Sathish Ninan, J.

1. Mat. Appeal No.582/2016 and Mat. Appeal No.912/2016 are by the respondents and the petitioners respectively, in OP 1464/2013. The original petition was filed inter alia for recovery of gold ornaments, declaration of title, recovery of money. The O.P was decreed in part. Challenging the part of the decree against the respective parties, they are in appeal.

2. Mat. Appeal No.757/2016 is by the respondent (husband) in OP 402/2014, challenging the decree for divorce granted at the instance of the wife. Mat. Appeal No.756/2016 is filed by the petitioner-husband challenging the dismissal of his original petition seeking restitution of conjugal rights.

3.     It is conceded before us that Mat. Appeal No.756/2016, Mat. Appeal No.757/2016, and Mat. Appeal No.912/2016 are not pursued. Therefore, we confine our discussions to Mat. Appeal No.582/2016. The reliefs claimed in OP 1464/2013 from which the Mat Appeal arises, are as under:-

                  (i)       Recovery of 76 sovereigns of gold ornaments.

                  (ii)      Recovery of Rs. 1 lakh entrusted as pocket money.

                  (iii)     Recovery of Rs. 2 lakhs given for purchase of property.

                  (iv)     Recovery of Rs. 3,10,000/- withdrawn from the Bank account of the petitioner-wife.

                  (v)      Recovery of Rs. 5 lakhs borrowed from the petitioner's mother.

                  (vi)     Declaration that Sale Deed No.406/2013 is a sham document.

                  (vii)    Declaration of title of the petitioner over the property covered by document No.406/2013.

                  The court granted a decree for: -

                  (i)       Return of gold ornaments.

                  (ii)      Recovery of Rs. 1 lakh

                  (iii)     Declaring document No.406/2013 as a sham document and declaring petitioner's title over the property covered under the document.

4. The marriage between the parties was solemnised on 18.08.2003. According to the petitioner, at the time of marriage her parents provided her with 80 sovereigns of gold ornaments. So also, an amount of Rs. 1 lakh was given to the first respondent- husband as pocket money. Within a week of the marriage the husband obtained 30 sovereigns of gold ornaments from the petitioner for wiping off his debts incurred for marriage. In July 2004 she was taken abroad along with her husband where he was employed. During the year 2005, a further quantity of 40 sovereigns of gold ornaments were utilised by the husband for purchase of a property, on the assurance that property would be purchased in the name of the petitioner. However, subsequently it was learnt that the property was purchased in the joint names of the husband and the wife.

5. In March 2010, the aforesaid property was sold for the purpose of clearing off the debts allegedly incurred by the husband in purchasing two items of immovable properties under Sale Deed Nos.367/2010 and 368/2010. The balance sale consideration available was utilised to purchase another 12 cents of property.

6. In March 2013, the husband wanted to raise Rs. 50 lakhs, for starting a business. Making the petitioner and her mother believe that a security deed is being executed for the purpose of availing loan from an individual, the petitioner was made to execute a document and the mother as a witness. It was subsequently understood that, it was a sale deed in favour of the husband's sister. The document is vitiated by misrepresentation. On these allegations the original petition was filed.

7. The first respondent in the original petition, who is the husband, filed objection (written statement) through the second respondent, his sister, as his power of attorney holder. The allegations in the original petition were denied. It was contended that the wife had only approximately 15 sovereigns of gold ornaments at the time of marriage. The claim regarding payment of pocket money and borrowal of other amounts from the petitioner and her mother were denied. It was contended that the sale deed No.406/2013 is a valid document supported by valid consideration. The allegation of misrepresentation was also denied.

8. The Family Court found that the petitioner-wife had 80 sovereigns of gold ornaments at the time of marriage. It was also found that 76 sovereigns of gold ornaments were misappropriated by the husband. The claim of the petitioner that Rs. 1 lakh was given to the husband as pocket money, was upheld. So also, finding that document No.406/2013 is a sham document, the title of the wife over the property was declared.

9. We have heard the learned counsel on either side.

10. The first question to be determined is with regard to the quantity of the gold ornaments that the wife had at the time of marriage. While according to the wife she had 80 sovereigns of gold ornaments, according to the husband she had only approximately 15 sovereigns of gold ornaments. It has come out in evidence that, the wife's father, who was examined as RW3, was working in gulf countries for a long time. Ext.B10 is the copy of his passport. Ext.B10 substantiates the same. Ext.B2 series and Ext.A11 are the marriage photographs produced from either side. A comparison of the same proves the genuineness of the wife’s claim and establishes that the claim of the husband that the wife had only approximately 15 sovereigns of gold ornaments at the time of marriage, is not correct. The photographs corroborate the wife's claim and the oral testimony of her parents as RWs.2 and 3 that she had 80 sovereigns of gold ornaments at the time of marriage. We concur with the trial court in having held so.

11. The husband claimed that, at the time of marriage he was presented with only a ring by the wife. But from Ext.B2 series photograph it is seen that the wife had adorned him with a chain. In his cross examination, he could not deny it.

12. It is the wife's contention that, after the marriage about 30 sovereigns were utilised by the husband, for clearing his debts, which were incurred in connection with the marriage. The husband claimed to be well of financially, he was not able to substantiate his financial condition. He could not produce any documents regarding his bank accounts or deposits. Though he claimed that he was working in gulf countries for 20 years, admittedly, he had not purchased any property prior to the marriage. His claim is that, after two years of his marriage he borrowed an amount of Rs. 2,40,000/- from his mother's sister, for purchase of the property. She was examined as PW4. PW4 is a widow. Her source of income was not proved. So also, the payment of any amounts by PW4 was also not proved.

