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By Justice Yatindra Singh,
Judge
Allahabad High Court,
Chairman, Computer commitee Allahabad-211001
email: ysingh@allahabadhighcourt.in
We, at the
Allahabad High Court, not only use but advocate open source
software (OSS) and open formats. Many raise the question,
‘Why is it so? Why do you do it?’
Let me take this opportunity to explain it.
Mahatma Gandhi once said,
‘Means are more important than the end: it is
only with the right means that the desired end will follow.’
His philosophy is deep rooted in law too.
Lord Denning, one of the greatest judge of 20th
century, in RVs IRC Exparte Rossminster Ltd 1979 (3) All ELR 385
held,
‘But it is fundamental in our law that the
means that are adopted ...should be lawful means. A good end
does not justify bad means.’
In the field of Information and Communication
Technology (ICT):
-
The end is dissemination and communication
of information; and
-
The means are, how to achieve it, implement
it; the kinds of software to use, the kinds of standards to
adopt, the kind of formats to employ?
WHAT IS OPEN
SOURCE SOFTWARE (OSS)?
The software consists of two parts.
-
Source code; and
-
Object code.
Nowadays, computer programmes are written in
high level computer languages using compact English words. Only
humans, but not computer c`an understand it. This part is known
as source code.
The languages also have a programme called
compiler and with its help, source code is compiled into the
language that computers can understand. This is called object
code or machine code. This runs the computer or any application
therein.
Protection - Object
Code
There was some debate as to how the object
code is protected but Article 11 of the TRIPS mandates its
members to provide authors with the right to authorise or to
prohibit commercial rental of at least computer programmes and
cinematographic works. This has also been so provided under
Section 14(b) of the Copyright Act and now in our country, as in
almost all other countries in the world, the object code is
protected as copyright.
Protection - Source
code
Source code is a kind of a description.
Copyright lies in the description and source code of a computer
programme-being description-is a literary work within the
Copyright Act. If it is not published then it is protected as a
trade secret. In case it is published it is protected as a
copyright and may also be protected as a patent.
Copylefted, Free,
and Gpled software
Everyone is not using Intellectual Property
Rights (IPRs) to hoard rights in the software. Some are using
them in such a way that no one is able to hoard them. Using
copyright, they are doing a thing that is its opposite. It is
for this reason it is called copylefting. This happens if
software has the following conditions:
(i)
The software is
royalty free and no fee is charged for the same;
(ii)
The source code is
disclosed;
(iii)
There is freedom to
modify the software; and
(iv)
Anyone who
redistributes the software, with or without changes, must pass
along similar freedom to others i.e. disclose the source code
and permit further modification.
Copylefted software is also called free
software as there is freedom to modify it. General public
licence (GPL) contains conditions that copylefts a software.
Software, under a GPL licence, is also known as GPLed software.
Open Source Software (OSS)
The philosophy of copylefted/ free/GLed
software conveyed an anti-business message. Though it not so: it
is merely a way of doing business. In the late 1990’s, a group
of free software enthusias got together in California and
started a consortium - called Open Source Initiative (OSI). They
also drafted ten guidelines and if the license or conditions
under which the software has been released satisfies these
guidelines then they called it Open Source Software (OSS). Among
the ten conditions, the three important ones are,
(i)
The software is
royalty free and no fee is charged for the same;
(ii)
The source code is
disclosed; and
(iii)
There is freedom to
modify the software.
The guidelines do not contain the fourth
condition of Free Software. Thus OSS is more comprehensive. All
Copylefted/ free/GLed software is OSS but all OSS is not
Copylefted/ free/GLed software. The sphere of OSS is bigger than
Copylefted/ free/ GLed software.
Anyone can copy, distribute or modify OSS. No
one infringes copyright by merely using or modifying it. This
does not mean that it has no copyright. There is copyright in
OSS. In fact, OSS is copylefted by using copyright. Anyone who
uses OSS contrary to the conditions governing the license, not
only breaches the contract but also infringes the copyright.
This has also been so held by the US Court of Appeals for the
federal circuit in Robert Jcobson Vs Matthew Katzer on 13.8.2008
(http://www.cafc.uscourts.gov/opinions/08-1001.pdf).
Advantages of OSS
(i) No Copyright infringement in
using or modifying it: There is copyright in the OSS. In
fact, OSS is copylefted by using copyright. However in terms of
the license conditions, there is no copyright infringement in
merely using or modifying it. Copyright infingement due to
unauthorised use is a global issue and adopting OSS will obviate
this aspect of it.
