A. Hariprasad, J.@mdashFeeling aggrieved by the order passed in O.P. No. 426 of 2000 by the learned Judge, Family Court, Kottayam at Ettumanoor the respondents in the original petition have preferred this appeal. Parties are hereinafter referred to as the petitioner and the respondents as in the original proceedings for the sake of convenience.
2. The 1st respondent married the petitioner on 30.04.1995 according to Christian religious rites and customs. A girl child was born to them on 07.11.1996. Petitioner is a qualified teacher and the 1st respondent is an employee in a service co-operative bank. Petitioner contended that on 22.04.1996, a couple of days before marriage, petitioner''s father along with a few of his relatives and well wishers went to the respondents'' house at Payyappadi and handed over Rs. 75,000/- to the respondents in lieu of the petitioner''s share in the ancestral property. The 2nd respondent received the amount. Another sum of Rs. 5,000/- was also given before marriage to the respondents by the petitioner''s father for buying dress as per custom. At the time of marriage, the petitioner was having gold ornaments weighting 22 sovereigns, which she wore during the ceremony. Petitioner alleged that after the marriage, the respondents compelled her to hand over gold ornaments to them for keeping in safe custody. She was allowed only to retain/wear minimum ornaments. Thus 17 sovereigns of gold ornaments were entrusted to the respondents. According to the petitioner, a total sum of Rs. 80,000/- and 17 sovereigns of gold ornaments were received by the respondents from her and they still hold the same in trust for the petitioner. Petitioner also contended that she worked in leave vacancy from 1994 till 1996 and later, she got a permanent job. Her salary during the periods of leave vacancy used to be sanctioned late and she used to get the same in the form of arrears. An amount of Rs. 800/- was received by the petitioner after marriage as arrears of salary, which was appropriated by the respondents. Petitioner was not allowed to keep any money with her. On 26.10.1996, an amount of Rs. 25,030/- fell due to her. She was carrying at that time and it was difficult for her to go all the way to Kozhikode for collecting the same. Hence, the petitioner authorised the then Headmaster to receive and hand over the amount to Shylamol Varghese, sister of the 1st respondent, who was working at that time in M.G. Boys High School, Kundara. The then Headmaster is a person hailing from Kundara. 1st respondent received the said amount from his sister Shylamol Varghese and it has not been returned to the petitioner till now.
On 29.10.1996, yet another amount of Rs. 5,626/-, which was obtained as arrears from St. Peter''s L.P. School, Vazhoor, was received by the petitioner, but that was also taken by the 1st respondent. The petitioner is, therefore, entitled to get an amount of Rs. 31,456/- from the respondents, who held the money in trust for the benefit of the petitioner. Hence, the petitioner claimed various amounts as shown in the petition.
3. The respondents filed a counter statement. According to them, they are not liable to return any money or gold ornaments to the petitioner. Whatever dress materials left in the almirah used by the petitioner during her stay in the matrimonial home could be taken by her. Actually, the petitioner will have to return a ring weighting one sovereign, a thali chain weighting two sovereigns, a thali, a bangle weighting half sovereign and also a watch. Therefore, the respondents made a counter claim against the petitioner for return of these articles.
4. There was no understanding to pay patrimony to the petitioner or to the respondents at the time of marriage. Respondents are not aware as to what was the weight of gold ornaments given to the petitioner at the time of marriage. There was no occasion for paying patrimony to the petitioner since her father had four daughters and no male child. Therefore, there was no reason to pay patrimony as mentioned in the petition. In fact, the petitioner had taken a loan of Rs. 10,000/- from Puthuppally Service Co-operative Bank on 02.08.1996. Since she defaulted repayment, the 2nd respondent on 25.07.1997 paid back the money and closed the loan. This amount is also liable to be returned by the petitioner to the respondents. Petitioner is not entitled to get any relief claimed in the petition.
5. On the above pleadings, the court below raised the following points for consideration:
1. Whether there was entrustment of Rs. 75,000/- as her share and Rs. 5000/- for purchasing dress on 22.4.1995 at the residence of the respondents?
2. Whether the respondents received gold ornaments 17 sovereigns from the petitioner and they are liable to return gold ornaments and dress materials worth Rs. 10,000/-.
3. Whether 1st respondent has received and utilised her salary and other service benefits and he is liable to return it?
4. Whether the petitioner is liable to return Rs. 18,510/- to the respondents as raised in the counter claim?
5. Relief and costs.
6. PWs 1 to 6 were examined on the side of the petitioner and Exts. A1 to A7 were marked. RWs 1 to 3 testified on the side of the respondents and Exts. B1 to B4 were marked.
