Freetus vs Ponnappan
2021 Latest Caselaw 4119 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                      &

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                          Mat.Appeal.No.369 OF 2012

          AGAINST THE JUDGMENT IN OP(OS)NO.765/2007 DATED
                   29-02-2012 OF FAMILY COURT, ALAPPUZHA
                                  -------


APPELLANT/S:

      1         FREETUS, AGED 51 YEARS, S/O. GREGORY,
                VADAKKETHAYYIL HOUSE, THUMPOLY WARD, ALAPUZHA.

      2         NIDHIN,
                -DO-

      3         NIKHIL,
                -DO-

                BY ADVS.
                SRI.MOHAN C.MENON
                SRI.K.I.SAGEER


RESPONDENT/S:

                PONNAPPAN, AGED 39 YEARS, S/O. AUGUSTIN,
                PUTHENPURACKAL, POLLETHAI P.O., ALAPPUZHA.

                R1 BY ADV. SRI.R.BINDU SASTHAMANGALAM
                R1 BY ADV. SRI.M.SUNILKUMAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.369/2012                2




                                JUDGMENT

Dated this the 4th day of February 2021 A.Muhamed Mustaque, J.

The first appellant's daughter, namely, Dainy

married the respondent on 21.10.2001 in accordance with

the customs prevailing in Christian Community. Dainy

died due to burn injuries on 07.07.2007. Two children

in the wedlock are the appellants 2 and 3. The first

appellant is the father of Dainy. O.P.(O.S) No.765/2007

was filed by the appellants for maintenance, recovery

of gold ornaments and also return of patrimony.

2. The claim was partly allowed, allowing

maintenance. However, the prayers for recovery of gold

ornaments and patrimony have been declined.

Challenging this, the appeal has been preferred.

3. We heard the learned counsel for the

appellants and the learned counsel for the respondent.

4. The Family Court found that there was no

evidence available to establish that the gold ornaments

were appropriated by the respondent. It was also

pointed out that there was no evidence to prove that

any patrimony was given.

5. According to the first appellant, he gave 26

sovereigns of gold ornaments and Rs.1,00,000/- towards

patrimony.

6. It is further alleged by the first appellant

that he being a contractor undertook the construction

of the house on behalf of the respondent. The entire 26

sovereigns of gold and Rs.1,00,000/- patrimony given

was utilised for the above said purpose.

7. Before the Family Court, the first appellant

was examined as PW1. PW2 is the friend of PW1 and PW3

is the brother of the deceased. Except Oral testimony

of Pws 1 to 3, no other evidence was available to

substantiate the allegation that 26 sovereigns of gold

ornaments and Rs.1,00,000/- were appropriated by the

respondent. The respondent denied the receipt of

patrimony as well as the gold ornaments of the

deceased.

8. Before the Family Court, only oral evidence of

both parties was available for consideration. After

weighing the oral evidence adduced by both parties, the

Family Court came to the conclusion that the appellants

miserably failed to prove their case of

misappropriation of gold ornaments and cash.

On appreciation of the rival contentions, we are

also of the view that there is no evidence to otherwise

hold that the gold ornaments and cash were appropriated

by the respondent. In the absence of any cogent

evidence before the court, we do not find any reason to

interfere with the finding entered into by the Family

Court. Accordingly, we dismiss the appeal. All pending

interlocutory applications are closed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

ln