Ownership and entrustment of property must be proved for restitution claims in matrimonial disputes.

JUDGMENT Devan Ramachandran, J.

The appellant has filed this Appeal against the judgment of the learned Family Court, Palakkad, dated 22.08.2017, in OP No.722/2015.

2. The aforesaid Original Petition was filed by the appellant, seeking return of her 27.08 sovereigns of gold ornaments, along with Rs.1,00,000/- and certain household articles and dresses - which she asserted are with the respondent and is refusing to return to her.

3. The respondent, on the other hand, took the stand that the appellant neither had the aforementioned weight of gold ornaments; nor has she entrusted it or money or articles, as has been alleged with him; and hence sought the Original Petition to be dismissed.

4. The learned Family Court took the Original Petition to trial; in which, the appellant examined herself as PW1 and cited three other witnesses on her side as PW2, PW3 and PW4; while, the respondent testified as RW1 and brought RW2 to speak on his side. In addition, the appellant marked Exts.A1 to A4 on her side in substantiation of her plea; while, the respondent marked Exts.B1 to B4.

5. The learned Family Court, after evaluation of the evidence on record, allowed the Original Petition in part, directing the respondent to return the articles serialized in item Nos.4 and 5 of the petition schedule, or its value of Rs.86,500/- within a period of one month.

6. The appellant challenges the judgment and decree to the extent to which her reliefs have been denied.

7. Sri.T.N.Manoj – learned counsel for the appellant, argued that the evidence available on file establishes indubitably that every claim of his client is genuine and hence that it ought to have been granted. He argued that the learned Family Court has erred in holding that the gold ornaments had not been entrusted by her client to the respondent solely because she had not said so in Ext.B5, which is a complaint that she had preferred before the Police. He argued that this finding is factually wrong, since, in Ext.B5, his client has specifically mentioned that the gold and the money mentioned in the Original Petition had been entrusted to the respondent. He alleged that, consequently, the holdings of the learned Family Court are misdirected.

8. Sri.V.A.Johnson(Varikkappallil) –

learned counsel for the respondent, however, submitted that the evidence of RW2 limpidly establish that the appellant had no case before the Police that her gold or money had been misappropriated by his client; and that this is evident from the contents of Ext.B5 - complaint. He added that the learned Family Court has evaluated Ext.B5 vis-a-vis Ext.B1 - which is a complaint she filed before the Court of the jurisdictional Judicial Magistrate, in which she makes a volte-face and imputes that her gold and money had been taken by the respondent and his parents. He contended that the evidence of RW2 is specific to the effect that he was present in the Police Station, when Ext.B5 complaint was considered; and that the appellant had said that the gold and money were with her. He predicated that hence, the learned Family Court cannot be faulted for having entered the conclusions, as it has done in the impugned judgment and decree.

9. Before recording an opinion on the afore rival contentions, we must first note certain facts which are now beyond the pale of contest.

10. The learned Family Court has affirmatively concluded that the appellant was having 27.08 sovereigns of gold ornaments at the time of marriage and that she brought this with her to the matrimonial home. This finding has not been challenged by the respondent through cross objections; and his learned counsel – Sri.V.A.Johnson(Varikkappallil) affirmed it. The controversy in this case, resultantly, n