7. Heard the learned counsel for the petitioner and the respondents. We have carefully perused the records.
8. The first and foremost contention raised by the petitioner is that there was entrustment of Rs. 75,000/- by the petitioner''s father to the respondents as her share in the property and an amount of Rs. 5,000/- was given to the respondents by her father for purchasing dress in connection with the wedding. PW 1 is the petitioner. She deposed in chief-examination that the said amounts were paid on 22.04.1995. She testified that her father, brother-in-law, paternal uncle and two cousin brothers went to the house of the respondents and entrusted a total sum of Rs. 80,000/- with the 2nd respondent. It is pertinent to note that husband of the 2nd respondent died long before marriage of the petitioner with the 1st respondent. PW 1 stated that the amounts were withdrawn from her account and from her father''s account. Exts. A1 and A2 are the passbooks produced to establish this contention. Ext. A1 is a passbook in the name of the petitioner''s father.
It can be seen that an amount of Rs. 23,000/- was withdrawn on 20.04.1995 from the account of the petitioner''s father and an amount of Rs. 57,000/- was withdrawn from the account of the petitioner (Ext. A2) on 20.04.1995. These documents probabilise the case of the petitioner that on 22.04.1995, a total sum of Rs. 80,000/- was paid to the respondents. In spite of cross-examination on PW 1, her testimony in that respect remains credible.
9. PW 2 is an independent witness cited to prove this fact. He also emphatically deposed that an amount of Rs. 80,000/- was paid by the petitioner''s father to the 2nd respondent on 22.04.1995. This witness also testified that the amount was paid in lieu of the share interest of the petitioner in the ancestral property. This witness further stated that till that time, petitioner''s father had not executed any will. According to this witness, it was not sure at the time of her marriage as to whether she could have inherited ancestral property.
10. 1st respondent gave evidence as RW 1. RW 2 is his mother. Both these witnesses flatly denied the case that they received Rs. 80,000/- from the petitioner''s father on 22.04.1995. On going through the entire oral evidence of the witnesses on this score and considering the unchallenged evidence coming out from Exts. A1 and A2, we are of the view that the court below is right in finding that on 22.04.1995, petitioner''s father handed over money to the respondents. However, the court below has only directed return of Rs. 75,000/- in favour of the petitioner. Court below found that the 1st respondent purchased the dress materials to be worn by the bride. On that reasoning, the claim for return of Rs. 5,000/- was disallowed by the court below. The petitioner has not raised any objection regarding denial of the claim for Rs. 5,000/-. Hence, that has become final. So, we find no reason to hold that the order passed by the court below directing the respondents to return Rs. 75,000/- only to the petitioner is incorrect. Hence we confirm that finding.
11. Next point is regarding return of gold ornaments. According to PW 1, she was having 22 sovereigns of gold ornaments at the time of marriage. It is her definite version that immediately after marriage, the respondents asked her to hand over ornaments to them for keeping in safe custody. To probabilise that case, Ext. A5 is produced. This document is proved through PW 3. He was the Chief Accountant in Puthupally Service Co-operative Bank. 1st respondent was working in that bank. Ext. A5 is the copy of bank locker register pertaining to the year 1995-1996. The locker was taken in the name of the 1st respondent. Locker account was started on 06.02.1996. It was opened by the 1st respondent on many occasions. The testimony of PW 3 coupled with Ext. A5 would probabilise the case of PW 1 that her ornaments were kept by the respondents immediately after marriage.
12. In this respect the case of RWs 1 and 2 is also one of refutation. According to RWs 1 and 2, PW 1 herself was handling the ornaments. RW 1 further testified that when she went to her paternal home, she had taken all the ornaments. According to PW 1, she had no hope of coming back when she had gone to her family house for delivery. Even before that the relationship was strained. She deposed that the 1st respondent did not permit her to take her articles when she left the matrimonial home for delivery. It is her further case that he had handed over some articles shortly after she went home. PW 1 emphatically stated that her gold ornaments weighting 17 sovereigns were never returned by the respondents. The stand taken by RWs 1 and 2 regarding PW 1 keeping custody of gold ornaments is highly improbable. RW 1 deposed that the locker was opened for the purpose of his sister as his brother-in-law wanted to keep some gold in safe custody. We are at a loss to find any tangible reason why RW 1''s sister did not open a locker in her name. The improbable explanation offered by RW 1 for opening a locker in his name and also the fact that he had been operating the locker on many occasions probabilise the case of PW 1. Therefore, on re-appreciation of oral evidence, we find that the court below is perfectly justified in finding that the respondents are legally liable to return 17 sovereigns of gold ornaments or its value.
