Important points:
The initial burden to prove the entrustment of gold and money is on the person who claims the decree for recovery of money, and unless there are pleadings/evidence on record to suggest that the entrustment was for a specific purpose or that the entrustment was in the nature of trust or under the specific understanding that the amounts will be returned, an action for recovery of money may not succeed

JUDGMENT :

C.S.Dias,J.

Will the property inherited by an issue-less female Hindu, who dies intestate, devolve on the heirs of her father is the point that emerges for consideration in this appeal?

2. The appellant had filed O.P (OS) No.1295/2008 against the respondents before the Family Court, Alappuzha, seeking a decree for recovery of money and gold ornaments. The appellant is the mother of late Prabha Kumari, who was the wife of the 1st respondent and the daughter-in-law of respondents 2 and 3.

3. The congealed facts in the original petition are:

Prabha Kumari and 1st respondent were married on 1.9.2004. The couple was issue-less. Prabha Kumari died due to burn injuries on 13.9.2007. The Sub Inspector of Police, Pandalam registered Crime No. 541/2007 against the respondents. Prabha Kumari was given 40 sovereigns of gold ornaments worth Rs.4,00,000/- (Rupees Four lakh only), as her share in her parental properties. The appellant also gave the respondents an amount of Rs.2,00,000/- (Rupees Two lakh only), to construct a house. The respondents misappropriated the money and gold ornaments. On the death of Prabha Kumari, the appellant demanded for return of the money and gold ornaments, but the respondents refused to return the same. Hence the original petition.

4. The respondents refuted the allegations in the original petition in a joint written statement filed by them. They contended that the original petition is bad for mis-joinder of parties. Nevertheless, the respondents admitted that Prabha Kumari had 20 sovereigns of gold ornaments, out of which the 1st respondent had sold two necklaces with the consent of the deceased. The 1st respondent is in possession of a chain, two ear rings, one ring and four bangles, belonging to the deceased. However, he is not liable to return the same to the appellant, being the husband and legal heir of Prabha Kumari. The entrustment of Rs.2,00,000/-was also denied.

5. The appellant and a witness were examined as PW1 and PW2 and Exts.A1 to A6 were marked through them. The 1st respondent was examined as RW1 and Exts.B1 to B5 were marked through him in evidence.

6. The Family Court, by the impugned judgment and decree, dismissed the original petition holding that the appellant had no legal right to lay a claim for the recovery of the money and gold ornaments of the deceased and that the suit was bad for mis-joinder of necessary parties.

7. Aggrieved by the impugned judgment and decree, the appeal is preferred.

8. Heard Sri.N.Asok Kumar, the learned counsel appearing for the appellant and Sri. K.Sasikumar, the learned counsel appearing for the respondents.

9. The learned counsel appearing for the appellant argued that the Family Court has failed to appreciate the provisions of the Hindu Succession Act, 1956 ( in short “Act”), in its proper perspective. The Family Court ought to have decreed the original petition as prayed for, in light of Section 15(2) of the Act. He also contended that the Family Court ought to have allowed the original petition on the admission of the respondents that 20 sovereigns of gold ornaments were entrusted to them and the 1st respondent had sold some of the ornaments and the residue is with him. Similarly, Ext.A6 bank statement substantiates that the appellant had withdrawn an amount of Rs.2 lakh, which was entrusted to the respondents for constructing their house. Likewise, the finding of the Family Court that the suit is bad for mis-joinder of parties is untenable. He, therefore, prayed that the impugned judgment and decree be set aside and the appeal and original petition be allowed.

10. The learned counsel appearing for the respondent argued that there is no error or illegality in the impugned judgment and decree of the Family Court. The Family Court has rightly construed the provisions of the Act and non-suited the appellant. The appellant is not entitled to recover any amount or the gold ornaments of Prabha Kumari from the respondents, as the appellant is not a l