(ii) Lesser cost: OSS is
royalty free; it does not cost anything. The only cost is for
services or support for the same. Utilising OSS will reduce the
cost of any project. The cost reduction has an impact on the
proprietary software too. In order to be competitive, their cost
is being reduced.
(iii) Service sector: Due to
historical reason, our English and Maths have always been a plus
point. These subjects are necessary for providing services in
the IT sector. Adoptions of OSS may open new job opportunities
in the service sector.
(iv) Customise software:
Software can be modified if source code is disclosed and there
is permission to modify the same. In OSS, source code is
disclosed and there is permission to modify the software. This
permits everyone to participate in the software movement and
also provides opportunity to everyone to customise software.
Today, OSS is not only available in our national language but
also in almost all regional languages; its adoption offers us
opportunity to take IT movement to the grass root level.
(v) Avoids IPR: It is possible
to have IPR in the modified software created from OSS but the
authors of any OSS do not claim any IPR in the OSSwritten by
them. This is clear from the fact that they permit everyone to
use/ modify/ distribute it without any royalty. This not only
leads to reduction in the IT cost but avoids future conflicts in
IPR area.
(vi) Different licenses: There
are many licenses that are certified by OSI. This creates some
difficulties but different licenses have their advantages too.
They can be adopted for different business models:
(a)
GPL is viral: a
business model centered around programming and support services
should be adopted.
(b)
BSD type licenses are
at the other end: they permit creation of proprietary software.
The Macintosh Operating System (a proprietary software) is
partly based on BSD licensed code.
The other licenses lie between these two and
may be chosen by the companies/software developers according to
their need.
(i) Stable: Virus is nothing
but a computer programe which effects any other computer
programme or computer data. In OSS there can be viruses however
there have been only a few viruses in OSS. This is because its
source code is open/ published. Experts say that it is safe and
provides stable environment. This is also strengthened by the
fact that Apache (an OSS) web servers are the most popular ones.
WHAT IS OPEN
FORMAT?
Formats are particular way of encoding or a
method of storing information so that a computer programme or a
device may, understand, reproduce, and, if the need be, render
it for modifications.
Formats may be proprietary. They could be,
·
Secret and protected
as a trade secret; or
·
Published and yet
protected as a patent (as was the gif format for images).
This is not true for open formats. They are,
(i)
Documented and
published - sufficient to implement them in any computer
programme or device.
(ii)
Made available
irrevocably to everyone without any royalty or fee.
(iii)
Maintained by a
neutral body, where decisions are taken with consensus or
majority thus catering to the needs of all.
Advantages of Open Format
Open formats, not only avoid monopoly but
encourage healthy competition. Information technology has best
flourished in the open formats/ standards: the Internet, the
web, the protocol transfer are all based on open formats/
standards. Apart from other advantages,
(i)
There is no fear of
patents or licensing;
(ii)
Open source software
supporting ODF exists for every operating system; they work
across the operating systems.
(iii)
The files can never
be lost as they will always be accessible.
(iv)
They can be
implemented in any software making the users true owners of
their files.
THE TORTOISE AND
THE HARE
Let me explain open source software and open
format with the help of a story from ‘Panchtantra’: this has
common thread in all cultures. It is a story of a hare and a
tortoise.
One day, the hare and the tortoise decided to
race against each other. The hare obviously took the lead; he
thought of relaxing and went off to sleep. The tortoise, walking
slowly but steadily, overtook the hare and won the race. The
moral is,
‘Slow but steady wins the race’.
In recent time, some new chapters have been
added.
The hare was perturbed by the defeat. He
asked the tortoise to race again. This time he did not take rest
and won the race easily. The moral is,
‘It is better to be fast and reliable’,
But, this is not the end of the story.
After some days, the tortoise asked the hare
to race once again but with a condition that the course will be
chosen by him. The hare, who was confident of his victory, gave
him a free hand. This time the course included a river. The hare
ran up to the river and then stopped. The tortoise came and swam
across the river to win the race. The moral is,
‘Every one has weak and strong points -play
on your strong side.’ However, the story still does not end
here.
After some days, the tortoise and the hare
repeated the race over the same course but the rules were
changed, This time they decided run it as a team. On the ground,
the hare carried the tortoise on his back and on the river, the
tortoise carried the hare on his back, The result was that both
of them reached the destination quickly, saved time and enjoyed
the race too. The moral is,
‘It is best to consolidate everyone’s strong
points’.