13. Court below rightly disallowed the claim for Rs. 10,000/- made by the petitioner as value of her dress materials. RW 1 clearly deposed that he had no objection in PW 1 taking her dress materials kept in his house. However, PW 1 was of the view that those dresses must have became useless. We find no reason established by the petitioner to claim Rs. 10,000/- as value of dress materials. Hence, the court below is right in rejecting that claim.
14. Another important point raised by the learned counsel for the appellant is regarding appropriation by the respondents of the arrears of salary received by the appellant. According to PW 1, she got Rs. 800/- as salary while working as teacher in a leave vacancy. An amount of Rs. 25,030/- was also received by her as arrears of salary for working in leave vacancy in M.G.M. High School, Puduppady. PW 1 deposed that she authorised the then Headmaster, PW 6 to receive the salary on her behalf. Ext. A7 is the receipt issued by PW 1 to the Headmistress, M.G.M. High School, Puduppady for claiming arrears of salary of Rs. 25,030/-. It is also requested in Ext. A7 that the amount could be paid to PW 6, who was a teacher in the school. PW 6, when examined, deposed that he received the salary and signed as per Ext. P8. After receiving the amount, it was entrusted to PW 1''s sister-in-law, namely Shylamol Varghese (RW 3). This witness was subjected to strict cross-examination. PWs 1 and 6 deposed that at that time PW 1 was in advanced stage of pregnancy and she could not go to Puduppady in Kozhikode, for getting this amount. PW 6 testified that he was just helping PW 1 in collecting the arrears of salary and the same was entrusted to RW 3 as instructed by PW 1. In spite of cross-examination, we find no reason to disbelieve the testimony of PW 6. Both RWs 1 and 3 have stoutly denied the receipt of the said amount. According to RW 1, his sister had never mentioned about receipt of Rs. 25,030/- as claimed by PW 1. RW 3 would say that she had never received any money from PW 6. As we find no reason to disbelieve the documents pertaining to payment of Rs. 25,030/- and the testimony of PW 6, it can only be seen that the amount was handed over by PW 6 to RW 3. Neither RW 1 nor RW 3 has a case that the amount was handed over to PW 1. Therefore, the logical deduction based on preponderance of probabilities could be that RW 3 must have handed over money to RW 1. On this reasoning, we find that the court below is justified in accepting the contention of the petitioner as true.
15. Another contention is that the petitioner and the 1st respondent together went and received a sum of Rs. 5,626/- from St. Peter''s L.P. School. PW 4 was the Headmaster of that school. The acquittance register showing disbursal of salary to PW 1 is Ext. A6. PW 1 had signed on the acquittance register. PW 1 testified that the amount of Rs. 5,626/- received by her from the school was taken by RW 1. Her testimony regarding the entrustment of money to RW 1 remains credible in spite of cross-examination. RW 1 has flatly denied the receipt of the said amount. Considering the nature of evidence adduced on both sides, we are of the view that the court below has correctly analysed the probability and found that the petitioner is entitled to get an amount of Rs. 31,456/- from the respondents.
16. Regarding the denial of the counter claim raised by the respondents for getting Rs. 28,000/- spent for the petitioner, Rs. 11,225/- spent for closing the loan availed by her from a Co-operative Society and also for the value of materials at Rs. 18,510/-, they have not preferred any appeal or cross objection. That finding has become final. Therefore, we do not find any legal reason to consider the counter claim raised by the respondents against the petitioner.
17. On an over all analysis of the evidence, we are of the view that the court below is perfectly justified in granting the reliefs. We confirm the order of the trial court in its entirety.
18. Petitioner, with our challenging the order/decree, contended that she is entitled to get the value of gold ornaments weighting 17 sovereigns determined as on the date of its actual return. To put it differently, the contention raised is that the value shown in the petition was a tentative one and that was only for the purpose of satisfying the statutory requirement of pleading. Learned counsel for the respondent strongly relied on
Another interesting contention is raised about the nature of the relief that can be granted in this case. No appeal has been preferred by the respondent. The learned counsel for the appellants argues that our finding above in favour of the appellants must necessarily entrail a consequent modification of the operative direction in the impugned order. According to the learned counsel by the impugned Order 60 sovereigns of gold ornaments were ordered to be returned. Now this Court is finding that only 30 sovereigns of gold ornaments are liable to be returned. The counsel hence argues that only an amount of Rs. 1,80,000/- and not Rs. 3,60,000/- can be ordered to be returned.
It is pertinent to note that in the above case that contention of the respondent was rejected and this Court modified the impugned decree in appeal.
