A father-in-law cannot be held liable for recovery of gold ornaments if there is no evidence of receipt or control over the items.

J U D G M E N T

Sophy Thomas, J.

The petitioner/wife in OP No.385 of 2013 on the file of Family Court, Pala, preferred this appeal aggrieved by the decree, to the extent it exempted the 2nd respondent/father-in-law from the liability to return the gold ornaments.

2. The wife filed OP No.385 of 2013 for recovery of Rs.10,00,000/- given as patrimony as well as 105 sovereigns of gold ornaments entrusted with the respondents.

3. The 1st respondent/husband remained ex parte throughout. Respondents 2 and 3 opposed her petition contending that the money Rs.10,00,000/- received from the father of the appellant was transferred into the account of the 1st respondent/husband and that amount was utilised by the appellant and the 1st respondent. Regarding the gold ornaments, it was kept in the joint Locker of the 1st respondent and the appellant, and they were handling the same, and hence respondents 2 and 3 have no liability towards the appellant/wife.

4. The parties went on trial by examining PW1, RWs 1 to 4 and marking Exts.A1 to A20, B1 to B14, X1 and X2.

5. After analysing the facts and evidence, the Family Court found that respondents 1 and 2/the husband and father-in-law were liable to return Rs.10,00,000/- received from the father of the appellant, and the 1st respondent/husband was liable to return 105 sovereigns of gold ornaments of the appellant or its equivalent value.

6. Learned counsel for the appellant contended that in Ext.A5 agreement, respondents 1 and 2 had agreed to return the gold ornaments of the appellant. But the learned Family Court Judge passed a decree for return of gold ornaments, fastening the liability only on the 1st respondent. The 1st respondent was ex parte before the Family Court as well as before the appellate court. So the appellant is unable to recover the gold from him. Since Ext.A5 agreement shows the liability of the 2nd respondent/father-in-law also, to return the gold ornaments of the appellant, a decree has to be passed against the 2nd respondent also.

7. Heard learned counsel for the appellant and learned counsel for the respondents.

8. As already stated, the 1st respondent/husband is ex parte throughout. Pending appeal the 2nd appellant died and the additional 4th respondent was impleaded as his legal heir, apart from 3rd respondent/wife.

9. Now the question to be answered is whether the 2nd respondent could be fastened with the liability to return 105 sovereigns of gold ornaments of the appellant.

10. The learned Family Court Judge found that the appellant was having 105 sovereigns of gold ornaments, and a Bank Locker was opened on the very next day of marriage in the joint name of the appellant and 1st respondent. During cross-examination, PW1-the appellant herein admitted that a joint Locker was opened with District Co-operative Bank, Mavelikkara, on 11.12.2012, i.e., on the very next day of their marriage. It has come out in evidence that the appellant herself opened that Locker on 13.12.2012. There was nothing to show that her gold ornaments were ever entrusted with the 2nd respondent or 3rd respondent. The fact that in a settlement talk, Ext.A5 agreement was executed, by which respondents 1 and 2 agreed to hand over the gold ornaments to the appellant, will not create any responsibility on the 2nd respondent, when there was concrete evidence to show that the gold ornaments were kept in the joint Locker of the appellant and 1st respondent, over which the 2nd respondent had no access or control. So the finding of the Family Court, that only the 1st respondent husband is liable to return her gold ornaments is liable to be confirmed. The fact that the 1st respondent is ex parte and there is no chance to recover the gold from him or his assets as his whereabouts are not known, is not a ground to fasten his liability on any other person including his father, as there is nothing to show that the 2nd respondent father ever received any of her gold ornaments.

11. Regarding the money part of the decree, the