13. The claim of the wife is that, she was told by her husband that utilising 40 sovereigns of gold ornaments a property could be purchased in her name and she was persuaded to accede the same. Accordingly 40 sovereigns of gold ornaments were utilised for purchase of the property. However, subsequently she learnt that the property was purchased in the joint names of herself and her husband. Considering the facts as noticed above, the claim of the wife appears to be probable. We concur with the trial court in having held so.

14. It is not in dispute that the property which was purchased in the joint names, was subsequently sold for an amount of Rs. 4 lakhs. It is the case of the husband that part of the amount was utilised for clearing off the debts, and utilising the remaining amount, 12 cents of property was purchased in the names of the husband and wife. PW1 deposed that, at the time of sale he had a debt of Rs. 6 lakhs. It is to be remembered that such statement is on the face of his averments in his pleading that he had no financial constraints.

15. It is the case of the wife that, while they were about to return to the native place from abroad the husband asked her to wear only 4 sovereigns of gold ornaments and to keep the remaining 6 sovereigns of gold ornaments at their place of residence and accordingly only 4 sovereigns were carried on by her. Noticing the conduct of the parties as above, the trial court has found the claim to be probable. We find no reason to differ from such inference.

16. The above materials sufficiently indicate that, from out of the 80 sovereigns of gold ornaments that the wife had, her claim that 30 sovereigns were utilised for clearing off the debts of the husband and that 40 sovereigns were utilised for purchasing the property, and that the consideration obtained by sale of such property was utilised for payment of the debts of the husband and for purchasing another extent of 12 cents of property, and that 6 sovereigns were kept at their place of residence abroad, are probable. The above proves the appropriation of 76 sovereigns of gold ornaments belonging to the wife, by the husband.

17. It is the case of the wife that, while it was the understanding that the property to be acquired by sale of the 40 sovereigns of gold ornaments would be acquired in her name, the documents was obtained in the joint names of the husband and the wife. It is her allegation that, the 12 cents of property which was subsequently acquired after sale of the earlier property was also purchased in joint names, and that by misrepresentation and fraud, the husband purportedly conveyed the property in favour of his sister. The wife alleges that it is a sham transaction. The couple returned to the native place from abroad on 11.03.2013 and the conveyance in favour of the husband's sister, who is the second respondent, was on 01.04.2013.

18. While the wife alleges that the transaction is unsupported by consideration and is sham, the second respondent contended that the sale consideration was raised by pledge of the gold ornaments. She relied on copy of the gold loan receipt to substantiate her claim. It is the case of the wife that she and her mother were deceived by the husband in causing execution of the sale deed by misrepresenting to them that it was a security for the loan to be availed for his business. The stamp papers were purchased on 31.03.2013 and the sale deed was executed immediately. The necessity to sell the property to the husband's sister at that point of time, in a hurry, was not brought out. The pledge of the gold ornaments by the second respondent (husband's sister) was on 13.03.2013. It is almost 15 days prior to the execution of the sale deed. There is no evidence that at that time there was even an agreement for sale between the parties. Though the husband claimed that he had a liability of Rs. 3,00,000/-, the sale consideration for the sale to the second respondent sister is only Rs. 2,40,000/-. The property is not demarcated. No mutation is effected pursuant to the sale. From the cross-examination of the second respondent it is evident that she is not sure about the boundaries of the property and also as to who are the neighbours. On the above materials, the Family Court found that the case of the wife that the conveyance in favour of the husband's sister is sham, is probable.

19. We do notice that, the original acquisition of the property was by utilising the gold ornaments of the wife. Under such circumstances, the claim of the wife could either be for gold ornaments or for the property. There could not be a decree for both gold ornaments and the property purchased utilising the same. Part of the gold ornaments have been appropriated for clearing off the debts of the husband. Property in joint names is claimed to have been assigned by the husband. The second respondent, who was examined as PW3, deposed that the sale consideration was paid to her brother.

20. Considering the entire facts as above, we deem it appropriate that the wife be granted a decree for the 76 sovereigns gold ornaments. The decree of the Family Court, insofar as it grants the decree in respect of immovable property along with a decree for gold ornaments cannot be sustained. The decree in respect of the immovable property is liable to be set aside.

21. As regards the claim of Rs. 1 lakh, as noted by the Family Court there is no specific cross-examination of RW3, the wife's father, with regard to the payment of such amount as pocket money. The Family Court noticed that, going by the custom and practice the claim is probable. Having taken due note of the fact that the wife is the only daughter and that he was employed at Gulf country, the claim is probable.

22. The Family Court having had the opportunity to watch the demeanor of the witnesses chosen to accept the wife's claim. Nothing could be demonstrated before us to find otherwise.

                  In the result Mat. Appeal No.582/2016 is allowed in apart. The decree and judgment of the Family Court, insofar as it granted a decree declaring the title of the wife over the property covered under document No.406/2013 and declaring such document to be a sham document is set aside. In all other respects the decree and judgment of the Family Court will stand affirmed. Mat. Appeal Nos.912/2016, 756/2016 and 757/2016 are dismissed. Cross Objection No.135 of 2025 is allowed. No costs.