19. Order 20 Rule 10 CPC reads as follows:
R.10. Decree for delivery of movable property.-Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.
The above provision contemplates suits for recovery of specific movable property referred to in Articles 68 and 69 of the Limitation Act, 1963. Full Bench of the Travancore-Cochin High Court in
The dispute between the parties was relating to the date on which the paddy claimed under different categories to be commuted into money. It is ruled that Order 20 Rule 10 CPC has no application when there was no liability on the part of the defendant to deliver specific movable property. When the claim was for paddy agreed to be delivered as rent, in such cases the decree must be for the value of paddy as on the date on which it was deliverable. In this case, the petitioner raised contentions in two fold. She demanded the return of gold in specie or in the alternative, the value of the same prevailed on the date of petition with interest at a commercial rate.
Therefore, the principle in Ouseph''s case (supra) cannot be directly applied to the facts and circumstances of the case in our hand.
20. Order 41 Rule 33 CPC is considered to be a reservoir of power of the court of appeal. It reads as follows:
"R.33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
The object of the rule is to empower the appellate court to do complete justice between the parties. This provision enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree, as the case may be, in favour of all or any of the parties, even though the appeal is as to part only of the decree; and such party or parties may not have filed an appeal. It is trite that the necessary condition for exercising the power under this Rule is that the parties to the proceedings are before the court and the question raised properly arises out of the judgment of the lower court and in that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. It is settled that no hard and fast rule can be laid down as to the circumstances under which power can be exercised under Order 41 Rule 33 of the CPC. Ordinarily, an appellate court must not vary or reverse a decree or order in favour of a party, who has not preferred any appeal and this rule holds good notwithstanding Order 41 rule 33 CPC. However, in exceptional cases, it enables the appellate court to pass such decree or order as ought to have been passed, even if such decree would be in favour of parties, who have not filed any appeal. The power, though discretionary, should not be declined to be exercised merely on the ground that the party has not filed any appeal. (see
21. Power of this Court under Order 20 Rule 10 CPC and Order 41 Rule 33 CPC could be used only in a situation where this Court grants an executable decree in the appeal. As required under Order 20 Rule 10 CPC this Court in William David''s case passed a decree declaring the amount to be paid as an alternative relief, as delivery of the article could not be effected. So, the said decision has to be understood on the premise that the power to consider the worth of the gold ornaments as on the date of actual return (i.e., execution of the order) arises only in a situation where the powers under Order 20 Rule 10 and/or Order 41 Rule 33 CPC are invoked by the appellate court in the course of passing a decree in the appeal. The petitioner herein claimed an alternative relief of the value of gold ornaments as on the date of filing the petition; that too with 18% interest per annum. It is axiomatic that the claim for interest is made with a view to get compensation for delayed payment. Therefore, the petitioner was definite in making the claim for return either the gold ornaments in kind or its value at the time of raising the claim with interest thereon. The respondents were called up to answer these claims only. By staking a claim for the present worth of the gold ornaments, even without any appeal or cross-appeal, the petitioner causes embarrassment to the respondents, that too in an appeal filed by them. In this case, the trial court has granted both reliefs claimed by the petitioner, viz., return of gold in specie or in the alternative its worth on the date of petition. In other words, the entire claims of the petitioner have been allowed by the trial court. So, we have a serious doubt whether the petitioner could have challenged the decree passed in her favour. Only portion of her claim denied is the rate of interest. Court below decreed return of the value of gold with 12% interest.
The petitioner has not challenged that part of the decree. Had she not claimed an alternative relief, the petitioner could have challenged the finding of the court below directing return of the value of gold ornaments determined as on the date of petition. The petitioner, after having calculated money equivalent of the gold ornaments on the date of petition, now cannot turn round and claim a higher relief. If she had not claimed the worth of the gold ornaments on the date of petition with future interest as a compensation for delayed payment, she could have challenged the decree. In that situation, this Court would have been obliged to pass an executable decree under Order 20 Rule 10 CPC. At that time, this Court''s power under Order 41 Rule 33 CPC to grant appropriate reliefs, which should have been granted by the trial court for doing complete justice between the parties, could have been invoked. In the absence of such situations in this case, we are of the view that the ratio in William David''s case cannot be taken as a precedent for claiming return of the value of gold as on the date of execution of the decree, even in a case where a specific claim is made in the petition for payment of value of gold as existed on the date of petition.
22. Learned counsel for the petitioner relying on
In the result, we find that the appeal is devoid of any merit and the same is hereby dismissed with costs through out to the petitioner confirming the decree passed by the trial court.
