IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 Mat.Appeal.No. 336 of 2005() ---------------------------- OS.86/1993 of FAMILY COURT,TRIVANDRUM .................... PETITIONER: APPELLANT ------------------------ OMANA, W/O.DHARMAPALAN, "SHEEJA BHAVAN", ELAKAMON DESOM, AIROOR VILLAGE, CHIRAYINKEEZHU TALUK, TRIVANDRUM DISTRICT. BY ADV. SMT.K.KUSUMAM SRI.SHAMMI VIJAYAN RESPONDENTS: --------------- 1. FIROZLAL, S/O.BHARATHAN, FIROZ COTTAGE, ELAKAMON DESOM, AIROOR VILLAGE, CHIRAYINKEEZHU TALUK, TRIVANDRUM DISTRICT. 2. VANAJAKSHI, D/O.KRISHNAN, RESIDING AT COTTAGE, ELAKAMON DESOM, AIROOR VILLAGE, CHIRAYINKEEZHU TALUK, TRIVANDRUM DISTRICT. ADV. SRI.K.B.GANGESH FOR R2 SRI.ANIL GEORGE FOR R2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal NO: 336 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010 JUDGMENT Joseph Francis J., This appeal is filed by the additional second plaintiff in O.S. No. 86 of 1993 on the file of Family Court, Thiruvananthapuram. Respondents 1 and 2 herein are the defendants 1 and 2 in that suit. The original plaintiff is the daughter of the second plaintiff. The original plaintiff died on 13.12.1994 during the pendency of the suit. 2. The suit is for return of gold ornaments of in the alternative recovery of their value with accrued interest thereon. 3. The plaintiff Anila was the legally wedded wife of the 1st defendant and the 2nd defendant is the mother of the 1st defendant. The marriage between the original plaintiff and the 1st defendant was solemnized as per the custom prevailing in the Hindu Community on 19.11.1986 at Sivagiri Sarada Math, Varkala, Thiruvananthapuram Mat. Appeal NO: 336/2005 :2: District. 4. Thereafter, they lived together as husband and wife in their houses till 12.6.1990. There were no issues in the wedlock. At the time of marriage, the parents of Anila gave 35½ sovereigns of gold ornaments to her. Out of the same, 7 sovereigns of gold ornaments were with the plaintiff till her death. The remaining 28 ½ sovereigns of gold ornaments were entrusted with the defendants / respondents. The 1st respondent pledged the said ornaments to raise some funds for his business. The 28 ½ sovereigns of gold ornaments were actually entrusted with the 2nd defendant, who assured that the same would be returned to the plaintiff when demanded. The 1st defendant did not start any business as agreed. The defendants did not return the gold ornaments or its value in spite of repeated requested made by the plaintiff. It resulted in the break down of the marriage and which resulted in the separation of the spouses. The defendants are bound to return the gold ornaments. They are only trustees, who are legally bound to keep the Trust properties i.e, the gold ornaments for and on behalf of the plaintiff. Since the gold ornaments were Mat. Appeal NO: 336/2005 :3: demanded back, the 1st defendant did not go to the house of the plaintiff Anila from 12.6.1990. Thereafter they have been living seperately. The 1st defendant did not look after the affairs of plaintiff Anila thereafter. Thus she filed the suit for return of her gold ornaments. 5. The gold ornaments scheduled in the plaint were worth Rs.79,800/- The plaintiffs sought for a decree for the recovery of the entire ornaments or the value thereof, viz., Rs.79,800/- with accrued interest thereon till realization, from the defendants jointly and severally. The defendants raised the following contentions in their joint statement. (i) The main contention is that the suit is not maintainable. After marriage the plaintiff Anila stayed in their house only for a period of 2 ½ months and thereafter she went to her house. So the 1st defendant also went to the plaintiff's house and resided there and performed all his duties as plaintiff's husband. But the plaintiff's mother and brother drove the 1st defendant out of the house. (ii) It was also further averred in the written Mat. Appeal NO: 336/2005 :4: statement that the plaintiff Anila was wearing only one gold chain. The same is still under her custody. It is not correct to say that the plaintiff Anila was having 35 ½ sovereigns of gold ornaments. No dowry was also paid and there was no demand for dowry also. The 1st defendant is a driver and there is no need for him to start the business. In May, 1987 the 1st defendant was residing at the house of the plaintiff Anila. The 2nd defendant has not gone to his house during that time. No gold ornaments were entrusted with the 2nd defendant as alleged. The 2nd defendant is made a party in this suit as she alone had landed properties. On these grounds the defendants prayed for dismissal of the suit. 6. Both sides adduced evidence. PWs 1 to 3 and DW 1 and 2 were examined. Exhibits A1 to A11 were marked on the side of the plaintiffs and exhibits B1 and B2 were marked on the side of the defendants. The family court decreed the suit as follows: (1). 1st defendant is directed to return 28 ½ sovereigns of gold ornaments belonging to deceased Anila, to the 2nd plaintiff or in the alternative the 2nd plaintiff is Mat. Appeal NO: 336/2005 :5: allowed to recover Rs.79,800/- as the value of the gold ornaments from the 1st defendant and his assets. (2). Suit is dismissed as against the 2nd defendant. (3). Parties are directed to bear their respective costs. 7. Against the judgment and decree dismissing the suit against the second defendant, the additional second plaintiff filed this appeal. 8. Heard the learned counsel for the appellant and learned counsel for the respondents. 9. Learned counsel for the appellant submitted that the court below did not consider and appreciate the evidence in the case properly as far as the liability of the second defendant is concerned. Learned counsel for the appellant further submitted that the court below should have and ought to have held that the plaint schedule ornaments are in the joint custody of the defendants 1 and 2 and they are jointly and severally liable to return the same to the plaintiff. Learned counsel for the appellant further submitted that lower court ought to have granted a decree allowing either 12% interest from the Mat. Appeal NO: 336/2005 :6: date of the suit till realisation or should have allowed to recover the market value of ornaments on the date of realisation and that too from both the defendants 1 and 2 jointly and severally. Whereas the learned counsel for the respondents supported the judgment and decree so far as it relates to exonerating the second defendant from liability. 