Evidence supporting the claim of misappropriation of gold ornaments established a right to recover, overriding procedural objections from prior proceedings.

JUDGMENT :

P.Krishna Kumar, J.

The second appellant is the legal heir of the first appellant/first petitioner in O.P. No.1599/2013 on the files of the Family Court, Attingal. The original petition was filed seeking recovery of gold and money from the respondents. The first petitioner in the original petition was the wife of the first respondent. For the sake of convenience, the parties will hereinafter be referred to as the petitioner and the respondents. The trial court dismissed the claim for recovery of gold and money on the finding that the petitioner had failed to establish her case. The present appeal has been preferred, challenging the said judgment.

2. The marriage between the petitioner and the first respondent was solemnised on 04.05.2003. The petitioner contended that, at the time of marriage, her parents had given her 100 sovereigns of gold ornaments, the details of which were furnished in the schedule attached to the petition. It was further contended that, on the same day, her parents visited the matrimonial home and entrusted a sum of ₹3,00,000/- to the father of the first respondent. The first respondent directed her to entrust all her gold ornaments to his mother after the ceremony of ‘maruveedu’, and thereafter, she was not given back any of the said ornaments. She further alleged that the first respondent and his parents sold most of her ornaments for their personal needs and subsequently deposited an amount of ₹1,25,000/- in her bank account, which amount was later caused to be withdrawn by the first respondent.

3. The respondents denied all the allegations raised by the petitioner. According to them, the petitioner had only 40 sovereigns of gold ornaments at the time of marriage, and her parents did not give any amount as alleged. The allegation regarding the misappropriation of gold ornaments was also specifically denied. They contended that, out of the said 40 sovereigns, 30 sovereigns were sold by the petitioner and the first respondent, and the sale proceeds were deposited in her bank account. It was further alleged that the said amount was secretly withdrawn by the petitioner and her father and utilised for their money-lending activities. They also asserted that, apart from the said 10 sovereigns, nearly 13.5 sovereigns of gold ornaments given by the first respondent are still in the possession of the petitioner. The petitioner had earlier filed a similar petition before the Family Court, Nedumangad, as O.P. No.581/2006, but when the court declined to entertain her petition for attachment of the respondents’ properties, she fraudulently instituted the present petition and later withdrew the earlier petition. Hence, it was urged that the present petition is not maintainable.

4. The petitioner alone adduced oral evidence in support of her case. The petitioner was examined as PW1, Exts. A1 to A12 were marked on her side. The respondents got marked Exts. B1 to B7 in evidence through PW1. Upon consideration of the oral testimony of the petitioner and the documents produced, the Family Court concluded that the evidence adduced was insufficient to establish that the respondents had misappropriated the petitioner’s gold ornaments or that the petitioner’s parents had entrusted the amount claimed by her to the respondents.

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

6. It is contended by the learned counsel appearing for the respondents that the original petition was not maintainable consequent on the withdrawal of the earlier O.P. To substantiate the said contention, reliance was placed on the following decisions: (i) N.R. Narayan Swamy v. B. Francis Jagan (MANU/SC/0404/2001), (ii) HPCL Bio-Fuels Ltd. v. Shahaji Bhanudas Bhad (MANU/SC/1188/2024), and (iii) Ramesh Chandra Sankla and Ors. v. Vikram Cement and Ors. (MANU/SC/7810/2008). It was urged that there is no evidence to show that the respondents used any of her gold ornaments and hence the impugned order is not liable to be interfered with.

7. The trial c