Shaffique, J.

1. The petitioner in OP No.309/2006 is the appellant. The OP has been filed for return of gold ornaments or its value and for return of money. The Family Court partly allowed the claim against which the petitioner had preferred the appeal. 1st respondent had preferred a cross objection against the portion of the claim, which was decreed against him.

2. The short facts arising in the matter are as under and the parties are described as shown in the Original Petition unless otherwise stated. Petitioner and the 1st respondent married on 28/1/1999 as per Christian religious rites and ceremonies. It is stated that at the time of negotiation of the marriage itself, petitioner's parents had offered to pay Rs. 12 lakhs and 125 sovereigns of gold as her share out of the parents assets. The money and gold had been handed over to the respondents. However, the marriage did not succeed and they were living separately since 27/4/1999.

3. The respondent in his objection denied having received Rs. 10 lakhs by way of a cheque and contended that the said amount was utilized for purchasing a property in their joint names. He denied having received Rs. 2 lakh as cash nor having received or appropriated 125 sovereigns of gold ornaments. The above OP was tried along with OP(Div) No.310/2006 and by judgment dated 23/1/2008, divorce had been granted by the Family Court.

4. While impugning the aforesaid judgment, learned counsel for the appellant submits that sufficient evidence was available to prove entrustment of Rs. 12 lakhs and 125 sovereigns of gold ornaments and the Family Court completely erred in forming an opinion that there was no proof for payment of Rs. 2 lakhs and for giving 125 sovereigns of gold ornaments. It is submitted that the evidence of PWs1 to 3 read as a whole along with the pleadings would probablise the case of the petitioner. It is argued that in a matrimonial dispute relating to return of patrimony and gold ornaments, the evidence has to be appreciated based on the factual circumstances as well as the custom that is being followed among the members of the community. It is common knowledge that in certain areas of the State, payment of dowry or patrimony and gold ornaments is a pre requisite for any such marriage and this is also an instance where parents of the petitioner were residing abroad at Kuwait for quite a long time and they had made arrangements for her gold ornaments over a period of time. At the time of marriage, it was decided to hand over sufficient quantity of gold ornaments to the respondent's family which has been done and merely for the reason that there was no receipt for the same, it does not mean that the claim is not genuine. It is submitted that evidence of PW1 is supported by her father PW2 and an independent witness PW3.

5. On the other hand, learned counsel for respondent submits that there is no evidence to prove payment of Rs. 2 lakh and for entrustment of 125 sovereigns of gold ornaments. The photograph produced in the case by itself will show that she was wearing only minimum gold ornaments. Further, the amount of Rs. 10 lakhs paid by the petitioner's parents were utilized for purchasing a property. He had also invested money in the said property.

6. In regard to the property which is alleged to have been purchased with the money received by the respondent, the Family Court found that the document which is produced as Ext.B1, proves that the property was jointly owned by the couple. In the absence of any counter claim, no decree could be passed for releasing the right of the petitioner in the said property and his right to file a proper suit in the matter was left open. Since the payment of Rs. 10 lakh was admitted by the respondent, direction was issued to repay the said amount with interest.

7. The Family Court however found that there was no evidence to prove payment of Rs. 2 lakh. Even in regard to the gold ornaments, it was found that there was no material to indicate that