OPEN STANDARDS,
FORMATS -GOOD MEANS
This is, what the open source and open
formats are about. They,
-
Consolidate strong points;
-
Use the IPR to prevent the hoarding of
technology;
-
Invite others to participate in its
development.
It is ‘Make love, not war’ in a typical way.
In term of Gandhi’s philosophy, they are right means and are the
key to the future: they will lead us to the desired end.
Mahatma Gandhi once said,
‘You must be the change that you want to see
in the world.’
Lead by example: show the world how changes
can be effected. This is, why we use and advocate Open Source
Software and Open Formats.
**************
Appendix-1
Popular OSS programmes that work across all
Operating Sytemsl platforms
(i) Audacity (GPL version 2):
It is programme for recording audio files. It permits editing of
the audio files too. One can copy, paste, or mix the audio
files.
(ii) OpenOffice.org suite (LGPL
License): It provides bundle of software that are used in an
office. It is similar to MS office suite and contains similar
programmes. The default format of different programmes of this
suite are Open Document Format maintained by Organisation for
the Advancement of Structured information Standards (OASIS). It
was approved by the International Standardisation Organisation
(ISO) on May 3, 2006. OpenOffice.org suite can open and save
files in default format of MS Office suite or Power Point
Presentation as well as in any other format too. It can export
any file into pdf format. In the latest version pdf files can
also be modified. MS word does not open files saved in default
format, which is open format, of OpenOffice.org. This can be
easily achieved by Sun ODF Plugin, a freeware from Sun
Michrosystems.
(iii) Firefox, Thunderbird, and
Sunbird (all from Mozilla Foundation) (Mozilla Public
License): Firefox is a web browser: Window equivalent to
Internet Explorer. Thundrbird is a programe for sending and
receiving emails. It can perform functions of Outlook express.
Mozilla Sunbird is e-manager and manages e-calender. It is
similar to Microsoft outlook and can be integrated with Firefox
or Thunderbird.
(iv) GIMP (GPL License): It is
GNU Image Manipulation Programme and is suitable for such tasks
as photo retouching, image composition and image authoring. It
is similar to photoshop.
(v) Infra Recorder (GPL-2
License): It is programme for burning CDs and DVDs. It works in
the windows only. However, K3B is a similar programme that works
in linux.
(vi) VLC Media Player (GPL-2
License): It is media player. It can play audio and video files.
Mplayer is another open source programme similar to it. It can
play files of mp3 format (a proprietary format) as well as ogg
format which is open format.
***
Appendix –2
(Partly modified for the purposes of this talk)
First Appeal No. 582 of 1998
Hemant Kumar Agrahari
… Appellant
Vs
Laxmi Devi
… Respondent
Hon’ble Yatindra
Singh, J
Hon’ble Mukteshwar Prasad, J.
(Delivered by Hon’ble Yatindra Singh J.)
INTRODUCTION
1. This case involves diverse
emotions – from happiness to disappointment and then
determination to start new life. It also involves the
interpretation and scope of section 27 of Hindu Marriage Act
(the Act) as well as jurisdiction of the matrimonial courts to
dispose of exclusive property of the spouses.
THE FACTS
2. Smt. Laxmi Devi (the wife) was
married with Sri Hemant Kumar (the husband) on 30th
April 1996. the marriage was not successful. It did not last
long; it was not even consummated. According to the wife, her
husband was already having physical relationship with one Sushri
Sunita Pathak and continued to have it even after the marriage.
Few meetings were held for settlement of dispute between the
parties but were unsuccessful.
3. The wife filed a petition for
divorce under section 13 of the Act on the ground of adultery
and cruelty. She also prayed for return of the goods/amount
given at the time of marriage and apart from her husband,
impleaded her father-in-law and Sunit Pathak in the suit. The
defendants denied the case of the wife.
4. The wife examined herself (PW-1)
and produced two witnesses namely her brother Sri Ram (PW-2) and
one Shri Mool Chand Gupta (PW-3). The defendants examined Hemant
Kumar (DW-1), one Juggi Lal (DW-2) real Mausa of the husband and
one Shri Shiv Prakash Kushwaha (DW-3) cousin of the husband.