10. There is no dispute that the original plaintiff Anila was the legally wedded wife of 1st defendant. The additional second plaintiff is the mother of the original plaintiff. The second defendant is the mother of the first defendant. It is an admitted fact that the marriage between deceased Anila and first defendant took place on 19.11.1986 as per the custom prevailing in the Hindu Community. 11. The main allegation in the plaint is that at the time of the marriage, the plaintiff was given 35 ½ sovereigns of gold ornaments out of which 28 ½ sovereigns of gold ornaments were entrusted with the defendants 1 and 2 who in turn appropriated the same for their own purpose. On perusing the records, it is seen that the suit was originally decreed exparte on 23.1.1994 and at that time the original Mat. Appeal NO: 336/2005 :7: plaintiff was examined in chief as PW1. Subsequently, that exparte decree was set aside and the suit was proceeded with. During the course of trial, the original plaintiff died on 13.12.94 and her mother as additional second plaintiff was impleaded. PW1 could not be cross examined by the defendants as she expired before her cross examination. 12. PW1 deposed that at the time of marriage, she had 35 ½ sovereigns of gold ornaments out of which 28 ½ sovereigns of gold ornaments were entrusted with the defendants. PW1 further deposed that she was given 25 cents of property which was sold subsequently for Rs.12,500/- and that amount was utilised by the first defendant for purchase of a tempo and thereafter the first defendant sold that tempo without her knowledge. PW1 deposed that the first defendant was entrusted with 28 ½ sovereigns of gold ornaments in 1987 as the first defendant demanded the same for conducting some business and that the first defendant promised to return that gold ornaments within one year. According to PW1, this entrustment was witnessed by one Varadaraj and Vinod. But they were not examined Mat. Appeal NO: 336/2005 :8: by the plaintiff as witness. Ext.A3 is the letter sent by the first defendant from Bombay on 18.11.91. In that letter it is admitted by first defendant that he is in possession of some wealth of original plaintiff Anila. Ext.A4 is another letter dated 22.8.1990 addressed to PW1 written by first defendant, by which first defendant demanded back the chain and thali given by him to PW1 at the time of the marriage as a pre-condition for divorce. Ext.A5 is the Divorce deed dated 3.11.1992 executed by PW1 and first defendant. PW1 admits the execution of Ext.A5. In Ext.A5 it is stated that the entire liability between the parties have been settled. But in Ext.A5 it is not stated that the entire gold ornaments were returned to PW1 by the first defendant. 13. PW2 is the mother of PW1. PW2 deposed that 35 ½ sovereigns of gold ornaments were given to PW1 at the time of marriage out of which 28 ½ sovereigns of gold ornaments were mis appropriated by the first defendant. PW3 is the father of PW1. PW3 deposed that PW1 had 35 ½ sovereigns of gold ornaments at the time of marriage and that PW1 lost 28 ½ sovereigns of gold Mat. Appeal NO: 336/2005 :9: ornaments during her marital life with the first defendant. The second defendant is examined as DW2. DW2 deposed that she was not entrusted with gold ornaments belonging toPW1. As observed by learned Sub Judge, the evidence rendered by PW1 to 3 is not at all sufficient to prove the entrustment of gold ornaments with the second defendant and at the same time there is convincing evidence to substantiate the fact that 28 ½ sovereigns of gold ornaments belonging to PW1 were entrusted with the first defendant and that he utilised the same for his own purposes. Therefore we are of the view that the learned Judge is perfectly justified in finding that the second defendant is not liable for the suit claim and that the first defendant alone is liable for the suit claim. 14. The learned counsel for the appellant submitted that the appellant filed an I.A. No. 3615 of 2009 for amending the plaint so as to incorporate a prayer to return the gold ornaments in the alternative to return the market value of the gold ornaments at the time of realisation. 15. There is another prayer in the I.A. to the effect that if for Mat. Appeal NO: 336/2005 :10: any reason the prayer for the value of gold ornaments at the time of delivery is not allowable the second plaintiff may be allowed to realise Rs.79,800/- as value of gold ornaments together with interest at the rate of 12% per annum from the date of suit till the realisation from the defendants and their assets. 16. Order 20 Rule 10 CPC provides that where the suit is for movable property and the decree is for the delivery of such property, the decree also state the amount of money to be paid as an alternative if delivery cannot be had. Since the amendment of the plaint sought for is in confirmity with the above rule, we are of the view that the amendment sought for can be allowed and therefore I.A. No. 3615 of 2009 is allowed. Accordingly this appeal is allowed in part. The judgment and decree in O.S. No. 86 of 1993 on the file of Family Court, Thiruvananthapuram dismissing the suit against the second defendant is confirmed. The judgment and decree against the first defendant is modified and the first defendant is directed to return the 28 ½ sovereigns of gold ornaments belonging to deceased Anila to Mat. Appeal NO: 336/2005 :11: the second plaintiff within six months from this date, failing which the second plaintiff is allowed to recover market value of the gold ornaments at the time of recovery from the first defendant and his assets. Parties are directed to suffer their respective costs in this appeal. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/