Recovery of Gold Ornaments or its value

2013 S C M R 1049

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Recovery of dowry articles, decree for---Gold ornaments, market value of---Compensating wife/decree-holder with market value of gold instead of gold ornaments---Scope---Wife filed suit for recovery of dowry articles against her husband, and the list of dowry articles included 17 tolas of gold---Suit prayed for either recovery of 17 tolas of gold or its value, which was stated to be Rs.380,000---Trial Court granted decree only for recovery of dowry articles but not its market value, therefore wife was held entitled to recovery of 17 tolas of gold---Such part of decree could be satisfied either upon handing over by the husband to his wife gold ornaments weighing 17 tolas, and in case he was not in a position to provide the same, the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market---Unlike other property, moveable or immoveable, determination of market value of gold did not pose any difficulty as the same was fixed by gold market on daily basis and was readily exchangeable for cash---Wife was entitled to recovery of 17 tolas of gold ornaments or in the alternative its current market value---Appeal was allowed accordingly.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 distinguished.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Recovery of dowry articles, decree for---Gold ornaments---Market value, determination of---Scope---Where decree for delivery of gold or its market value was granted the value should be determined with reference to the date of payment, as only then the decree could become fully satisfied.

Agha Muhammad Ali Khan, Advocate Supreme Court for Appellant.

Muhammad Akram Gondal, Advocate Supreme Court for Respondent No.1.

Date of hearing: 26th March, 2013.

 Mst. AYESHA SHAHEEN VS KHALID MEHMOOD

2013 S C M R 1049

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Mst. AYESHA SHAHEEN---Appellant

Versus

KHALID MEHMOOD and another---Respondents

Civil Appeal No.1088 of 2012, decided on 26/03/2013.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 19-6-2012 passed in 1243 of 2011.)

JUDGMENT

NASIR-UL-MULK, J.----The appellant, Mst. Ayesha Shaheen, filed suit against her husband, respondent No.1, on 15-10-2005 for recovery of maintenance, dower amount of Rs.50,000, gold ornaments weighing 30 tolas and dowry articles according to the list appended with the plaint or its value amounting to Rs.871,800. The list included gold ornaments weighing 17 tolas and its market price. The bone of contention between the parties now is the value that is to be paid to the appellant for 17 tolas of gold. The suit after contesting was decreed. In appeal the Appellate Court maintained the decree of the trial Court except for the recovery of 30 tolas of gold as dower. During execution of the decree the Executing Court on 12-1-2011 ordered the appellant to lead evidence for determination of the current market value of the gold ornaments weighing 17 tolas. The judgment debtor/respondent assailed this order in appeal which was allowed on 4-5-2011 and it was held that the appellant was entitled to Rs.380,000 as price she herself had fixed in the list of dowry articles appended with the plaint. The appellant filed writ petition before the High Court which was dismissed on 19-6-2012 placingrelianceuponthejudgmentofthisCourtMst.Mehbooba v. AbdulJalil(1996SCMR1063).Againstthesaidjudgmentleave to appeal was granted to the petitioner on 11-6-2012 in the following terms:--

"States that the decree dated 5-3-2009 for the recovery of golden ornaments in favour of the petitioner has attained finality as per the list of dowry articles proved by the petitioner and thereunder the respondent was obliged to return 17 tollas of the golden ornaments. However, he being unable to do so, the petitioner was entitled to receive/recover in lieu of golden ornaments present value of the said ornaments and though the learned executing Court has granted the market value to the petitioner, but the learned appellate Court has reversed the decision for illegal reasons, which decision has been so maintained by the learned High Court. It is argued, that the decree was restricted to the return of the golden ornaments and, therefore, if the respondent is incapable for obeying the command of the decree, the price should be valued as per the present market value. In support of his contention, reliance has been placed in the case reported as Mst. Humaira Majeed v. Habib Ahmad and 2 others (PLD2012Lahore165).Conversely,learnedcounselfor the respondent while placing reliance in the case reported as Mst. Mehbooba v. Abdul Jalil (1996 SCMR 1063) has argued that it is not the present market price/value for which the petitioner would be entitled, rather the value of the golden ornaments,whichprevailedatthetimeoftheinstitution of thesuitand thuslearnedappellateCourthasrightly determinedtheamountonthatbasis.Leavetoappealis granted, inter alia, to consider in the facts of this case what should be the market value of the golden ornaments which the petitioner was entitled under the decree, but the respondent is unable to return."

2.We heard the learned counsel for the appellant as well as the respondent and have gone through the judgments referred to in the leave granting order. As regards 17 tolas of gold, which were included in the list of dowry articles (Exh.P.5), the appellant had prayed for its recovery or its value, stated to be Rs.380,000. The Trial Court granted decree for recovery of dowry articles and not its market value in the alternative. The appellant was therefore held entitled to the recovery of 17 tolas of gold. This part of the decree can be satisfied either upon the handing over by the judgment debtor/respondent to the appellant gold ornaments weighing 17 tolas and in case he is not in a position to provide the same the appellant can be appropriately and fully compensated in terms of money only if she is paid an amount that would enable her to purchase the same from the open market. She can do that only if she is paid the current market value of gold. Unlike other property, moveable or immoveabledeterminationofthemarketvalueofthegolddoes notposeanydifficultyasthe sameisfixedbythegoldmarket on dailybasisandisreadilyexchangeableforcash.ThecaseofMst. Mehbooba v. Abdul Jalil (ibid) is distinguishable as there the plaintiff wife had not claimed the recovery of gold ornaments or its value but only its value specified in the plaint. In order to highlight the distinction the relief claimed in the suit filet by Mst. Mehbooba is reproduced:--

"...for recovery of Rs.1,62,600, detailed as under:--

(1)..............................................................................

(2)Rs.25,000 the value of the golden ornaments exclusively given to her by her husband at the time of her marriage as given in para. 9 of the plaint; and

(3)Rs.87,000 the market value of the golden ornaments belonging to the plaintiff, given to her by her parents mentioned in para.10 of the plaint."

The Court thus held that the petitioner before it was entitled to the market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as "no decree for delivery of ornaments had been passed." The petitioner was granted a simple money decree. In the present case not only the relief claimed was for the recovery of gold ornaments or in the alternative its market value but the decree so granted was for the recovery of the gold ornaments. The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decreecanbecomefullysatisfied.NeithertheHighCourtnor the FirstAppellateCourthadfocusedonthe afore-stateddistinction. In thecaseofMst.HumairaMajeedv.Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinctionandhadrightlyheld thattheprovisionsofOrder XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family Court in view of section 17 of the West Pakistan Family Courts Act, 1964.

3.Inviewoftheabove,weholdthat theappellantisentitled to the recovery of 17 tolas of gold ornaments or in the alternativeits current market value. Consequently, the appeal is allowed.TheimpugnedjudgmentsoftheHighCourt aswellas the First Appellate Court are set aside and that of the Executing Court dated 12-1-2011 is restored.

MWA/A-16/SCAppeal allowed.