5. the court below decreed the suit,
for divorce and for return of Rs. 75,000/- in cash and goods
(mentioned at item numbers 4 and 5 of the plaint), on the
following findings;
·
The husband was
having relationship of husband and wife with Sunita Pathak since
before the marriage and has continued the same even after it;
·
The marriage was not
consummated;
·
The husband is guilty
of cruelty;
·
The wife has
justifiable reasons to live separately from the husband;
·
The goods mentioned
in item nos. 4 and 5 of the plaint and Rs. 75,000/- cash were
given at the time of the marriage.
6. The husband and his father have filed this appeal against
that part of the decree by which the court below has ordered for
return of cash and goods mentioned at item nos. 4 and 5 of the
plaint. The wife has filed cross-objection against that part of
decree by which the court has refused to grant decree for the
return of the cash and goods mentioned at item nos. 1 to 3 and 6
of the plaint.
7. The parties have, neither
challenged the finding of the court below that the husband has
continued husband-wife relationship with Sunita Pathak, nor the
decree of divorce granted by the court below.
THE POINTS FOR
DETERMINATION
8. We
have heard Sri Salil Kumar Rai counsel for the appellants and
Sri RN Bhalla, counsel for Laxmi Devi (Plaintiff-respondent).
The following points arises for determination in this case;
(i)
Whether the wife is
entitled to return of cash and goods? Whether the return of cash
and the goods (mentioned at item nos. 4 and 5 of the plaint) has
been decreed on the basis of inadmissible evidence?
(ii)
Whether the goods
ordered to be returned are not specific and no decree ought to
have been passed?
(iii)
Whether the
cash/goods were exclusive property of the wife?
(iv)
In case answer to the
third point is in affirmative then whether the court below had
jurisdiction to decree the suit for return of the cash/goods?
POINT NO. 1: THE FINDING REGARDING CASH/GOODS IS CORRECT
9. The counsel for the appellants
submitted that:
·
The court below has
decreed the return of cash and goods on the basis of Photostat
copy of minutes of panchayat dated 15.7.1997;
·
It is secondary
evidence; and
·
It can not be relied
upon.
10. the wife had produced Photostat
copy of minutes of panchayat. It is alleged to be signed by
father of the husband, brother of the wife and is attested by
the witnesses. Moolchand Gupta PW-3 is one of the witnesses of
this document. He has stated that the original
was given to the father of the husband. He has also deposed as
to what was agreed in the panchayat. Neither the husband, nor
any of his witnesses have stated anything about this panchayat.
They have also not stated whether father of the husband signed
this document or not. Nevertheless the document produced was a
Photostat copy of the original and secondary evidence. It was
not admissible under section 65 of the Evidence Act unless
notice to produce as contemplated under the Evidence Act was
given to the other side. There is no evidence that any such
notice was given. It seems an inadvertent mistake on part of the
counsel of the wife. However the Photostat copy is inadmissible.
But the decree may not be set aside if this finding is supported
by other evidence on record.
11. the court can take judicial notice
of the fact that in our society parents present gifts to their
daughters and son-in-laws. Unfortunately some time it is forced,
but often it is voluntary and is for the bright future of the
newly weds. There is presumption that gifts must have been given
from girl’s side during marriage. In this case the wife produced
herself and made a statement about the goods gifted to her
during marriage. She has also stated that cash of Rs. 75,000 was
given at ‘tilak’. The witnesses produced on behalf the
defendant-appellants accepted having received many items, though
the gift of Rs. 75,000/- was disputed. According to them only Rs.
5000/- in cash was given. The trial court had the opportunity to
watch the demeanor of the witness and found the statement of the
wife trustworthy on this aspect. We see no reasons to doubt it.
The court below has rightly held that the goods mentioned in
item nos. 4 and 5 of the plaint and cash Rs. 75000/- were given
and this finding is upheld.
12. The court below has mentioned that
no specific thing is mentioned in item nos. 1 to 3 and item no.
6 and has not ordered for the return of the same. We agree with
the findings recorded by the trial court in this respect also.
There is no justification to decree the suit for the items other
than those decreed by the court below.
POINT NO. 2: MONEY DECREE SHOULD BE PASSED
13. The
counsel for the appellants submitted that in item nos. 4 and 5
of the plaint, no details of the specific goods have been
mentioned and decree can not be executed.
