Liability for misappropriated assets in matrimonial disputes extends to all parties involved in custody, barring unchallenged defenses.

P.Krishna Kumar, J.

The appellant herein filed O.P. No. 76/2003 before the Family Court, Attingal, seeking recovery of gold and money from the respondents. The Family Court partly allowed the petition and granted relief only against the first respondent, the husband. Aggrieved by the said judgment, the petitioner has preferred this appeal.

2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the original petition. The marriage between the petitioner and the first respondent was solemnised on 26.08.1994. The petitioner alleged that at the time of marriage her parents gave her 118 sovereigns of gold ornaments. Immediately after the marriage, respondents 1 to 4 took possession of all the ornaments, weighed them, and thereafter respondents 2 and 3 kept them in their custody, representing that the ornaments would be sold and the sale proceeds deposited in a bank as a fixed deposit in the name of the petitioner. However, respondents 2 and 3 sold the ornaments and handed over the proceeds to the fourth respondent for completing the construction of her residential building at Kalamassery, thereby misappropriating the petitioner’s gold. On this basis, the petitioner sought recovery of the value of the gold ornaments, along with other reliefs.

3. Upon appreciation of the oral and documentary evidence, the trial court partly allowed the petition and directed the first respondent to return 80 sovereigns of gold ornaments or their market value at the time of realisation.

4. We have heard the learned counsel appearing for the petitioner and the fourth respondent. The main grievance of the petitioner is regarding the quantum of gold ornaments as claimed by her and also the liability of respondents 2 to 4.

5. According to the petitioner, she had 118 sovereigns of gold ornaments, which were entrusted to respondents 1 to 4. In support of this contention, reliance was placed on the oral evidence of PW1 to PW3 and Ext. A3 series marriage photographs. On the basis of the said photographs, the trial court found that the quantity of gold ornaments worn by the petitioner at the time of marriage was approximately 80 sovereigns. The court also took into account the suggestion put to PW1 by the first respondent in cross-examination that the petitioner possessed only 60 sovereigns of gold ornaments.

6. On a re-appreciation of the evidence in the light of Ext. A3 photographs, we find no reason to differ from the conclusion of the trial court that the petitioner possessed 80 sovereigns of gold ornaments. There is no material on record to substantiate the claim that she had gold ornaments in excess of 80 sovereigns, apart from her own assertion, whereas the photographs clearly justify the finding arrived at by the trial court.

7. The petitioner is mainly aggrieved by the fact that the decree was confined only against the first respondent. Learned counsel for the petitioner submitted that respondents 2 and 3 did not file any counter statement and did not cross- examine the witnesses. It was further contended that when the unchallenged testimony of PW1 was available on record, there was no justification for limiting the decree only to the first respondent.

8. We find considerable force in the above submission. In paragraphs 4 and 5 of the original petition, the petitioner specifically pleaded as follows:

“4. Immediately after the marriage the respondents 1 to 4 took all the gold ornaments from the petitioner and weighed them. After ascertaining the weight, they entrusted the ornaments to respondents 2 and 3, representing that the same would be sold and the sale proceeds deposited in a bank as fixed deposit in the na