gold as on the date of the original petition certainly works out injustice and unfairness, given the sky rocketing price of gold. Mat. Appeal No.413 of 2007 -: 12 :- Respondent will only be too happy to prolong the proceedings and ultimately return the equivalent value of gold as on the date of the claim because, at any rate, they would be the winners and not the claimants. 17. The court below, we note, evidently had taken note of this situation. We note that the gold ornaments have not been returned yet and the price of gold today admittedly has crossed Rs.13,000/- per sovereign. In these circumstances even the direction by the court below we note can only work out injustice against the claimant. The claimants must stake claims more reasonably. Cross-appeal must be filed wherever necessary if injustice would result because of the elapse of time and the increase in price of gold. At any rate, in the instant case we think that it is not necessary to go into those aspects in any greater detail. 18. The grievance of the appellants can be adequately provided for. The claim was only for the amount of Rs.2,01,760/- along with interest at the rate of 12% per annum from the date of the claim to the date of payment. We are satisfied that the impugned decree can be modified to work out justice to the extent possible in the nature of the claim made. This appeal can succeed only to the above extent. Mat. Appeal No.413 of 2007 -: 13 :- 19. In the result: (a) This appeal is allowed in part. (b) The impugned order is upheld in all other respects. The direction to pay an amount of Rs.2 lakhs along with interest at the rate of 6% per annum and costs is upheld. (c) But the direction for payment of the value of gold ornaments is modified and it is directed that the appellants shall pay to the respondent the amount of Rs.2,01,760/- along with interest at the rate of 12% per annum from the date of the claim to the date of the payment. (d) It is directed that the appellants shall pay the cost to the respondent in this appeal also. Ad valorem advocate fee as payable under the relevant rules shall be paid in additional to other costs. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge Mat. Appeal No.413 of 2007 -: 14 :-