14. It is correct that specific details
of the goods i.e. model, year of manufacturing, size, brand and
other specification have not been given in the petition. The
wife also did not disclose them in her evidence. The husband
disclosed that the TV, which was given to him in the marriage,
was black & white. On the other hand, the wife stated that
colour TV was given. Dispute may arise at the time of execution
of decree and a number of objections may be raised in the
execution proceedings regarding condition of the goods and brand
etc. This may further delay the recovery of cash given at the
time of the marriage: we assess the value of the goods mentioned
in the item nos. 4 and 5 at Rs. 1 lac. The appellants are liable
to return Rs. 1 lac (value of goods in item nos. 4 and 5) and Rs.
75,000/- given in cash (total one lac and seventy five thousand)
to the wife. As the appellants are using the goods/cash since
marriage between the parties; they are liable to pay simple
interest at the rate of 6 per cent on this amount from the date
of judgment of the court below till the date of actual payment.
15. We would like to clarify that no
arguments were advanced before us regarding maintenance to the
wife and we have not considered it. It would be open to her to
claim the same if permissible under the Act.
POINT NO. 3 & 4: COURT BELOW HAD JURISDICTION
16. The counsel for the appellants
brought to our notice section 27 of the Act (see below)
and submitted that two conditions are necessary under this
section:
(i)
The property must
have been gifted at or about the time of marriage.
(ii)
It must jointly
belong to the husband and wife.
According to him, most of the property is
exclusive property of the wife and no decree can be passed for
their return.
High Court Decisions
17.
Section 27 of the Hindu Marriage Act is similar to section 42 of
the Parsi Marriage and Divorce Act. Both of them provide that
the matrimonial courts have power to deal with the property
presented at or about the time of marriage. There is some
conflict among the High Courts about the true interpretation and
area of operation of these sections.
18. The High Courts disagree whether
the courts are entitled to deal with exclusive property of the
parties or not. The Delhi High Court. Orissa High Court. Jammu
and Kashmir High Court, and Punjab and Haryana High Court (see
below for citation of these cases)
have held that exclusive property of the parties can not be
dealt by the matrimonial courts under section 27 of the Act and
they should seek remedy before regular civil courts.
19. the Allahabad, High Court, Bombay
High Court, and MP High Court (see below for citation of these
cases)
have taken a contrary view and have held that exclusive property
of the parties can also be dealt by the matrimonial courts. The
Allahabad and MP High Court were concerned with the ornaments (stridhana)
given to the wife at the time of marriage. The Bombay High Court
was concerned with the ornaments given at the time of marriage
and some other property that the wife had purchased from her own
earnings during marriage i.e. property not presented at or about
the time of marriage and exclusively belonging to the wife. This
view has been taken on the basis that section 27 of the Act does
not prohibit the disposal of the exclusive property belonging to
one of the parties and matrimonial courts can deal with it under
inherent powers of the courts.
Supreme Court Decision – interpretation of section 27.
20. The
decision from the Bombay High Court was taken in appeal to the
Supreme Court. It was partly overruled in Balkrishna R. Kadam
vs. Sangeeta B Kadam (AIR 1997 SC 3652=1997 (7) SCC 500) (the
Balkrishna case). The Supreme Court held:
“It [Section 27 of
the Act] includes the property given to the parties before or
after marriage also, so long as it is relatable to the marriage.
The expression “at or about the time of marriage” has to be
properly construed to include such property which is given at
the time of marriage as also the property given before or after
marriage to the parties to become their “joint property”,
implying thereby that the property can be traced to have
connection with the marriage. All such property is covered by
Section 27 of the Act”.
21. In substance the Supreme Court in
the Balkrishna case held that property covered under section 27
must be traced to marriage and should be connected with it. In
this case cash and goods were presented at the time of ‘tilak’
or marriage. The ceremony of ‘tilak’ is normally held at boy’s
place: sometimes immediately before marriage and sometimes many
days before it; however it is part of marriage. The gifts given
at ‘tilak’ are also property given at or about the time of
marriage, they are connected with it. Cash or goods in dispute
are property within meaning of section 27 of the Act as
explained in the Balkrishna case.
22. The counsel for the husband
submitted that it was not enough that property should have
connection with marriage but should jointly belong to the
parties. According to him though some of them (sofa, almirah or
TV etc.) could be joint property of the parties, but others
(jewelry etc.) though presented at the time of marriage were
exclusive property of the wife and no decree could be passed in
respect of them. With due respect, the Supreme Court did not lay
down any such proposition in the Balkrishna case.
23. Matrimonial cases are tried by the
District Court and if Family Court has been established then by
the Family Court. They are decided by the senior Judges at the
district level and civil procedure code is applicable. The
entire proceeding is like a regular suit; though court is
required to conciliate between the parties. The Judges manning
matrimonial courts are senior enough to decide about exclusive
property on the regular side. Same procedure is applicable in
the matrimonial cases. It is correct that section 13 of the
Family Courts Act declares that a party shall not have right to
legal representation, but court can always permit legal
representation. In case complicated questions are involved,
permission for legal representation in the family court is
normally granted; more so in a case where complicated questions
regarding disposal of property are involved.
24. In case the matter is before
matrimonial court, then it is proper that all disputes relating
to the parties should be settled by one court at the same time:
leaving a part of the dispute to be decided in future in another
suit would prolong acrimony and agony. Life should be spent in a
fruitful way, rather than wasting it in constant bickering.
There seems to be no reason as to why joint property presented
at the time of marriage can be disposed of, but exclusive
property presented at the time of marriage can be disposed of,
but exclusive property presented at the time of marriage should
be disposed of separately. This will not only result in
multiplicity of the proceedings, but will also cause delay in
final settlement and start of new life by the parties.
25. Lord Denning in Allen vs. Alfred Mc
Alpine; 1968 (1) ALL ER 543 said:
‘Law’s delays have
been intolerable. They have lasted so long as to turn the
justice sour.’
It is truer in our country. We must adopt
such interpretation as to avoid delay and multiplicity of
proceedings.
26. Section 27 uses the phrase
‘property presented at the time of marriage, which may belong
jointly to both the husband and the wife’. This section has one
prerequisite as laid down in the Balkrishna case: the property
must be connected with the marriage. So far as the question of
property being jointly owned by the parties is concerned,
suffice to say that the section nowhere uses mandatory word
‘must’ as being suggested by the counsel of the husband; it uses
the word ‘may’. The phrase ‘which may belong jointly’-because of
the use of the word may-also includes within its [scope] the
property which may not belong jointly to the parties. In our
opinion, section 27 of the Act does not confine or restrict the
jurisdiction of matrimonial courts to deal only with the joint
property of the parties, which is presented at or about the time
of marriage but also permits disposal of exclusive property of
the parties provided they were presented at or about the time of
marriage.
AN OBSERVATION
27. Generally wife is a house maker and
stays at home and the husband is the earning member. He earns
and acquires property in his own name: it is treated as his
separate property. There is no decision in our country that
separate properties of the spouses may be pooled and divided
among them: at least we are not aware. However, in some parts of
the world exclusive property of the parties is treated as
community property or family asset and is divided between the
two at the time of divorce.
The reason is that house makers also work but they cannot
acquire property as they are not paid in terms of money. It is
for this reason that such laws were enacted and upheld in other
parts of the world.
28. Should we enact such a provision?
Should section 27 be amended to include joint and exclusive
property of the parties that are not presented at or about the
time of marriage? Should the matrimonial courts have power to
deal with entire dispute? Will the courts adopt procedure and
interpret the law as done in some other parts of the world under
their inherent powers even in absence of such provision? We have
to wait for the future to disclose.
CONCLUSIONS/FINDING ON THE POINT FOR DETERMINATION
29. Our
conclusions are as follows:
(a)
Under section 27 of
the Hindu marriage Act, Matrimonial courts have jurisdiction to
dispose exclusive property of the spouses provided it was
presented at or about the time of marriage.
(b)
Photostat copy of the
minutes of the panchayat was secondary evidence and was not
admissible in absence of notice under section 66 of the Evidence
Act. However, the finding regarding cash and goods mentioned in
item no. 4 and 5 of the plaint is not vitiated as it can be
sustained on other evidence.
(c)
The court below,
instead of return of the goods, ought to have decreed the suit
for return of their value in terms of money.
ORDER/RELIEF GRANTED
30. In
view of our conclusions, the appeal filed by the husband and the
cross objection filed by the wife are dismissed. However, the
decree passed by the Court below is modified that the wife
(plaintiff-respondent) shall be entitled to recover a sum of Rs.
1.75 lacs from the appellants (value of the goods mentioned at
item nos. 4 & 5 of the plaint and Rs. 75,000/- given in cash)
alongwith simple interest at the rate of 6 per cent per annum
from 6.10.1998 (date of judgement passed by the court below)
till the actual date of payment. Costs on the parties.
Date: 14.5.2003
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